Allianz Australia Insurance Limited v Rowed
[2023] NSWPICMP 655
•6 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Rowed [2023] NSWPICMP 655 |
| CLAIMANT: | Margaret Alice Rowed |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Michael Li Ying Hong |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 6 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – MOTOR ACCIDENT INJURIES ACT 2017; Medical review assessment; threshold injury replacement certificate and issued under section 7.23(1); diagnosis of simple phobia; note evasive depressive cognitions; failed to diagnose the claimant with a recognised psychological or psychiatric injury; reasonable cause to suspect medical assessment was incorrect; not provided clear path of reasoning; claimant denied history of previous panic attacks; obsessions and episodes of depression; hypomania; mania or psychosis, no pervasive depressive cognition; no evident deficits in concentration; no recurrent re-experiencing phenomena; application of criteria; Held – certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the Certificate of Medical Assessor Michael Robertson dated 16 May 2022. |
STATEMENT OF REASONS
INTRODUCTION
Margaret Alice Rowed (the claimant) is a 73-year-old woman who was injured when she had a fall on a bus on 30 November 2020. Following the accident the claimant contended that the psychological injury and psychiatric condition from which she suffered was a non-minor injury for the purposes of the Motor Accident Injuries Act 2017 (the Act). This is now referred to as a non-threshold injury.
The insurer contended that the claimant’s injuries fell within the definition of a minor injury for the purposes of the Act. Accordingly, the claimant applied for an assessment of her psychological injury and was duly assessed by Medical Assessor Robertson on 28 March 2022 via Microsoft Teams assessment. In a certificate dated 16 May 2022 Medical Assessor Robertson found that the claimant suffered a non-minor injury being “simple phobia”. He certified that this was not a minor injury for the purposes of the Act.
Thereafter the insurer submitted that the assessment was incorrect in the material respect and requested the matter be referred to a Review Panel. As part of the review sought the insurer submitted that the Medical Assessor has failed to diagnose the claimant with a recognised psychological or psychiatric injury and accordingly has fallen into error.
In a certificate dated 28 September 2022 the President’s delegate, Stephanie Wigan found that there was a reasonable cause to suspect that the medical assessment was incorrect in that the assessor has not provided a clear path of reasoning concerning the assessment of injury, and thus how he arrived at the ultimate determination of simple phobia being a non-minor injury.
The matter was then referred to the Review Panel who met by MS Teams on 22 August 2023 at which time it was determined that the claimant would be examined by Medical Assessor Michael Li Ying Hong and Medical Assessor Glen Smith by MS Teams on 22 November 2023. The Review Panel was accepted, with consent of both parties, and the late document being the further submissions of the insurer dated 15 November 2023 which referred to a report of Libby Newton dated 24 October 2023.
REASONS
History
Psychosocial history and pre-accident history
Identifying Details
Ms Rowed is a 73-year-old woman living alone in her own semi-detached house in Leichhardt, where she has lived for 30 years. She is not currently in a relationship and she has no children. She worked as a medical practice manager for around 18 years before she retired in 2019. She is reliant on her superannuation and a small part-pension.
Personal history
Ms Rowed was born in Sydney and there were no perinatal complications. She grew up in the eastern suburbs and she described “a beautiful childhood”. She said that her mother worked as a secretary and then brought up the children. She then worked in an office. She passed away at the age of 91. Her father worked as an industrial chemist and then as a general manager for a company. He passed away at the age of 92 in the 1990s. Ms Rowed has an older brother, a younger sister and a younger brother. She attended the local catholic primary school and then she attended Loreto Kirribilli for the last three years of high school. There were no major problems in schooling. She completed her HSC at TAFE. She studied for an arts and geography degree at Macquarie University, completing the degree in around 1970. She subsequently completed some drawing and painting courses. She worked for some years as a production manager in the film industry. She had worked as a medical practice manager for around 18 years before retiring in 2019.
With respect to past psychiatric history, Ms Rowed denied a history of significant anxiety or depressive symptoms prior to the present episode. She specifically denied a history of previous panic attacks, obsessions and episodes of depression, hypomania, mania or psychosis. She said that she might have seen a psychologist briefly in her 30s but she could not recall the details.
