Allianz Australia Insurance Limited v Clarke
[2024] NSWPICMP 624
•4 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Clarke [2024] NSWPICMP 624 |
CLAIMANT: | Kevin Clarke |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 4 September 2024 |
DATE OF AMENDED DECISION: | 13 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s vehicle was rear-ended by the insured vehicle; claimant sustained multiple soft tissue injuries and subsequently developed a psychiatric/psychological injury; whether the psychiatric/psychological injury is a threshold injury; no pre-existing psychiatric/psychological condition; Medical Assessor at first instance found that there was a psychological injury (persistent depressive disorder with anxious distress) caused by the motor accident; claimant re-examined and there was the same psychological injury; Held – Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 1. The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury. Determination 2. The Review Panel confirms the certificate of Medical Assessor Wayne Mason dated |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Kevin Clarke, was involved in a motor accident on 5 November 2020 when his vehicle was rear-ended by a motor vehicle insured by Allianz.
As a result of the accident, the claimant claimed that he sustained injuries to his neck, shoulders, upper back, lower back and the right knee. He claimed that he subsequently developed a psychological injury as a result of the accident.
The insurer accepted liability to pay the claimant statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
[2] Section 4.4 of the MAI Act.
On 7 December 2021, the insurer issued a decision that the psychological injury or psychiatric injury caused by the accident was a “minor injury”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and the term “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The issue in dispute in this matter is therefore whether the claimant’s psychological or psychiatric injury, resulting from the accident was a threshold injury for the purposes of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor,[3] and pursuant to s 7.26 of the MAI Act, on review, by a review panel.
[3] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Wayne Mason who issued a Medical Assessment Certificate dated 20 December 2022.[4]
[4] Page 158 of the insurer’s bundle.
The Medical Assessor believed the claimant was involved in a relatively minor accident which did not give rise to any initial trauma-related symptoms, but as his physical condition failed to improve and he lost his job as a consequence, he began to experience passive suicidal ideation, intrusive thoughts and recurrent dreams of the accident.[5]
[5] Page 166 of the insurer’s bundle.
Based on the claimant’s clinical state, the Medical Assessor diagnosed a persistent depressive disorder with anxious distress which has arisen secondarily to the claimant’s physical injuries and subsequent impairment in terms of work and recreational activities.[6]
[6] Page 166 of the insurer’s bundle.
THE REVIEW APPLICATION
On 17 January 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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.[7]
[7] Section 7.26(5) of the MAI Act
CONDUCT OF THE REVIEW
According 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 Commission. On this occasion, the Panel is constituted by Medical Assessor John Baker, Medical Assessor Michael Hong and Member Maurice Castagnet (the Panel).
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 Medical Assessor.[8]
[8] 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, the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[10] Section 7.26(6) of the MAI Act.
MAI Act
A threshold injury is defined in s 1.6(1) of the MAI Act:[11]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[11] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that “acute stress disorder” and “adjustment disorder” have the same meanings as in DSM-5.[12]
The Motor Accident Guidelines
[12] DSM-5 is the document entitled Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
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 motor accident is a threshold injury for the purposes of the 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 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)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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Causation of injury
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13]
[13] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[14] [2021] NSWSC 13 (Raina) at [65].
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There 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
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it 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.
6.7 There 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 PANEL
Pursuant to the Panel’s directions, the claimant filed a paginated and indexed bundle of documents comprising of 173 pages, and the insurer filed a paginated and indexed bundle of documents comprising of 176 pages.
On 12 June 2024, the insurer made an application to admit a late document. The document was an Allied health recovery request form dated 28 February 2024 submitted to the insurer by the claimant’s treating psychologist, Kathleen McLaren. The claimant did not respond to a request by the insurer to consent to the admission of the document into evidence. Given the date that the document came into existence, its relevance to the resolution of the real issues in the proceedings and the fact that the claimant would have had access to the document shortly after 28 February 2024, the Panel has allowed the document into evidence.
The Panel considered all the documents filed by the parties.
