Allianz Australia Insurance Limited v Drame
[2025] NSWPICMP 620
•19 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Drame [2025] NSWPICMP 620 |
CLAIMANT: | Sekou Drame |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Wayne Mason |
MEDICAL ASSESSOR: | Alan Doris |
DATE OF DECISION: | 19 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s review of Medical Assessment Certificate (MAC) of whole person impairment (WPI) under section 7.26; psychiatric injury; original finding of post-traumatic stress disorder, persistent depressive disorder, and 26% WPI; issue of reliability of claimant’s evidence, and degree of impairment for various areas of function; Held – Medical Assessors diagnosed a panic disorder; assessed psychiatric impairment only with no contribution from physical in accordance with clauses 6.214 and 6.215 of the Motor Accident Guidelines; WPI 6%; MAC revoked; no issue of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Shen dated 30 April 2024. 2. Certifies that the degree of the claimant’s permanent impairment resulting from the injuries caused by the motor accident on 26 April 2019 is 6% which is not greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Sekou Drame was involved in a motor accident on 26 April 2019. He was stationary at traffic lights when his car was hit from behind by another car.
Mr Drame says he suffered physical injuries to his neck and lower back in the accident and developed psychological symptoms on the night of the accident and these have continued. Mr Drame made claims for statutory benefits and then damages against Allianz, the third-party insurer of the vehicle that Mr Drame says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in his damages claim and Mr Drame referred that dispute to the Personal Injury Commission (the Commission) for assessment. Mr Drame has referred only his psychological symptoms for assessment and there has been no physical assessment.
On 30 April 2024 Medical Assessor Shen determined Mr Drame had a WPI of 26% which is of course greater than 10%. The insurer was dissatisfied with that result and lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 11 July 2024, a delegate of the President, Ms Wigan determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on
6 March 2025 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Mr Drame’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Permanent impairment assessment - Guide and Guidelines
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 7.21. The current version of the Guidelines is Version 9.3.
The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS). The Guidelines also say that the mental and behavioural chapter of the AMA 4 Guides are to be used as “background or reference only”.[4]
[4] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[5]
[5] Clause 6.213 of the Guidelines.
The PIRS provides in cl 6.219 for six areas of function:
1.219.1 self-care and personal hygiene;
1.219.2 social and recreational activities;
1.219.3 travel;
1.219.4 social functioning (relationships);
1.219.5 concentration persistence and pace, and
1.219.6 adaptation.
The PIRS then provides at cl 6.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury.”
The impairment may be adjusted for treatment[6] that is treatment such as medication being consumed to treat the psychiatric condition.
[6] See cls 6.222 – 6.223 of the guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[7]
[7] See cls 6.225 – 6.228 and table 17.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shen’s, further medical assessments and the review of medical assessments by this Panel.[8]
[8] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Shen examined the claimant on 29 April 2024 and issued his certificate on 30 April 2024. The Medical Assessor confirms at [2][9] that he was asked to assess a “psychiatric injury”.
[9] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
At [8] – [10] the Medical Assessor takes the following history:
(a) the claimant is married with two young children;
(b) before the accident he had a good relationship with his wife and his son, and his daughter was born after the accident;
(c) he came to Australia in 2011, and his wife came 10 years later in November 2021;
(d) since the accident he has been more distant from his wife, he contacted her less when she was overseas, and they separated a year ago;
(e) his relationship with his children is strained and his sister helps him with them;
(f) before the accident he made a lot of friends and would play soccer with them and he was trying to get involved in acting in attempts to join the movie industry. Since the accident he has lost friends, lost interest in social activities and events;
(g) on the day of the accident, he was driving between clients’ homes. He stopped at red traffic lights and was rear-ended by the other car. Airbags did not deploy, he hit his head against the steering wheel, and he lost consciousness;
(h) he sustained injuries to his neck and lower back;
(i) he developed psychological symptoms including insomnia and bad dreams about the accident, and
(j) he saw a psychologist which was of mild benefit and then saw a few different psychiatrists with no benefit and has stopped taking his medication.
The claimant reported pain in his neck and lower back.
He reported the following psychiatric symptoms:
(a) intrusive recollection of the accident three or four times a week;
(b) ongoing nightmares about the accident;
(c) triggers when seeing accidents or videos or thinking about the accident or when his pain is aggravated;
(d) he avoided driving;
(e) his world is ruined, he blames himself, has constant feelings of fear, and struggles to enjoy anything;
(f) he is more irritable, hypervigilant outside the house, has impaired concentration and sleep disturbance;
(g) he feels depressed most of the time;
(h) his appetite is poor, and his weight has fluctuated, and
(i) he has suicidal ideation.
The claimant reported that before the accident he would shower twice a day, change his clothes every day but now he showers once or twice a week due to pain, he relies on his sister to cook due to weakness in his lower back and neck and also because of panic attacks. His sister does the cooking. Before the accident he could read for two to three hours whereas now he can read for three to five minutes. He worked in community services as a support worker but has been unable to work at all due to physical symptoms and panic attacks.
At [19], Medical Assessor Shen diagnoses a post-traumatic stress disorder and persistent depressive disorder. At [20] he relates the development of these symptoms to the accident.
His impairment was assessed as:
(a) self-care and personal hygiene class 2;
(b) social and recreational activities class 3;
(c) travel class 3;
(d) social functioning class 4;
(e) concentration, persistence and pace class 3, and
(f) adaptation class 5.
The aggregate score of the above was 20 and the median class value 3 resulting in a WPI of 26%. While he said there was no pre-existing impairment, Medical Assessor Shen completed the table assessing an aggregate score of 6.
ISSUES FOR DETERMINATION
Insurer’s submissions[10]
[10] The numbers in square brackets are a reference to the paragraph number in the submissions.
The insurer submits at [10 – 15] that the Medical Assessor did not explain how each of the criterion for a post-traumatic stress disorder had been met and that it was not a significant traumatic event (in order to fulfil criterion A).
The insurer submits at [17] there is no reference to the claimant being able to travel to Guinea (and that he remained there for eight months due to COVID-19). The insurer submits at [18] the claimant is able to walk his children or drive them to school and submits a class 2 impairment would be more appropriate.
The insurer submits at [19] – [20] the claimant’s history of having no previous conditions is inconsistent with the evidence and refers to an email suggesting the claimant had a Workcover claim at the time of the accident and a brain scan suggesting “unexplained nodules” in his brain.
The insurer submits the Medical Assessor did not consider the five legal matters allegedly involving the claimant including three local court matters and two NCAT matters. The insurer complains at [22] that the Medical Assessor did not engage with the medical evidence.
The insurer also submits at [24] that none of the inconsistencies in the material was put to the claimant.
Claimant’s submissions
The claimant says at [13] the Medical Assessor has referred to the AMA 4 Guides and the Motor Accident Guidelines and has given “detailed reasoning” for the six classes of assessment.
The claimant says at [16] that he returned to Guinea in 2020 to bring his wife and child to Australia as his wife had not travelled here before. The claimant says he had provided a response to this allegation in his submissions which were before the Medical Assessor.
The claimant submits at [17] that he does not have a class 2 impairment for travel and should be assessed as class 3 because he relies on his sister as his support person.
The claimant appears to accept at [18] having a Workcover claim and says he may have returned to work, but his symptoms got worse, so he had to stop.
The claimant says at [19] that his civil and criminal matters were addressed in the submissions dated 8 February 2024.
The claimant says at [21] that he had responded to the inconsistencies in his
8 February 2024 submissions which were before the Medical Assessor and that the Medical Assessor was entitled to rely on his own clinical judgment and skills.
The insurer’s original submissions
The insurer’s submissions lodged with the original application had raised issues of inconsistency in the claimant’s history and suggested self-reports from the claimant should be treated with caution.
The insurer had also raised an issue of causation noting the late reporting of complaints and that it was two years after the accident when the first complaints of psychological symptoms are reported.
The insurer had filed additional submissions before the medical examination with Medical Assessor Shen. These raised a number of other matters concerning the claimant’s reliability and the issue of causation.
The claimant’s 8 February 2024 submissions
The claimant provided detailed submissions in response to the insurer’s submissions in the original assessment.
The insurer had said that Dr Young reports the claimant was taken to hospital and remained there for 24 hours under observation – the claimant says:
(a) he rang a friend who collected him and took him to his GP, and
(b) his friend took him to hospital two days later.