In terms of general medical history, she was diagnosed with lung cancer in around 2020 and she received chemotherapy, surgical treatment and radiotherapy and she has follow-up with Dr Michael Boyer, oncologist. She has scans when required and she has been in remission for around three years. With respect to the psychological impact of the cancer diagnosis and treatment she said, “it was a shock but I dealt with it well”. She experiences some anxiety regarding scans, but she manages the anxiety reasonably well.
In terms of drug and alcohol history, she said that she consumes one glass of wine, three to four days per week and she denied a history of legal or medical complications associated with alcohol consumption. She said that she smoked cannabis sporadically in the 1970s but not since then. She denied other illicit substance use. She ceased smoking cigarettes four or five years ago. She denied excessive caffeine consumption and problematic gambling.
Ms Rowed said that she is not aware of a family history of mental health issues.
Ms Rowed said that around 20 to 30 years ago, she was involved in another motor accident “somebody pulled out”. She suffered from “a bit of whiplash” but there were no psychological symptoms after the accident. She had difficulty recalling this accident. She had been involved in a minor accident 15 years prior to that accident when a friend was driving and there were no injuries.
Ms Rowed said that prior to the subject accident in November 2020, she would sometimes catch the bus to go the beach or the city. She would otherwise drive and when she was working, prior to retiring in 2019, she would drive to work in Chatswood.
History of the motor accident
Ms Rowed said that on 30 November 2020, at around 5.00pm, she was travelling with her sister and a friend on a bus from Glebe. She was seated in the bench seating and the bus was entering Pyrmont Bridge Road when it stopped suddenly, “I went flying and hit my head on the black box that holds a seatbelt for wheelchairs” and her whole upper body and shoulder “hit the corner”. She thinks that she “blacked out” briefly and she came to holding her head. She said, “the bus kept going, I was shocked about this”. Her friend came over to check on her. She waited until the bus stopped in Booth Street and then she spoke with the bus driver and said that the injury needed to be reported. The bus driver said that he would submit a report to the bus depot. She said, “he didn’t seem to care, maybe he was shocked as well”.
Ms Rowed said that her friend asked if she wanted to go to the hospital, but she noted, “I didn’t want to go there and wait for four or five hours”. She felt “shocked, panicky, dazed” and her sister drove her car to the local general practitioner (GP) in Short Street, Leichhardt.
History of symptoms and treatment following the motor accident
Ms Rowed said that the GP checked her physical condition and they did not consider it necessary for her to attend the hospital. She was worried about having a head injury but she felt re-assured by her GP’s examination. In the days after the accident, she felt angry, “why me? I was angry with the bus driver”. After the accident, she would wake with pain in her shoulder and anxiety, thinking “why did this have to happen?” She denied nightmares about the accident but she experienced dreams “about someone crashing into the house”. She has worried about family members being involved an accident.
Ms Rowed said that from a physical perspective she had a headache, she had a black eye and a bump on her forehead after the accident. She felt “brain fog” and she was worried about her cognitive difficulties. She said that she felt generally “sore”, and she was worried that there might have been “a brain bleed that was going to develop”. She was initially hopeful that her physical condition would improve. She said that she received “lots of physiotherapy”. She had a magnetic resonance imaging (MRI) scan of the brain and she was told that there was “no major permanent damage”. She saw a shoulder specialist, Dr Smithers, and she was diagnosed with a torn rotator cuff but surgery was not recommended. She described physical limitations in relation her shoulder injury.
Ms Rowed said that from a psychological perspective, immediately after the accident, she felt markedly anxious about travelling on a bus and she did not travel on a bus due to the anxiety. She said that she thought that she had not travelled on a bus at all for around one year but she could not be precise about the timeframes. Instead of catching the bus, she drove her vehicle or travelled on light rail which she noted, “feels smoother” (than travelling on a bus). She said that she felt confident in her own driving but she worried about cars or buses pulling out and she noted, “I give them a wide berth”. Ms Rowed said that after returning to bus travel, she felt anxious and hypervigilant about the risk of being injured again. She said that she has only travelled on a bus three or four times since the accident. When reminded of the accident, for example, when she heard about a fatal bus accident in the Hunter Valley, she felt distressed and upset, “why are there no seatbelts?” She said that in addition to her anxiety, her mood has been affected and she noted, “I was very capable before, certain things I don’t do, frustration, I don’t feel as happy”. She finds it difficult to perform certain household tasks because of the shoulder injury, “picking up a jug, gardening, fixing things”. She now pays a gardener due to her physical limitations. She still enjoys swimming but now she cannot perform overarm swimming. She does not swim in the surf since the accident because “I worry that if get dumped, I won’t be able to swim out of the waves”. She said that she cannot “shake the doona” because of her shoulder injury.