SUBMISSIONS
The insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a) the subject accident was a low-speed accident where the claimant’s vehicle was hit in the rear by the insurer’s vehicle when stationary at traffic lights. Neither the NSW Police Force nor the NSW Ambulance service attended the scene. Photographs of the damage to the claimant’s vehicle showed a small dent with some paint removed. The insurer referred to the opinion of bio-medical and mechanical engineer, Michael Griffiths who concluded that there was no possible mechanism of physical injury arising from the accident;
(b) the claimant’s application for personal injury benefits and certificates of fitness did not contain a diagnosis of psychiatric or psychological injury, and
(c) the report of a complaint by the claimant of workplace bullying and harassment in the clinical records of the treating psychologist would indicate that any psychological or psychiatric injury is not the result of the accident but rather due to the claimant’s work stresses.
The claimant’s submissions
The claimant’s submissions may be summarised as follows:
(a) the single Medical Assessor’s finding that the claimant had suffered a non-threshold psychological injury is based on his examination of the claimant and on his examination of the evidence. In these circumstances, the single Medical Assessor was within his right to decide the weight he would place of any particular evidence to arrive at his conclusion on the basis of his skill and expertise;
(b) it is apparent that the single Medical Assessor considered the insurer’s submission in relation to the workplace issues because at paragraph 19 of his reasons he rejected the formulation by the insurer that the claimant’s psychiatric condition was caused as a result of disagreements with his employer, and
(c) it is not within the single Medical Assessor’s qualification and expertise as a psychiatrist to comment on the bio-medical mechanisms of the physical injuries because he was not assessing the cause of the claimant’s physical injuries.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence relating to the injury being assessed may be conveniently summarised as follows.
Pre-accident medical records
There was no material before the Panel that revealed any history of any pre-existing psychological or psychiatric condition.
The claimant’s application for personal injury benefits
In his application for personal injury benefits dated 10 November 2020 (five days after the accident), the claimant described his injuries as follows:
“● Neck and shoulder pain,
· Upper and lower back pain, and
· Knee pain in right leg.”[15]
Post accident medical records
Nepean Hospital
[15] Page 10 of the insurer’s bundle.
The clinical records of the Nepean Hospital recorded the following:
“Kevin Clarke presented to this facility after a low speed MVA. He reports he was at a traffic light when he was rear-ended by another vehicle which was approximated to be travelling at 40kph. On review he demonstrated some spinal tenderness and right knee tenderness with swellin [sic] which was further investigated with a CT C-spine and an Xray of his right regular analgesia then he should present to his GP for possible MRI and/or USS to look for ligamentous damage”.[16]
[16] Page 38 of the insurer’s bundle.
The claimant’s Glasgow coma scale score (GCS) was recorded as 15 suggesting there was no sign of a closed head injury. The claimant was observed as alert and oriented.[17]
[17] Page 39 of the insurer’s bundle.
Dr Chad Lim
The clinical records of general practitioner (GP) Dr Chad Lim showed that the claimant attended multiple consultations in the period from 6 November 2020 for treatment of his injuries to the neck, right knee, left shoulder and lower back.[18]
[18] Clinical records of Myhealth Potts Point – pages 117-134 of the claimant’s bundle. The available records were dated up to 27 July 2021.
A Certificate of fitness issued by Dr Lim dated 9 November 2020 recorded the physical injuries as whiplash injury and right knee sprain. Dr Lim certified the claimant as having no capacity for work from 5 November 2020 to 16 November 2020.[19]
[19] Page 14-16 of the insurer’s bundle.
A later Certificate of fitness issued by Dr Lim in September 2021 certified the claimant as having no capacity for work and intermittent periods of capacity for some type of work up to 22 October 2021.[20]
[20] Pages 136-142 of the claimant’s bundle.
Dr Lim referred the claimant to psychologist, Kathleen McLaren for treatment. In his letter of referral dated 19 January 2021, Dr Lim stated the following:
“[the claimant] was involved in a motor vehicle accident in November last year. This was in the course of his work. While mild in nature – he ended up surprisingly sustaining a left shoulder injury needing surgery for correction. His employers have been less than supportive, and he is on some degree of pain currently. All of these factors contributed to him becoming depressed.”[21]
[21] Pages 51-109 of the claimant’s bundle.