The insurer has said that the claimant reports being unable to work since the accident however the claimant did return to work on 29 April 2019 – the claimant says:
(a) he did return to work but could not perform his duties;
(b) he had trouble sitting due to neck pain and bending, and
(c) his symptoms worsened so he stopped work.
The insurer had said that the claimant’s payslips suggest he had returned to driving after the accident – the claimant says:
(a) he did return to work but not driving;
(b) he did not want to risk his job, and
(c) he paid a friend (who he named as Rodriga) to drive him around to his clients for three to four weeks until he was too unwell to continue.
The insurer says the employer has a history of the claimant continuing to work until early July when the claimant complained the cold weather was making him worse and he made a motor accident and then Workcover claim in August after the MRI scan of his brain. The claimant confirms he attempted to work but he stopped as his symptoms worsened.
The insurer says the claimant told the rehabilitation advisor on 19 September 2019 that he was driving locally and had purchased two new cars after the accident – the claimant says:
(a) his vehicle was written off and he purchased his friend Rodriga’s car;
(b) he sold the car when he stopped work, and
(c) when his psychologist encouraged him to drive, he bought an old car and drove with his sister however had a panic attack in 2022 and stopped driving altogether.
The insurer had said the claimant renewed his driver license in June 2021 advising the relevant government department that there were no medical conditions affecting him. He had obtained a ticket for using his mobile phone while driving in July 2022 – the claimant says:
(a) one day he was driving his car;
(b) he had a panic attack and used his phone to call his sister, and
(c) he was fined and successfully went to court to fight the fine.
The insurer had referred to the claimant returning to Guinea in March 2020 and that he was there for eight months due to COVID-19. The claimant says he was going to collect his wife and child who had never travelled to Australia before and the family returned together in November 2020. The claimant confirms he and his wife separated after the accident, because of the accident and he is now the primary carer for his children.
The insurer had referred to social media extracts that confirm the claimant has travelled and continued to socialise and is working as a digital creator. The claimant says:
(a) he is not working or earning income as a digital creator, and
(b) he has posted duets on social media which are a video posted side by side with another creator’s video played at the same time.
The insurer had obtained information about five court matters. The claimant says:
(a) in September 2015 he went to court to challenge a fine for his L plate falling off;
(b) on 21 August 2020 he was in dispute with his landlord about his rent and he proved he had paid it with a credit card and the matter did not proceed;
(c) on 26 July 2022 the claimant fought and won in court the matter over his mobile phone use while driving, and
(d) on 26 October 2023 he had applied to NSW housing for a transfer and attended a conciliation which resolved the issue.
The insurer refers to the claimant’s two bank accounts. While one of them revealed income from Centrelink the other revealed unexplained deposits suggesting an alternative sources of income. In addition, the insurer notes payments made to Upskill and Licenses 4 work suggesting he has explored further work and study options. The claimant says:
(a) there are no unexplained deposits;
(b) he says he borrows money from his sister and pays her to help care for his children;
(c) he has borrowed money from a friend;
(d) he transfers money from one (Centrelink) account to the other as he cannot make payments from the first account;
(e) his sister uses his second account to transfer money to the family in Guinea, and
(f) the claimant paid for applications to attend two short courses.
The insurer had referred to a consultation note with Dr Komonen dated 12 August 2019 and a disagreement over a medical certificate. The claimant says this was not the claimant’s usual doctor and he was not familiar with the claimant’s circumstances.
The insurer had referred to a consultation with Dr Michael at Chipping Norton who certified the claimant unfit to work (due to a dust or allergic reaction) from 26 April 2019 to
10 May 2019 (with no reference to the car accident).
The insurer had referred to other matters regarding causation:
(a) the claim form does not refer to psychiatric injury;
(b) the hospital notes do not refer to any psychiatric injury or complaint;
(c) there is no mention of psychological or psychiatric symptoms in 21 attendances on various doctors after the accident, and
(d)
the first medical attendance referencing psychological symptoms was on
9 April 2021 nearly two years after the accident.
The claimant says that the treating practitioners who the claimant has seen have not given evidence or had their evidence tested and that “for a person with a foreign background and some problems of English expression” problems may occur with histories. The claimant also says that a psychological injury can evolve over a period of time.
Procedural matters
On 11 March 2025 the Panel issued directions to the parties. The Panel noted the claimant’s physical injuries and requested the bundle focus on the claimant’s psychological injuries. The Panel also requested up to date treating documents and photographs or documents concerning the nature of the accident and damage done to the vehicles.
The insurer’s bundle of 328 pages was uploaded on 28 March 2025 and the claimant’s bundle of 33 pages was received on 24 April 2025.
The Panel met on 29 May 2025 and reported to the parties on 30 May 2025. The Panel requested additional documents from the insurer and details of the psychologists and psychiatrists who had treated the claimant since the accident.
The parties were advised of the re-examination date.
Responses from the parties
Claimant
The claimant responded by providing a list of the psychologists and psychiatrists who have treated the claimant along with additional clinical notes:
(a) Sue Exton from 4 June 2021;
(b) Corner Youth Service from 11 June 2021;
(c) Dr Modem on 2 June 2021;
(d) Dr Kahill at Bankstown Mental Health clinic from 6 May 2021, and
(e) Chirstina Gilto.
A summary of the notes will be included later in these reasons.
Insurer
The insurer provided a copy of the claim form and certificates of fitness in chronological order. The insurer also provided records from a number of medical practices.
The insurer lodged additional submissions with the additional documents. The insurer says:
(a) any injuries are threshold and there is no WPI greater than 10%;
(b) the claimant’s self-reports must be treated with caution noting he had lodged a workers compensation claim before the accident and was working in a reduced capacity in any event;
(c) the claimant worked and travelled for two months after the accident;
(d) the claimant has attended different doctors and has not told his workers compensation doctors about his car accident and was seeking Centrelink certificates after the accident due to rhinitis;
(e) the first psychological treatment the claimant received was 9 April 2021;
(f) Dr Modern, psychiatrist diagnosed a major depressive disorder and post-traumatic stress disorder but does not explain how the claimant meets those criteria;
(g) Ms Exton psychologist has a history of the claimant being unconscious for six minutes and there is no history to confirm this;
(h) the claimant travelled overseas, stayed for eight months and had a child. He is nominated as the primary carer of his two children for which he received Centrelink benefits which would preclude him from working;
(i) the claimant has had five court matters since 2015 including two matters after the accident where the claimant acted for himself;
(j) other inconsistent behaviour is buying two new cars, renewing his driver license, obtaining a ticket while driving, social media engagement and his mobile phone as the contact point for a hair braiding business, and
(k) the insurer relies on reports of Dr Vickery and Dr Young.
REVIEW OF THE EVIDENCE
Documents concerning the claimant’s evidence
The insurer provided an email dated 11 September 2019 from Ms Joyce in the course of the workers compensation claim. The claimant had given a history of some aches and pains after the accident but that he drove home. Mr Drame returned to work under limited capacity before complaining of headaches and pains in early July which were investigated, and brain nodules were found. It was at this time that a workers compensation claim, and motor accident claim were made.
Allianz engaged Pinnacle Rehab to provide rehabilitation services to the claimant. Mr El-Kazzi provided a report dated 19 September 2019. The claimant had returned to work from 29 April to 10 July 2019. He had headaches and pain in his neck and shoulder but forced himself to work until he had the MRI of his brain when he stopped work.
The claimant reported:
(a) he was independent in self-care although pain made it take longer;
(b) he was able to manage domestic chores although it took longer because of pain;
(c) he rarely leaves the house anymore but when he does it is local – he rarely sees his sister because she lives an hour away, and
(d) he has not played soccer since the accident.
In terms of psychosocial factors there were no mental health factors identified. The claimant was however said to have low or negative moods, pre-occupation with injury, catastrophising, fear of movement and was becoming preoccupied with health. The claimant declared concern about his head.
Payslips have been provided confirming income received by the claimant until June 2019.
The claimant applied to renew his driver license on 8 June 2021, and the form completed does not identify any physical or mental health issues.
The claimant’s driving history as at 4 November 2022 was provided confirming the 2015 “L” plate incident and the July 2022 incident of driving using a mobile phone. The claimant’s two car purchases are noted, a Mitsubishi Mirage in September 2019 and a Pulsar in August 2019. The claimant renewed his license for five years on 16 May 2022.
