Allianz Australia Insurance Limited v Yang
[2024] NSWPICMP 358
•3 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Yang [2024] NSWPICMP 358 |
| CLAIMANT: | Yong Kyu Yang |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Christopher Rikard-Bell |
| DATE OF DECISION: | 3 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; pre-existing persistent depressive disorder; adjustment disorder with depressed mood; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 18 June 2021; Medical Assessor (MA) Samuell found claimant sustained exacerbation of pre-existing depressive disorder which was not a threshold injury; insurer sought review; Held – claimant had a long standing pre-existing persistent depressive disorder; claimant satisfied DSM-5 criteria for adjustment disorder with depressed mood caused by the accident; in accordance with Motor Accident Regulation 2017 an adjustment disorder is a threshold injury; certificate of MA Samuell revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Samson Roberts dated · adjustment disorder with depressed mood. |
STATEMENT OF REASONS
INTRODUCTION
Mr Yong Kyu Yang (the claimant) was involved in a rear end collision on 18 June 2021.
Mr Yang is 59 years of age and was 57 years of age at the date of the accident.
On 12 July 2021 Mr Yang lodged an Application for personal injury benefits in which he said he suffered whiplash as a result of the accident. He referred to the pre-accident surgery to his lower back, neck and shoulder which he said felt like it had come undone due to the accident.[1]
[1] Insurer’s bundle p 16.
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay statutory benefits to Mr Yang under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Yang’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the accident were threshold injuries.
On 7 October 2021 the insurer issued a liability notice declining liability for benefits beyond 26 weeks on the basis the injuries sustained by the claimant were minor (threshold) injuries for the purposes of the MAI Act. On 24 November 2021 the insurer, after reviewing further information, issued a further notice maintaining the declinature of liability on the basis the injuries resulting from the accident were minor (threshold) injuries.
On 29 November 2021 the claimant requested an internal review pertaining to the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 20 December 2021 affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Commission to Medical Assessor Samson Roberts. He issued a certificate dated
27 January 2023 in which he certified that the psychological injury sustained by Mr Yang caused by the accident was not a minor (threshold) injury.The insurer has sought a review of the certificate of Medical Assessor Roberts. It is that application which has been referred to this Review Panel (Panel).
DOCUMENTS BEFORE THE REVIEW PANEL
The insurer uploaded to the portal a bundle of documents titled “Applicant’s Submissions” indexed and paginated from pages 1 to 443 (hereinafter called the Insurer’s bundle).
The claimant uploaded to the portal submissions dated 22 March 2023.
The claimant uploaded to the portal an Application to Admit Late Documents dated
12 September 2023 attaching a report of Dr Eddie So dated 24 August 2023.On 15 January 2024 the claimant uploaded a message to the portal stating the claimant did not intend to rely on any further documents other than those already lodged on the portal.
On 18 March 2024 the Panel issued a report to the parties advising a medical examination had been scheduled on 10 May 2024. The claimant was directed to upload to the portal by close of business 26 April 2024 the following:
(a) the clinical records of any general practitioner (GP) consulted by the claimant since 15 July 2021;
(b) the records of Rebeka Kang of Mindbuilders Psychology Clinic relating to treatment provided to the claimant, and
(c) the records of any psychologist consulted since the accident, noting Dr So reported Mr Yang was supported by his psychologist.
The report dated 18 March 2024 directed the insurer to upload to the portal by close of business 26 April 2024 the following:
(a) the liability notice declining liability for benefits beyond 26 weeks on the basis the injuries sustained by the claimant were threshold injuries;
(b) the application for internal review lodged by the claimant, and
(c) the certificate of determination of the internal review issued by the insurer.
On 27 March 2024 the claimant uploaded to the portal a report of Dr Eddie So dated
14 March 2024.On 3 April 2024 the insurer uploaded an Application to Admit Late Documents attaching the documents requested by the Panel.
On 26 April 2024 the claimant uploaded clinical records of the following (claimant’s additional documents):
· Dr Costa;
· Dr Ke-Hwan Kim Pty Ltd;
· Mindbuilders Psychology Clinic, and
· Dr Jung Sook Kim.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)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 threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
ASSESSMENT UNDER REVIEW
In a certificate dated 27 January 2023 Medical Assessor Samson Roberts certified the following injury caused by the accident was not a minor (threshold) injury for the purposes of the MAI Act:
· exacerbation of pre-existing persistent depressive disorder.