Ms Rowed said that she saw a psychologist, Ms Libby Newton, from around January 2021, for around 11 sessions. She said that the treatment was helpful, “it was very calming”. She was prescribed a medication for sleep, “something really mild” but she was not prescribed an antidepressant medication. She said that she has not seen a psychiatrist for treatment.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Rowed has not been involved in any further car accidents or sustained other psychological injuries since the bus accident in November 2020.
Current symptoms
Ms Rowed remains anxious about travelling on buses and, when driving her vehicle, she feels anxious about other cars pulling out in front of her. She avoids travelling on buses. She said that when she feels anxious, she clenches the wheel and takes a breath. She worries that she does not totally focus on driving due to her hypervigilance about the risk of being in an accident. She feels frustrated with her physical limitations. She worries that she will become “even more impaired over time”. She sleeps from around 11:00pm and she wakes at 7:00am. She does not sleep during the day. She described reduced energy. She enjoys going for walks on Blackwattle Bay and she meets with friends. She goes to the movies on Tuesdays with a friend. She enjoys reading a lot. She does not travel because she is afraid of going overseas, “because I can’t deal with the baggage”. She last travelled overseas to Europe in 2019.
Current and proposed treatment
Ms Rowed said that she feels that she should be able to manage her anxiety, “I thought it is just the way it will be”. She also mentioned that the cost of the treatment has prevented her from accessing further psychological treatment.
Ms Rowed said that she recently had physiotherapy under a private care plan to ensure she was performing the shoulder exercises correctly.
Clinical examination
Mental state examination
Ms Rowed was punctual and she was visible in the telehealth session from the shoulders up. She had shoulder length grey hair and she wore earrings and a t-shirt. She was pleasant and cooperative and there was no agitation. She reported anxiety about travelling on a bus and in her car and frustration with her physical limitations. Her affect was appropriately reactive. She said that she feels angry “because it is considered minor, it has been major, it has restricted and impaired me, I find that hard to get over”. There were no pervasive depressive cognitions, such as feelings of worthlessness and hopelessness. She feels grief and depressed mood with the loss of functioning. There was no suicidal ideation. There was no evidence of perceptual abnormality. There were no evident deficits in concentration. She did not report recurrent re-experiencing phenomena, such as intrusive flashbacks and nightmares of the bus accident.
Current functioning
Ms Rowed reported that she is independent in self-care. She enjoys going for walks and spending time with friends, for example, attending the movies. She avoids travelling on buses. She receives assistance from neighbours and friends for assistance with the house and garden. She sometimes pays someone to help with cleaning. She finds it difficult to clean her property due to her physical limitations.
Comments of consistency
There was no significant inconsistency identified. Although Ms Rowed indicated that she had not travelled on a bus possibly for around one year after the accident, she could not be precise regarding timeframes and the Review Panel did not consider this a substantial inconsistency, impacting on the consideration of validity of her history.
Review of documentation
Summary of relevant documentation
Report of Ms Libby Newton, psychologist, dated 24 October 2023.
