Alzebari v QBE Insurance (Australia) Limited
[2024] NSWPICMP 324
•23 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Alzebari v QBE Insurance (Australia) Limited [2024] NSWPICMP 324 |
| CLAIMANT: | Yousif Alzebari |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Thomas Newlyn |
| DATE OF DECISION: | 23 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 26 May 2019; Medical Assessor (MA) Samuell determined that the injuries referred by the Personal Injury Commission and caused by the accident had resolved and consequently gave rise to whole person impairment (WPI) of 0%; the Medical Review Panel considered the issue of causation according to the Guidelines and determined WPI on the clinical signs on examination found at the time of the assessment by the Panel; the Review Panel certified that the claimant has a valid DSM-5-TR psychiatric diagnosis of prolonged grief disorder which was caused by the accident and equated to a total WPI of 5%; Held – the Certificate of MA Samuell was revoked and a new certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Doron Samuell dated 7 November 2022 and issues a new certificate determining that t1. he following injury caused by the motor accident gives rise to a permanent impairment of 5%: Prolonged Grief Disorder.(a) |
STATEMENT OF REASONS
INTRODUCTION
On 26 May 2019, Yousif Alzebari (Mr Alzebari), the claimant, was injured in a motor vehicle accident.
Mr Alzebari brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Ltd ABN 78 003 191 035 (the insurer) is the relevant insurer with liability to pay any damages to Mr Alzebari under the MAI Act.
A medical dispute about the degree of Mr Alzebari’s whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Doron Samuell for assessment.
On 7 November 2022, Medical Assessor Samuell determined that the injuries referred to him and caused by the motor accident, namely Major Depressive Disorder, had resolved and did not result in permanent impairment.
REVIEW PROCEDURE
Mr Alzebari sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to believe that the Medical Assessment was incorrect in a material respect and referred the matter to the Review Panel.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Review Panel to conduct the review of the Medical Assessment.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. S 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of an agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
LEGISLATIVE FRAMEWORK
General provisions
Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Alzebari’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
Section 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident exceeds 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 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:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)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.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell examined Mr Alzebari on 25 October 2022, and issued a certificate under s 7.23 of the MAI Act.
Medical Assessor Samuell was referred the following injury for assessment:
(a) psychological injury.
At [3] and [4] in his reasons, he considered both parties submissions.
“[3] The Applicant submitted that Mr Alzebari suffers from intrusive memories and nightmares, amotivation, depression and other symptoms and relies on the assessment of Dr Tarra Shaw for the diagnosis of a posttraumatic stress disorder. Furthermore, the Applicant relies on the opinion of Dr Rastogi to assert a 15% whole person impairment for the diagnosis of a Persistent Depressive Disorder associated with complex bereavement.
[4] The Respondent notes that there were significant behavioural concerns that pre-dated the subject accident that were characterised by rule-breaking behaviour, aggression, and disruption. The Respondent relies on the opinion of Dr Chris Rikard-Bell, who assessed a 1% Whole Person Impairment. The Respondent notes that Dr Rikard-Bell, Dr Rastogi and medical assessor, Dr Tarra Shaw diagnosed Mr Alzebari with a Major Depressive Disorder.”
He at [8] took a pre accident history and noted:
“Mr Alzebari was aged 15 at the time that I assessed him… He is a Year 10 student.
Mr Alzebari denied any psychological difficulties before the subject accident. He stated there was no family history of psychological difficulty. There is no medical history of relevance. There is no family medical history of relevance.
He does not smoke and he takes no illicit substances.
He lives with his parents and two sisters. His brother that passed away was the second oldest of the sibship. His father was a tradesman and his mother engaged in volunteer work. They have not worked since the subject accident.
Mr Alzebari was born in Iraq and identifies as Chaldean. He said that he was subject to discrimination in his country of origin and came to Australia as a migrant at the age of 10. He said that he learned English in Australia, having done only one or two years of school in his country of origin. Other than the subject accident, there were no adverse early life events or difficulties. He has attended both Smithfield Public and Prairiewood.”
Medical Assessor Samuell took a history of the motor accident at [9] and a history of symptoms and treatment following the motor accident at [10]:
“Mr Alzebari was at home when his parents could not get in contact with his brother. He said that two police officers attended their premises, after which his sister and parents rushed to the hospital. He said that he and his sister stayed at home. At 1 a.m. the following morning, he said that a taxi came to pick him and his sister up from home to say goodbye to his brother whom they thought would not survive that evening. He said that his brother subsequently died some seven days later. His brother, Rabin, was a passenger in a motor vehicle fatality. He could not recall how the accident occurred. He told me that he got along well with his late brother and said they used to go out and go for car drives. He described his brother as being ‘nice’ and hard-working.”
Mr Alzebari reported the following injuries and conditions sustained since the motor accident:
“There were no relevant injuries or conditions sustained since the motor accident.”
Medical Assessor Samuell took a history of the current symptoms and proposed treatment at [12] and [13].
Mr Alzebari reported that he was sleeping between five and seven hours most nights. He said that the frequency of the nightmares had remained unchanged.
He described his appetite as normal. He said that his mood was “usually quiet”. He said that he was quiet by nature. He said that he was occasionally irritable. There was no diurnal mood variation in his mood. He did not complain of current concentration difficulties. He was not suicidal.