Mr Yang migrated to Australia in 2003. He noted Mr Yang had not worked for seven or eight years because his wife was unwell with a mental health condition for which he was her carer and received a Centrelink payment. Previously he worked for an air conditioning manufacturer. He had surgery to his neck in 1998 and a further surgical procedure to his neck in 2019. He sustained a neck injury in a 2007 motor vehicle accident and further injury in a 2010 motor vehicle accident.
Mr Yang reported following the accident he passed each day “meaninglessly”. He felt generally down in his mood, his short term memory was poor and his anxiety and forgetfulness led him to fear he had developed dementia. He reported frustration, anxiety and worry and passing suicidal thoughts.
Medical Assessor Roberts noted the clinical documentation supported the conclusion that
Mr Yang had a longstanding history of depressive illness dating from at least 2014. He made a diagnosis of persistent depressive disorder on the basis of a history in excess of two years duration of depressive symptomatology.In respect of causation Medical Assessor Roberts stated:
“Accepting Mr Yang’s account of a deterioration in his mental health and having regard to the likely influence of chronic pain and physical compromise, it is appropriate to consider that the subject motor accident has contributed to a greater than negligible degree to the exacerbation of the pre-existing Persistent Depressive Disorder. This conclusion assumes the accuracy of Mr Yang’s description of the symptomatology with respect to his physical condition and the opinion of a physical assessor may be required to confirm that the motor accident has influenced his physical condition.”
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Roberts within 28 days of the date on which his certificate was made available to the parties.
On 18 April 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 18 March 2024 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Pre-accident treating medical records
Myong De Concaicao, Mental Health Nurse
In a progress report dated 1 December 2013 it was reported Mr Yang had attended six sessions between 6 October 2012 and 31 January 2013 in respect of mixed anxiety and depression from stresses, co-morbidity with neck and shoulder pain from a motor vehicle accident and alcohol use.[4] Other contributing factors were conflict with his in-laws over his wife’s cessation of her anti-psychotic medication and financial hardship. Ongoing psychological support counselling was recommended.
[4] Insurer’s bundle p 134.
Dr Jung Sook Kim, psychologist
On 4 June 2014 Dr Kim reported she had seen the claimant for six sessions from
20 January 2014 to 14 May 2014.[5] She reported Mr Yang had been diagnosed with chronic pain disorder co-morbid with major depressive disorder. She reported his problems started after injuries to his neck and back in a motor vehicle accident in August 2010 (the 2010 accident). Dr Kim reported Mr Yang was very stressed with sleeping problems, an inability to tolerate his pain and emotional distress. He also had symptoms such as anhedonia, feelings of emptiness and sadness, fear and anxiety and strong negative emotions such as anger and frustration. He was unable to relax due to intrusive thoughts, fatigue, and tiredness, pain, difficulties coping, social withdrawal, worrying about his wife, health and future. He reported a decline in his short term memory, problem solving capacities and suicidal ideations.[5] Insurer’s bundle p 91.
Mr Yang had been unable to work. Dr Kim reported Mr Yang was likely to carry an impairment in his daily life as a result of psychological problems for the rest of his life.
He reported Mr Yang had been assessed by Dr Robert Hampshire psychiatrist and Dr Bruce Westmore psychiatrist and had been taking antidepressants and pain killers. Dr Kim supported Mr Yang’s application for the Disability Support Pension.
Dr Kim provided a detailed summary of treatment provided to Mr Yang. [6] She noted she first assessed him on 20 November 2013 following his involvement in an accident in August 2010. At that time, Mr Yang had attempted to return to the workplace many times but failed and had a very restricted lifestyle. He had persistent and severe pain in his entire upper body. His wife had been diagnosed with schizophrenia and was under treatment. He was trying to support his wife as a carer. Dr Kim diagnosed major depression with chronic pain.
[6] Claimant’s additional documents p 332.
On 21 October 2019 Mr Yang was reported to be a carer for his wife. He had difficulty relaxing due to intrusive thoughts, a sense of hopelessness and helplessness and felt unsafe.