In this treating psychologist’s report, it was noted:
“…I conducted 12 psychological sessions in 2021…
Psychological symptoms Ms Rowed reported at the initial interview include:• Feeling upset
• Feeling angry at the bus driver for driving recklessly
• Feeling angry with how the driver mishandled the situation
• Feeling anxious
• Ruminating
• Waking up in the night
• Difficulty sleeping
• Feeling ‘dull’
• Fatigue
• Feeling confused
• Low motivation
• Racing thoughts
• Increased heart rate
• Not looking forward to pleasant activities
• Loss of a sense of enjoyment
• Tightness in the muscles (for example in the jaw, throat)
• Feeling breathless
• Blurred vision
• Fatigue around the eyes
• Tension in the forehead
• An underlying feeling that something terrible is going to happen
• Sensitivity to sounds and traffic
• Driving anxiety (avoiding driving)
• Avoiding travelling on buses
• Avoiding leaving the house unless she really has to
• Irritability
• Snappiness
• Nightmares
• Nausea
• Fear of going on another bus
• Loss of self confidence in social settings…”
Diagnosis
“Post-traumatic stress disorder (PTSD) and Adjustment Disorder (with anxiety and depressed mood) as per the DSM 5…”
Certificate of Robin Fitzsimons dated 18 December 2021
In this certificate, it was noted:
“There is clear contemporaneous record of head injury with forehead bruising (Dr Seeley). There is however no objective evidence of her having sustained a brain injury She clearly remembered events in the bus after the accident and being driven by her sister to the medical practice. She evidently sustained a superficial head injury, as evidenced by the bump on her forehead.. There was no evidence of significant post-traumatic amnesia (PTA), and she has a satisfactory recollection of events shortly following the accident. There has been no evidence provided of intracranial radiological abnormality and nothing to suggest an abnormal Glasgow Coma Scale Score from a relevant time (30 minutes or more) after the accident. She would therefore not qualify for assessment of mental status or emotional/behavioural disturbance due to brain injury (para 6.164 (b) Motor Accidents Guidelines), event though she later complained of brain ‘fogginess’. There is clear contemporaneous and ongoing history of right shoulder (deltoid region) pain – practice of Dr Seeley, with evidence of pathology on ultrasound and MRI…”
30. The following injuries WERE caused by the motor accident:
• Superficial (closed) head injury
• Right shoulder soft tissue injury
31. The following injuries WERE NOT caused by the motor accident:
• Brain injury…”
Certificate of Associate Professor Michael Robertson dated 16 May 2022
In this certificate, Associate Professor Robertson, psychiatrist, noted:
“The applicant presents with a simple phobia. This is recognised in the DSM-5. The applicant fits features of the so-called ‘post-fall syndrome’ described in elderly patients after falls whose phobic responses lead to significant constriction of social and interpersonal functioning due to anxiety regarding further falls…While this is not described in the DSM 5, it fits neatly within the diagnostic category of simple phobia…
The subject motor vehicle accident was the primary cause of the applicant’s simple phobia through the mechanism of her physical injuries being caused by the accident with the concomitant development of phobia of further injury through future risk of falling…
The subject motor vehicle accident appeared to be the substantial and main contributing factor to the evolution of the simple phobia. The applicant described having minimal psychopathological distress at the time of the diagnosis of a life-threatening medical illness. It may be that some of these emotions were displaced into the subsequent fall incident given its proximity to the completion of adjuvant radiotherapy…”
Certificate of capacity/certificate of fitness dated 11 May 2021
In this certificate, Dr Seeley (GP) noted the diagnoses to be:
“MVA: passenger with closed head trauma, tear supraspinatus rt shoulder: headache and mental fogginess…”
Allied health recovery request dated 12 January 2021
In this document, the diagnosis was “Anxiety” and it was noted:
“Ms Rowed reported the following psychological symptoms: feeling anxious, feeling angry, feeling upset, worrying, ruminating, feeling tired, racing thoughts, waking up often during the night, low motivation, lethargy, muscle tension, tense jaw, not looking forward to activities, feeling breathless, headaches, feeling fearful without a reason, avoidance of travelling on buses.…
On psychological testing on the Depression, Anxiety and Stress Scale (DASS), Ms Rowed scored in the following ranges…Depression…Normal…Anxiety…mild…Stress…normal…”
Allied health recovery request dated 4 May 2021
In this document, the diagnosis was “Anxiety”, and it was noted:
“Ms Rowed is still reporting anxiety especially when preparing to leave the house, forgetfulness, difficulty concentrating, anger towards the bus driver and worrying and having negative thoughts about her future based on the longer lasting effects after the injury. She continues to have pain in the right shoulder, with reduced strength and range of motion expected to persist. She reports she continues physiotherapy to improve her shoulder's condition.
On a positive note, Ms Rowed informed that with the support of a friend, she has travelled on a bus to and from the city, whilst managing anxiety symptoms, Psychological strategies and preparations were discussed before this excursion…”
Clinical notes of Dr Seeley, treating GP
On 30 November 2020, Dr Seeley documented:
“patient on drivers side faring towards pavement and bus stopped to avoid collision with car: patient [sic] thrown into seat
belt retractor and wall of vehicle impacting right frontal region and right deltoid region…
Impression
MVA
no loc…”On 3 January 2021, Dr Seeley noted:
“some anxiety re travel…
pain in right shoulder: affecting sleep
worried re head: occasional headache…
Plan physiotherapy and also counselling…”
Clinical notes of Libby Newton, treating psychologist
The initial psychological interview on 11 January 2021 noted the history of anxiety after the bus accident on 30 November 2020. There was documentation of a single previous session of psychological therapy with Chris O’Brien.