Medical Assessor Samuell conducted a clinical examination, the results of which were set out at [14]:
“Mental State examination
Mr Alzebari presented as a young, bespectacled, pleasant man of stated years. He was casually attired. He was not observed to be distressed or disordered during the assessment. His speech was normal in form. He described some mild symptoms. There are no current cognitive distortions. He conveyed a sense of being mildly withdrawn. His affect was reactive and perhaps subdued. His affect was appropriate to the narrative. He did not look depressed or disordered. His cognitive functioning was normal at a clinical level. There was no evidence of psychosis.”
At [15], he provided a summary of Mr Alzebari’s current functioning.
Mr Alzebari said that he was “going all right at school”, although he said that he was “not the best”.
Medical Assessor Samuell considered the relevant documentation including the consultations records of treating medical practitioners.
He opined that Mr Alzebari was functioning at a reasonable level and had some mild, ongoing symptoms that did not reach the diagnostic threshold. The pervasive mood disorder and dysfunction associated with Major Depression had improved since the earlier assessments. The diagnosis of Major Depression was now in remission.
Medical Assessor Samuell concluded that the following injuries were caused by the motor accident:
(a) Major Depressive Disorder.
Medical Assessor Samuell concluded that the following injuries caused by the motor accident had resolved:
(a) Major Depressive Disorder.
Medical Assessor Samuell certified that the injury caused by the motor accident gave rise to a permanent impairment of 0%.
SUBMISSIONS
Mr Alzebari’s submissions
Mr Alzebari’s solicitor provided written submissions dated 25 November 2022 in respect of the Review. The submissions are summarised below.
Mr Alzebari submitted that the Medical Assessor did not obtain a history of Mr Alzebari's “pre-accident lifestyle, activities and habits.” If he did obtain a history of Mr Alzebari's “pre-accident lifestyle, activities and habits”, it has not been recorded in the certificate. As such, Medical Assessor Samuell has failed to correctly apply the Motor Accident Guidelines when undertaking his assessment of permanent impairment. We submit that the failure to do so is in and of itself a material error.
Mr Alzebari submitted that Medical Assessor Samuell records the following under the heading Current functioning:
“Mr Alzebari said that he was ‘go ing all right at school’, although he said that he was ‘not the best’. He said that he was having some problems with English and maths and passed all other subjects. He attributed his academic difficulties to missing a year and a half of school. He said that he gets along well with his parents and siblings. He said they may watch movies together and mostly stay at home. He said they rarely go out. He said that, after school, he will go to the gym every day. He said that he has two friends with whom he goes to the gym. He described them as his gym buddies. He is not dating. He has no other hobbies or interests. He told me that he is quiet at school and generally gets along well with the teachers and other students. When asked about feedback on his school reports, he responded, ‘Normal, I guess.’ He said that he finds his exams and assignments stressful.”
He submitted that his current functioning was substantially different to his “pre-accident lifestyle, activities and habits”.
Mr Alzebari submitted that as a direct consequence of his failure to undertake the comparative exercise required by Clause 6.220 of the Motor Accident Guidelines, the Medical Assessor had failed to appreciate the psychological/psychiatric effect of the tragic death of Mr Alzebari's brother, with whom he was close, on Mr Alzebari's current functioning.
Mr Alzebari further submitted that the Medical Assessor's conclusion concerning consistency was directly contrary to the evidence contained in Mr Alzebari's academic records and the insurer's supplementary submissions. The material indicates that Mr Alzebari, whilst he was at present “usually quiet”, was most certainly not “usually quiet” or “quiet by nature”' prior to the subject accident and nor was he “quiet at school” or “generally get[ting] along well with the teachers and other students”.
The Medical Assessor has in this instance failed to afford procedural fairness to Mr Alzebari by failing to bring to his attention the inconsistency of his verbal history as compared with the contemporaneous academic records. Had the Medical Assessor put that inconsistency to Mr Alzebari, it may have given Mr Alzebari an opportunity to bring to the Medical Assessor's attention the significant change in his lifestyle, activities and habits following the subject accident.
Mr Alzebari further submitted that the omission of a pre-accident history of Mr Alzebari's lifestyle, activities and habits was a material error because, had the Medical Assessor taken that history, he may have formed a different view about whether Mr Alzebari's current functioning:
(a) indicated the presence of an active psychological/psychiatric condition, as opposed to a condition that was in remission/had resolved, and
(b) warranted an assessment of impairment, as opposed to determining that an assessment of impairment was not required and/or that the assessment of impairment was 0%.
Furthermore, the reduced functioning recorded by the Medical Assessor at page 4 of the certificate should have warranted an assessment of impairment. Specifically, Mr Alzebari reported that his academic performance was "not the best” and "he was having some problems with English and maths". Whilst the Medical Assessor records "He attributed his academic difficulties to missing a year and a half of school”, it was unclear whether the Medical Assessor made any enquiry whatsoever about Mr Alzebari's concentration, persistence and pace. Had the Medical Assessor made that enquiry, he may have concluded that Mr Alzebari's functioning in that category was reduced and warranted an assessment of impairment.
Finally, Mr Alzebari reported that, in relation to he and his family, "they mostly stay at home" and "they rarely go out." Absent from the certificate was any evidence of any enquiry by the Medical Assessor as to why this might be the case. Again, had the Medical Assessor undertaken any or any adequate inquiry into Mr Alzebari's pre-accident lifestyle, activities and habits, and/or any further probe as to why Mr Alzebari rarely left his home , he may have recognised that a teenage male exhibiting character traits such as that of Mr Alzebari prior to the accident would be unlikely to sit at home watching movies with his family and rarely going out with friends but for the subject accident. In this regard, we submit that the Medical Assessor failed to “take into account variations in lifestyle due to [Mr Alzebari's] age, gender, cultural, economic, educational and other factors”, as required by Clause 6 .220 of the Motor Accident Guidelines. Had the Medical Assessor done so, he may have been prompted to assess a degree of impairment of Mr Alzebari's current social and recreational functioning.