On 14 December 2020 Dr Kim reported various symptoms including hopelessness, lack of energy, concentration difficulties, decline in short term memory and problem solving capacity, difficulty relaxing due to intrusive thoughts, sleeping difficulties, irritability, agitation and declining general health. He was having difficulties performing his daily tasks. Dr Kim reported severe levels of depression and anxiety.[7]
[7] Claimant’s additional documents p 341.
On 26 April 2021 Dr Kim reported the claimant’s wife was doing relatively well and he was more relaxed. His energy was low, but he supported his wife and their domestic needs. He had sleeping difficulties and was sensitive over little things. Shortly before the accident on 31 May 2021 Dr Kim reported the claimant appeared more relaxed and was less anxious. He had broken sleep but was thinking of finding a part time job.[8]
[8] Claimant’s additional documents p 342.
Dr Ke-Hwan Kim, general practitioner
On 6 August 2014 Dr Kim certified Mr Yang was suffering from severe chronic pain and post-traumatic stress disorder.[9] He was taking Luvox, Lyrica, Oxycontin and Serepax.
[9] Insurer’s bundle p 110.
On 16 October 2017 Dr Kim recorded a motor vehicle accident on 12 September 2017 when a truck hit the side of the car while merging. Mr Yang had an increase in neck pain.[10]
[10] Insurer’s bundle p 75.
On 5 February 2018 Dr Kim reported no confidence with driving.[11]
[11] Claimant’s additional documents p 66.
Dr Simon McKechnie, neurosurgeon
On 10 November 2014 Dr McKechnie, neurosurgeon reviewed the claimant who he noted had a past history of chronic regional pain syndrome, hypertension, hypercholesterolaemia and pancreatitis related to alcohol use.[12] He stated his problems commenced in 1998 following a motor vehicle accident and were exacerbated by another accident in 2010.
Mr McKechnie reported persistent pain, headache, bilateral shoulder and arm pain and sensory disturbance. He also noted lower back pain. He concluded he was permanently unfit for return to work.[12] Insurer’s bundle p 204.
Dr McKechnie reviewed the claimant on 19 March 2018 and again on 13 August 2018 in respect of persistent pain in the neck, right shoulder and left arm. He discussed surgery namely a C5 and C6 foraminotomy.
Dr Arthur Chesterfield-Evans, general practitioner
On 14 November 2017 Dr Chesterfield-Evans reported post-traumatic anxiety and stress reaction and trouble concentrating since a motor vehicle accident on 12 September 2017.[13]
[13] Insurer’s bundle p 37.
On 18 January 2018 he reported Mr Yang had been depressed. He noted a motor vehicle accident in 1998 and a cervical laminectomy in Korea. On 10 November 2014 Dr McKechnie felt Mr Yang was permanently unfit and would have chronic pain. He noted another motor vehicle accident in 2010, a work accident involving the right shoulder in 2007, and a motor vehicle accident on 12 September 2017.[14]
[14] Insurer’s bundle p 35.
On 19 April 2018 and 9 November 2018 Dr Chesterfield-Evans recorded Mr Yang was seeing Rebeka Kang who said he was depressed.[15]
[15] Insurer’s bundle p 33 and 30.
Mindbuilders Psychology Clinic
In a report to Dr Chesterfield-Evans dated 5 April 2018 it was reported Mr Yang had been seen in regards to his depression, anxiety and post-traumatic stress disorder.[16] His symptoms were listed as suicidal ideation, depressed mood, high levels of anxiety, chronic pain, fear of driving and sleep difficulties.
[16] Insurer’s bundle p 203.
In an Allied health recovery request (AHRR) Ms Kang reported:
“Yong continues to present as distressed, lethargic and anxious. He continues to feel a lack of purpose and has difficulty engaging in meaningful activities due to his chronic pain, depression and anxiety. Yong reported distress around driving and continues to hyperventilate and have an exaggerated startle response to his environment. He continues to experience panic attacks and reports being in extreme pain, constantly feeling as if bugs were crawling across his body …. His sleeping difficulties have been persistent … his memory and concentration has deteriorated as he has become very forgetful and unable to focus.”[17]
[17] Claimant’s additional documents p 245.
