Allianz Australia Insurance Limited v Turner

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Turner [2023] NSWPICMP 92
CLAIMANT:	Russell John Turner
INSURER:	Allianz Australia Insurance Limited
REVIEW Panel
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Samson Roberts
MEDICAL ASSESSOR:	Michael Li Ying Hong
DATE OF DECISION:	15 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical disputes about minor injury and review of the Medical Assessor’s assessment under section 7.26 (psychological injury); claimant was run off the road on Sturt Highway near Hay in Outback NSW; suffered soft tissue injuries which he sought treatment for; claimant developed post-traumatic stress disorder (PTSD) symptoms but did not request treatment as he was unaware that he could receive treatment via Zoom; focussed on recovering from physical injuries; dispute about claimant’s descriptions of the accident, whether claimant satisfied the criteria for PTSD and whether injuries were minor or non-minor; insurer’s submissions about inconsistency including absence of reference to mental health symptoms in the General Practitioner’s (GP) file; claimant swerved to avoid head on collision; accident described was objectively sufficient to be classed as a Criterion A stressor; claimant stoic with respect to mental health symptoms because the physical symptoms directly impacted his work; lack of reference to psychiatric symptoms to GP was not considered to represent a sufficient factor to influence the Panel’s conclusions; Held – claimant satisfied criteria for PTSD, injuries non-minor; no matter of principle.
DETERMINATIONS MADE:	Review Panel Assessment of Minor Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) The Review Panel confirms Medical Assessor Parmegiani’s certificate dated 3 September 2021. The motor accident caused the following injury: · post-traumatic stress disorder which is NOT a MINOR INJURY for the purposes of the MAI Act

REASONS

Background

Russell John Turner (the respondent) was injured in a motor accident on 22 May 2018. Allianz Australia Insurance Limited (the applicant) accepted the respondent’s claim, under the Motor Accident Injuries Act 2017 (the MAI Act).
The accident happened near Hay, in southwestern NSW.
Hay Shire is located on the Hay Plains, one of the flattest sections of land in the world. The community of Hay is on the banks of the Murrumbidgee River. Hay is halfway between Sydney and Adelaide and 4 ½ hours’ drive from Melbourne.
Hay's geography, climate and environment are conducive to a range of agricultural and pastoral activity. The Hay Shire is known for its wool industry and a diverse range of commercial crops such as rice, corn, cotton and wheat. Irrigated horticultural land produces lettuce, rockmelon, broccoli, grapes and garlic.
Hay is centrally located to transport produce to markets in Sydney, Melbourne, Adelaide and Canberra. Semi-trailers use the region’s roads constantly in large numbers.
The police report records that on 22 May 2018 a Kenilworth prime mover and trailer (a truck) was travelling westbound at about 90 kph on the Sturt Highway west of Hay.[1]
[1] Page 254 New South Wales police force report (page 265).
Mr Turner was driving about 100 m behind the truck.
An east bound vehicle crossed into the west bound lane, so the near side of that vehicle impacted and slid down the side of the truck.
Mr Turner observed the east bound vehicle veer onto the wrong side of the road and into the path of the truck. Mr Turner told the police "the vehicle then spun down the side of the truck headed straight towards me". To avoid colliding with the east bound car Mr Turner swerved his car to the left shoulder of the road, sustaining damage to the front of his vehicle.
Mr Turner stated he observed the east bound driver slumped over his steering wheel.
The police report did not note whether alcohol was detected in any of the drivers or whether any of the drivers sustained injury in the accident.
Mr Turner's vehicle sustained front damage. Mr Turner has claimed the accident caused him physical and psychological injuries.
The insurer disputes the extent of the damage to Mr Turner’s car and whether the accident was serious enough to cause the psychological injuries he claims.
There was dispute about the respondent’s psychological injury being a minor injury for the purposes of the MAI Act. Mr Turner referred this dispute to the Personal Injury Commission (the Commission).
Medical Assessor Enrico Parmegiani (the Medical Assessor) conducted an assessment and produced a certificate dated 3 September 2021. The certificate assessed

Mr Turner’s injury as non-minor.
Within 28 days after the Commission issued the original certificate the insurer applied to refer this certificate for review.[2]
[2] Section 7.26(10) of the MAI Act.
On 8 December 2021 Presidential delegate Baba referred the certificate to a Review Panel. The particulars set out in the application[3] satisfied Ms Baba there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
[3] Section 7.26(5) of the MAI Act.

