Allianz Australia Insurance Limited v Taubman
[2022] NSWPICMP 345
•17 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Taubman [2022] NSWPICMP 345 |
| CLAIMANT: | Solo Taubman |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel: | PRINCIPAL MEMBER John Harris Dr Michael Hong Dr Matthew Jones |
| DATE OF DECISION: | 17 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 29 May 2019 when his vehicle was hit causing it to roll over; the issues were whether the claimant sustained a non-minor injury and the assessment of any permanent impairment; no issues of principle; Panel satisfied that the claimant suffered post-traumatic stress disorder which is a non-minor injury; claimant had undergone psychological treatment of recent times and since the original assessment; psychological condition had improved which explained the change in impairment since the original assessment; Held – the Panel was satisfied that the motor accident caused a non-minor injury; claimant assessed at 6% permanent impairment. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 6 July 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: · Post-traumatic stress disorder. |
REASONS
BACKGROUND
Mr Solo Taubman (the claimant) suffered injury on 29 May 2019 when his vehicle was hit from behind causing it to hit a side rail on the Sydney Harbour Bridge and rolled a number of times before coming to rest on its roof.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Taubman any damages and or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present disputes are whether Mr Taubman’s injury is classified as a “minor injury” within the meaning of the MAI Act and whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than ten per cent”. These constitute medical disputes within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
ASSESSMENT UNDER REVIEW
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Parmegiani and dated 6 July 2021. The Medical Assessor assessed the degree of permanent impairment at 17%.
Medical Assessor Parmegiani determined that Mr Taubman suffered from Post-traumatic stress disorder and secondary depressive condition and sustained permanent impairment of the injuries greater than 10%. The Medical Assessor found that the claimant suffered from intrusive memories of the accident, flashbacks, hyperarousal, increased startle response, dysphoric mood, irritability and lack of concentration.
OTHER MEDICAL ASSESSMENTS
Medical Assessor McGrath assessed the physical injuries and found that Mr Taubman sustained a soft tissue injury to the neck and an altered diabetic status caused by the motor accident.
Medical Assessor Payten provided a certificate dated 17 February 2021 when he found that the loss of hearing and bilateral tinnitus were not caused by the motor accident.
Medical Assessor Carter provided a certificate dated 6 May 2021 finding that the motor accident caused an exacerbation of Type 2 diabetes resulting in impairment of 2%.
Medical Assessor Cameron provided a certificate dated 7 April 2021. He assessed the injuries as soft tissue and found 0%.[3]
THE REVIEW
[3] Insurer’s bundle, page 236.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 24 September 2021 the delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; Insurer’s bundle, page 108.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the initial Direction.
STATUTORY PROVISIONS/GUIDELINES
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Minor psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a minor psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a minor injury.”
Clauses 6.6 and 6.7 of the Guidelines provide:
“Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
MATERIAL BEFORE THE REVIEW PANEL
[9] See s 3B(2) of the Civil Liability Act, 2002.
The Panel requested and were provided by the parties with separate bundles of documents.
Pre-accident records
On 10 May 2019 the general practitioner noted the claimant was “able to work”.[10]
[10] Insurer’s bundle, page 85.
Post-accident treating records
The ambulance records refer to the claimant’s vehicle hitting the railing and “flipped”. Physical injuries included pain in the right head, face and lumbar spine.[11] Royal North Shore Hospital records described the various scans taken at that time as unremarkable.[12]
[11] Insurer’s bundle, page 67.
[12] Insurer’s bundle, page 68.
In December 2019 Dr Dowla noted that the claimant was living in a garage and had been only eating sandwiches since the motor accident.[13]
[13] Insurer’s bundle, page 379.
A certificate of capacity from Dr Bandara dated 11 February 2020 noted injury as cervical radiculopathy.[14] An MRI scan of the cervical spine dated 25 January 2020 showed severe foraminal stenosis from C3/4 to C6/7, most prominent at the C3/4 level.[15]
[14] Insurer’s bundle, page 218.