On 30 August 2018 Ms Kang reported Mr Yang had been hearing voices. She noted he had attempted suicide in the past with an overdose of medication.[18]
[18] Claimant’s additional documents p 240.
In an AHHR dated 4 October 2018 Ms Rebecca Kang diagnosed major depressive disorder with anxiety symptoms and chronic pain.[19] Whilst Mr Yang’s sleep had improved he experienced low mood and symptoms of depression with suicidal ideations. He was unable to engage in any household chores or employment related work due to physical pain. He had difficulty concentrating. His scores on the DASS 21 were all extremely high although some improvement was noted.
[19] Claimant’s additional documents p 217.
Dr Andrew Porteous, occupational physician
Dr Porteous reviewed the claimant in the context of his claim arising out of the 2017 accident.[20] In additional to his physical injuries Dr Porteous reported Mr Yang had long term anxiety and low mood and was on Olanzapine daily and Oxazepam at night for sleep and anxiety. He was a carer for his wife who had Schizophrenia and they received subsidised domestic help.
Post accident treating medical records
[20] Insurer’s bundle p 414.
Dr Con Costa, general practitioner
In a Certificate of capacity/certificate of fitness dated 2 July 2021 Dr Costa provided the following diagnosis:
“head and neck, radiculopathy left UL>R, both shoulders, left>R, upper back, lower back, nervous shock, poor night sleep, headache, disequilibrium.”[21]
[21] Insurer’s bundle p 20.
On 9 July 2021 Dr Abeyewardene reported severely restricted range of movement with pain to the shoulders and neck. He reported Mr Yang felt confused and disoriented after the accident.[22] His diagnosis included “chronic pain + adjustment disorder”.
[22] Insurer’s bundle p 25.
Dr Ke-Hwan Kim, general practitioner
On 6 September 2021 Dr Kim referred Mr Yang to Dr Jung Sook Kim for chronic anxiety and depression.
Dr Jung Sook Kim, psychologist
Mr Yang saw Dr Kim on 28 June 2021 when she reported following the accident on
18 June 2021 his condition had worsened significantly.[23] He was unable to sleep, he had flashbacks of the accident, and recurrent thoughts of the accident. He felt anxious and nervous in the car and on the street, he was tired and fatigued and had difficulty supporting his wife. He had difficulty relaxing due to intrusive thoughts and suffered from depression and anxiety.[23] Claimant’s additional documents p 342.
On 23 August 2021 Dr Kim reported Mr Yang had difficulty driving and drives only short distances. He had developed a car phobia and could not concentrate when driving. He had recurrent thoughts of the accident, difficulty relaxing and feelings of hopelessness.[24]
[24] Claimant’s additional documents p 343.
On 26 June 2022 Dr Kim reported Mr Yang had completed six sessions of treatment from
27 January 2022 to 27 June 2022. He suffered from chronic pain and depression, with his condition worsening after the accident. He reported severe levels of depression and anxiety and persistent sleeping problems.On 19 December 2022 Dr Kim reported Mr Yang experiences tiredness and fatigue, sleeping difficulties, lack of energy, low moods, tightness in his chest, concentration problems, decline in memory and problem solving capacity.[25]
[25] Claimant’s additional documents p 154.
On 13 March 2023 Dr Kim reported Mr Yang had difficulties driving due to fear, he had concentration difficulties, impaired memory, was unable to take care of his wife, difficulty coping with stress, difficulties attending to self-care, and difficulty shopping for groceries. His wife received increased supporting hours from the National Disability Insurance Scheme (NDIS). He had feelings of hopelessness and helplessness, and unclear mind, recurrent thoughts of the accident, flashbacks of the accident, depression and car phobia.[26]
[26] Claimant’s additional documents p 350.
On 10 July 2023 Dr Kim issued an AHRR in which she diagnosed major depressive disorder and generalised anxiety disorder with car phobia. She reported Mr Yang had completed eight sessions of treatment from 17 April 2023 to 3 July 2023.
In respect of his pre-existing condition, she stated Mr Yang had a history of depression but at the time of the accident was able to attend to his daily functioning including caring for his sick wife. He stated since the accident he had been struggling to attend to his daily functioning.[27]
[27] Claimant’s additional documents p 15.