Social media posts on Facebook, Instagram and Tik Tok have been provided.
Court records for the claimant to 26 July 2022 have been provided.
The claimant’s bank statements have also been provided.
Claim form and claim documents
The claim form was signed by the claimant and declared to be true and correct on
19 June 2019. He gives a consistent history of the rear end collision and says he was stopped completely when he was hit.
He says he hit his back, neck and head on the driver’s seat and went “inconsient” (perhaps this is unconscious) when the accident happened and that his back and neck are “heating me also” (perhaps “hurting”) and he gets bad headaches some time.
He says he has never had a motor accident claim before, he did not receive treatment in hospital, and he was not suffering from an injury or illness before the accident. Mr Drame said he was working part time before the accident as a care worker and that he was also receiving Centrelink benefits.
Dr Nicholas (Macarthur and Brett Street Revesby) has provided a certificate of fitness dated 21 June 2019 which nominates a cervical spine and left shoulder strain as the only two injuries. He saw the claimant on the night of the accident.
Dr Elhafi (Marco Avenue Revesby) provided a certificate of fitness dated 14 August 2019 also nominating strains to the claimant’s cervical spine and “shoulders”. In a later certificate of 8 October 2019, the doctor has added headache to the diagnoses. On 24 December 2019, Dr Elhalfi added “depression-anxiety” to the diagnoses and “psychologist” to the treatment and referral plan. These diagnoses are then repeated in other certificates.
Treating medical records and reports
The claimant attended the Revesby Panania Family Clinic (the Revesby Clinic) on
3 March 2019 for nasal issues, and a referral was provided and allergy tests requested.
The claimant attended the Bankstown Medical and Dental Centre (the Bankstown Centre) on 1 April 2019 at 4.00pm seeking an allergy test.
On 3 April 2019 an allergy to dust mites was diagnosed by the Revesby Clinic.
The claimant attended the Good Samaritan Medical Centre at Chipping Norton (the Good Samaritan) on 11 April 2019 concerning an allergy to dust / chemical at work and a certificate of fitness was issued.
The claimant attended the Bankstown Centre on 24 April 2019 and saw Dr Islam concerning his workers compensation claim (allergy to chemicals). The claimant had been taking Claratyne only and was advised to continue to do so.
On 26 April 2019 the claimant attended Dr Michael of the Good Samaritan (at an unspecified time) feeling a bit better after reducing his work hours and was advised to try Nasonex.
Dr Nicholas of an afterhours GP service has seen the claimant. His records of attendance are on a letterhead under the name “After Hours GP Medical Service South Western Sydney” which is said to have rooms at Revesby. Dr Nicholas’ medical certificates include an address which is the same address as on the notes from the “AHMCC”. The clinical notes do not explain the acronym. The Panel will refer to the Afterhours Service separately.
Dr Nicholas saw the claimant at the Afterhours Service on 26 April 2019 at about 7.00pm. The claimant reported that his seat broke in the car accident, and he injured his neck and the back of his head. He says his “memory missing for one minute” and he was dazed and over the next few hours noticed head pain, neck pain and lower leg pain. He was alert and coherent when examined, tender over the left trapezius and left occiput and had restricted neck extension and left lateral rotation.
On 28 April 2019, at 6.20pm the claimant saw Dr Chaw at AHMCC and reported headache especially at night and was advised to got to Bankstown Hospital.
The claimant attended Bankstown Lidcombe Hospital on 28 April 2019, two days after the accident. An interpreter was said not to be required.
The claimant presented with neck and lower back pain but had no tingling or numbness, seizure activity or post-traumatic amnesia. He was given Paracetamol and Nurofen and discharged home with “non-specific neck pain.”
The claimant saw Dr Gabra at AHMCC on 30 April 2019 after going to hospital. He reported his headache was getting better, but he had neck pain on the sides of the neck. He was advised to take analgesia and follow up with his regular GP.
On 3 May 2019, the claimant attended MyHealth Brigadoon (MyHealth) for a flu vaccine but did not mention his workers compensation or motor accident claim.
On 10 May 2019 the claimant saw Dr Nicholas of the Afterhours Service at 7.08pm requesting clarification of a form for Centrelink and was prescribed Nasonex spray for allergic Rhinitis.
On 10 May 2019 the claimant returned to the Good Samaritan and was said to be coping well with four hours of work a day.
The claimant attended the Campsie Medical and Dental Centre (the Campsie Centre) on
13 May 2019 seeking verification of medical conditions for Centrelink. As it was the first time at this medical centre they refused to do so.
The claimant returned to Dr Gabra of AHMCC on 14 May 2019 asking for a Centrelink form to be completed in respect of allergic Rhinitis and a Medical Certificate was given.
It was stated by the doctor at the Good Samaritan practice on 16 May 2019 that the claimant would not be able to return to work for his previous hours because of the risk of aggravating his allergic symptoms.
The certificates of fitness completed by Dr Michael at the Good Samaritan practice in relation to this workers compensation dust claim are dated 11 April, 26 April and 10 May 2019. There is no mention of the car accident in any of the Good Samaritan records and no mention of any psychiatric symptoms.
On 27 May 2019 the claimant attended MyHealth and saw Dr Komonen for the purposes of obtaining a Centrelink certificate for his unfitness to look for a job. There was no mention of the motor accident, or Mr Drame’s injuries and the only medical condition mentioned was his allergic rhinitis. This doctor refused to issue the medical certificate and suggested the claimant participate in the job search, find employment in a different industry as he is 20 years old and has a long lifetime to find and do some appropriate work.
The claimant attended Dr Nicholas at the Afterhours Service again on 6 June 2019 at close to 9.00pm with three days of a sore throat, cough and “general malaise” and he had been experiencing increasing neck pain since the accident. The claimant attended again the next day also at about 9.00pm saying he could not go to work that day and was starting to improve (in terms of his cough and throat).
The claimant saw Dr Nicholas again on 14 June 2019 at 9.08pm complaining of neck, left shoulder and thoracic spine pain and was given Voltaren.
On 4 July 2019 the claimant saw Dr Nicholas at 7.00pm. The notes referred to a consultation with Dr Gebra. He noted the claimant had increasing headaches and that he lost consciousness for a few minutes in the accident. He reported the headaches could be severe, but he had no falls and was “emotional ++” and had no double vision. He had a stiff neck on the left side and left shoulder tenderness. Panadol was suggested and a Centrelink certificate given.
The claimant returned to MyHealth and saw Dr Kobra on 8 July 2019. Again, the reason for this certificate was that the claimant wanted to get a Centrelink medical certificate supporting his part time work. Dr Kobra noted the previous request concerned Rhinitis and the claimant now referred to his motor accident. The doctor said he would not issue the certificate without the previous records and requested the claimant sign a consent to release them. The claimant was said to be not happy with this.
On 9 July 2019 the claimant returned to MyHealth and saw Dr Nguyen who obtained access to Dr Nicholas’s notes and a Centrelink certificate for one month was given.
On 18 July 2019 the claimant again saw Dr Nicholas at the Afterhours Service at 6.30pm who noted the normal CT brain scan. The claimant reported not doing his usual work but he was doing 23 hours per week and no light duties were available. The range of motion of the cervical spine was said to be “very good.”
On 12 August 2019 there was another attendance on Dr Komonen at My Health who was again being asked for a Centrelink certificate. This doctor again refused noting the various requests, for various reasons and advised the claimant he needed one doctor to look after him for continuity of care purposes.
The claimant attended Dr Elhafi at the Revesby Clinic on 13 August 2019 concerning his rhinitis, sneezing and nasal congestion and there was no mention of the car accident. The claimant saw Dr Elhafi again on 14 August 2019. The rhinitis was improving. The car accident was mentioned, and his range motion was said to be improving.
On 5 September 2019 the claimant attended Dr Elhafi again referring to the car accident and complaining of headache with occasional dizziness, neck and shoulder strains. The claimant was having physiotherapy, the CT scan of his brain was reviewed, and his range of motion was improving. A referral to Dr McKechnie (neurologist) was provided. A similar attendance occurred on 11 September 2019.
Certificates of fitness were provided by Dr Elhafi from 14 August 2019 to 6 March 2020 and then on 17 November 2020. It would appear the claimant was in Guinea from March 2020 to November 2020. No notes have been provided from Dr Elhafi’s practice for attendances after 11 September 2019.