[15] Insurer’s bundle, page 237.
Claimant’s statement
Mr Taubman provided a statement dated 19 February 2020.[16] He listed a number of disabilities resulting from the motor accident including anxiety, stress, depression, feelings of worthlessness and loss of confidence.
[16] Insurer’s bundle, page 122.
SUBMISSIONS
Claimant’s submissions dated 19 January 2021[17]
[17] Insurer’s bundle, page 110.
The claimant alleged he sustained a number of injuries including a psychological injury as a result of the motor accident.
In relation to his psychological state, the claimant referred to his statement. He has not been able to work since the accident which has caused him significant financial hardship and had “great effect on … [his] psychological state.”
Claimant’s submissions dated 14 September 2021[18]
[18] Claimant’s bundle, page 1.
These submissions were filed opposing the insurer’s application to review the medical assessment.
It was submitted that the circumstances in which the claimant provided the responses to the medical assessment does not go towards establishing error. Further it was “highly inappropriate” for the insurer to allege that the claimant’s solicitors have directed the claimant in declaring he has a psychological injury.
The fact that Assessor Payten did not record details of psychological injury was irrelevant as he was assessing hearing loss. Similarly, it is not surprising that Medical Assessor McGrath, when commenting on whether the neck injury was non-minor, failed to record symptoms of psychological injury.
Weight loss was barely mentioned by the Medical Assessor, and it is unclear that this was considered in his overall psychiatric diagnosis.
In relation to the assessment of “Social and recreational activities” it was clear that both physical and psychological injuries have impaired the claimant’s ability to leave home. In the clinical notes of the general practitioner three weeks prior to the accident it was certified that the claimant was able to work.
In relation to the assessment of “Social functioning” the claimant had clearly shown an ability to form friendships, lost his only friend and was unable to form new friendships.
In relation to “Adaptation”, the assessment was not based on the inability to work by reason of the physical injuries.
Insurer’s submission dated 16 February 2021[19]
[19] Insurer’s bundle, page 239.
The insurer noted that there is “no reference within his GP records nor the other medical material provided by the claimant of any psychological injuries said to be related to the accident”.[20]
Insurer’s submissions dated 19 May 2021[21]
[20] Insurer’s bundle, page 240.
[21] Insurer’s bundle, page 185.
These submissions dispute that the claimant injured his teeth in the motor accident.
Insurer’s submissions dated 16 August 2021[22]
[22] Insurer’s bundle, page 10.
These submissions were filed seeking leave to review the medical assessment.
The insurer submitted that the circumstances in which the claimant provided his history to the Medical Assessor is unclear and it “is not entirely clear whether the claimant volunteered the details of that timing and symptoms or rather he agreed to questions posed by the Medical Assessor”.[23]
[23] Insurer’s bundle, page 10, [6].
The insurer noted the following:
- The accident was not mentioned to his general practitioner until November 2019 and at no stage was psychological symptoms mentioned.
- A detailed statement was prepared “drafted by his highly experienced lawyer in February 2020”. However, that condition was not raised with other health professionals.
- The further statement only refers to “frequents nightmares” and makes no reference to the other symptoms.
- Neither Medical Assessor Payten nor McGrath referenced psychological problems.
The Medical Assessor did not draw the claimant’s attention to the inconsistency between an absence of recorded complaint by any doctor and the recorded complaint by that Medical Assessor.
The Medical Assessor referred to loss of weight since the accident. However, there is no mention of pre-accident obesity and attempts to reduce weight.
The Medical Assessor erred by considering non-accident-related restrictions due to physical symptoms when assessing “Social and recreational activity”. It was otherwise unclear on what basis the Medical Assessor formed the view that the claimant had not formed new relationships when assessing Class 3 for “Social functioning”.
In relation to adaptation, the claimant advised the Medical Assessor that he desired to return to futures trading. There was no psychiatric impediment to this type of role. Further, it was the totality of the physical problems which prevented the claimant from working. The medical certificate from the general practitioner dated 11 February 2020 identified medical conditions which prevented the capacity to work. The listed conditions did not include a psychiatric diagnosis.
