Assan-Larry v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 124
•4 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Assan-Larry v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 124 |
| CLAIMANT: | Nash Assan-Larry |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 4 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Permanent impairment not greater than 10%; post-traumatic stress disorder; reasonable cause to suspect medical assessment was incorrect; consideration of claimant’s treating medical practitioners; psychiatric impairment rating scale; mental state examination; no abnormal psychomotor activity; no evidence of psychosis; criteria for major depressive disorder; effective and improved symptoms and function; relevant guides and guidelines; Held – Certificate of Medical Assessor revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% the assessment made by the review panel under s 7.23(1) of the Motor Accident Compensation Act is as follows: · Post Traumatic Stress Disorder |
STATEMENT OF REASONS
INTRODUCTION
Nash Assan-Larry (the claimant) is a 44-year-old man who was injured in a motor vehicle accident on 14 November 2018. He sustained injuries when the truck he was driving was involved in a head on collision. The physical injuries were the subject of an assessment of the degree of permanent impairment by Medical Assessor Ian Cameron who determined that the injuries he sustained to his head, both shoulders, lumbar spine, right knee and right wrist gave rise to a degree of permanent impairment caused by the motor accident of 7%.
In addition to the physical injuries he sustained the claimant has suffered a psychological injury. As there was no concession from the insurer that his psychological injuries exceed the 10% whole person impairment threshold the claimant was examined by Medical Assessor Doron Samuell on 25 October 2022. In a certificate dated 7 November 2022 determined that the claimant had suffered post traumatic stress disorder which gave rise to a permanent impairment of 2%. The claimant’s solicitor sought a review of this determination and, following a finding by President’s delegate, Tammy O’Carroll, and a certificate dated 27 January 2023 in which she was satisfied there was a reasonable cause to suspect the medical assessment was incorrect in a material respect the matter was referred to this Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The applicant’s insurer has sought a review of a certificate of Medical Assessor Doron Samuell and submits that the medical evidence supports a finding that the claimant sustained a whole person impairment greater than 10% as a result of the subject accident.
Applicant’s submissions
The applicant submitted that the assessor failed to consider properly, or at all, and respond to the evidence and material provided to the assessor from the claimant’s treating psychiatrist, Dr Usma Malik; treating GP Dr Latif; treating psychologist Dr Mohammed Abou-Arab and the medico-legal psychiatrist Geoff Bertucen.
Additionally, the claimant submitted that the assessor made an error in not diagnosing a major depressive disorder. That is, in particular that the claimant had more than five of the require DSM-V depressive symptoms to satisfy the criteria for this condition.
Finally, the claimant submitted that the psychiatric impairment rating scale was not correctly applied to the claimant which, in turn, gave rise to a finding of whole person impairment of only 2%.
Respondent’s submissions
The respondent submitted that the assessor did have regard to all the evidence and material provided to him and made specific reference to the material in the summary of relevant documents. Additionally, the insurer submitted that the assessor clearly took a history from the clamant which was the basis of the assessor’s determination. That is, that there were no diagnostic errors nor was the psychiatric impairment rating scale.
Examination
The claimant was examined via video teleconference using the MS-Teams platform by Assessor John Baker and Assessor Gerald Chew. The claimant was located at their home and was unaccompanied.
His identity was confirmed by NSW Heavy Vehicle License number 16018648.
HISTORY
Psychosocial history and pre-accident history
The claimant is a 44 year old man who lives with a friend in a private rental in Bidwill, NSW. His friend’s 3 teenage boys also live there. He is not currently in a relationship. No members of his family of origin reside in Australia. His mother is in Ghana. His father has passed away. He is the fourth eldest of 12 siblings. He has some siblings in Japan and the rest are in Ghana.
He said that he was currently in the process of applying for Centrelink benefits. He does not work but maintains ownership of heavy vehicles through a company. He has little to do with the day to day running of this and his friend does the driving.
He was born in Ghana. He described his childhood as “pretty good”. He said “Ghana is a third world country but we were ok, our Dad had his own house for example”. He denied being exposed to any traumatic events or abuse. He said that he started school late and was educated to around year 6 level. His first language is Hausa however he learned English in Ghana. He left school because he felt too old for it and attended technical school for around a year. He did not work in Ghana. He migrated to Australia in 2008 and is an Australian Citizen. He obtained his heavy vehicle license after using his Ghana Driver’s License to obtain an Australian driver’s license then doing a course to obtain his truck license. He started driving trucks in 2008 and by 2009 he owned a truck and was self-employed.