Insurer’s submissions
The insurer provided written submissions dated 14 December 2022 in respect of the Review. The submissions are summarised below.
Ground 1: non-compliance with clause 6.220
The insurer notes that the Medical Assessor correctly determined that Mr Alzebari’s psychiatric injury was in remission, and therefore there was no need to assessment permanent impairment under the Psychiatric Impairment Rating Scale (PIRS).
The insurer submitted that noting that there was no need for Mr Alzebari to be assessed under the PIRS as his condition was in remission, the Medical Assessor was not required to apply Clause 6.220.
Ground 2: failure to have proper regard to material before Medical Assessor
Mr Alzebari submitted that there was a “cursory reference” to the records but nothing “to indicate that the Assessor actually had any, or any proper regard to, that material”. The insurer submitted that this was incorrect and that there was specific articulation of consideration of the relevant material.
The insurer relies on Graovac v Motor Accidents Authority [2010] NSWCA 938 which states that a Medical Assessor has the power to make a decision based on information before him or her and give weight to that information in accordance with clinical judgment.
Regardless, the insurer submitted that the references to the relevant material in the certificate make it apparent that the Medical Assessor has appreciated that material and what was contained in that material. Accordingly, the Medical Assessor did not err in giving proper regard to that material.
Ground 3: non-compliance with Clause 6.41
The insurer highlights that the AMA 4 Guides recognises that “the individual’s own description of his or her functioning and limitations was an important source of information” (page 293). Medical Assessor Samuell records the reports of Mr Alzebari during his examination, as to his pre-and post-accident functioning as well as his current functioning. Accordingly, the insurer submitted at the outset that it was apparent Mr Alzebari was afforded an opportunity to describe this history to the Medical Assessor.
In any event, the insurer submitted that there was no inconsistency. The records described by Mr Alzebari go to Mr Alzebari’s pre-accident functioning and not his functioning at the time of the examination.
The insurer affirms that the Medical Assessor confirmed that there were no issues of consistency at page 4 of the certificate.
Ground 4: assessment of Concentration, Persistence and Pace
The insurer submitted that there was no requirement of the Medical Assessor to assess the Concentration, Persistence and Pace area of functional impairment under the PIRS as there was no permanent impairment to assess as Mr Alzebari’s condition was in remission.
Ground 5: assessment of Social and Recreational Functioning
The insurer submitted that there was no requirement of the Medical Assessor to assess the Social and Recreational Functioning area of functional impairment under the PIRS as there was no permanent impairment to assess as Mr Alzebari’s condition was in remission.
Furthermore, Mr Alzebari has not pointed to any history that demonstrates there was any error in the history-taking, with the weight of the submissions being “that a teenage male exhibiting character traits such as that of Mr Alzebari prior to the accident would be unlikely to sit at home watching movies with his family and rarely going out with friends”. The apparent character traits that predicate the alleged error are not set out in the submissions.
Ground 6: the certificate was internally inconsistent
The insurer submitted that it was apparent that the reference to impairment not being permanent at page 5 was in the context of Mr Alzebari’s previously diagnosed condition being in remission and with due regard to Clause 6.19 of the Guidelines as part of the “Statement about Permanent Impairment”.
The insurer concedes that the terminology may be varied, but that there was little doubt that the Medical Assessor diagnosed a condition in remission and did not consider there was any permanent impairment to be assessed in the certificate.
MEDICAL EVIDENCE
Statement of Najeeb Alzebari
Mr Alzebari made a statement on behalf of Yousif Alzebari (his son), on 19 October 2021. He said:
“On 26 May 2019, Yousefs elder brother, Rabeen Alzebari was the front passenger with his mend driving to the city. The driver was driving on the City West link in Lilyfield driving at 180kph when Rabeen's friend lost control of the car, crossed the median line and hit oncoming traffic. The police arrived at our home at 10:00pm that night and told us that Rabeen was in hospital in very serious condition… Since that moment, our life changed forever for the worse.
Yousef was shocked and he was very dazed at this news. Yousif could not comprehend what exactly happened at the time, but he knew it was very serious when he saw the rest of our family, including myself in great distress. Yousif was very concerned and scared. He knew something was wrong, but he felt helpless. Yousif will never forget this moment and he describes this as one of the scariest moments in my life.”
He further commented:
“Yousef was shocked, and he was very dazed at this news. Yousif could not comprehend what exactly happened at the time, but he knew it was very serious when he saw the rest of our family, including myself in great distress. Yousif was very concerned and scared. He knew something was wrong, but he felt helpless. Yousif will never forget this moment and he describes this as one of the scariest moments in my life.”
Application for Personal Injury Benefits Claim Form dated 12 July 2019
In the Personal Injury Benefits Claim Form, Mr Alzebari listed his injury as a result of the accident as:
“nervous shock”.
Certificate of capacity, from inception of the Compulsory Third Party (CTP) claim
The Certificate of capacity stated the management plan for the period as:
“…school counselling and psychologist care and family doctor care and counselling”.
He listed the following factors affecting recovery:
“psychological/ grief”.
Dispute Resolution Service certificate, Dr Tarra Shaw, 15 June 2020
Dr Shaw examined Mr Alzebari in June 2020 and provided a diagnosis that:
“Ideally, Yousif would be reassessed in about 12 months, partly because this would help determine whether he has a normal grieving reaction, which was not a psychiatric diagnosis, but a normal response to the death of an older loved brother, or whether he has an episode of depression. I have spoken with staff at the DRS and am not able to delay by 12 months a reassessment within this DRS scheme, to determine whether or not he has a diagnosable pathological psychiatric injury for sure.