Dr Kim expressed the view the claimant’s condition has significantly deteriorated as a result of the accident. She stated he had a history of depression and anxiety before the accident, but he did not have any major issues in terms of driving and taking care of his wife.[28]
[28] Claimant’s additional documents p 353.
On 11 April 2024 Dr Kim diagnosed depression, generalised anxiety disorder with car phobia and post-traumatic stress disorder.[29]
[29] Claimant’s additional documents p 365.
Dr Raoul Pope, neurosurgeon
Mr Yang had a C4/5 and C5/6 fusion on 16 September 2019 under the care of Dr Pope.[30]
[30] Insurer’s bundle p 53.
Mr Yang returned to see Dr Pope on 29 September 2021 when he reported his recovery from the C4/5 and C5/6 surgery was going well until the accident.[31] He reported the neck pain was worse than before the first accident. He had difficulty with dressing and showering, difficulty driving, difficulty sleeping and woke regularly.
[31] Insurer’s bundle p 302.
Dr Alan Nazha, pain physician
Dr Nazha reviewed the claimant on 22 February 2022.[32] He reported Mr Yang was quite distressed by his pain and extremely focused on passive therapies. He expressed concern that Mr Yang had been on opioids for greater than 10 years with the potential for opioid-dependence tolerance and opioid-induced hyperalgesia. Dr Nazha reported Mr Yang was not currently on antidepressant medication but was seeing a psychologist. He reported he scored extremely severe for depression, anxiety and stress on the DASS-21 psychometric test. He also reported severe catastrophising was present.
[32] Claimant’s additional documents p 130.
Dr Yena Hye, geriatrician
Dr Hye reported a brain MRI on 4 April 2023 reported multiple microhaemorrhages. She concluded it was likely Mr Yang had mild cognitive impairment. [33]
[33] Claimant’s additional documents p 156.
Dr Eddie So, psychiatrist
Dr So provided a report to Dr Costa after reviewing the claimant on 24 August 2023. He reported Mr Yang admitted to a period of depressed mood 10 years ago due to marital dysfunction. Mr Yang reported he had had recovered with help from a psychologist. He also reported there had been no requirement for antidepressants in the past. The Panel notes
Dr So did not have an accurate history of the claimant’s psychological health.Dr So reported since the accident Mr Yang had persistent and disabling anxiety and depression, agitation, palpitations, muscular and psychic tension, loss of interest, irritability and poor temper control. He had felt scared, tense and extremely nervous since the accident and no longer able to drive. His mind frequently took him back to the accident and he had isolated himself since to avoid triggers. He reported Mr Yang was supported by his psychologist. His psychotropic medication was Fluvoxamine which had been increased to 150mg per day. Dr So diagnosed major depression and post-traumatic stress disorder resulting from the accident.
Dr So provided a report dated 14 March 2024 following a six month progress review. He noted little change in the claimant’s condition. He diagnosed chronic depression and post-traumatic stress disorder.
CERTIFICATE OF MEDICAL ASSESSOR BERRY
Medical Assessor Berry issued a certificate dated 8 November 2022. He reported following the accident the claimant was left with pain in the neck, head, and across the shoulders and down the arms and he also had back pain.
He reported involvement in a motor vehicle accident in Korea where he injured his neck and shoulders. He underwent a cervical spine procedure from C3 to C6 in 1998 which eased his condition until he had a second motor vehicle accident in 2010 when he injured his neck and shoulders. He saw Dr McKechnie who stated he was permanently unfit for work. The claimant was in a third accident in 2017. He subsequently had a right anterior cervical fusion at two levels. He was recovering from that surgery when he had the accident.
He also reported a past history of pancreatitis, depression, hypercholesterolemia and Barrett’s oesophagitis.
Medical Assessor Berry concluded Mr Yang had a minor motor accident which aggravated his neck and shoulder pain and his back. He certified soft tissue injury to the cervical spine, the lumbar spine, the right shoulder and the left shoulder as threshold injuries.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 6 March 2023 in support of the review.[34]
[34] Insurer’s bundle p 2.