The Review

The Review Panel met initially on 29 November 2021.
Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Commission to make rules about the practice and procedure before the Commission including proceedings before a panel that will review a decision of a Merit Reviewer or a Medical Assessor.[4]
[4] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the 2020 Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The term “minor injury’ is defined in s 1.6 of the MAI Act and includes a “minor psychological or psychiatric injury”. A minor psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(3).
Section 1.6 provides the regulations may 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 Regulation) further define minor psychological or psychiatric injury to include acute stress disorder and adjustment disorder.

23.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 a motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017. In respect of assessing whether an injury is a minor injury, the Guidelines 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 assessment of minor psychological or psychiatric 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.”

Assessment under Review

The Medical Assessor conducted his medical assessment via telephone. This was due to a lack of sufficient bandwidth to sustain a video conference.

Causation and reasons

The Medical Assessor found Mr Turner is a 59-year-old gentleman with no prior history of psychiatric illness, who was involved in a motor vehicle accident on 22 May 2018. Since that accident, Mr Turner has continued to experience psychiatric symptoms that are consistent with post-traumatic stress disorder. Based on the Medical Assessor’s interview of Mr Turner, the symptoms are specifically related to the experience of the accident, which in the Medical Assessor’s opinion constituted a valid Criterion A stressor for a potential post-traumatic stress disorder diagnosis.
The Medical Assessor found no other factors could account for his reported symptoms, and it was his opinion the accident must be considered the only evident causal factor for the diagnosable condition.

Diagnosis and reasons

The Medical Assessor found Mr Turner was well from a psychiatric perspective before the accident. The accident exposed him to a situation in which he feared losing his life. He experienced symptoms of an acute stress reaction immediately afterwards. He reported the symptoms to his general practitioner (GP) who assured him they would get better with time. Later the GP advised he could prescribe psychotropic medication for him (which he however declined). The symptoms continued past the one-month mark, which satisfied diagnostic criteria for post-traumatic stress disorder within the context of the DSM-5 classification system.
Although Mr Turner had remained untreated from a psychological/psychiatric perspective, he had managed to cope remarkably well with his situation. Despite chronic pain and persistent symptoms of post-traumatic stress disorder, he had continued to work fulltime, his only limitations involving the avoidance of physically demanding work. He also reported he cared for himself and he had maintained an active social life until the onset of the COVID restrictions.
When assessed on 23 August 2021, Mr Turner reported the psychiatric symptoms documented in the sections above, which in in the Medical Assessor’s opinion continued to fulfil DSM-5 diagnostic criteria for post-traumatic stress disorder.

