Assoum v QBE Insurance (Australia) Limited
[2024] NSWPICMP 780
•21 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Assoum v QBE Insurance (Australia) Limited [2024] NSWPICMP 780 |
CLAIMANT: | Roula Assoum |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 21 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; replacement certificate issued under section 7.23(1); post-traumatic stress disorder (PTSD); adjustment disorder secondary to pain; previous motor vehicle accident; pain gives rise to significant physical limitations; post-accident psychological treatment; diagnosis of major depression and PTSD; exacerbation of pre-existing chronic PTSD; examination findings; psychological impairment; current functioning; impaired relationships; diagnosis; accident had the potential to precipitate a similar psychological injury; criteria of PTSD fulfilled; aggravation of pre-existing post-traumatic stress disorder and somatic disorder with predominant pain; Held – non-threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Christopher Rikard-Bell dated 19 July 2023 and issues a new certificate determining that the following injuries were caused by the motor accident: · post-traumatic stress disorder, is a non-threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Roula Assoum (the claimant) is a 50-year-old woman who was involved in a motor vehicle accident on 1 December 2017. Following the accident, she lodged an application for Personal Injury Benefits in respect to her injuries. She sought a concession from the insurer that her injuries ought to be considered non-threshold injuries. The insurer declined to make this concession and accordingly an application was made to the Personal Injury Commission (Commission) for an assessment of threshold injury.
The claimant was assessed by Medical Assessor Christopher Rikard-Bell on 5 July 2023 who, in a certificate dated 19 July 2023 determined that the injury caused by the motor vehicle accident, adjustment disorder secondary to pain, is a threshold injury for the purpose of the Act. The claimant sought a review of this determination, which was considered by the President’s delegate Ratula Gupta who, in a decision dated 1 September 2023 determined that there is a reasonable cause to suspect that the medical assessment is incorrect in a material respect. Accordingly, the assessment of threshold injury has been referred to this medical Panel.
The Panel met by MS Teams on 28 August 2024 and noted that there is very limited material upon which to make the assessment. Additionally, the Panel determined that there is a need to examine the claimant in order to assess the psychological injury. This injury was referred to the Commission as being an exacerbation of pre-existing chronic post-traumatic stress disorder and co-morbid adjustment disorder, currently in partial remission.
The Panel issued directions for the provision of all material which was before Medical Assessor Rikard-Bell from the parties. This material was uploaded to the portal.
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 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 Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 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 examination of the claimant took place on 9 October 2024 by Teams meeting. Also present was an interpreter, Lamia Lounici, who was present throughout the interview.
MOTOR VEHICLE ACCIDENT
The claimant was involved in a previous motor vehicle accident including a minor event in 2013 followed some months later by an accident involving her daughter Sarina who was struck by vehicle when she was around four years old. She was subsequently seen by
Dr Phillips, psychiatrist, from 2013 for about two to three years with antidepressant medication but this had ceased over a year before the subject motor vehicle accident. The Panel took a history of the subject motor vehicle accident in which she was driving after visiting her doctor. Another vehicle turned across her path resulting in a collision. Airbags deployed and police and ambulance attended all of which left her “a little frightened”. She was taken to Campbelltown Hospital and released soon after. She had physical injuries including injuries to her left shoulder and left breast as well as pain in her neck radiating down the back to her lower back with pain over the left side of the body as well as numbness in her neck. The pain has given rise to significant physical limitations and there was noted to be no surgical solution to the pain problems. She had 12 sessions of psychological treatment from Sana Zaarour, and he summarised clinical notes report from her psychologist which noted a diagnosis of major depression and post-traumatic stress disorder but with no differentiation between the two motor vehicle accidents or differing events.