RE-EXAMINATION
Mr Taubman was examined on 2 August 2022 by both Medical Assessors on the Review Panel by audio-visual link. The joint examination report is as follows.
“The assessment took place via audio-visual link through the MS Teams platform, organised by PIC.
Present were Mr Taubman, Dr Michael Hong and Dr Matthew Jones.
Mr Taubman is a sixty-six-year-old man living in Botany Road, Botany. He has been there for approximately two years. He lives by himself in Housing Commission accommodation and prior to that, lived in an open garage in the Blacktown area at Kings Park. He was previously living in New York when a friend called and suggested that he come to Australia and that he could give him a room until he settled in. Mr Taubman, on arrival, found out the incredible prices for rental properties. He had been in New York for three years, working in real estate, and came back, with his baggage only, after a bad relationship ended. He came back on 1 May 2019 and since coming back had not been working. He started receiving the old age pension at the age of sixty-six and a half (he is now sixty-six and three-quarters). Mr Taubman is not currently in a relationship and his last relationship was in New York to his wife.
Mr Taubman has family members, three children in Melbourne, born in 1990, 1991 and 1993. He did not have contact with them for a while and he said that they hated his guts because ‘they had lost their lifestyle.’ Mr Taubman went on to say that he previously had a nightclub, two bars, a restaurant and a coffee shop, his house was fully paid for, and he had German cars. He said at the time his children ‘hated [his] guts, but their mother was co-signatory’, The Panel asked Mr Taubman how he felt about this now and he said it was okay as he was talking to his children now and that the eldest child helped him with moving and has guaranteed his rent. He has not however seen his children for five or six years, but he speaks to everyone every six months or so. He said they will call him if they need something or advice. Then he calls they do not answer and he said ‘they have a life’ and they call him only when they need to. Mr Taubman reported he has no grandchildren. Mr Taubman also reported he had no other family members around and that his parents had passed away and he was an only child.
Pre-Accident Medical History
Clarifying Mr Taubman’s medical history, he reported he had a benign tumour in his lower spine in 2004 which caused a lot of pain but is now good and otherwise he denied any medical history. He said he never went to doctors. He said otherwise if there was a problem with his children, he would take them to the doctor. He then said that in New York his mouth started getting dry and he felt under pressure in the marriage. and he went to see a doctor. In New York, Mr Taubman had a glucose test and was told that he was pre-diabetic. He was started on prevention medication, Metformin once a day, and if got worse he was to come back and increase the dosage.
Drug and Alcohol History
Mr Taubman reported that he detests alcohol and said he had previously owned a nightclub and owned bars and had seen too many people drunk. He denied any history whatsoever, even as a youngster, of any significant alcohol ingestion. He has no recreational drug history. He has no significant gambling problems but he has previously played Lotto. He has never been addicted to prescription medications and does not ingest excessive caffeine.
Psychosocial History
Mr Taubman was born in Romania in Transylvania, an only child of his parents who were married for over fifty years. His father was an accountant and passed away in 2000 and his mother was a textile technician and passed away in 2001. His mother had grown-up as a concentration camp child and had experiments performed on her. She later had difficulty getting pregnant, but eventually Mr Taubman came along after she had had problems having live births.
Mr Taubman himself had no perinatal complications, nor any major illnesses as a youngster. He had his tonsils out at the age of six, which was compulsory where he grew up, with no anaesthetic except for ice-cream and ice. He walked and talked at normal times, and he commenced his early schooling without incident, finding primary school easy. He said at the time he started education you had to ‘know letters and maths to start.’
Forensic History
Mr Taubman denied any criminal history or any history of work-related injury or worker’s compensation. He had never had any previous motor vehicle accidents, nor been involved in any other compensation or litigation processes.
Pre-Accident Functioning
Mr Taubman reported he had friends in New York from real estate, as well as neighbours. The Panel asked him if he had friends in Australia prior to going to New York and he said that after his businesses failed his ‘so-called friends disappeared.’ He told us, after a couple divorces, friends do not want to get involved.