Disputes and issues the parties identified

Submissions

Insurer’s submission

The insurer submits there is more than a reasonable cause to suspect Medical Assessor Parmegiani’s assessment is incorrect in a material respect, for the following reasons:
(a)    failing to address and/or put inconsistencies to the claimant;
(b)    breaching procedural fairness in assessment procedure;
(c)    failing to engage in a party’s substantive argument, and
(d)    failing to provide adequate reasons.
The insurer first submits Medical Assessor Parmegiani failed to identify, give appropriate consideration to, or put inconsistencies to the claimant for comment throughout the course of his assessment and he failed to engage with the available evidence.
As stated above, cls 6.40 and 6.41 of the Guidelines require a Medical Assessor to use the entire gamut of their clinical skill and judgment when determining whether observations are plausible. If there are inconsistencies between the Medical Assessor’s findings and information obtained through records, those inconsistencies must be put to the claimant to ensure accuracy and procedural fairness.
While cls 6.40 and 6.41 relate to permanent impairment assessments, the insurer submits Medical Assessors are obliged to address inconsistencies via cl 5.6 of the Guidelines, which require a Medical Assessor to base their findings on the evidence available, all relevant findings, a comprehensive accurate history and a review of all relevant records.
The insurer submits this interpretation of the Guidelines is consistent with the objects of the MAI Act, including the provision of benefits for injuries sustained in motor vehicle accidents and the just, quick and cost effective resolution of disputes.
The insurer submits there are examples throughout Medical Assessor Parmegiani’s Certificate where material inconsistencies are either not put to the claimant or identified at all. In support of this submission, the insurer refers to page 3 of the Certificate, the claimant told Medical Assessor Parmegiani ‘his car rolled several times end-to-end before it came to a rest’ when describing the subject accident (A2).
This is inconsistent with the NSW Police Report included in the clinical records of Hay Medical Centre (page 107). Significantly, the police records does not refer to the claimant’s vehicle flipping or rolling, and damage is noted only to have been sustained to the front-end of the claimant’s vehicle.
Medical Assessor Parmegiani does not put this inconsistency to the claimant, or even address the incongruous description in his Certificate. The insurer submits this failure is material as it relates directly to the severity of the subject accident, the likelihood the claimant developed post-traumatic stress disorder and the veracity/accuracy of the claimant’s self-reporting.
On page 3 of his Certificate, Medical Assessor Parmegiani stated the claimant had ‘no history of prior compensation claims’ (A2). This is inconsistent with the records from Hay Medical Practice, which confirm the claimant lodged a workers compensation claim after a right calf injury on 1 May 2008.
On page 2 of his Certificate, Medical Assessor Parmegiani took a history the claimant had been ‘medically well’ before the subject accident, other than a 20 year history of hypertension ‘which responded to medical treatment’ (A2).
The insurer submits this is inconsistent with the clinical records of Hay Medical Practice, which confirm a pre-accident history of atrial fibrillation, morbid obesity and being admitted to Wagga Wagga Hospital Emergency Department because of these conditions two years before the accident. The Medical Assessor does not address these inconsistencies, or question the claimant with respect to same, including their impact (if any) on his pre-accident functioning.
On page 4 of the Certificate, the claimant advised there was an ‘immediate onset’ of psychological symptoms (A2). The claimant also advised he had reported psychological symptoms to his doctor, who recommended medication, which the claimant declined. The claimant reported ongoing poor sleep, nightmares and sweating due to his psychological symptoms.
The insurer submits all of the above self-reporting is inconsistent with the clinical records from Hay Medical Practice which contain no reference to any psychological symptoms from 2003 to 2021.
While the Medical Assessor noted the claimant had not received any psychological treatment, he did not put the inconsistency between this self-reporting of immediate and chronic symptoms and the lack of any reference to the claimed symptoms in the clinical records – to the claimant for his comment/explanation. The Medical Assessor was required to do so.
Under the heading ‘Comments on Consistency’, the Medical Assessor merely states the ‘symptoms reported were understandable within the context of his experience, and (they) did not appear to be exaggerated or embellished’.
When reviewing the material and clinical records provided Medical Assessor Parmegiani stated ‘the general practice notes… were essentially consistent with the history reported by [the claimant] at this assessment’.
The insurer submits this is not the case, and a proper reading of the clinical records reveals they are starkly inconsistent with the claimant’s self-reporting of immediate and ongoing psychological symptoms.
The records make no reference to any psychological symptoms after the accident.
The insurer submits the Medical Assessor’s failed to identify and put these inconsistencies to the claimant and this calls into question the accuracy of his diagnosis and minor injury determination. In particular, the insurer submits the Medical Assessor did not use the ‘entire gamut’ of his medical skill to conduct an assessment, or he took a comprehensive accurate history and properly reviewed all the available material – as he was required to do under the Guidelines.
Because the Medical Assessor did not identify or address these inconsistencies, the insurer submits it is unclear what Medical Assessor Parmegiani made of the inconsistencies in the evidence or how he nevertheless justified his diagnosis.
The insurer submits this failure has a material bearing on the assessment outcome, as Medical Assessor Parmegiani states under the heading ‘Diagnosis and Reasons’ the claimant ‘experienced symptoms of an Acute Stress Reaction immediately afterwards… he reported symptoms to his GP’ (A2).
Given the clinical records do not support this history, the insurer submits that the Medical Assessor did not have base his opinion on an accurate, comprehensive history. A reader cannot confirm whether the Medical Assessor was able to reconcile his diagnosis with these inconsistencies (if possible) – to enable the parties to verify it is, in fact, correct.
Had the Medical Assessor identified and put the above inconsistences to the claimant, the insurer submits it is likely he would have reached a different diagnosis – or at least attempted to reconcile his opinion with the available clinical records.
Currently, the Medical Assessor’s diagnosis and opinion on causation is inconsistent with the available evidence and he appears to have relied almost solely on the claimant’s self-reporting, contrary to the requirements of the cl 5.6 of the Guidelines.
The above inconsistencies ought to have put the Medical Assessor on notice that the claimant’s self-reporting ought not to be relied upon, or at the least, requires cross-referencing with the clinical records and the evidence before him. This has not occurred.
Medical Assessor Parmegiani opted to conduct the assessment via telephone, where he was unable to see the claimant and assess his appearance, as well as see whether he was alone or not.
The insurer claimed a lack of procedural fairness because the Medical Assessor did not consult with the parties to get consent to conduct the interview via telephone. The insurer does not specify that it seeks an in person examination, but a Teams re-examination will be necessary to ensure procedural fairness.
The insurer also claims there was a failure to provide adequate reasons for the Medical Assessor failing to question the claimant about the inconsistencies between his reported condition, the history recorded in his treating doctors clinical notes and the police report.