Psychological and psychiatric clinical notes
The claimant provided, at the request of the Panel, clinical notes from the various psychologists and psychiatrists he has seen since the accident.
Christina Gilto
Dr Elhafi referred the claimant to Ms Gilto on 24 December 2019 for the claimant’s “work related injury depression / anxiety symptoms.”
The claimant’s first attendance was on 25 February 2020. She has a history of him going back to work for three weeks and that he felt pain and could not manage it and longer. He also reported no memory of the car accident until he was out of the car. He was reporting dizziness and lack of sleep. He was stressed, not working or studying and lacked motivation. He lived by himself, and his sister helped him with things he could not do. He was fearful of going to appointments alone, struggled to drive for long periods, had difficulty falling asleep and had poor memory and concentration.
The claimant returned on 24 December 2020 after having been overseas for eight months. The claimant reported pain, headaches and dizziness.
The claimant had a third consultation on 11 February 2021. He reported pain when it gets cold and concentrating or reading resulted in pain in his head. She encouraged him to see an eye specialist.
On 11 March 2021 is a note that the claimant did not drive for a week after the accident.
Sue Exton
Ms Exton’s records commence on 4 June 2021. She has a history of the accident and records a period of unconsciousness. She also records the claimant’s friend drove him to his GP. She says the claimant saw a psychiatrist and psychologist and has been on 20 mg of Lexapro to be changed by Dr Kahill to Venlafaxine. The claimant says he cannot drive due to his neck pain as he cannot turn his head. He therefore cannot work. She also takes a note of panic attacks, sleep difficulties and weight loss.
Ms Exton’s notes on 15 June 2021 state that the claimant’s main problem was panic attacks. She saw him a further 10 times concerning anxiety and management of the anxiety on
24 June, 1 July, 15 July, 3 August, 17 August, 7 September, 23 September, 14 October and 28 October 2021.
Corner Youth Health Service
The claimant first engaged with the Youth Team on 31 July 2018 but there is little detail of the service provided.
The claimant next attended on 8 April 2021. The claimant was assessed and added to a waitlist for services.
On 12 May 2021 the claimant was seen by Holly Read, social worker who records a history of the accident, reports flashbacks on a daily basis and increased anxiety when driving. The claimant reported symptoms including symptoms of disassociation and pulls over due to safety concerns. The claimant also reported hearing voices and night terrors.
On 4 June 2021 the claimant again saw Holly Read who again provided education on anxiety and relaxation / breathing exercises. The claimant was seen on 15 July 2021 which are also dates the claimant saw Ms Exon elsewhere. He was discharged on 13 September 2021 as he was not responding to contact from the Service.
Dr Modem
The claimant saw Dr Modem once on 2 June 2021 on referral from Dr Elhafi. Mr Drame gave a history of the accident, his claims for compensation and his ongoing pain. He also reported panic attacks, poor sleep (due to pain and headaches) but nightmares as well. He stopped driving as he was scared to drive.
He was reported to be on no medication and NOT linked to a psychologist but had seen psychologists in the past year.
While his father came to Australia with the claimant and his siblings in 2011, his mother stayed behind in Guinea. Mr Drame married his own wife at 19 having known her since they were in primary school.
On examination he was well-groomed, well engaged but he described his mood as stressed.
Dr Modem diagnosed a major depressive disorder, and says Mr Drame meets the criteria for a post-traumatic stress disorder.
Dr Modem recommended cognitive behavioural therapy, increased activity, online resources and educational resources.
It would appear no further consultations occurred with Dr Modem.
Bankstown Aged and Mental Health Care Service
On 6 May 2021, the claimant called and spoke with Ms Truong-Wilson a registered nurse seeking support for anxiety and depression. He reported the car accident, problems with sleeping, flashback and loss of his job.
The claimant was spoken to the next day by Ms Chou, occupational therapist and he was on his mobile and speaking softly complaining of constant pain in his neck and back with headaches. He denied medications (other than Panadol). The claimant referred to Corner Youth and his GP’s recommendation he see a psychiatrist.
On 12 May 2021, the claimant spoke with Ms Nguyen, registered nurse. He repeated the history of the car accident, physical injuries of back and neck pain with dizziness and feelings of anxiety and depression. The claimant reported having stopped driving as he feared something would happen.
An appointment was made with Dr Kaill on 14 May 2021. The claimant reported poor sleep, constant pain and a fear of driving. He said he used to drive but stopped a year ago due to neck and back pain. He reported panic attacks weekly. The claimant spoke about his goals and wanting to be a professional soccer player. Dr Kaill encouraged him to return to activities and increased his escitalopram to 20 mgs.
The claimant was phoned on 20 May 2021 and said he was good, eating and sleeping well and tolerating the increased medication. On 27 May 2021 he spoke with another nurse saying he was going alright, and his mood was a little better.
On 3 June 2021 at an attendance with Dr Kaill the claimant however said his sleep was bad, his mood was not good, and he reported no improvement in his anxiety, panic attacks or depression.
On 10 June 2021, Ms Nguyen spoke with the claimant again who said he was “not too bad”.
On 17 June 2021 the claimant reported to Dr Kaill that the airbag did not deploy, and he had hit his head on the dash. His sleep had improved, he remained anxious and the claimant was to be discharged to the management of his GP and to see a psychologist.
Medico-legal reports
The claimant obtained a report from Dr Young dated 21 November 2021. While not in the claimant’s bundle, the insurer has relied on it.
Dr Young has a history from the claimant of being confused and unaware in the minutes after the accident and that his first recollection was when he was out of the car and there were people around him. Dr Young has a record of Mr Drame calling a friend on the phone who took him to hospital. The claimant said he was examined and observed and remained there for 24 hours.
The claimant reported neck, lower back pain and headache (not shoulders). He said he began to think about the accident and had bad dreams. Despite having physiotherapy, the claimant said he still had pain which was becoming more severe. He had an MRI which discovered a benign brain lesion.
The claimant reported his anxiety continued to increase and he experienced episodes of acute anxiety, hyperventilation, increased heart rate, anxious driving and he has been unable to drive due to acute anxiety.
A history was given of treatment from a psychiatrist and psychologist including Corner Youth Services.
The claimant reported intrusive thoughts and memories and anxiety symptoms triggered by pain.
Dr Young had a history of no other compensation claims.
Dr Young diagnosed an acute stress disorder with post-traumatic symptoms due to the accident and ongoing chronic pain. He also considered a pain disorder.
The claimant had a second child but was suffering stress due to a lack of income and accommodation stability.
The claimant relies on a report from Dr Smith, psychiatrist dated 14 December 2022.
Dr Smith has a history of the claimant living with his two children in a Department of Housing unit and that he was not in a relationship. He is receiving Centrelink benefits.
The claimant reported a rear end collision and period of loss of consciousness, but that ambulance and police were not called. A friend came and took him home.
The claimant reported going to hospital a few days later due to persistent headaches and distress and that a scan undertaken showed a brain tumour which has been investigated as benign. The claimant said his pain has persisted and he is unable to work.
His psychiatric symptoms include anxiety, panic attacks, headache, heart racing, bad dreams, intrusive memories of the accident, loss of interest and his marriage breakdown.
The claimant had tried driving but said he had been unable to drive at all since February 2022. The claimant says he sleeps for seven hours from 11.00pm to 6.00am and his nightmares occur about two to three times a month.
He had reduced his appetite but put on 7 kg.
The claimant says:
(a) he showers three times a week and his sister helps with the children;
(b) he has ceased all social activities and has no hobbies or interests;
(c) he does not drive;
(d) he cannot read saying “my head becomes hot inside my memory gets tired”, and
(e) he cannot work, has not volunteered, he tried to study but gave up.
Dr Smith diagnosed anxiety and depressive symptoms consistent with the diagnosis of a persistent depressive disorder.
Dr Smith considered the claimant was still experiencing symptoms, there was no pre-existing impairment and that the claimant’s WPI was 26%.
The insurer relies on a report from Dr Vickery, psychiatrist dated 24 February 2023 who diagnosed a somatoform chronic pain disorder and says there is no condition caused by the accident. He diagnosed a 0% WPI.
RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS MASON AND DORIS
Mr Drame attended the re-examination with Medical Assessors Mason and Doris on
28 July 2025. The interview was conducted using the MS Teams application with a good internet connection throughout. The claimant was using his mobile phone. The interview commenced at 9.00am and concluded at 11.15am.