He was married from 2008 to 2011. His ex-wife and 3 children age 7/11/15 live close by and he is able to see them “whenever I want”.
There is no noted previous psychiatric history.
He had gallbladder surgery around 2016 or 2017. He reports no other significant previous medical history.
History of the motor accident
The claimant was driving a semi-trailer truck at around 100km/hr when he saw another smaller truck which he estimated to be a 4 tonne truck appear in front of him. He saw a “flash” and there was a head on collision. He next recalled being “cut out” of the truck and taken by helicopter to hospital. He remained in hospital for around 1 and a half days.
History of symptoms and treatment following the motor accident
He reported that after discharge from hospital he went to his ex-wife’s house for a few days before returning back to his house in Bidwill.
He recalled seeing his GP over the next few weeks for physical issues.
He developed psychological symptoms including flashbacks and nightmares within the first few weeks and was referred to a psychologist who he saw for around 6-7 months. He had no improvement in his psychological symptoms with psychology and was referred to psychiatrist Dr Usman Malik who he has seen since. He generally attended his rooms in Castle Hill until he relocated his practice to Bronte where he has been seen predominantly by telehealth.
Initially the flashbacks were occurring multiple times a day but they have gradually reduced over time.
He describes feeling depressed and sad “all the time”. He describes being moody and easily getting agitated. He said that this had also been present with his children and had caused his wife to be more vigilant about his behaviour with the children and they have had some disagreements about this. He said that this had made him very upset and he said that he had felt suicidal with no plans for a short period a few years ago because of this.
There are no relevant injuries or conditions sustained since the motor accident.
CURRENT SYMPTOMS
He has ongoing flashbacks 2-3 times a week. He describes these as vivid pictures of him being back in the truck driving and having a head on collision. He experiences nightmares with similar content to the flashbacks approximately once a week.
He reports that he is more anxious and fearful about roads and traffic. When walking on the footpath he walks as far from the road as possible. He is more anxious driving and prefers to only drive to familiar or local places. He said that this had gradually improved but was still present.
He reported other symptoms which were present early after the accident and have gradually improved including low mood, irritability, poor energy, poor sleep, lack of interest and motivation.
CURRENT AND PROPOSED TREATMENT
The claimant remains in treatment with Dr Usman Malik who he consults with monthly via telephone as he has difficulties attending his practice which relocated to Bronte from Castle Hill.
He attends his GP and physiotherapist. He has been referred to a chiropractor who he is looking forward to seeing.
His current medication includes agomelatine 50mg at night, escitalopram 20mg, prazosin 10mg at night, quetiapine 25mg at night, modafinil 200mg in the morning and 200mg at midday. He also takes Panadol osteo for pain a few times a week.
He reports that the medication has helped his symptoms and function significantly.
MENTAL STATE EXAMINATION
He appeared his stated age and was shaven and reasonably groomed. There was no abnormal psychomotor activity. His speech had a mild accent but was otherwise unremarkable. There was no formal thought disorder. There were no delusions or hallucinations and no evidence of psychosis. He had no current suicidal ideation or plan. He reported his mood as low. His affect was dysphoric. He was oriented to time, place and person.
CURRENT FUNCTIONING
He showers daily and shaves regularly.
His friend does the cooking in the household. He helps to keep the place clean; for example he washes his own dishes and does the vacuuming.
He previously attended the gym 4 times a week but now only attends irregularly to do cardio on the treadmill. He likes to go to the park for “fresh air”.
He generally sees his children every second week. He usually goes to their house then takes them to the park to play. He takes them for meals at places like McDonalds and KFC.
He maintains a good relationship with his housemate who is a longstanding friend from Ghana. He said that he has lost a lot of friends who were mainly from work.
He reported that he travelled to Dubai in December 2023 for 7 days to visit a friend. He was able to cope with the travel but reported that it was difficult and he did not enjoy himself.
He maintains contact with his family overseas but less frequently than previously.
He occasionally drives to Campbelltown to his old office, where his truck is parked, to check on it.