Kathleen McLaren
The clinical records of Ms McLaren showed that the claimant attended about 20 sessions of treatment including various sessions of cognitive behavioural therapy (CBT) during the period from 6 February 2021 to October 2021.[22]
[22] Pages 51-109 of the claimant’s bundle.
An Allied health recovery request form dated 28 February 2024, submitted to the insurer by Ms McLaren recorded a diagnosis of adjustment disorder with mixed anxiety and depressed mood.[23]
[23] The insurer’s late document.
Ms McLaren recorded that during the period of treatment, the following symptoms and signs were present: vivid dreams, flashbacks, waking up from dreams agitated, irritable, anxiety and depressed noted, alcohol as antidepressant, disordered sleeping, rumination, emotion dysregulation, feelings of hopelessness, worthlessness, helplessness, cognitive deficits, reduced attention to physical care, low motivation, muscle tension, heart palpitation, breathing difficulties, suicidal ideation, social withdrawal, heightened vigilance to cues of “danger”, feelings of exhaustion and loss of feelings of pleasure.[24]
[24] Page 2 of the insurer’s late document and pages 51-109 of the claimant’s bundle.
Ms McLaren’s clinical notes showed multiple entries relating to the claimant being stressed about his job and his employer. Examples were: he believed that the company was trying “to catch him out”;[25] he was “thought of as lazy”; [26] hopeless; [27]“employer tried to make out like he was faking it” for being on Workcover;[28] “report says that not being believed hinders recovery”; the company took back the cost of his immigration sponsorship which was “illegal”;[29] the more he thinks about the company, the more flashbacks (of the accident) come up;[30] he lost his job because he did not return to work, he had a breakdown, he thought about jumping in front of the train; [31] losing his job broke the camel’s back;[32] the company told the workers compensation insurer that they replaced him, which was a lie.[33]
[25] Page 109 of the insurer’s bundle.
[26] Page 109 of the insurer’s bundle
[27] Page 107 of the insurer’s bundle.
[28] Page 106 of the claimant’s bundle.
[29] Page 104 of the insurer’s bundle.
[30] Page 100 of the insurer’s bundle.
[31] Page 84 of the claimant’s bundle.
[32] Page 84 of the claimant’s bundle.
[33] Page 85 of the claimant’s bundle.
Dr Timothy Yeoh
The claimant was treated by shoulder and knee surgeon, Dr Timothy Yeoh. Dr Yeoh’s clinical records showed that he was treated for injuries to the left shoulder and the right knee, in the period from December 2020 to August 2021.[34]
[34] Pages 50-67 of the claimant’s bundle.
Dr Yeoh expressed the opinion that an MRI scan (performed on 4 December 2020)[35] showed a posterosuperior labral tear just posterior to the biceps insertion which was not reported.[36]
[35] Page 151 of the insurer’s bundle.
[36] Page 52 of the claimant’s bundle.
In January 2021, Dr Yeoh performed a left arthroscopic SLAP repair and biceps tenodesis.[37]
[37] Page 53 of the claimant’s bundle.
In terms of causation of the labral tear, Dr Yeoh noted that the claimant never had any shoulder symptoms until the accident and at the examination on 2 December 2020, the claimant displayed intense shoulder pain and irritability of the superior labrum. In the absence of any pre-existing injuries, Dr Yeoh believed that it was unlikely for the left shoulder injury to have been caused by anything else but the accident.[38]
[38] Page 56 of the claimant’s bundle.
The claimant was treated with multiple injections of Platelet-rich plasma (PRP) for his right knee injury.[39]
[39] Page 57 of the claimant’s bundle.
On 6 August 2021, Dr Yeoh noted that an MRI scan of the right knee (performed on
27 July 2021)[40] showed a medical femoral condyle stress fracture. Dr Yeoh believed that the claimant needed to offload the knee, and he prescribed a crutch and protected weight-bearing for six weeks.[41][40] Page 143 of the claimant’s bundle.
[41] Page 59 of the claimant’s bundle.