Mr Drame was not assisted by an interpreter and in our opinion, he did not need an interpreter. He demonstrated no difficulty understanding any of our questions. He sought clarification of some of our questions from time to time. He spoke excellent English giving fulsome answers throughout the re-examination.
Brief personal details
Mr Drame is a 26-year-old man who lives in a two-bedroom Department of Housing apartment in Auburn with his 6-year-old son and 4-year-old daughter. His wife who is
22 years of age, lives with his 28-year-old sister in a suburb 30 minutes further West. He said his sister visits each day for three to four hours to help with the children. His son attends Auburn Public School and his daughter is in childcare during the day also in Auburn.
Mr Drame says he spends his day lying on the couch and watching videos. Mr Drame said he is in receipt of the Disability Support Pension for mental health reasons which he says consist of panic attacks, anxiety and some other condition that he could not remember. He believes the disability support pension was awarded to him in 2022 or 2023 due to the support of Dr El Haafi of Revesby, but he cannot remember exactly when this was.
Personal history
Mr Drame told us he was born in Guinea. His 55-year-old father had fled the war in Sierra Leone and moved to Guinea. He then corrected himself and said his father fled the war in Liberia. His mother died in 2010 when he was 11. He did not know the cause of her death or her age, just that she was sick. He described a normal birth and development. He is the second of four children. He has a 28-year-old sister, a 23-year-old brother and a 21-year-old sister all living in Sydney. He said he does not see his two younger siblings.
His family background is complex. He said he lived with his mother and father, but his father moved to Australia in 2006, and he remained behind with his mother until she died. He said his father returned to Guinea for his mother's funeral and then immediately married another woman who went on to care for the children while his father returned to Australia after only one month. The children were then raised by the new stepmother. He said he was sad about his mother's death but got on with life. He attended school until the first half of year 5 in Guinea. His father had applied for visas for the children before the death of his mother and these became available so Mr Drame came to Australia in 2011 but his stepmother remained in Guinea.
Mr Drame denied any form of abuse in childhood. He was questioned about reports in the documentation that his father had been violent towards his mother. He denied this was the case with his mother or his step mother. When asked why he had told another examiner that was the case he said he did not know.
On arrival in Australia, Mr Drame attended intensive English language lessons at Blacktown English Centre for a year and then went on to attend Doonside Technical High School where he completed the HSC in 2016 with a score of 74. While at school and with his later studies he worked part-time in an ice cream parlour in Blacktown. In 2017 he attended Blacktown TAFE where he completed a certificate III in financial services over a period of months. In 2017 he attended Bankstown TAFE where he completed a certificate III in community services. He added that while working in the ice cream shop he had completed a customer service certificate over a period of a year.
In 2018, with the aid of his community services certificate, Mr Drame was employed as a care worker with Australian Unity working three days a week. He said he was also doing two days a week as a support worker with Better Home Care.
Leisure activities prior to the motor accident consisted of playing soccer every weekend. He also enjoyed making and recording short videos and films with a Canon video camera which he did when he was bored.
Mr Drame was asked and denied having made any previous motor accidents or worker's compensation claims. When questioned about a previous worker's compensation claim made shortly before the accident he denied this was the case. When the details of it were brought to his attention, he acknowledged he had a cough or the flu for one week before the accident. It was not until it was put to him that he had consulted Dr Michael prior to the motor accident for allergic rhinitis that he agreed this was the case. In response to a direct question, he then confirmed that he had consulted Dr Michael on the morning of the motor accident, and he had been certified as fit to work three to four hours a day on four days of the week due to the allergic rhinitis.
He was asked about any history of problems with the law. He said in 2015 while on his L plates he was driving a car with an instructor beside him. The instructor left the vehicle in a petrol station to go into the shop to purchase something. Mr Drame said police arrived at the petrol station with their sirens blaring. He moved the vehicle without the instructor beside him to allow passage of the police vehicle. He was charged by the same police with violating the conditions of his learner's permit.
He denied there were any other events involving the police. He was then questioned about being fined for using a phone while driving. He then remembered and told us this had happened three or four years ago. He said it was raining so he took the car and while he was on a two-minute drive he had a panic attack and, instead of pulling over he called his father and then his sister while he was driving. He said police did not attend and the fine was from a camera. He attended court and represented himself, explained he had suffered a panic attack and he said he was not required to pay the fine. He was not represented by a lawyer and says he still has his license.
He was asked and stated there were no other instances of legal problems or issues. He was then questioned regarding difficulties that had arisen in a housing situation. He said he was living in assisted accommodation, and he asked the owner to fix a problem, and they refused. He commenced proceedings (without a lawyer) and took the owner to NCAT and the owners were ordered to make the repairs. He said he was assisted on the day of the hearing before the tribunal by a caseworker from Mission Australia but he could not remember her name.
He again stated there were no further issues with the law. In response to a direct question he said he had never been arrested or charged by police.
We asked Mr Drame about his medical history and he said his only problems were sneezing and allergies to dust. He was asked about having high blood pressure and he denied this was the case. He was questioned about the incidental finding of lesions in his brain. He believes he has had three or four scans and has been told there were no ongoing problems but that he will need to be monitored. He had not undergone surgery. He said that was not a big worry for him.
Mr Drame denied any past history of psychiatric illness. He also denied any family history of psychiatric illness.
Mr Drame denied the use of cigarettes, alcohol, recreational drugs and coffee. He said he does not gamble.
Mr Drame said his current medications consist of Nurofen or Paracetamol two tablets for headaches which occur four or five times weekly. He acknowledged he had been prescribed antidepressant medication in the past including escitalopram and venlafaxine but says these have been discontinued.
With regards to his pre-accident functioning he said he was living alone in Sydney. He said a “friend” would sometimes come to stay with him for a week or two but he would not give further details. He also said at times his older sister would come to stay with him. At that time his wife and son were in Guinea where his son had been born. He had married his wife in 2017 on a trip to Guinea. He said he had known her since primary school that he returned to Guinea, three years after they were married, to visit her and bring her and their son back to Australia. He said he had remained there for eight months due to a COVID-19 lockdown. He stayed with his stepmother while he was there and also with his wife's family without any issue. He returned to Australia in November 2020. Mr Drame has been back to Guinea again but was not exactly sure when but said he may have travelled with his sister and they visited family.
History of the motor vehicle accident
On 26 April 2019 Mr Drame said he was the restrained driver of a Mitsubishi Mirage. He was working and travelling from one client to the next and was stationary at a red traffic light. There were no cars in front of him. In the rearview mirror he saw the other vehicle approaching from behind. His next memory was being out of the vehicle and sitting on the kerb. He said passers-by had assisted him out of the vehicle and was told it took him five or six minutes to come around. He did not know if airbags had deployed.
He said other people moved the car to the side and he exchanged details with the other driver. He then called a friend from work to pick him up and he attended his GP that same day. Ambulance and police did not attend.
History of symptoms and treatment following the motor accident
Mr Drame said his injuries consisted of left-sided neck pain, a bad headache, a little bit of lower back pain and difficulties with both arms. He consulted a GP approximately two hours after the motor accident and was prescribed paracetamol for the headache and told to go to the emergency department if necessary. He said he had difficulty sleeping because of pain and so he attended the emergency department of Bankstown Hospital two days later on
28 April 2019. X-rays revealed no fractures and he was referred back to his GP. He then underwent a course of physiotherapy.
He described being annoyed with the doctor at the GP practice because he would not prescribe medication. He was asked if this related to Dr Komonen of MyHealth Brigadoon at Revesby who had refused to provide medical certificates. He said no and that it was another doctor who is not there anymore. He said this GP who would not prescribe pills was at the Revesby Panania Family Clinic. Mr Drame said he has seen many doctors at various practices for his injuries and other medical matters.
He was asked about the progress of his physical injuries. He said he continues to suffer from neck pain, headaches and lower back pain along with problems with his thumbs. He said these conditions significantly restrict his physical activity. He stated he is unable to work and unable to perform any household tasks because of his physical injuries. He relies on his sister or his wife to do this for him.
Mr Drame said he cannot provide any care for the children because of his physical problems. He was asked how he manages to deal with the children if his sister or wife are not present. His response was that he does not have to care for them on his own because one of them can be there whenever it is necessary. When questioned about the fact that they live elsewhere and he is at his own home for many hours with the children on his own (e.g. overnight) he insisted he does nothing for them. He even said he does not get up to attend to them if they are distressed in the night. He then added his sister is there for three to four hours a day.