Claimant’s submission

The respondent opposed the application.

Documentation

The Review Panel considered the following documentation:
(a)    Medical Assessor Parmegiani’s certificate issued on 3 September 2021;
(b)    Application for review and attached documents;
(c)    Reply and attached documents;
(d)    the Presidential delegate’s reasons given on 8 December 2021 referring this matter to a Review Panel, and
(e)    all the documents which were provided to Medical Assessor Parmegiani before the assessment under review.

The Review Panel’s considerations and decisions

At the teleconference on 29 November 2022 the Review Panel considered afresh all aspects of the assessment under review.
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[6] and Insurance Australia Ltd v Marsh.[7]
[7] [2022] NSWCA 31 at [11], [21] and [64].
Considering the failure to conduct the earlier assessment via video conferencing the Panel decided to re-examine the claimant. Medical Assessors Roberts and Hong would conduct the examination on the Panel’s behalf.
The Panel also discussed the insurer’s submissions about Mr Turner’s accident descriptions not matching the description in the police report. The insurer was arguing it was not a serious enough accident to trigger post-traumatic stress disorder and that the claimant’s recount of the incident and the injuries were inconsistent with the records.
The Panel also discussed the insurer’s comments regarding the absence of reference to mental health symptoms in the general practitioner’s file
The Panel noted the accident and the background descriptions vary, as in Medical Assessor Moloney’s certificated dated 5 June 2022.
These were the substantive arguments the insurer said the Medical Assessor did not engage with.
The Panel fixed the examination for 2.00pm on 6 February 2023 and asked Mr Turner to set aside two hours for the appointment.
The Panel decided to confer again via Teams on 13 February at 2.00pm.

REVIEW PANEL FINDINGS

Who attended the assessment

On the date fixed Medical Assessor Hong and Medical Assessor Roberts examined
Mr Turner via video assessment. Mr Turner was at his office during the assessment. Medical Assessor Hong and Medical Assessor Roberts were in their Sydney offices.
The Teams connection was high quality.

Psychosocial and pre-accident history

Background:

Mr Turner was born in Australia and grew up with his parents as the youngest of five siblings. There was no developmental trauma reported. He was married for about 10 years and separated in 2015. He reported his relationship with his ex-wife is better now they have separated.
He does not have drug or alcohol use disorder. He normally drinks three or four drinks every fortnight. This has not changed after the subject accident. Around two or three years ago, he reported that a friend visited and they went to the pub to drink. He could not get a taxi and decided to drive home and the Police detected a mid-range prescribed concentration of alcohol. The level was 0.89. The offence led to the loss of licence for three months and an interlock in his car for six months. He recognised that he made a mistake to drink-drive.
He has atrial fibrillation and supraventricular tachycardia (SVT), and he has not had an SVT episode for about 15 years now. He suffered high blood pressure and high cholesterol and had a heart attack in 2016.
He had a right leg haematoma injury when he stuck his leg in a fence around 20 years ago and needed vascular surgery. He lodged a workers compensation claim. Aside from this, there have been no other compensation claims.
Mr Turner does not have a past psychiatric history.
Before the subject accident, Mr Turner was unimpaired in his self-care. He normally enjoyed fishing and socializing with his family and friends. He liked to go to the gym, often four times per week. There was no driving problem and he did not have travel anxiety. He has a good relationship with his ex-wife. He had no problem with his concentration and memory.