On the balance of probabilities, l think it was more likely, based on the history provided to me, the documentation, and the mental state features I observed in Yousif today, that he has depression, rather than normal grieving. I will therefore diagnose him with major depressive disorder as per DSMS. However, I will repeat that ideally, he would be reassessed in 12 months to see if he still had the symptom load he currently does. Only twelve months after an MVA which caused a family member's death was a relatively short time in psychiatry.”
She further commented:
“The MVA and his brother's death are the main cause of his current depression, but these other traumas and stressors are contributors to the overall clinical picture, and I think reduce his resilience.”
Report of Dr Tarra Shaw, 3 August 2020
Dr Shaw reported that:
"…he meets the criteria for a diagnosis of major depressive disorder. Yousif's brother Rabeen when age 21 died as a result of a motor vehicle accident. After that he attended the kid's clinic for psychological services receiving sessions of grief counselling. The submission stated 5th December 2019 note he continued to experience mood symptoms such as frustration, emotional outbursts as well as reduce self-esteem and confidence and school absenteeism. He was experiencing flashbacks of the hospital and funeral and seeing his brother like that after the MVA. The GP entries in July and August 2019 note that he's grieving the loss of his brother after the car accident, unable to sleep or eat, has poor concentration, it sometimes unable to concentrate to go to school, as a low mood and is emotional and sleeping badly. You still had a very traumatic early life having to suddenly leave his home after growing up in the war zone, becoming a refugee, living in Jordan and then coming to Australia. He lived under conditions of great stress for many of his early years until arriving to Australia at the age of 10. Even once in Australia he had to adapt to a new culture new language and this was very stressful and strain on him. His parents have decompensated are not able to emotionally support him or help him be resilient or robust. Some of his burden of illness may have been worsened because of the caregiver caps. The MVA and his brother's death are the main cause of his current depression".
Dr Rastogi medico-legal report dated 22 April 2021
Dr Rastogi examined Mr Alzebari and provided a report, he commented:
“Diagnosis
Persistent Major Depressive Disorder associate with complex bereavement.
Master Alzebari reported depressed mood associated with sudden death of his older brother from a motor vehicle accident. He presents with depressive cognitions, mixed feelings of numbness and emptiness, social detachment, anhedonia with impaired concentration associated with accident. He has poor self-image and struggles with confidence. He also continues to have flashbacks of his brother and is easily triggered. The loss of emotional comfort and caregiving role by his parents who were going through their own grieving has instilled feelings of isolation, loneliness and pervasive sadness with loss. This is impacting his social connectedness and inability to study or function. He has withdrawn from most activities.
Although he has experienced early onset trauma and disruption being raised in war conditions and move to Australia with effort needed for assimilation, he demonstrated good resilience and overcome these challenges successfully.”
Dr Rastogi’s supplementary report dated 23 August 2021
Dr Rastogi provided a report on 23 August 2021. He provided the following responses:
“I agree with the diagnosis of major depressive disorder as per Dr Rickard Bell.”
He further commented:
“I do not agree with the whole person impairment as indicated by Dr Bell
(a)For social functioning - He was class 3 with Moderate Impairment with social isolation and does not get too involved in social activities. He has stopped going out with friends and remains reclusive and prefers to be at home, only connect with brother and prefers to be isolated, does not relate to his friends in school
(b)For adaptability - He is class 3 with Moderate impairment as pace is erratic and reduced and struggles with his study and falling behind schoolwork and absenteeism and not engaging in household chores, struggles with concentration and amotivation. His grades are average academically
(c)For travel - he is class 2 with mild impairment as he is fearful of travelling in car and gets anxiety and gets triggered but uses public transport
(d)For concentration - he is class 3 as moderately impaired as he struggles with learning and his performance has dropped in maths. He has fallen behind so much that he cannot comprehend now and has not motivation and drive to even catch up with study. He has lost desire to study
(e)For self-care - he has class 2 with mild impairment as he overeats or misses meals due to anxiety, his sleep is poor due to nightmares
Hence his whole person impairment is 15%.”
Dr Rickard-Bell medico-legal report dated 23 July 2021 and 5 April 2022
Dr Rikard-Bell reported that “Yousif struggled with complicated grief and he is now suffering from Major Depression”.
It was noted “In addition, there are some somatic symptoms which would relate to stress such as recurrent headaches and some avoidance of reminders of his brother suggesting a degree of trauma and avoidance of pain in relation to the complicated grief”.
In a supplementary report Dr Rikard-Bell commented on school results from prior to the accident. A number of behavioural incidents occurred prior to the motor vehicle accident and there was further negative behaviour after the motor vehicle accident.
Dr Rikard-Bell noted:
“In terms of progress and performance at school prior to and following the subject motor vehicle accident indicated a significant decline in Year 8 and Year 9 in 2020 and 2021 when compared to the start of 2019, as well as 2017 and 2018. Therefore, there is a decline in overall functioning”.
Dr Rikard-Bell noted in July 2021:
“He still attends school on a regular basis and appears to be participating in his education adequately. Therefore, at this point there is no impact on his occupational functioning. In the future, however, if his condition were to worsen, he may not be able to cope well in a vocational setting”.