On 24 March 2021, it was noted that Ms Rowed went with a friend on a bus and there was “more anger – not much anxiety…”
On 13 April 2021, it was noted:
“…Driving anxiety – when cars pull out…”
On 5 July 2021, it was noted:
“R arm still not getting better
triggered constantly – reminder – anger
-can’t do something…
it’s all getting her down…”
Report of Dr Chris Smithers, orthopaedic surgeon dated 8 February 2021
In this treating specialist report, it was noted:
“Margaret is now at just over two months post right shoulder injury secondary to a fall while travelling on the bus (30 November 2020). Fortunately over recent weeks her shoulder has continued to improve with a physiotherapy program. She has recently returned to swimming (breaststroke only) without exacerbating her pain. She is using the arm for all her normal activities and only has pain on occasions with overhead reaching. She is not taking analgesia for the shoulder.
Unfortunately two weeks ago she did fall again while standing on a stepladder reaching for a top cupboard can, and has some mild back pain which has significantly improved. Fortunately the shoulder hasn't deteriorated.
Examination demonstrates forward elevation to 180°, external rotation to 50° and internal rotation to L 1. There is no tenderness and impingement signs are negative. She has mild weakness of external rotation but otherwise grade 5 power of her rotator cuff. There is no midline tenderness nor focal tenderness over the posterior ribs.
I have recommended continuing her physiotherapy program focussing on cuff strengthening for a further one month. I expect the shoulder symptoms to slowly improve over a period of approximately six months from the date of injury. If at that time she has ongoing symptoms then an ultrasound-guided subacromial cortisone injection would be appropriate +/- an injection into the biceps sheath. I would be happy to review her at that time if need be…”
Determinations
Diagnosis and reasons
The Panel considered that, based on the provided history, the mental state examination and review of documentation, Ms Rowed presented with symptoms consistent with the following recognised psychiatric diagnoses according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022):
· specific phobia, and
· adjustment disorder with mixed anxiety and depressed mood.
Justification of diagnosis
Ms Rowed described marked fear and anxiety about travelling on buses and driving near cars and buses (Criterion A). Exposure to buses always provokes immediate anxiety (Criterion B). Travelling on buses and near buses is actively avoided (Criterion C). The fear is out of proportion to the actual danger associated with travelling on a bus (Criterion D). The fear, anxiety and avoidance have persisted for over six months (Criterion E). The anxiety has resulted in clinically significant distress and impairment as she had to use alternative transportation (Criterion F). The symptoms are not better explained by another disorder, such as post-traumatic stress disorder, as criteria for that condition are not fulfilled. Specifically, she did not present with pervasive and recurrent re-experiencing phenomena (Criterion G).
In addition to the anxiety about travelling on or near buses, Ms Rowed has also suffered from depressed mood in the context of limitation in functioning related to her physical injury, consistent with the additional diagnosis of an adjustment disorder. She described depressed mood, frustration and anger due to her physical limitations (Criterion A). The symptoms have been significant as evidenced by her level of distress and avoidance of some activities, such as swimming in the surf (Criterion B). The Review Panel did not consider that Ms Rowed presented with symptoms meeting criteria for another condition that would account for the depressive symptoms such as persistent depressive disorder or major depressive disorder (Criterion C). Her symptoms do not represent normal bereavement (Criterion D). She reported persistent anxiety, frustration and depressed mood in the context of ongoing limitation in physical functioning (Criterion E).
Causation and reasons
Ms Rowed denied any significant past history of psychiatric illness. After the motor accident in November 2020, she suffered physical injuries to her head and shoulder. She was worried about suffering a brain injury. She has felt markedly anxious about travelling on buses or driving near buses and other cars and she has avoided travelling on buses. Her symptoms fulfil the diagnostic criteria for the diagnosis of specific phobia, which is a non-threshold injury according to the Act. Additionally, Ms Rowed has experienced depressed mood in the context of the limitation in functioning due to her physical injury and her symptoms were consistent with the diagnosis of adjustment disorder with mixed anxiety and depressed mood, which is a threshold injury according to the Act. There are no other related contributing factors identified and the Panel concluded the subject accident has caused her psychological injury.
The following injuries are non-threshold injuries:
· specific phobia.
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