Motor accident history

Shortly before the accident on 22 May 2018, Mr Turner accepted a contract to work in the Gulf of Carpentaria, and he was preparing to travel there.
On the day of the accident Mr Turner was driving on his own on the Sturt Highway, near Hay. He remembered he was following a road train and was on a flat road with clear vision. He saw a vehicle on the other side of the road, a Ford Courier (Ranger) travelling towards him. It had started moving closer to the truck and then collided with the side of the truck.
The Ford then came towards him. He swerved off the road to avoid a head-on collision and then drove over a culvert over a drain. He recalled his car had flipped and landed back on the wheels. He remembered being in mid-air. The ambulance and the police came. He recalled he had a sore shoulder and back and said he was worried about his work tools because they were all over the road, and he could not work without his tools.
Mr Turner described the experience as “a big fright” and coming off the road was frightening. He looked around and remembered there was no blood, and he was not injured other than the soreness from the seatbelt. He recalled he could see the Ford driver had slumped behind the wheel. He went to investigate and the driver then woke up, and he was shocked as he thought the man could not have survived.
A passer-by, who happened to be a friend then drove him home and he did not attend a hospital. He said he gave his statement to the police on the same day, but the police did not record his car flipped. The insurer wrote off his car later.
Mr Turner proceeded with his work at Gulf of Carpentaria. He explained this was a major project and he did not want to lose his contract. He did not consult a doctor in Hay until four days later regarding his physical injuries, and another GP not long after that at the Gulf of Carpentaria, again because of his pain symptoms.
He reported having anxiety and depressive symptoms but did not immediately seek help for his psychological symptoms as he was focussed on his physical injury, and he did not think he could access psychological treatment.
He reported to the Panel that immediately after the accident he was suffering nightmares and driving anxiety, and the nightmares have not subsided over time. Driving anxiety is still significant, and he said he has to drive past the accident location every two or three weeks, and his anxiety is always heightened. He would slow down and become “super careful”. If he sees a truck or a vehicle similar to the one in the accident, he will focus more on driving and move go to the left lane to make sure there is more room, to avoid further accidents.

History of symptoms and treatment following the motor accident

The accident exposed Mr Turner to a life-threatening situation and he reported this triggered a fear response. He has developed the full syndrome of post-traumatic stress disorder.

Relevant injuries or conditions sustained since the motor accident

Mr Turner has not had further car accidents or sustained other psychological injuries.

Current symptoms

88.Mr Turner's psychological symptoms have not significantly changed since the subject accident. He described having suffered low moods intermittently. His depression is often brought on by a feeling of inadequacy, if he cannot do something physically and he feels like he is letting people down. His depressed mood is relieved when something positive happens and he feels like he can accomplish something.

His nightmares are always the same, about the truck moving towards him and he feels frightened. He sometimes wakes up from sleep with panic symptoms. He reported having nightmares every night.
He sleeps seven hours, with intermittent middle insomnia.
He reported having flashbacks and said this generally occurs when he is driving and sees a car similar to the one in the accident, then he gets panicky and he would try to focus on driving safely.
His concentration is mildly reduced and he stated his memory is good.
There is no anhedonia or loss of enjoyment.
He feels anxious and hypervigilant on the road and in some road conditions.
He has been irritable.
Mr Turner denied pervasively depressed mood, a distinct change in energy level or having suicidal ideation.
After the accident, due to his shoulder injury, he could not use the gym. He gained 35kg and had a gastric banding on 1 April 2022. He lost about 50kg and now weighs 105kg and said this is the fittest he has been since about 30 years old. His blood pressure has normalised.

Current and proposed treatment

The Panel noted Mr Turner's general practitioner records did not contain any psychiatric history or treatment.
The Panel asked Mr Turner about seeking help for his mental health, and he reported there is no psychological/psychiatric care near him. The nearest town with mental health facilities is probably Wagga Wagga, three and a half hours away.
The local general practitioner in the Hay Medical Centre is about half an hour away, and he has never sought help for his depression or anxiety. He said he has been focused on getting help for his shoulder because it continues to be painful. He also explained he never knew he could get help from a counsellor through the video, and he said if this is possible, he would like to have psychological treatment.
He reported having problems with his shoulder treatment; because of the COVID pandemic, the specialists cancelled his appointments about 10 times. He has only had a cortisone injection. He said he has never been offered a video consultation from a specialist for his shoulder.
He has not had any psychological treatment or taken a psychotropic medication.

Clinical examination

Mental state examination

Mr Turner had short greying hair and was clean-shaven. He wore glasses and spoke articulately. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. The examiners did not observe distress during the assessment. He was not restricted in his affect range and reactivity. He smiled and laughed intermittently. He spoke spontaneously and readily.
Mr Turner provided a clear history. He recalled a good amount of detail and maintained a normal speed and pace.
At the end of the assessment, the Panel asked Mr Turner if he had more information that he thought may be relevant and he had no specific comments to make.