Dr Rikard-Bell reported that his initial report of excellent pre-accident functioning was inaccurate. Dr Rikard-Bell concluded:
“…clearly Yousif has suffered a lot of trauma in his life and he has struggled with his behaviour and with his mood. It is likely that there were pre-existing behavioural problems which have become exacerbated after the death of his brother and it is likely that he was suffering with pre-existing depression and oppositional defiance”.
Consultation report and medical records, Amanda Judi, treating psychologist
On 26 July 2019, Mrs Jundi reviewed Mr Alzebari. She noted:
“Youssef is struggling to get through a day at school. he has been avoiding school, friends and unmotivated to get through usual daily tasks. He has been extremely emotional and reflects back on his memories with his brother daily. he only drives around with his brothers car and refuses to travel anywhere if it’s not in his brothers car.”
On 11 November 2019, Mr Alzebari attended a Kids Clinic for Psychological Services.
Ms Judi provided a report, commenting:
“He needed grief counselling to cope with the loss of his older 21-year-old brother Rabin. After the loss of his brother, Yousif has reportedly experienced episodes of:
·Becoming easily frustrated
·Reduced self-esteem and confidence
·Emotional outbursts
·School absenteeism
Yousif was attending counselling sessions to address his emotional and behavioural struggles and in particular, working closely with emotional regulation and behavioural grief. Yousif's sessions were focused on clearly defining appropriate management and acceptance therapy. Yousif attended two counselling session at the Kids Clinic. His first session commenced on the 26th July 2019 and ceased on the 9th August 2019. By the second session, Yousif reported he was able to attend school for more than half a day. Further work is proposed to maintain the slight improvements Yousif has made and consolidate for the future. It Recommended that Yousif continue to attend counselling to assist with managing his grief as he is at risk of regression.”
Medical records, Dr Salwa Al Suhaily
Dr Al Suhaily general practitioner (GP) reviewed Mr Alzebari on 31 July 2019. She documented:
“grief loss of his brother who was 22 years old in accident 6 weeks go
low mood
emotional
mental health plan done to see psychologist for grief counselling”.
THE REVIEW PANEL
At the first Review Panel meeting on 26 February 2024, the Review Panel concluded it would be necessary to conduct an examination in order to address the parties’ submissions in relation to the motor accident. The Review Panel considered all the available evidence and decided that a re-examination of Mr Alzebari was necessary to reach a decision because the matters listed in the application could not be determined based on the documents alone.
Summary of documents considered
All Review Panel members confirmed they had received and considered the following documentation:
(a) An indexed and paginated bundle of all the documents relied on by Mr Alzebari in this Review:
(i)review documents – Mr Alzebari’s submissions made to the President’s delegate and the President’s delegate’s decision;
(i)assessment documents – Mr Alzebari’s submissions made to Medical Assessor Doron Samuell and Medical Assessor Samuell’s decision;
(i)all documents Mr Alzebari relied on, which were before Medical Assessor Samuell, and
(i)any additional documents Mr Alzebari seeks to rely on in the course of this Review.
(b) An indexed and paginated bundle of all the documents relied on by the insurer in this Review (avoiding, as far as possible, the duplication of documents relied on by Mr Alzebari).
The Review Panel’s examination
Medical Assessor Chew and Medical Assessor Newlyn conducted an examination of Mr Alzebari on 2 May 2024, on behalf of the Review Panel.
Who attended the assessment?
Mr Alzebari was 17 years of age at the time of the appointment. He was unaccompanied at home in Craigieburn, Victoria. His father, Mr Najeeb Alzebari, had agreed that his son could be interviewed alone. He was examined using Microsoft Teams videoconferencing.
HISTORY
Medical history
Mr Alzebari was 180cm.
He weighed 130kg. Mr Alzebari said he thought he was a “normal” weight at the accident. He credited his weight gain to snacking.
He was right-handed.
Operations: none recalled.
Allergies: none to medications.
History of education
Mr Alzebari told the Medical Assessors that when he was a refugee in Jordan the only school was on Saturday. When he emigrated to Australia in 2016, he did not understand English. He said there was a problem in learning because of his lack of communication. When asked about behaviour problems in school before the listed by the insurer as occurring before the 26 May 2019 motor vehicle accident Mr Alzebari recalled a suspension but no other problems.
Mr Alzebari was in year 7 at Prairiewood High School when the motor vehicle accident occurred and recalled that he did not go to school for a year after the accident. He said his sisters did not try to get him to attend school. He slept if he did not attend school. He said he would attend school for two to three days and then leave. He recalled the school had a room for people with problems. When given schoolwork he refused to do it because he did not like school. He left school at the end of year 10 and did not get a Record of School Achievement (RoSA) because of his poor attendance. The family moved to Craigieburn in 2022. He began year 11 at the Kangan Institute of TAFE in Broadmeadows in 2023. In 2024 he is in year 12. The year 12 course was from Monday through Thursday.
Mr Alzebari took the train there two to three days a week. He said that in 2023 he had only passed English and mathematics. He could not say how he was doing academically in 2024. He said he argued with some teachers. He did not know when he would complete year 12. He said he had no idea what he would do after year 12.
Employment history
Mr Alzebari had never worked.
Psychosocial history
Family history
He told the Medical Assessors that his father was a part-time construction worker. He recalled that his father began to get unwell after the accident and could not work. Mr Alzebari said his father had a pancreas problem. He was depressed and stressed by his son’s death. He developed diabetes and high blood pressure. He became emotionally unavailable and was still that way.
He said his mother was a housewife but was doing little housework since the death of her son. She had cried every day after the accident and continued to cry often. Because she had lost a son, she became closer to him. He felt she was someone to vent to.
His 26-year-old eldest sister was a part-time dental assistant. Although depressed she supported the family and could not stop working.