The insurer submits Medical Assessor Roberts did not give reasons for finding that the psychological symptoms are acutely related to the accident and not a continuation of the claimant’s pre-accident symptomatology.
The insurer notes the claimant did not request psychological treatment following the accident and thought he saw a psychologist “but only once”.
The insurer notes Mr Yang was an unreliable historian and suggests the post-accident records do not support an exacerbation of the claimant’s pre-accident psychological condition.
The insurer provided submissions dated 14 April 2022 in respect of the threshold dispute.
The insurer noted Mr Yang had not been diagnosed with a psychological injury pursuant to DSM-5, with the only diagnosis being “nervous shock”.
The insurer also submitted there was no evidence to show the claimant had sustained a non-threshold psychological injury.
Claimant’s submissions
The claimant provided submissions dated 22 March 2023 in response to the application for review. The claimant submits Medical Assessor Roberts made his own findings based on his qualified judgment and the available evidence.
THE MEDICAL EXAMINATION
Mr Yang was assessed by Medical Assessor Chew and Medical Assessor Rikard-Bell by videoconference through MS Teams on 10 May 2024.
Mr Yang was identified by his photograph on his New South Wales drivers’ licence which was sighted. He was located in a room in his home and a Korean Interpreter, Ms Sharon Brooks, assisted him throughout the interview.
Psychosocial history and pre-accident history
Mr Yang is a 59 year old man who lives in Strathfield South with his wife and 25 year old daughter. He has a 31 year old son who lives on campus at University of Western Sydney. He reported that he is in receipt of the carer’s pension for his wife who has chronic schizophrenia. The family are also financially supported by the Disability Support Pension received by his wife. His wife also receives NDIS support.
Mr Yang was born in Korea. His mother, two elder brothers, two elder sisters and one younger brother all live in Korea. His father died in 1986 or 1987 from gastric cancer. He previously communicated with his surviving family on a weekly basis.
Mr Yang reported an unremarkable childhood with no abuse or trauma. He completed the equivalent of year 12 at high school and described himself as an “average” student.
Mr Yang worked in sheet metal for over 30 years. He migrated to Australia in 2003 with his wife. He said that he was recruited to Australia when the “chairman” of an Australian company attended an expo in Korea and was interested in a product that they had in Korea. His children joined them in Australia a few years later. Both of his children are currently university students.
Mr Yang has been involved in three prior motor accidents, in 1998 in Korea and in 2010 and 2017 in Australia. He reported that the accident in 1998 “was the same as the 2021 accident”. He was rear ended. Following the 1998 accident he had surgery on his neck and recovered. He said that he was only off work for three weeks. He denied any psychological sequalae from this accident. He reported a further motor accident in 2010 which he said exacerbated the pain in his neck and back. He said that he didn’t have any psychological symptoms or treatment. He said that he stopped working in 2012 in sheet metal, however, continued work as a handyman until 2014 when he stopped work in the context of his wife’s illness.
Mr Yang said the 2017 accident further exacerbated his pain. He reported two further surgeries on his neck in 2019 and said that his neck was improving until the 2021 motor accident when the pain worsened again.
Mr Yang admitted to issues with chronic depression particularly relating to the impact of his wife’s schizophrenia over the last 10 years and his chronic neck pain. He said his depressive symptoms got much worse due to issues at the Department of Housing accommodation which was vandalised and burgled around 2020. Police were involved. He has engaged with psychological treatment on and off since then for his symptoms.
Mr Yang previously drank occasional wine; however, he has not drunk for two years. He does not use cannabis or other recreational drugs.
History of the accident
Mr Yang said he was wearing a seat belt when his car stopped at the traffic lights. His car was rear ended but sustained only minor damage to the rear bumper. Emergency services were not involved.
History of symptoms following the accident
Mr Yang immediately noticed worsening pain in his neck following the accident. He attended his GP several days later. He said that the pain had been ongoing.
Mr Yang was able to drive after the accident, however, he had a number of minor incidents which he said were his fault, so he stopped driving around two years ago. Where the claimant continued to drive after the accident the panel concluded his decision to cease driving was not caused by the accident, but followed some minor scrapes for which he was responsible and where he did not want the stress or concern of causing further incidents or accidents. This is consistent with the claimant’s pre-accident history noting his GP Dr Kim reported on 5 February 2018 that Mr Yang had no confidence with driving and where
Ms Kang referred to his fear of driving in her report dated 5 April 2018.