History of the Motor Accident
Mr Taubman confirmed the date of accident as 25 May 2019 and it occurred around 11.00am or at least before 12.00 midnight. Mr Taubman was driving and he had two passengers, a couple of females who he was taking over the Harbour Bridge to a north shore destination. He said it was his first day driving for Uber. He said they were on the Bridge, someone hit him, he hit the rail and his vehicle rolled four times. His car was upside down and he said his seatbelt saved him, but he still hit his head. He was unable to open his door and the car behind, he remembers, was a four-wheel drive Mitsubishi.
Mr Taubman reported that the car was leaking fuel, someone told him to get out, the rescue police arrived, and they tried to force open the door and were unable to. He said someone came from behind and undid his seatbelt and he said it was ‘all a blur.’ He said he wanted to retrieve his phone and GPS and he kept walking back to the car, however the ambulance came and took him. The tow-truck came, and they blocked the Harbour Bridge. The ambulance took him to Royal North Shore Hospital, where he was overnight, and had a CT and MRI scans. He said they were worried about internal bleeding in his head.
History of Symptoms and Treatment Following the Motor Accident
Mr Taubman reported that he initially had pain in his neck and that the investigations were at hospital were because they were concerned about internal bleeding in his brain. He had bruises all over his head, he felt sore, and his teeth felt broken. The right side of his face was ‘swollen like a balloon.’ He ultimately was not diagnosed with a brain haemorrhage, however, did have a concussion.
Mr Taubman also reported that ever since then he has had nightmares and he sees images of burnt people. He said previously he used to watch the news but now he does not. He still has nightmares and remembers thinking that the car would blow-up. He said that was the way he processed it at the time.
Mr Taubman reported that in the other car everyone was intoxicated except one person and everybody reported that she was driving.
I asked Mr Taubman how his passengers fared, and he said both passengers were not hurt, they were in the back, and they were buckled-up. He said one of them ‘tried to play the injured one.’ He remembers one of them saying ‘We can get a lot of money out of it. I’ll go with the ambulance.’ He assumes that somebody talked her out of this.
Mr Taubman also reported that his hearing was good prior to the accident, and he had no tinnitus. Mr Taubman reported that he now has tinnitus ‘twenty-four seven’ and it keeps him awake. He also reported he is experiencing hearing loss. He still has pain in his shattered disc in his neck and said that he needs an operation.
After his hospitalisation, Mr Taubman reported that he had six broken teeth and also experienced tremors in his hands. He saw a neurologist who thought that he may have a precursor to Parkinson’s disease triggered by the accident. He also developed urinary incontinence, when he was out, and was told that that could be psychological and also could have been triggered by the accident. He said there was no physical evidence of why he should have incontinence and he had not experienced this before.
Mr Taubman told the Panel spontaneously that he was previously very active and would go to seminars and was driving in New York and otherwise, if not for the relationship, would have stayed there.
When the Panel cross-checked with Mr Taubman about any Green Card, he clarified that he had gone there on a tourist visa for three months, then left to visit London and Ireland and then his partner called him to come back as she had hired an immigration lawyer who had suggested marriage for a Green Card.
Mr Taubman has not undergone any operations since the accident and said ‘physiotherapy doesn’t help.’ He has taken painkillers.
With respect to his current medications, Mr Taubman takes Lyrica one tablet twice a day and sometimes more if in pain, Amitriptyline 10mg twice a day (for pain), Diaformin slow release 1000mg twice a day (for diabetes), Diamicron 60mg once a day (for diabetes), and Inderal 40mg (for tremors). Mr Taubman also has a weekly injection of an insulin agonist.