He said that he was close to his brother Rabeen who was 21 when he died in the 26 May 2019 motor vehicle accident. He said they were close because they were both boys and interested in cars.
His younger sister was 21. She was not working and had never begun a job. He felt he did not get along with this sister.
Mr Alzebari said his family were Christian refugees who left Iraq after ISIS vehicles with loudspeakers drove around the neighbourhood saying that Christians would be killed if they stayed. The family fled to Jordan where they lived for two years until emigrating to Australia. He said he did not remember leaving Iraq because of the war but remembered Jordan as shit.
The family lived in Bossley Park when the accident happened and moved to Craigieburn in 2022 because it was cheaper.
He was an Iraqi Australian.
The family was economically stressed.
Developmental history
Mr Alzebari said that he knew there had been no problems with his preschool development. When asked about a trauma history he said the effect of ISIS was the fear of being killed. He said that in Australia he did not think of ISIS.
Chemical dependency history
No use of recreational drugs, cigarettes or alcohol reported. Mr Alzebari does not vape.
Forensic history
He did not have a history of legal problems.
He said he had not made any compensation claims before the motor accident of Sunday, 26 May 2019.
Psychiatric history before the 26 May 2019 motor vehicle accident
Mr Alzebari denied mental health problems before the motor vehicle accident.
Pre-accident functioning
Mr Alzebari said that before the motor vehicle accident he showered every other day. He had no problems with eating.
He went with friends to the park and to hang out. Friends visited him. He went on picnics, to the beach and out for meals with his family.
He could travel using public transport and was comfortable in a car.
He said he felt closer to his mother. Before the motor vehicle accident, he was in high school where other students spoke Arabic which he found helpful.
He had begun to learn to read English in 2016 and could only read basic words. He said he had no problems with focus.
He claimed he went to school every day.
History of the motor accident
Mr Alzebari said:
“My brother and his friend had gone out and I believe the accident happened around seven at night. My brother had head injuries from a bad crash. My brother’s friend survived. I learned about the accident that day. Two police officer came and told us. I think he was in Prince Philip Hospital. We went to visit my brother in hospital. They sent a taxi. We visited every day until he died on 2 June. I slept there 4 days, and I was back and forth. They didn‘t let me stay because I was too young.”
He agreed his brother was admitted to Royal Prince Alfred Hospital
History of symptoms following the motor accident
Mr Alzebari told the Medical Assessors:
“I was numb after the accident. I still think about it to this day. It was the thought of my brother being there. I sometimes look at people who have brothers and see something missing. I have nightmares about him in the hospital and about him in the coffin. I have thoughts of my brother every day and night. The thoughts make me feel sad. When I do the stuff, we used to do together I remember him. I still miss him. I try to forget by doing video games. I like video games. I play a lot, 4-8 hours without a break. I mostly play story games on PlayStation: God of War, Final Fantasy, Crash Bandicoot and Minecraft. I don’t have a problem focusing on the games. It makes me forget. I enjoy scrolling on social media. My family makes me smile. I daydream of doing stuff with my brother or having a business together. It puts me down and I am not motivated when I think about it. I am angry about how he passed away and his friend the driver survived. I feel his presence with me or behind me. I don’t hear him. I can feel his presence. It helps me and makes me sad. I sometimes think of joining him. My sleep is very bad, I sleep and wake. The nightmares are the same and have decreased a bit. I think it is about four times a fortnight. I don’t count them.”
History of treatment following the motor accident
Mr Alzebari was not prescribed psychotropic medicine.
Mr Alzebari saw Ms Amanda Jundi, Educational and Developmental Psychologist for two counselling session in 2019.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Alzebari reported he had Covid in 2020.
He said he was diagnosed with insulin resistance in 2022 and was prescribed Metformin. However, after reading reports on the internet, he decided not to take the medicine. He said he had been told that if he kept gaining weight, he would get diabetes.
Current symptoms
Mr Alzebari said, “I have not changed since 2022. I have trouble going out. Going to TAFE is hard. I am the same. I get angry, lash out and slam doors. I storm out of the house. I have pushed family members out of the way to get out, but I haven’t hurt them.”
Current and proposed treatment
Mr Alzebari received as needed general practitioner care.
He did not receive psychiatric and psychological care.
He was not prescribed psychotropic medicine.
He did not expect a change in his current treatment.
Mental state examination
The Medical Assessors conducted a mental state examination.
(a) Grooming: Mr Alzebari was neatly groomed. He said he had his hair cut at a barber two months before. He showed his preferred cut. He had a moustache but was otherwise clean-shaven. He said he had needed prescription glasses since the accident. He wore keeper earrings, which he said he had worn since emigrating.
(b) Clothes: hoodie and shorts. He said his sister had bought the hoodie for him.
(c) Activity: he sat still throughout the assessment.
(d) Movements: no tics or vocalisations reported.
(e) Aggression: no deliberate hostile acts towards peers and property reported.
(f) Impulse control: impulse control was average. He was not accident-prone.
(g) Interaction: positive throughout the interview.
(h) His facial expression was appropriate to verbal content.
(i) Eye contact: good for videoconferencing.
(j) Facial expression: serious. He did not cry.
(k) Language: Rate: appropriate.
(l) Volume: average.
(m) Coherence: good command of English without an Arabic accent.
(n) Affect: anxious. Consistent with thought content. He showed some variation in emotion, although there was little emotional variation in his speech pattern. He did not cry. He smiled at humorous interactions. There was no evidence of cyclic mood changes. Suicidal ideation was absent.