Injuries since the accident
The claimant’s wife’s psychiatric condition has been a significant stressor for around 10 years. Mr Yang reported that her condition had deteriorated since the accident.
Current symptoms
Mr Yang said he had become more socially avoidant and struggled to communicate with people including his family in Korea. He maintained good relationships with his wife and children in Sydney. He reported ongoing pain in multiple areas including his head, neck shoulder and legs. He reported that he was less motivated and didn’t do much. He reported that he hadn’t driven for two years although he drove for a period after the accident. The additional symptoms after the accident predominantly related to his exacerbation of pain and a time limited exacerbation of depression associated with the pain increase which he stated has now returned to the premorbid level of chronic depression.
Current and proposed treatment
Mr Yang said he was engaged with his GP, psychologist, psychiatrist and neurosurgeon. He has seen his psychologist for many years and sees her approximately weekly to monthly. He has been seeing his psychiatrist since last year and sees him every three to six months.
His current psychotropic medication includes antidepressants Fluvoxamine 150mg daily and Mirtazapine 15mg daily. He is also prescribed Oxycontin, Ibuprofen and Lyrica for pain. He also takes Somac, Metformin, Lipitor and medication for hypertension.
Mental state examination
Mr Yang appeared his stated age and was well presented with no abnormal psychomotor activity. He drank what he said was water from a cup with a straw periodically during the interview. His mood was reported as low. His affect was appropriately reactive. He had no evidence of psychosis. He was oriented to time, place and person. He concentrated for the 90 minute interview. He had no thoughts of harm to self or others.
Current functioning
Mr Yang reports that he spends most of his time at home. He said that he spends time watching TV or lying down and doesn’t do many household chores. He said they are assisted by the NDIS. He said that the care for his wife predominantly involved him spending time with her. He has not driven for two years. He attends to activities of daily living. He can cook basic meals.
Consistency of presentation
The history and Mr Yang’s presentation were internally consistent.
DIAGNOSIS
Mr Yang has a pre-existing persistent depressive disorder. He has longstanding depressive symptoms related primarily to his wife’s illness and chronic pain. There has also been the contribution of other stressors including issues at the previous Department of Housing accommodation and pain requiring surgery.
His current condition meets the DSM-5 criteria for an adjustment disorder as follows:
“Criterion A. The development of emotional or behavioural symptoms in response to an identifiable stressor occurring within 3 months of the onset of the stressor.
Criterion B. The symptoms or behaviours are clinically significant as follows: -
1. Marked distress out of proportion to the severity or intensity of the stressor predominantly associated with the experience of pain associated depression.
2. He has significant impairment in social or occupational functioning.
Criterion C. The condition does not meet criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.
Criterion D. The symptoms do not represent normal bereavement.
Criterion E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months. The Panel notes the ongoing consequences of the accident are pain. These have not terminated and therefore the diagnosis of an adjustment disorder is appropriate.
The specifier ‘with depressed mood’ is most appropriate.”The Panel has therefore diagnosed an adjustment disorder with depressed mood.
CAUSATION
The psychiatric members of the panel concluded that the accident was of sufficient severity to cause the adjustment disorder, especially when the claimant's vulnerable pre-existing physical condition is taken into account. The Panel concluded the accident therefore was the cause of the adjustment disorder with depressed mood.
The Panel finds the persistent depressive disorder is pre-existing and caused by other factors including his wife’s illness and his chronic pain. These factors have been well documented in the pre-accident treating records outlined above. The Panel notes that Dr Kim treating psychologist concluded in June 2014 that Mr Yang would carry an impairment in his daily life as a result of his psychological problems for the rest of his life and in 2018 Ms Kang, psychologist diagnosed a major depressive disorder with anxiety symptoms and chronic pain.
THRESHOLD INJURY
In accordance with Part 1, cl 4(2) of the MAI Regulation an adjustment disorder is defined as a threshold injury.
Therefore, the Panel finds the adjustment disorder with depressed mood caused by the accident is a threshold injury.
0
0
0