Medical Assessor Assem
The claimant was assessed by Medical Assessor Assem on 25 July 2022 to determine whether the claimant had sustained threshold physical injuries. On 1 August 2022, the Medical Assessor issued a certificate finding that the claimant’s injuries to the cervical spine, left shoulder and right knee were soft tissue injuries caused by the accident and were threshold injuries for the purposes of the MAI Act.[42] On 2 May 2023, a Review Panel revoked the certificate of Medical Assessor Assem and issued a replacement certificate coming to the same conclusion but for different reasons. The Review Panel also found that the motor accident caused soft tissues the claimant’s lumbar spine and right wrist and were thus threshold injuries for the purposes of the MAI Act.[43]
[42] Page 168-176 of the insurer’s bundle.
[43] Page 144 of the claimant’s bundle.
Biomechanical engineering report
In a report dated 26 October 2021, biomechanical and mechanical engineer, Michael Griffiths expressed the opinion based on the material before him, including the photographs of the damage to the two vehicles involved in the accident, the motor accident involved a low-speed collision between the claimant’s vehicle and the insured truck. Mr Griffiths concluded that there was no possibility that the claimant’s physical injuries were caused by the accident.[44]
[44] Page 110-149 of the insurer’s bundle.
Medico-legal evidence
Dr Glen Smith, psychiatrist, was qualified by the claimant. He conducted an assessment of the claimant via audio-visual link. His report dated 9 November 2021 is in evidence.
In Dr Smith’s opinion, the claimant presented with symptoms consistent with the diagnoses and adjustment disorder with mixed anxiety and depressed mood, in the context of persistent pain and limitation of functioning.[45]
[45] Page 34-40 of the claimant’s bundle.
Dr Smith assessed the claimant’s psychiatric injuries as giving rise to whole person impairment of 24%.
Dr Andrew Porteous, occupational physician, was qualified by the claimant. He conducted an assessment of the claimant via audio-visual link. His report dated 19 August 2021 is in evidence. His diagnoses were that as a result of the accident, the claimant sustained soft tissue musculoligamentous sprain injuries to the cervical spine, left shoulder, lumbar spine, and right knee.[46] He assessed these injuries as giving rise to a whole person impairment of 13%.[47]
[46] Page 46 of the claimant’s bundle.
[47] Page 48 of the claimant’s bundle.
RE-EXAMINATION
Medical Assessor Baker and Medical Assessor Hong conducted a re-examination of the claimant via audio-visual link on behalf of the Panel on 20 June 2024.
Psychosocial history and pre-accident history
The claimant was born in Ireland and came to Australia in 2018. He reported that his father was an electrician, and his mother was a hairdresser. There were always a lot of people around, a lot of friends, cousins and family. They were well-connected and well-liked in the community. The claimant said it was a very easy upbringing, there was never any bullying or major illnesses. He grew up with his parents and was the youngest of three siblings and has two sisters. His family is all overseas now.
In terms of general medical history, he does not have cardiac, thyroid, neurological or liver disease.
He does not use recreational drugs and does not have an alcohol use disorder. He used to drink eight pints at parties, however since the accident, he rarely drinks as he found alcohol to have a depressive effect on his mood.
He is not aware of a family history of mental illness.
He does not have a forensic history.
The claimant has not had a previous motor accident.
The claimant does not have a past psychiatric history.
After 12 years of school, he worked in a mechanic’s garage assisting with servicing cars. He went to college and studied to be a computer network technician which took him two years to finish. He then started an electrician apprenticeship. He was a qualified electrician prior to his arrival in Australia.
After coming to Australia, he has not studied. He has always worked as an electrician. He received a sponsorship from his employer. He was working for his sponsor at the time of the motor accident. He is now a permanent resident.
History of the motor accident
On 5 November 2020, the claimant was working and driving a VW Caddy, a work van. He was in Kingswood on his own. Because of the traffic, he had stopped at traffic lights, that had turned red. Whilst stationary, a medium-sized Isuzu truck rear-ended him. He remembered he was sitting there and then suddenly felt dizzy. He did not lose consciousness and then discovered he was rear-ended. His airbags were not deployed. He looked in the rear-view mirror. He then said that the other driver came to talk to him and apologised. Apparently, the other driver had fallen asleep whilst driving the truck home after finishing nightshift. There were two people in the truck. The claimant remembered he exited his van and exchanged driver’s licence details with the truck driver. He recalled it was raining that day, and some people beeped at them. He remembered during the accident he had severe chest pain and pain in the shoulder. He did not “feel right” and started worrying it was going to be "the end of my sponsorship".