(o) Phobias: none reported.
(p) Obsessions: none observed or reported.
(q) Dissociative: no behaviour observed or reported.
(r) Preoccupations: he reported daily thoughts about his brother. No recurrent self-harmful behaviour patterns were reported.
(s) Perceptions: no anomalies reported.
(t) Sensorium: vlear.
(u) Concentration: fevelopmentally appropriate from clinical observation. There were no problems with focus during the 95-minute assessment.
(v) Abstraction: used abstract concepts without difficulty.
(w) Piagetian developmental level appropriate for age. Formal operations accomplished (> 12). (Refers to Jean Piaget’s 4 stages of cognitive development; Stage IV – the formal operational stage, begins at age 12).
(x) Knowledge: Scholastic skills are at chronological age.
(y) Attitude: I lost my brother. One day it was normal and then everything changed.
Current functioning
Mr Alzebari lived with his parents and sisters in a rented house in Craigieburn.
Mr Alzebari described his daily routine on TAFE days as getting up at eight and arriving at TAFE between 9.00-9:30am depending on the trains. He said he did not try to get up earlier. He returned home at 3.00pm. After TAFE he laid on his bed and played on his phone.
Mr Alzebari said, “On Fridays I sleep until I wake up. On Saturdays I sleep in and play on the PlayStation. It is the same on Sunday. On the days I miss TAFE I sleep in. I go to bed around 1-2 after playing on PlayStation and YouTube. I stay up because I may be upset.”
Mr Alzebari said he showered as he did before the accident. He said his father had his own diet. His older sister worked. His mother made food for him to eat. He took food his mother made for lunch to TAFE. He snacked on chips and chocolate bars that his mother bought.
Mr Alzebari took out the trash. He obtained money from his parents for his needs.
Mr Alzebari said:
“I don’t hang around with anyone at TAFE. I have not made friends since moving to Craigieburn. I am bullied a bit with body shaming because of my weight. I am not as close to my dad as I was, and I am close to my mother. I get along with my older sister but not my younger sister. My mother would like me to be more involved with people.”
Mr Alzebari said he was interested in AFL football before the 26 May 2019 motor vehicle accident but had stopped playing. He did not play any sports. He watched AFL highlights he was interested in.
When asked about family involvement in social and recreational activities Mr Alzebari said that his elder sister worked, his parent shopped, and his younger sister did not go out. He missed going out but was not motivated to do anything about it. He said he might walk to the park.
Mr Alzebari has not begun to learn to drive. He took the train to and from TAFE. If he missed the train his father would take him to TAFE or pick him up. He daydreamed of travelling to Sydney by plane or bus to visit his brother’s grave in Kemps Creek.
When asked about his focus Mr Alzebari said, “I am better at reading English. I read the Bible. I will read 2-3 chapters in 30 minutes.” He said TAFE did not give assignments. He felt he worked at TAFE at an average pace.
Mr Alzebari said his family was Catholic. His parents attended church, but his sisters and he did not go.
Comment on consistency
The history obtained was reliable and consistent. The Review Panel reviewed the documentation referred by the Commission and found no inconsistencies in the reports provided when compared with the history and examination obtained from Mr Alzebari on the day of examination. When asked Mr Alzebari denied any significant scholastic problem before the 26 May 2019 motor vehicle accident.
Review Panel deliberations
Injuries
In considering the symptoms the Review Panel agreed that following the motor accident of Sunday, 26 May 2019 Mr Alzebari developed psychiatric symptoms that had continued and were present at the assessment on 2 May 2024.
The Review Panel reviewed the injuries listed by the parties and decided the injuries listed as psychological and psychiatric injuries and Major Depressive Disorder could be redefined and are incorporated into the diagnosis of Prolonged Grief Disorder.
Stabilisation
The Review Panel considered stabilisation and considered Mr Alzebari’s psychiatric disorders from the accident had stabilised with consistent symptoms reported since 26 May 2019. The symptoms were unlikely to change in the next year.
DETERMINATIONS
The Panel has considered the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)-TR 149.
Psychiatric diagnosis and reasons
Diagnosis: F43.81 Prolonged Grief Disorder.
DSM-5-TR Diagnostic Criteria for F43.8 Prolonged Grief Disorder
(a) The death, at least 6 months ago, of a person (Mr Alzebari’s older brother) who was close to the bereaved individual.
(b) Since the death, developing a persistent grief response characterised by the following symptoms, which have been present most days to a clinically significant degree. The symptoms have occurred nearly every day for at least the last month:
(i)Intense yearning/longing for the deceased person and,
(i)Preoccupation with thoughts or memories of the deceased person (in children and adolescents, preoccupation may focus on the circumstances of the death).
(c) Since the death, the following symptoms have been present most days to a clinically significant degree. The symptoms have occurred nearly every day for at least the last month:
(i)Marked sense of disbelief about the death;
(i)Intense emotional pain related to the death;
(i)Difficulty reintegrating into one’s relationships and activities after the death (problems engaging with friends, pursuing interests or planning for the future);
(i)Emotional numbness because of the death and,
(i)Intense loneliness because of the death.
(d) The disturbance causes clinically significant distress or impairment in social and educational functioning.
(e) The duration and severity of the bereavement reaction clearly exceed expected social, cultural, or religious norms for the individual’s culture and context.
(f) The symptoms were not better explained by another mental disorder, such as Major Depressive Disorder and are not attributable to the physiological effects of a substance or another medical condition.