Mr Taubman told the Panel that his blood sugar levels from his diabetes went up to 24 and that when he was in the USA his blood sugar levels were 4.8, and he was treated with Metformin 500mg to be taken, if they went any higher. He said that ‘diet did the trick’ and his sugars came under control. He said about two weeks after the accident his blood sugar levels increased, and his first symptoms were dry mouth and his vision ‘getting foggy.’ He went to visit his general practitioner who said his sugar levels were rising and he went to see, and continues to see, a diabetes specialist at Royal Prince Alfred Hospital. He was told by the specialist that there could be a ‘negative feedback mechanism which gets out of sync if traumatised.’ Mr Taubman said the accident would explain his tremors and his diabetes.
Mr Taubman went on to say that his hearing problems and tinnitus are really debilitating, and his broken teeth are also a concern and he has only had liquid food since the accident. He is unable to afford to have his teeth fixed and the government dental clinic only does fillings. With respect to his ongoing case, he said the dental expert cannot decide if his teeth broke because of decay or because of the accident. Mr Taubman complained that due to his origin of birth he was profiled by the specialist. He said the specialist asked him where he was from and got him out of the room in five minutes and asked him nothing else. He said the ‘so-called specialist’ was looking at the MRI upside down and Mr Taubman informed him of this and ‘he didn’t like it.’
Mr Taubman reported he now has hearing-aids which deal with white noise, and these help. He said he has problems with corona virus and masks that people wear as it interferes further with his hearing. He said he is trying to control his diabetes and reported his blood sugar levels were closer to 14. With respect to his teeth, he has liquids only and he has back teeth extracted. He has not had any dentures or implants because he said he cannot afford these. He is still waiting in a queue, which he believes is a few years long.
With respect to his tremors, in September he is seeing a professor at Prince of Wales Hospital, in the Neurology Clinic, who is very concerned about them. Mr Taubman reported he is hoping not to get Parkinson’s disease.
The Panel specifically asked Mr Taubman about any mental health or emotional symptoms emanating from the motor vehicle accident. He reported that he had become a recluse after the accident and said ‘they destroyed [his] life.’ He reported being fatigued and not having energy to do anything yet being lucky to sleep four hours. He has nightmares, including recurring nightmares of the accident. He does not drive and has no car, but in the bus he holds the seat when the bus driver stops.
Mr Taubman also reported mood swings and problems concentrating and focusing. We enquired further about the mood swings and he said that he can be abrupt and people roll their eyes at him. He said it ‘doesn’t help at all when people talk loud and slowly, like a moron.’ Mr Taubman said a long-term safety mechanism of his is that he becomes detached and does not respond and goes somewhere safe in his mind, so he does not have to face people. He has trouble remembering names and words and feels out of control. He stated his IQ was 162 and he described himself as a relatively intelligent person. He came across as an articulate and intelligent historian. He said however since the accident he feels like he was lobotomised and lost part of his brain. He has lost interest in socialising, making friends or having a new relationship and his only hobby is that he likes to watch YouTube, particularly science and science fiction so that he ‘can make sense of things.’ He spontaneously declared that he would ‘never be able to find a partner.’
Mr Taubman also reported that he talks to himself to help with his hearing and his children’s speech has become blurred.
The Panel asked Mr Taubman about any specific psychological or psychiatric treatment, and he reported that the insurance company was initially willing to help and he was diagnosed with Post Traumatic Stress Disorder by, on his recollection, Dr Raquel Hara. He saw her in Botany and the insurance company paid for two or four sessions and these occurred two to three months ago. They refused, however, to continue paying. Mr Taubman broke-down and demonstratively and emotionally told the Panel that she was the only one he had to talk to and it felt like ‘heaven having another human being to talk to and not being judgemental.’ He said he found this very healing.
The Panel asked Mr Taubman when the symptoms started and when he informed his general practitioner. He reported that after the accident he had feelings that it was ‘not manly to start talking about those things.’ He was brought up to not show emotions and was ‘brought up to tough it out.’ He said that was his ‘survival mode.’ Treatment came about because the insurance company had a social worker come and visit him, and he laughed when he told the Panel that she came with a bodyguard. He was told that he needed to see a psychologist. The social worker was sent by QBE.