The ambulance and police did not attend.
The claimant then drove to the petrol station and called his supervisor, who told him to go to the hospital. He attended Nepean Hospital and remembered being put in a neck brace and having a CT scan. Subsequently, he had surgery on his left shoulder in January 2021. He had three PRP injections and two cortisone injections in his right knee. But even now, he still suffers from right knee pain. He said he has neck nerve impingement symptoms every day and said the pain goes up and down his spine. He still has right shoulder problems. He also has a right wrist cyst that comes and goes, and his right wrist pain flares up intermittently.
History of symptoms and treatment following the motor accident
The claimant has never suffered a psychological problem before and said normally, he said he is quite the opposite. He was happy-go-lucky and always outside doing things with his friends. He used to drive everywhere, and never had any problems on the road. He felt anxious after the subject accident and 6-8 weeks later, he started to become depressed because he was suffering severe pain and needed surgery. He described having problems with sleeping, grinding his teeth, and "stuff going around in my head". He started having problems with his concentration and said he would stumble over words and feel his head become "scrambled". He also said he was very upset because he then lost his job and sponsorship.
The claimant reported that although he had driven the work van right after the accident, he has not driven since because he does not have a car. He lives in Bondi Junction and uses a train or Uber and has no need for a car. On specific enquiry, the claimant said that he would prefer not to be in a car because even when he uses Uber, he feels anxious and tells the driver not to talk and to focus on driving. He said if he absolutely has to and he has a car, he can drive.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant worked at Superior Fire System as a full-time electrician for about 18 months and had not had any problem with his employer before the accident. After the accident, he could not return to work. He said he was only allowed to do five hours four days a week with a lifting capacity of 8 kg due to his neck problem and the normal work was physically very demanding. He did not feel supported by his employer.
Eventually, they agreed for the claimant to return to light-duty work but then he needed surgery. The claimant remembered talking to the boss and the boss's ex-wife, who also worked there. He felt stressed by the way he was managed by them. Because of his physical injuries, he could not go back to work and then they terminated his employment six months later. He has not done any other work since.
The claimant reported being on workers' compensation now, which is about to end. He said his workers’ compensation claim was for his physical injury sustained in the motor accident. He said he has a psychological injury, anxiety and depression from the accident. The claimant said he never submitted a workers' compensation claim for bullying or harassment.
The claimant has not had further car accidents or sustained other psychological injuries.
Current symptoms
The claimant reportedly feels depressed, angry, sad, and alone. He has been this way the majority of the time, but he can cheer himself up by watching comedy podcasts and videos.
The claimant said he was 89kg before the subject accident and then gained weight, and was 97kg, and recently 92kg. He has no appetite and sometimes does not eat for a day. He reported having chronic sleep difficulties.
He described having reduced concentration and memory and described his focus as "foggy, I day dream" and said he talks too fast and "trips over words" since the accident.
He has suicidal thoughts, and he stated that he would never attempt suicide.
He feels anxious and described worries about finance and not having a job. Being a passenger also makes him anxious. He has been irritable. His self-esteem is low, he feels worthless. He has random bad dreams, about not having a job and dreams about "whatever I am worried about".
Current and proposed treatment
The claimant is currently taking the following medication:
· Imovane at night;
· Norflex morning and night, and
· Gabapentin morning and night.
He has been consulting psychologist, Kathleen McLaren, since early 2021. Recently he attended once every two weeks. He has not seen other mental health clinicians nor had a psychiatric admission.
The claimant’s GP has discussed an antidepressant medication, and he did not engage with the recommendation.
There are no proposed treatments.
Clinical examination
Mental state examination
The claimant had a crewcut hairstyle and light beard and was neatly groomed. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was not restricted in his affect range and reactivity. He smiled and laughed intermittently.
The claimant spoke with a mild accent and was easy to comprehend. He spoke spontaneously and rapidly, and he was asked him to slow down at times. The claimant gave a clear history and had good concentration. The claimant reported his mood as depressed, angry, and sad. He reported suicidal thoughts without intent to harm himself.