Mr Drame was asked to describe his psychiatric symptoms. He said he has nightmares which consist of being in a motor accident and dying. He also has other dreams about motor accidents but these are very different. He said these were initially occurring two to three times per week but they have reduced in frequency. He said in addition he suffers panic attacks if ever he sees a motor accident in reality or on television. When asked to describe a panic attack he said he feels like he is outside of himself, his head gets quite hot and feels like it is being crushed. He said if he sees triggers that remind him of the motor accident he gets panic attacks. He also developed a panic attack when he attempted to drive a car. He said he did this in response to his psychologist’s instructions and he ended up being fined and for using a phone while driving. Again, in response to his psychologist's instructions about two years ago he attempted to resume driving in a quiet street with his sister in the car. As soon as he saw another car he developed a panic attack and could not continue.
In addition, he described headaches all the time and said on some days he has a fearful expectation that something bad will happen. In 2021 he described becoming depressed because nothing seemed to be working and he had a brief period of suicidal ideation. He said he did not act on it, and it has not been present now for about three years.
Treatment consisted of being commenced on antidepressant medication. He could not remember the names of the medication but agreed it included escitalopram at one time and venlafaxine at another time. The medications made no essential difference, and he has not continued to use them.
He said he had seen a number of psychologists and psychiatrists but none of them were particularly helpful. However, he did note that psychologist Ms Exton provided him with the means of dealing with the panic attacks by controlling his breathing. Mr Drame said he saw Ms Exton every month for two years. According to the records he had 11 sessions with her in a four-month period between June and October 2021. He was unable to remember the names of any of the other treating psychiatrists or psychologists he has seen.
With regards to work since the motor accident Mr Drame said he said he continued to work for approximately one month. When it was pointed out that the records suggest he continued to work for more than two months until July he agreed this was the case. When asked how he managed to work when he was unable to drive, he said he paid a friend $200 per week to drive him. He could not remember the name of the friend but then after searching his phone said his name was Roderick. He had named the friend as Rodriga to another examiner. He said he was earning $1,000 per week and could afford to pay his friend. He did not tell his employees about this arrangement.
He could not explain how he was earning that much money when he was restricted to 15 to 20 hours of work week by the allergic rhinitis worker's compensation claim. He also could not explain how he was able to perform any form of physical work after the accident with the degree of neck, lower back pain and headache which now prevents him from getting off the couch during the day. He could not answer this and simply said he has not been able to work since the accident.
Mr Drame was asked if he had completed any further training programs. He said his psychologist had recommended he study traffic control at a private Bankstown college in order to get work. He said he attended six hours of training a day for three days and obtained the certification. He also did training in Bankstown as a pharmacy assistant two days a week for three months; he completed this training and was given recognition of prior learning for his customer service certificate obtained with the ice cream parlour. He said he had no difficulty with the courses but was unable to obtain work.
Injuries or conditions sustained since the motor accident
Mr Drame denied any such injuries or conditions.
Current symptoms
Mr Drame continues to suffer physical symptoms from neck pain, lower back pain and paraesthesia in both thumbs. He says he continues to suffer panic attacks, nightmares and headaches.
Current and proposed treatment
There is no current or proposed treatment.
Mental state examination
Mr Drame is a 26-year-old right-hand-dominant man whose appearance is consistent with his stated age. He was neatly dressed and well presented. He was identified from his photograph on his NSW driver license. He stated he was alone in a room in his apartment in Western Sydney. Towards the end of the interview, he turned to his right and was heard asking a woman (who he identified as his wife) how old she was. He was then asked if anyone else was present in the room and he denied this was the case. He reversed the camera on the phone and displayed an empty room. He was reassured that a support person could be present, but they would need to be identified for the record. He denied such a person was present saying he did not need a support person. He was also asked if he was recording the interview and said he was not.
Mr Drame appeared to be lying on the couch or a bed. There was no evidence of pain behaviour throughout the interview despite frequent references to disabling pain. He was not depressed in appearance and there was no evidence of anxiety throughout the interview.
His range of affective expression was full and appropriate.
He described a period of suicidal ideation approximately three years earlier but said he had no continuing depressed mood.
He described panic attacks while attempting to drive but there was no evidence of current ongoing anxiety in respect of any other triggers. He described nightmares and intrusive thoughts of the accident two to three times per month. There was no evidence of anxiety or distress in his behaviour or presentation as he described details of the motor accident or his current symptoms.
His sensorium was clear. There was no evidence of clouding of consciousness. There was no evidence of psychotic symptoms. His speech was normal in rate and rhythm. Mr Drame was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current functioning
Mr Drame said he goes to bed about 10.00pm and after broken sleep which he attributed to neck pain, lower back pain and headache he gets up around 10.00am. At this point he said his panic attacks are worse in cold weather. When asked how he manages the children in the morning when he is still in bed at 10.00am he said his sister comes and gets the children ready for school. He then said when his sister is not available his wife will come to do it. When asked about caring for the children in the afternoon after school he said either his sister or his wife comes to do that. He added he does not get up to attend to the children during the night if they cry out.
During the day he said he lies on the lounge all day watching videos, preferably funny videos. He added he records videos while he is watching them and posts duets on Tik Tok.
Consistency of presentation
Mr Drame appeared to be cooperative at the re-examination, but he was evasive in his responses to most questions put to him. He gave much thought to his answers, equivocated and was unable to provide timelines for most areas of his life both before and after the motor accident, but especially subsequent to the motor accident. He frequently stated he could not remember, he could not be sure, it was approximately this year, or it was approximately that year before giving an answer or simply not giving an answer.
In particular, he provided conflicting information regarding how much support he was receiving from his sister and from his wife who were reportedly living separately a 30 minute drive away from him. He initially stated his sister would help him for three to four hours a day. He later stated it was longer. He initially said his wife did not visit at all but he later said she visited each day to help him with the children.
When questioned regarding the welfare of the children and the fact that he did not do anything for them, he increased the amount of the support that he claimed his sister and his wife were providing. We were particularly uncomfortable with the arrangements which leave him responsible for the care of the children when he says he is physically incapable of responding to their needs or doing anything at all for them. This seemed somewhat implausible to us.
Mr Drame said his wife and sister were living together in Mount Druitt 30 minutes’ drive from him and they were cooperating in the running of a hair braiding salon in Doonside. The panel drew Mr Drame’s attention to the material provided by the insurer which indicated that his sister and his wife were using his mobile phone number in an online advertisement for this hair braiding business. Mr Drame appeared surprised by this and said it might have been used a few times in the past but now he does not get any calls and he is not involved in their business. The nature of the domestic and business relationships between Mr Drame, his sister and his wife seemed particularly vague.
There were also inconsistencies in the history obtained by us when compared to other material in particular the claimant’s responses to the insurer’s submissions as to his credibility. For example, the claimant said in his 8 February 2024 response that he paid a friend to drive him around to his clients for three or four weeks, yet the claimant worked for two to three months after the accident. The claimant said in his 8 February 2024 statement that he is the primary carer of his children yet his evidence to us is that he does nothing for them and cannot do anything for them. The claimant also reported in his 8 February 2024 statement that he was fined for his L plate falling off and he defended that charge. The claimant gave us an elaborate story of these legal proceedings saying they related to him being at a service station in the driver’s seat when his supervising teacher / driver left the car to purchase something and the claimant had to move the car to get out of the way of police and that the police then fined him for driving without a supervisor. There was no mention of the L plate falling off in this history.
CONSIDERATION OF THE ISSUES – THE PANEL
General approach
The insurer has provided extensive submissions challenging the reliability of the claimant’s evidence and the veracity of his complaints. The Panel notes that at [78] in Allianz Australia Insurance Limited t/as Allianz v Susak, Adamson JA with whom the other judges agreed said:
“The Act provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: Wingfoot at [47].”
The Panel is of the view that it is not the role of the Medical Assessors to cross examine the claimant. The claimant is not required to put each and every inconsistency in the documentation to the claimant. The re-examination took longer than expected (2 hours and 15 minutes compared to the usual one to 1.5 hours) and only some of the inconsistencies could be put to the claimant in that time.