Mr Taubman has not seen a psychiatrist for treatment and reported he cannot afford to. He takes no antidepressants or other psychiatric medications, nor has he ever, however said his general practitioner told him that he should take these only after seeing a psychiatrist. The Panel asked Mr Taubman whether he would be able to access a psychiatrist through Medicare and his general practitioner, and he responded that his general practitioner has no one to whom he could refer him.
Mr Taubman spontaneously told the Panel that every time on the anniversary of the accident comes around, it is a reminder, and he relives the accident. He said he feels like he is ‘completely in a fog and detached from life and just surviving.’ He said every day is the same and he tries to avoid conversations about it, if he gets lucky and finds someone to talk to. He also reported feeling guilty and like a burden to himself and that his life had been destroyed.
Mr Taubman reported his flashbacks were quite often and he has many times dreamt about the accident and finds himself in the car trapped, it is leaking, and it is about to explode.
Mr Taubman reported that when he goes out he sees people eating steak and he feels jealous. He has not eaten steak for three years, only noodle soup and pasta apart from liquid foods.
Psychiatric History
Mr Taubman reported no history of mental health problems and said he had ‘never had any.’ He had never seen a psychologist or a psychiatrist or taken psychiatric medications and he denied any family history of mental health problems.
Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
Mr Taubman reported he has experienced no relevant injuries, conditions or significant life events since the motor vehicle accident.
Current Symptoms’
Mr Taubman said that he is having his tremors looked into. His right hand is worse than his left and he said sometimes with a coffee he will ‘end up wearing it.’
Mr Taubman reported that his sleep is always less than four hours, and he will wake up to four times a night. He said his appetite is down predominantly because of his teeth and his weight was 108kg when he came to Australia and now is down to 90kg. He likes meat which was readily available in the USA. His energy levels are low and he has reported subjective impairment with his memory and concentration. His memory and concentration appeared grossly intact in the context of the assessment. He came across as intelligent and cognitively capable.Current and Proposed Treatment
Mr Taubman reported that he wants to receive teeth so he can have something to eat. He said he would also like to have some treatment to help himself improve his lifestyle. He said he feels like he has been in a cage with respect to socialising. He said he cannot even afford McDonalds, how he can impress a woman.
Mental State Examination
Mr Taubman was a gentleman wearing spectacles who had grey hair and an untrimmed beard. He wore a black cardigan over a chequered shirt and a white t-shirt. He was polite, cooperative and attentive and displayed no abnormal movements. At times his right hand appeared, and he appeared to have a coarse tremor. His speech was normal and there was no evidence of formal thought disorder or delusional thought processes. He has no specific thoughts of self-harm or thoughts of harm to others but did comment he often thinks and feels ‘what is the point’, and if only he could get some teeth, he could enjoy some real food.
The Panel asked Mr Taubman about his mood, and he said he was happy to be able to talk to us because he has no one to talk to.
Mr Taubman’s affect was reactive, congruent and appropriate and he was clearly emotionally demonstrative on more than one occasion but was able to respond and contain his affect for most of the assessment. He denied any perceptual abnormalities consistent with psychosis. His cognition, insight and judgement appeared intact in the context of the interview. Rapport was reasonable and Mr Taubman seemed to speak openly and freely.
Current Functioning
Mr Taubman lives by himself in a studio apartment which involves one room containing a toilet, kitchen and bed. He requires no assistance with getting ready, such as showering and getting dressed, but said he does make sounds and has problems when he bends down. He has neck pain that radiates down his shoulder and into his upper back. He said every time he moves his head he hears clicks. He sometimes takes more than two Lyricas which knocks him out and his general practitioner had told him that it was the best painkiller there was.
Mr Taubman maintains a driver’s licence but does not have a car. The last time he drove, he stated, was the accident and he has not done so since. He reported he uses the bus or the train, for example if he is going to Royal North Shore Hospital to see a specialist. He will use the bus or train depending on which is the most convenient route to his destination.