Current functioning
The claimant attends to the household chores and shopping. He tends to buy Youfoodz premade meals or takeaway food and has not been cooking much since the accident.
He goes to the gym, 100m from home on most days to do his rehabilitation exercises.
He said his friendships are fine and he has not had a fall-out with anyone. He has a close relationship with his family who are all overseas.
He has not read a book for a long time and reported some concentration difficulties. He spends time scrolling on his mobile phone and reads newspaper articles.
He showers daily if he goes out. He does not shower for a day if he does not go out.
The claimant is 34 and living with three share mates in an apartment in Bondi Junction. He has his own room. He has no current partner or dependents.
He has never been married. He was in a one-year relationship, and they were not de facto partners. He said about three months after the accident, the relationship ended. He said in hindsight, the relationship was probably going to end anyway. He said the change in his attitude after the accident and his irritable mood, made the relationship harder.
He does physiotherapy on Wednesday and Friday. After he wakes up in the morning, he usually has breakfast and takes a walk or gets coffee with a friend.
He said if he has money, he will go out, for example, to the pub, and this might be once a week. But mostly, he doesn't have much money, so he cannot afford to drink alcohol with others.
The claimant has not gone to the cinema for about a year. He says he has also missed some events such as friends' birthday parties since the accident.
He worries about his future and doesn't know what's going to happen. He has been actively looking for work, but he says that electrician work is very physically demanding. He tries to look for retail work, but he has no experience. He said his next attempt to find work is to ring to see if the Irish Pubs need a bartender.
Before the subject accident, he was quite active. He said he enjoyed going out with friends going to Bondi Beach, going to the gym, jogging and going to the pub.
Comments of consistency
There was no inconsistency identified.
Diagnosis
In summary, the claimant had no prior psychiatric problems or problems with his employer. After the accident, he suffered physical injuries which placed ongoing restrictions on his physical capacity, and he has chronic pain. About six to eight weeks after the accident, the claimant started becoming severely depressed in the context of his physical injuries and inability to work. His depressive symptoms have persisted. He was persistently depressed for more than two years, and more than 50% of the time. The claimant’s psychological injury is caused by the motor accident and is consistent with persistent depressive disorder with anxious distress.
The claimant fulfils the DSM-5-TR criteria for a persistent depressive disorder with anxious distress: the claimant has depressed mood for most of the day, for more days than not, for at least two years
He also endorsed the following symptoms:
· appetite changes and weight gain;
· insomnia;
· low self-esteem, and
· poor concentration.
During the two-year period, he has never been without the depressive symptoms above for more than two months at a time.
He has not fulfilled the DSM-5-TR criteria for a concurrent persistent major depressive episode as his depressive symptoms is not pervasive.
There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
His psychological symptoms are not better explained by Schizophrenia or a related psychotic disorder.
His symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition.
His symptoms cause impairment in social and occupational functioning.
Causation
The claimant had no prior psychiatric problems or problems with his employer. After the accident, he suffered multiple soft tissue injuries which placed ongoing restrictions on his physical capacity as well as causing chronic pain. About six to eight weeks after the accident, the claimant started becoming severely depressed in the context of physical injuries and inability to work.
Aside from the accident, which caused the claimant's physical injuries and pain, he also described difficulty with his employer and did not feel supported by them. The workplace experience has not produced an additional psychiatric injury and is not the primary cause of his psychiatric injury.
The Panel finds there is more than a negligible contribution from the subject accident to the claimant’s current psychological injury.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the psychological injury sustained in the motor accident was or was not a threshold injury, as defined under 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: See Insurance Australia Group Ltd v Keen[48] and Insurance Australia Ltd v Marsh.[49]
[48] [2021] NSWCA 287 at [40], [41] and [45].
[49] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of the Panel’s Medical Assessors.
The Panel finds that the claimant suffers from a psychiatric injury - persistent depressive disorder with anxious distress caused by the motor accident. This a not a threshold injury for the purposes of the MAI Act.
CONCLUSION
For these reasons, the Panel confirms the certificate issued by Medical Assessor Mason on 20 December 2022.
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