Causation
The statutory question referred to this Panel, which this Panel must answer is as set out in Schedule 2(2)(a) of the MAI Act, that is what is:
“the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident.”
The Panel must first determine the injury caused by the motor accident and then determine the impairment flowing from that injury.
The test of causation is two-fold and is set out in cl 6.6 of the Guidelines:
“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 judgement.”
The circumstances of the car accident have been described by Mr Drame. There was a rear end collision. Mr Drame says he was looking in his rearview mirror at the time and saw the approach of the offending vehicle. While his airbags did not go off, he describes a short period of confusion and shock.
It is the clinical judgment of the Medical Assessors that the accident could have caused or contributed to the development of psychiatric or psychological symptoms.
The question remains whether the accident did, in fact, cause or contribute to the development of psychiatric or psychological symptoms.
Mr Drame was involved in a minor rear end motor vehicle accident six years ago and has subsequently developed ongoing pain and symptoms of anxiety plus nightmares. The Panel is not satisfied, on the current medical evidence, that the claimant sustained a head injury or had any period of a loss of consciousness. The Panel is of the view the medical evidence establishes that he sustained no significant physical injuries (in that there were no broken bones or lacerations) but we accept he has continuing physical symptoms. It is not entirely clear how a minor motor accident six years ago could result in such significant and enduring psychological impairment. A particularly troubling feature of the re-examination for the Medical Assessors was the evasive nature of the history provided which has resulted in doubt about the veracity of the conditions presented. The Medical Assessor’s record of the absence of any obvious symptoms or distress throughout the interview does not support the current presence of a psychiatric condition.
The claimant saw several doctors at the time of the accident for a workers compensation condition but there is no record of the motor accident. The claimant appears after the motor accident concerned with obtaining Centrelink certificates for benefits and pursuing his workers compensation claim. However, he did go to the hospital two days after the accident, and he has reported neck and back symptoms and headaches thereafter. On 4 July 2019
Dr Nicholas records that the claimant was “emotional +++” and it was eight months after the accident before a certificate of capacity records “anxiety and depression”. It was not until two years after the accident that the claimant sought attention from three psychologists and saw two psychiatrists.
The Medical Assessors observe that psychological or psychiatric symptoms can take time to manifest after an accident and that the recorded onset of complaints three or even eight months after the accident is not unusual.
For the above reasons and giving Mr Drame the benefit of the doubt the Panel is prepared to accept that Mr Drame’s motor accident did cause or contribute to the development of psychological or psychiatric symptoms.
Diagnosis
The Medical Assessors have outlined some of the inconsistencies in the claimant’s history and are of the view that as a result they have limited confidence in establishing the particular psychological injury that the claimant has sustained.
Mr Drame is a 26-year-old man who grew up in both Guinea and Australia. His father moved to Australia when he was 8 years of age. He suffered the loss of his mother when he was 11 and his care was taken over by a step-mother. He came to Australia when he was 12 and his step-mother remained behind. He married but was unable to live with his wife for three years while she remained in Guinea and he was in Australia. He was able to learn English as a second language and progress through the school system to complete the HSC and obtain some TAFE certificates. Despite these personal difficulties there is no evidence of any psychiatric or psychological issues before the accident. Mr Drame’s history suggests a level of resilience much greater than he now displays.
With reservations, but accepting the claimant and the consistent aspects of his history, the Medical Assessors diagnose a panic disorder.
It is the clinical judgment of the Medical Assessors that the DSM-5-TR criteria for post-traumatic stress disorder are not met because the accident does not meet Criterion A for that condition which requires there to be a life-threatening situation such as kidnap, torture or a “severe motor accident”. While Mr Drame described post-traumatic symptoms such as nightmares, without Criterion A being met, these symptoms do not warrant a diagnosis of a post-traumatic stress disorder.
The Medical Assessors are of the view that Mr Drame does not meet DSM-5-TR criteria for a major depressive disorder because he did not present as someone with symptoms of depression at the re-examination and he did not give a history of depression most of the day nearly every day and he did not have markedly diminished interest and pleasure in almost all activities. He did not describe psychomotor agitation or retardation nearly every day. He did not describe fatigue or loss of energy nearly every day. He did not describe feelings of worthlessness or guilt nearly every day. He did not describe diminished ability to think or concentrate or indecisiveness. He did not describe ongoing recurrent thoughts of death or suicidal ideation.
A diagnosis of post-traumatic stress disorder or major depressive disorder would not, in our view affect the assessment of impairment.
The DSM-5-TR criteria for panic disorder (page 235) are met for the following reasons:
(a) Criterion A – Recurrent unexpected panic attacks which is defined as “an abrupt surge of intense fear or intense discomfort that reaches a peak within minutes” and causes four or more physical symptoms (listed in the publication). Mr Drame reports he becomes short of breath, he feels like he is outside of himself (dissociation or re-realisation), his head gets quite hot and he feels like he is being crushed. He did not specifically describe palpitations, sweating, trembling or shaking. He said his psychologist helping him overcome the sense of shortness of breath through breathing exercises;
(b) Criterion B – at least one attack has been followed by a month or more of either persistent concern or worry about additional attacks or a significant change in behaviour signed to avoid attacks. Mr Drame described being triggered by motor vehicle accidents and attempting to drive. He described fear of having other panic attacks and on his history has avoided some, if not all forms of driving;
(c) Criterion C – the attacks are not attributable to a substance or other medical condition. Mr Drame’s history does not reveal any substance issues and while he has a benign and unrelated brain condition, this does not appear to the Medical Assessors to be the cause of the claimant’s panic attacks, and
(d) Criterion D – the attacks are not better explained by another mental disorder. The Medical Assessors have explained above why his symptoms such as nightmares do not translate to a diagnosis of a post-traumatic stress disorder.
IMPAIRMENT ASSESSMENT – MEDICAL ASSESSORS MASON AND DORIS
Impairment assessment is based on an evaluation of the claimant’s functionality as he presents on the day (see cl 6.21 of the Guidelines).
Clause 6.220 of the Guidelines requires a form to be used for the impairment assessment. The Panel has attached this form with the summary to these reasons but has used a long form format for our reasons.
Clause 6.214 of the Guidelines states that “impairment due to physical injury is assessed using different criteria”. Clause 6.215 says that “the PIRS must not be used to measure impairment due to somatoform disorders or pain.”
The claimant’s physical injuries and his pain levels appears to be the primary cause of the claimant’s allegedly significant impairment of functioning. The Panel and in particular the Medical Assessors have been careful to ensure that only the impairment caused by the psychiatric disorder and symptoms have been considered when assessing which class of impairment is the most appropriate class.
Self-care and personal hygiene (Table 6.11)
The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a) Class 1 - No deficit, or minor deficit attributable to normal variation in the general population.
(b) Class 2 - Mild impairment. Able to live independently and look after self adequately, although may look unkempt occasionally. Sometimes misses a meal or relies on takeaway food.
(c) Class 3 - Moderate impairment. Cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes. Cannot prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)two to three times per week to ensure minimum level of hygiene and nutrition.
(d) Class 4 - Severe impairment. Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
(e) Class 5 - Totally impaired. Needs assistance with basic functions, such as feeding and toileting.
Mr Drame said he showers once or twice weekly. He said he does not need prompting to do so. When asked why it was so infrequent he said he does not like the cold and is afraid of the water.
He changes his clothing every second day. The Medical Assessors note that the claimant appeared well dressed and groomed and his hair was neatly done for the re-examination. He said he goes to the barber with his sister every two months. He said he does not do any house cleaning, laundry or cooking because of the physical pain from his injuries and his sister or his wife attends to these things.
He said his appetite is down, but his weight has increased from 75 to 85 kg. At 160 cm his BMI was calculated at 33.2 which the Medical Assessors note is in the obese range.
Much of Mr Drame’s impairment in this area of functioning is due to physical symptoms. From a psychiatric point of view, we are of the view that it is difficult to identify any impairment however we accept, in the exercise of our clinical judgment, that there is a mild impairment (class 2) due to the claimant’s panic disorder, and his disturbed sleep partly due to nightmares and intrusive thoughts occurring three to four times a month and his current need to have his sister with him when he goes to the barber.
Social and recreational activities (Table 6.12)
The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a) Class 1 - No deficit or minor deficit attributable to normal variation in the general population. Able to go out regularly to cinemas, restaurants or other recreational venues. Belongs to clubs or associations and is actively involved with these.