He is unable to concentrate to watch TV. He is unable to concentrate to read significantly. He occasionally reads news on social media and watches short clips. He has trouble retaining information. He reported that he is more forgetful; for example having locked himself out a few times and at other times forgetting his car key.
He previously worked 14 hour days and worked more than full time hours. He said that he was unable to drive trucks. He has not been able to work since the accident.
COMMENTS ON CONSISTENCY
The claimant’s account was consistent throughout the examination and was consistent with his mental state. He was frank and forthright with information; for example disclosing air travel to Dubai in December 2023.
The provided material of Dr Latif (treating GP), Dr Arab (treating psychologist), Dr Malik (treating psychiatrist) and Dr Kumar were reviewed. There was no significant inconsistency with these documents and our findings on re-examination. Some symptoms and functional impairment have improved since and have been acknowledged in adjustment for treatment effect.
SUMMARY OF INJURIES REFERRED BY THE PARTIES
The following injuries were caused by the motor accident:
· Post Traumatic Stress Disorder
· The claimant does NOT meet DSM-5 criteria for Major Depressive Disorder. He does not meet at least 5 criterion A symptoms for a period of at least 5 weeks. He has some depressive symptoms which are better accounted for by the diagnosis of Post Traumatic Stress Disorder.
PERMANENCY OF IMPAIRMENT
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
The claimant was involved in a serious high speed truck accident on 14 November 2018.
He was subsequently treated with physiotherapy, psychology, psychiatry and medication.
He has had appropriate evidenced based treatment. His condition has improved over time. There is noted improvement since documentation from treating clinicians provided.
His condition is now stabilised and unlikely to change by more than 3 % in the next 12 months with or without medical treatment.
Degree of permanent impairment Psychiatric Impairment Rating Scale
| Psychiatric diagnoses | 1. Post Traumatic Stress Disorder | 2. | |||
| Psychiatric treatment description | Treatment by a psychiatrist. Psychotropic medication | ||||
| Category | Class | Reason for Decision | |||
| 1. Self Care and Personal Hygiene | 2 | Mild impairment. It is probable he could live alone without support. He experiences some lack of energy and motivation which affect his self care. He relies predominantly on his friend for the cooking. | |||
| 2. Social and Recreational Activities | 2 | Mild impairment. He is not actively involved socially as he was previously and does not have regular social and recreational activities. His gym attendance is primarily part of his treatment and has been recommended by his psychiatrist and physiotherapist. He does not socialise at the gym. He has demonstrated that he is able to go to social events without a support person. | |||
| 3. Travel | 2 | Mild impairment. He has demonstrated ability to travel without a support person. He however struggles with travel and is more comfortable travelling to familiar areas. Even with travelling to familiar areas there is an increase in anxiety and worry. He was able to travel with some difficulty to Dubai however did not enjoy himself. | |||
| 4. Social Functioning | 2 | Mild impairment. His relationship with his ex-wife and children has demonstrated some strain because of his irritability. He has lost friends from work. There is no evidence of severe strain in relationships. | |||
| 5. Concentration, Persistence and Pace | 3 | Moderate impairment. He is unable to read more than news articles on social media. He would struggle to undertake any basic retraining course. He was able to follow simple instructions during interview. | |||
| 6. Adaptation | 4 | Severe impairment. He is unable to work in any regular pattern with consistent pace. He has been unable to drive significantly which is the work he has training for. He is currently applying for Centrelink benefits. | |||
| List classes in ascending order: 2 2 2 2 3 4 | |||||
| Median Class Value: 2 | |||||
| Aggregate Score: 15 | |||||
| % Whole Person Impairment: 8% | |||||
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment
He had no impairment of functioning prior to the motor accident.
There have been no significant injury or events after the motor accident.
There is no need to do a pre or a post accident apportionment.
Effects of treatment
He is in current evidence based treatment which is appropriate.
The treatment has been effective and improved his symptoms and function significantly for example enabling him to be able to travel to Dubai in December 2023. There has not been a full remission of his condition however.
There has been a moderate treatment effect (2%)
Current whole person impairment 8%
Apportionment 0%
Effect of treatment 2%
Final whole person impairment 10%
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident
The degree of permanent impairment caused by the motor accident is 10%
Permanent impairment ratings take your symptoms into account, however the percentage permanent impairment is not a direct measure of disability. A finding of 0% permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.
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