Comment: Before the publication of DSM-5-TR on 7 May 2022 Prolonged Grief Disorder was not listed as a clinical psychiatric disorder. Dr Tarra Shaw, Dr Richa Rastogi and Dr Chris Rickard-Bell assessed Mr Alzebari before 7 May 2022. Dr Rikard-Bell used the term Complicated Grief and Assessor Tarra Shaw noted that Grief was not recognised as a psychiatric disorder. Dr Shaw, Dr Rastogi and Dr Rickard-Bell assessed Mr Alzebari as having a diagnosis of Major Depressive Disorder based on Mr Alzebari’s mood symptoms. Assessor Samuell diagnosed a Major Depressive Disorder that had resolved in his assessment on 25 October 2022 but did not comment further on the possible diagnosis of Persistent Grief Disorder that was now a recognised psychiatric disorder. The Review Medical Assessors found that the clinical presentation of Mr Alzebari on 2 May 2024 was not that of Major Depressive Disorder in Remission but rather of Prolonged Grief Disorder. Causation and reasons
Mr Alzebari had no psychiatric history before the motor vehicle accident and developed grief immediately following the 26 May 2019 MVA. The grief symptoms have persisted for 4 years and 11 months since the MVA and Mr Alzebari meets criteria for the diagnosis of Persistent Grief Disorder caused by the death of his brother in the 26 May 2019 MVA.
Review Panel decision
The Review Panel found the accident was the cause of the following claimed psychiatric injuries:
(a) persistent grief disorder.
The Review Panel found the accident was not a cause of the following claimed psychiatric injury:
(a) Major Depressive Disorder in Remission
The Review Panel considered the following psychiatric injuries result in AN ASSESSABLE PERMANENT IMPAIRMENT:
(a) persistent grief disorder
The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows:
Current permanent impairment
Psychiatric diagnoses Persistent Grief Disorder Psychiatric treatment Description Psychological counselling has ended. Category Class Reason for decision Self-care and personal hygiene 2 Mr Alzebari’s showering frequency of every other day before the 26 May 2019 MVA has continued at the same rate. Clothing and appearance did not show that he had personal neglect. However weight gain to where he was fat shamed and his diagnosed untreated insulin resistance result in a mild impairment in this domain. Social and recreational activities 3 He can travel alone from home but reports that he and his family do not involve themselves in any social and recreational activities. This was a moderate impairment in functioning. Travel 1 He did not report any problems in travel by public transport and took the train to TAFE. There was no impairment. Social functioning 2 The family has stayed together and there has been no significant intrafamilial violence. The move from Sydney has meant Mr Alzebari does not belong to a social group. This was a mild impairment. Concentration, persistence and pace 1 He can spend 4-8 hours computer gaming, read the Bible for 30 minutes and reports that his English language skills have improved since year 7. There was no impairment in this domain. Adaptation 2 He was attending TAFE more than half the time. There was a mild impairment in this domain. * %WPI = percentage whole person impairment
List classes in ascending order Median Class Value 1 1 2 2 2 1 2 Aggregate score Total %WPI + + + + + = 11 5%
Apportionment
No mental health condition predated the 26 May 2019 MVA.
Adjustment for the effects of treatment
There was no adjustment needed as there was no measurable treatment effect from two sessions of psychological counselling and he was not in treatment.
Determination regarding the degree of whole person impairment of Mr Alzebari because of the injuries caused by the motor accident
The total percentage whole person permanent impairment for assessed psychiatric injuries caused by the motor accident was 5%. Therefore, permanent impairment was not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage whole person permanent impairment was not a direct measure of disability. A finding of 0% whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.
Conclusion on issues raised by the parties
Mr Alzebari’s solicitors proposed Mr Alzebari had a valid psychiatric diagnosis at the time of the assessment by Medical Assessor Samuell with a permanent impairment greater than 10%.
Mr Alzebari further submitted that the omission of a pre-accident history of Mr Alzebari's lifestyle, activities and habits was a material error because, had the Medical Assessor taken that history, he may have formed a different view about Mr Alzebari's current functioning.
The Insurer submitted that the Medical Assessor correctly determined that Mr Alzebari’s psychiatric injury was in remission, and therefore there was no need to assessment permanent impairment under the Psychiatric Impairment Rating Scale (PIRS).
The Panel considered the medical examination, the materials provided by both parties and the categories of impairment assigned to class in [151], to determine that Mr Alzebari had symptoms of Prolonged Grief Disorder resulting in a Permanent Impairment of 5%.
The consideration of whether or not there were clinical signs justifying a determination that there was permanent impairment in accordance with the guidelines, the Review Panel must take into account the examination on the day and on this day, the examination of Mr Alzebari observed by Medical Assessor Chew and Medical Assessor Newlyn showed there to be symptoms of Prolonged Grief Disorder. The Panel considered that there was no reason to believe that examination on any other day would be different, and that this examination justified the diagnosis arrived at, and the conclusion that it was unlikely to be any change. In other words, the condition had stabilised.
The Review Panel’s findings in relation to the degree of permanent impairment of the injury caused by the motor accident were different from the findings stated in the certificate issued by Medical Assessor Samuell. Medical Assessor Samuell diagnosed a Major Depressive Disorder in Remission, so an Assessment of Permanent Impairment was not required, whereas the Panel diagnosed a Prolonged Grief Disorder which gave rise to a WPI of 5%.
DETERMINATION
The Review Panel found that Mr Alzebari had a valid DSM-5-TR psychiatric diagnosis of Prolonged Grief Disorder that resulted in a WPI of 5%.
Accordingly, the Review Panel has determined that the certificate of Medical Assessor Samuell is to be revoked and replaced with a new Permanent Impairment certificate.
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