The Panel asked Mr Taubman what he did for food and shopping, and he said he has a small trolley, and he will fill that up at the shops. He mostly orders however online, and this is one of the reasons why he likes the Internet, calling it a ‘window to the world.’ He has Coles deliver groceries every five to six weeks. He commented that he was diary intolerant. With respect to what he cooks, he will make soup, noodles or pasta and sometimes throw in a couple of eggs. He will sometimes eat a tin of tuna.
The Panel asked Mr Taubman what an average day entailed for him and he said he will get up, go to the toilet and have a coffee after having woken-up up to four times during the night. He will then brush his teeth, go to his computer and spend hours and hours on it, then it gets dark, and he gets tired. He tries to snooze on the couch and wake-up again to go to the toilet. He said night comes, he goes to bed and then it is Groundhog Day, unless there is an appointment, or he has to go to the chemist. Mr Taubman reported he only showers or shaves when he goes out.
Mr Taubman reported that he can watch television, however he finds the news is predominantly negative, for example stories about the war in the Ukraine. He said he does not read books but does read online and said he loves to read and is ‘always interested.’ He said that science fiction makes him feel better.
Consistency of Presentation
There were no inconsistencies in Mr Taubman’s reported narrative or presentation to the Panel at assessment.
Conclusions
Diagnosis and Causation
Mr Taubman reported a narrative and presented at assessment as presenting with a number of physical and medical concerns, which he related to the motor vehicle accident. These included a triggering of diabetes, the development of a tremor, neck, arm and back pain, and broken and missing teeth. These are outside the area of expertise of the Panel and are beyond the scope of a psychiatric assessment, however, are generally relevant and have been taken into account with respect to Mr Taubman’s whole person impairment and total clinical picture.
Having said the above, the Panel considered that there were grounds for a diagnosis of Chronic Post Traumatic Stress Disorder. Mr Taubman’s reported symptoms, their nature, development, persistence and interference with function are consistent with a DSM-5 diagnosis. Mr Taubman has maintained some degree of functioning in a number of areas such that his ongoing Post Traumatic Stress Disorder would be considered of mild to moderate severity.The Panel considered causation and the timing, nature and development of symptoms, and the specific nature of the accident, were consistent with the motor vehicle accident being the cause of Mr Taubman’s Chronic Post Traumatic Stress Disorder.
Permanency of Impairment
The Panel noted that it has been three years since the accident and Mr Taubman reported a plateau in his recovery and a stability in his symptomatology. For the sake of the assessment Mr Taubman’s injuries would be considered to have stabilized and his level of psychiatric impairment is unlikely to change by any significant degree in the upcoming twelve months.
Degree of Permanent Impairment
Psychiatric diagnoses
1. Chronic Post Traumatic Stress Disorder
2.
3.
4.
Psychiatric treatment description
Recent psychological sessions.
No psychiatrist, no psychiatric medications
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
1
Minor deficit attributable to the normal variation in the general population.
Mr Taubman prepares meals for himself and has to cater to dietary restrictions given his dental situation and food intolerances. He organises online shopping but tops up this with occasional local grocery shops. He is currently living alone and independently, and requires no assistance with showering, dressing or grooming. He reported that he does not shave or shower unless he needs to go out, for example to go to the chemist or to a doctor’s appointment. To the Panel’s knowledge, he is not receiving any specific care or domestic assistance.
2. Social and Recreational Activities
2
Mild impairment
Mr Taubman did report a reluctance to socialise and has somewhat reduced capacity to enjoy social and recreational activities and does not need a support person in these activities. He reported a previously physically active life, something he is not currently able to continue.
3. Travel
2
Mild impairment
Despite the fact that Mr Taubman can travel alone by public transport to required destinations, he reported he has not driven since the motor vehicle accident (however also reminded the Panel that he did not have a car). Utilising clinical judgement, there is some impairment, given Mr Taubman’s general restriction in activities, consistent with a class 2, mild impairment.