(b) Class 2 - Mild impairment. Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team.
(c) Class 3 - Moderate impairment. Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn.
(d) Class 4 - Severe impairment. Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or the garden when others visit family or flatmate.
(e) Class 5 - Totally impaired. Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
Mr Drame said he watches videos all day. He is otherwise unable to account for his time. He copies these videos and posts them on Tik Tok. He is able to enjoy watching them. He said he does not see any of his former friends because he is no longer able to play soccer due to his physical injuries. He says his physical injuries prevent him from going out.
Mr Drame can however go out (he has taken his children to school by Uber) and says he can catch public transport on his own to appointments and elsewhere. He said at the re-examination that he does not require a support person on all occasions. From a psychiatric point of view, it is difficult to ascertain an impairment, but it is our clinical judgment that he does have a mild impairment (class 2) as while he might take his children to child-care and school, he says he does not get involved with them or their care while there.
Travel (table 6.13)
The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a) Class 1 - No deficit, or minor deficit attributable to normal variation in the general population. Able to travel to new environments without supervision.
(b) Class 2 - Mild impairment. Able to travel without support person, but only in a familiar area such as local shops or visiting a neighbour.
(c) Class 3 - Moderate impairment. Unable to travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
(d) Class 4 - Severe impairment. Finds it extremely uncomfortable to leave own residence even with a trusted person.
(e) Class 5 - Totally impaired. Cannot be left unsupervised, even at home. May require two or more persons to supervise when travelling.
Mr Drame alleges he is unable to drive a car because of panic attacks and told us he relies on his sister for support mainly because of his physical injuries. He says he is able to use public transport alone. He is able to travel as a passenger in a car including ride share vehicles. He said he has taken the children to school by Uber without someone supporting him, if his sister or wife cannot come to his home and take the children. He continued to work after the accident for two to three months either driving himself or being driven by a friend. He has travelled to Guinea by air on his own in 2020 and accompanied his family back home and he returned to Guinea with his sister at some time since the motor accident. It is our clinical judgment that Mr Drame, as he presents today has a mild impairment (class 2) in this area of functioning as a result of his panic disorder.
Social functioning (Table 6.14)
The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a) Class 1 - No deficit, or minor deficit attributable to normal variation in the general population. No difficulty in forming and sustaining relationships; for example, a partner or close friendships lasting years.
(b) Class 2 - Mild impairment. Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
(c) Class 3 - Moderate impairment. Previously established relationships severely strained; evidenced, for example, by periods of separation or domestic violence. Partner, relatives or community services looking after children.
(d) Class 4 - Severe impairment. Unable to form or sustain long-term relationships. Pre-existing relationships ended; for example, lost partner, close friends. Unable to care for dependants; for example, own children, elderly parent.
(e) Class 5 - Totally impaired. Unable to function within society. Living away from populated areas, actively avoids social contact.
Mr Drame alleges he and his wife have separated as a result of the accident, and he relies on his sister and his wife to support him in caring for the children (due to his physical injuries and severe pain levels). In this regard they visit the home frequently. He told us his wife left him because she thinks he is lazy for not working, and also because of his irritability. On direct questioning he said that the relationship between them is cordial. His ex-wife is comfortably living with his sister and visiting his home on a regular and possibly daily basis. He does not see friends, but he says this is because of his physical injury. While the claimant and his wife were living apart at the time of the accident (she in Guinea, he in Australia) they were talking regularly and involved in the raising of their son. They had a second child after the accident and they both now share custody of their children. For the eight months the claimant remained in Guinea with his wife due to COVID-19 he had no problems living with his stepmother and his wife’s family. While it was difficult to decide between a class 2 and class 3 impairment, on the basis of the claimant’s separation from his wife, it is our clinical judgment that Mr Drame is moderately impaired (class 3). The Panel notes that the outcome of this dispute would not be affected if the assessment was class 2.
Concentration, persistence and pace (table 6.15)
The PIRS provides the following five classes of impairment for this area of functionality as follows:
(a) Class 1 - No deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe.
(b) Class 2 - Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes, for example, then feels fatigued or develops headache.
(c) Class 3 - Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting.
(d) Class 4 - Severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
(e) Class 5 - Totally impaired. Needs constant supervision and assistance within an institutional setting.
Mr Drame says he can focus on his phone watching videos for a large part of the day and can post duet videos to Tik Tok. He has successfully completed two training programs since the motor accident for traffic control and as a pharmacy assistant. He was able to represent himself in court regarding a traffic fine and in a tenancy dispute. He manages his own money in accommodation separate from his wife. Objectively we note that Mr Drame was able to focus on us and our questions for a full two hours and fifteen minutes without any sign of fatigue or loss of concentration. It is our clinical judgment that Mr Drame has no impairment (class 1) as a result of his psychiatric disorder.
Adaptation (table 6.16)
The PIRS provides the following five classes of psychiatric impairment for this area of functionality as follows:
(a) Class 1 - No deficit, or minor deficit attributable to normal variation in the general population. Able to work full time. Duties and performance are consistent with injured person’s education and training. The injured person is able to cope with the normal demands of the job.
(b) Class 2 - Mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required.
(c) Class 3 - Moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful.
(d) Class 4 - Severe impairment. Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
(e) Class 5 - Totally impaired. Cannot work at all.
We note he was able to work for a period of time following the motor accident. Mr Drame says he is not working now largely because of his physical symptoms. We are unable to consider the claimant’s physical injuries pursuant to cls 6.214 and 6.215 of the Guidelines. From a psychiatric point of view, he is mildly impaired (class 2) due to his panic disorder and his difficulty with any job involving driving. As he was able to work in the same job for two to three months, is able to travel by public transport and has been able to complete two retraining courses, it is our clinical judgment that the claimant has a mild (class 2) impairment due to his psychological disorder.
CONCLUSION – THE PANEL
What is the claimant’s impairment?
As set out in the attached summary, the impairment classes, arranged in ascending order for the six areas of function are: 1,2,2,2,3,3.
The aggregate score is 13 and the median 2.
In accordance with table 6.17 of the Guidelines this produced an impairment of 7%.
The Guidelines provide for additions and deductions as follows:
(a)
pre-existing impairment – despite numerous difficulties in his personal life,
Mr Drame demonstrated a high level of resilience before the car accident. There is no evidence of a pre-existing condition and no evidence of a pre-existing symptomatic impairment. There is therefore no adjustment to be made;
(b) subsequent injuries or conditions – Mr Drame disclosed no accident or condition or stressor after the car accident and there is no evidence of any subsequent event or condition. There is therefore no adjustment to be made, and
(c) treatment – the Guidelines provide for the addition of between 0 – 3% to the total WPI for the effect of treatment. Mr Drame is not currently having treatment and has ceased his antidepressant medication. There is therefore no basis upon which an adjustment can be made under cl 6.222.
Medical Assessor Shen assessed the claimant’s WPI at 26%. The Panel has determined that the claimant has a WPI of 6%. The significant difference is due primarily to the extent of the claimant’s physical complaints reported to the Medical Assessors and the significant levels of pain Mr Drame reports he is experiencing. It is his physical injuries and his complaints of pain that Mr Drame says prevents him from undertaking many of his pre-accident activities and functions. In accordance with cls 6.214 and 6.215 physical injuries and symptoms arising from those physical injuries are assessed separately and are not to be assessed using the PIRS. The Medical Assessors have used their clinical judgment to ascertain the impairment solely as a result of the claimant’s psychiatric or psychological symptoms.
As the Panel has come to a different conclusion to Medical Assessor Shen, it follows that his certificate must be revoked, and a fresh certificate issued.
Attachment A - Permanent impairment assessment summary
| Psychiatric diagnoses | Panic disorder |
| Psychiatric treatment description | Psychiatric and psychological consultations. Psychotropic medications but currently no treatment. |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | See paragraphs 230 – 234 |
| 2. Social and Recreational Activities | 2 | See paragraphs 235 – 237 |
| 3. Travel | 2 | See paragraphs 238 – 239 |
| 4. Social Functioning | 3 | See paragraphs 240 – 241 |
| 5. Concentration, Persistence and Pace | 1 | See paragraphs 242 - 243 |
| 6. Adaptation | 2 | See paragraphs 244 - 245 |
| List classes in ascending order: 1, 2, 2, 2, 2, 3 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 12 | ||
| % Whole Person Impairment: 6% | ||
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