Current functioning

Mr Russell Turner is 61 and he lives with his 19-year-old daughter.
On the days when he is not working, he likes to go fishing at a local river. He has a boat but often just goes to the edge of the river and drops a line, which does not aggravate his shoulder pain. He enjoys spending time with his daughter and they play cards and walk the dog. He has a few friends and says he has been “a bit of a loner”. He maintains regular contact with his friends, and they visit each other to have dinner at home. He does household chores and his daughter helps as well.
He left school after Year 11 and completed a business apprenticeship and worked in construction for about 22 years. He has been self-employed 90% of the time . He briefly did work for Corrective services and Transport in project management.
When the accident happened, he was self-employed working 50-60 hours a week. He worked with the tools and did project management. After the accident he did not take any time off work, he said because he had an important contract, and he placed himself on light duties. He eventually had to tell the employer that he had a shoulder injury and could not do the physical work, so they had to employ another worker to do the physical work. Mr Turner has been working the same hours, doing the same job, generally in a supervisory role and not performing physical work. He talks to the clients, visits jobs and does induction, invoicing, and all the paperwork and reports he can focus well and he likes to keep busy.

Consistency comments

The Panel noted the insurer’s submissions about inconsistency. Specifically, the comments regarding the absence of reference to mental health symptoms in the general practitioner’s file. The impression gained from the interview was that Mr Turner was stoic with respect to his mental health symptoms, preferentially emphasising physical symptoms.
It is the Panel’s expectation that this preferential focus would have been even greater in a non-psychiatric setting and because the physical symptoms were directly impacting his work. The absence of reference to psychiatric symptoms in the general practice file was not considered to represent a sufficient factor to influence the Panel’s conclusions.

Determinations

Causation and reasons

Mr Turner had no psychiatric difficulties before this accident. He described circumstances after the 22 May 2018 accident that demonstrated he developed anxiety and depressive symptoms as a direct result of the subject accident. There are no other contributing factors identified. The Panel concluded the subject accident caused Mr Turner's psychological injury.

Diagnosis and reasons

Mr Turner described that after the 22 May 2018 accident, he developed major anxieties with a fear of serious injury and death and described persisting re-experiencing symptoms. He has never sought psychiatric help and attributed this to a lack of psychiatric care in the local area and being unaware that he could obtain psychiatric treatment through video. His psychological symptoms have not changed significantly over time and predominantly affect him when he is driving and in certain road conditions. Otherwise, he has maintained his usual life roles, with psychological adjustments to certain tasks.
Mr Turner's psychological symptoms have fulfilled all of the DSM-5 diagnostic criteria for post-traumatic stress disorder. The subject incident is consistent with a criterion A stressor as it was an objectively major traumatic event at high speed, involving a road train and another vehicle. He swerved to avoid a head-on collision.
He has developed flashbacks and nightmares, persistent anxiety of certain driving conditions and significant anxiety when exposed to reminders of the subject motor vehicle accident. He has persistent negative cognitions and moods, including negative beliefs and fear. He has physiological hyper-arousal with disturbed sleep and over-reactiveness on the road. His symptoms have persisted longer than four weeks and they are associated with functional impairment. The Panel has not identified another medical or psychiatric condition which explains his trauma symptoms better.
Mr Turner developed chronic post-traumatic stress disorder, which is a non-minor injury.

Panel deliberations

The Panel met on 13 February 2023 and adopted the re-examination report as evidence in this case.
The Panel had the benefit of a video link to interview Mr Turner, and it became clear that although Medical Assessor Parmegiani overlooked writing comments on the issues the insurer raised, the Panel agrees with the earlier assessment.
The incident, which the police report and Mr Turner described, even when the vehicle damage is differently described, was sufficient for Mr Turner to have suffered post-traumatic stress disorder in the circumstances.

Minor injury

The Review Panel’s findings in relation to the minor injury confirm the findings as stated in the Medical Assessor Parmegiani’s certificated dated 3 September 2021. The Review Panel has determined this certificate is to be confirmed.
In relation to the issues raised in the application, the Review Panel considered
·the MAI Act;
·the Guidelines, and

·the PIC Rules.

Review Panel Certification

Member O’Riain, Medical Assessor Hong and Medical Assessor Roberts have viewed these reasons and the certificate and confirmed they are in agreement.

[6] [2021] NSWCA 287 at [40], [41] and [45].

[2023] NSWPICMP 92

15 March 2023