4. Social Functioning
2
Mild impairment
Mr Taubman reported that he had mended to some degree the relationships with his children but continues to have no friends (his social network dissolved after his divorce in Australia, and yet again after his relationship break-up in New York, these were both prior to the motor vehicle accident). He did comment that he had a lifelong coping mechanism of detaching to some degree from people. Mr Taubman is not currently in a relationship and has doubts regarding his prospects in that regard, particularly related to not being financially able to entertain a relationship with a woman. Utilising clinical judgement, it was considered that there was a class 2, mild impairment.
5. Concentration Persistence and Pace
2
Mild impairment
He has considerable interest in reading information and watching YouTube regarding science and science fiction through the Internet. He said he could spend his whole day doing this.
Mr Taubman reported a number of physical limitations, however the Panel considered that there was some degree of psychiatric impairment in this area with respect to fatigue and motivation. On the other hand, Mr Taubman concentrated well for the assessment, and reported taking an interest and spending considerable amounts of time enjoying Internet content regarding science and science fiction. Utilising clinical judgement, there is a class 2, mild impairment here.
6. Adaptation
3
Moderate impairment
Given that there is some global reduction in functioning, and the category of Adaptation is multifaceted, the Panel took into account that Mr Taubman had qualified for the old age pension, that he had ostensibly not worked since being back in Australia, and that the accident occurred on his first day of professional driving. The Panel considered that he would be unlikely to return to that level of pre-accident employment capacity, however Mr Taubman overall had some adaptive capacity, for example performing an alternative or lesser demand role, up to 20 hours per week. The exact nature, of for example employment, would need to take into account his physical limitations and restrictions. However, from a psychiatric perspective, utilising clinical judgement, there is a class 3 moderate impairment.
List classes in ascending order: 1 2 2 2 2 3
Median Class Value: 2
Aggregate Score: 12
% Whole Person Impairment: 6%
*%WPI = Percentage Whole Person Impairment
Apportionment
Pre-existing/subsequent impairment
There is insufficient evidence for any adjustment for pre-existing or subsequent impairment.
Effects of Treatment
The Panel notes that Mr Taubman recently saw a psychologist for a number of sessions, something which he stated was significantly beneficial and to which he wished to return, however there was no ongoing treatment with any substantial treatment effect. Therefore, the adjustment is 0%.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[24]
[24] Section 7.26(6) of the Act.
The Panel adopts the extensive joint examination findings of the two Medical Assessors[25] and adds the following short reasons.
[25] Set out at [49] herein.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[26] and Insurance Australia Ltd v Marsh.[27]
[26] [2021] NSWCA 287 at [40], [41] and [45].
[27] [2022] NSWCA 31 at [11], [21], [64].
There was a delay between the examination of the original assessment and that undertaken by the Panel. The claimant advised that he has been undergoing treatment and has improved during this period. That, in part, explains the differences and improvement in the assessment of permanent impairment.
The Panel accept the insurer’s submissions that physical problems are not included and assessed as part of the assessment due to the psychiatric condition.
The Panel accepts that Mr Taubman presented in a consistent and credible manner. Despite the absence of recorded complaint of a psychological condition by the doctors assessing physical injuries, the specialist medical experts on the Panel accept that Mr Taubman is suffering from post-traumatic stress disorder. That conclusion is consistent with the significant motor vehicle accident, the opinion of Medical Assessor Parmegiani and the timing of the onset of symptoms in the context of an absence of a pre-accident psychological condition.
The insurer’s submission[28] that Medical Assessor Parmegiani prompted the claimant’s responses to the particular psychological symptoms was a nonsense and should not have been made.
[28] Set out at [43].
The insurer’s other submission that the symptoms were drafted by a “highly experienced lawyer”, raising the implication of an absence of instructions, should also not have been made and understandably drew a complaint by the claimant’s solicitors.
It is unfortunate that the insurer made these submissions.
CONCLUSIONS
The certificate issued by Medical Assessor Parmegiani that the claimant suffers from a non-minor psychological injury, specifically post-traumatic stress disorder, is confirmed.
The certificate which assessed permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
0
2
0