EXAMINATION OF THE CLAIMANT
Current issues included anger, pain in her shoulder, insomnia, nightmares, social withdrawal, anxiety and post-traumatic stress disorder with low libido, angry outbursts, relationship issues, low self-worth, and sadness with irritability. He noted her functioning documenting that she could wash herself with one hand, that she attended to household chores within her physical limitations, and that there was lack of intimacy with her husband because of pain although her family was supportive. She attended to her plants and studied English at TAFE for two hours per day two days per week. She could attend functions such as weddings which she was able to enjoy although she had to leave early because of pain. She had one friend who was a teacher who would visit every month or two for tea or for a light meal.
MEDICAL MATERIAL
The Panel summarised a range of other documents including physical injuries assessed by Medical Assessor Ian Cameron on 20 February 2022 as minor injuries giving rise to 2% whole person impairment and a report of Dr Anthony Samuels, IME psychiatrist, dated
24 May 2022. He referred also to the report of Dr Jeff Bertucen, IME psychiatrist.The Panel noted the claimant’s handwritten application for personal injury benefits dated
13 December 2017 which refer to physical injuries including pain in her neck, shoulders, and back.The Panel reviewed a certificate of capacity dated 8 December 2017 which again referred to physical injuries only.
The certificate of Dr Maha Mikhail, general practitioner (GP), dated 8 December 2017 documented soft tissue injuries.
The report of Dr John Davis, occupational physician, noted mixed anxiety and depression.
A GP mental health care plan of Dr Mikhail dated 27 February 2020 noted mixed anxiety and depression.
The report of Sana Zaarour, treating psychologist, dated 28 January 2021 noted that she had been receiving psychological treatment over several years in relation to post-traumatic stress disorder and major depression but did not attempt to explore the separate contribution of the two motor vehicle accidents or other events.
Treatment progress notes from Sana Zaarour noted numerous symptoms including anger, shoulder pain, muscle tension, insomnia, nightmares, social withdrawal, anxiety, and post-traumatic stress disorder triggered by an incident involving her daughter being hit by a car. She was noted to have low libido, angry outbursts, relationship issues, low self-worth, sadness, and irritability.
Medical Assessor Ian Cameron in a certificate dated 20 February 2022 assessed the claimant at 2% whole person impairment in her left shoulder, cervical spine, lumbar spine, left knee, and left ankle which he determined were “minor” injuries for the purposes of the Act. He noted type II diabetes diagnosed in 2009 and a previous episode of back pain. He commented on consistency writing, “Mrs assume had inconsistent movement of the left shoulder that she said was due to variable pain from the shoulder region”.
The panel noted the report of Dr Jeff Bertucen dated 5 September 2022. Dr Bertucen noted that an oncoming car had made a sudden right turn directly across her path and that the impact pushed her vehicle onto the curb and into the steps of a shop by the roadside. Airbags deployed and she was assisted out of the car by witnesses. He noted subsequent physical symptoms. He noted her pre-existing psychological condition which he considered most likely to be chronic post-traumatic stress disorder stating that she had witnessed her then four-year-old daughter being hit by a car and severely injured. He noted treatment with Dr Phillips and with her psychologist. Following the accident, she experienced an aggravation of distressing psychological symptoms including nightmares of the subject motor vehicle accident and more frequent dreams or recollections of the 2013 accident. He also noted a decline and her mood secondary to chronic pain and sleep disturbance, inability to perform her previous domestic tasks meticulously, and reliance on her husband becoming snappy and irritable with loss of libido. Dr Bertucen diagnosed an exacerbation of a pre-existing chronic post-traumatic stress disorder with a comorbid chronic adjustment disorder currently in partial remission. He assessed her at 6% whole person impairment with no deduction for pre-existing impairment or adjustment for treatment effects rating her as Class 2 for self-care and personal hygiene, travel, social functioning, and adaptation and Class 3 for social and recreational activities and concentration, persistence, and pace.
The Panel noted the report of Dr Anthony Samuels, IME psychiatrist dated 24 May 2024. He noted that the claimant had six brothers and six sisters in Lebanon. Her parents were both deceased and that her mother had died in 2008 while her father had died many years previously. She had trained as a nurse in Lebanon and worked in a hospital he documented the 2013 accident involving her daughter which left her very traumatised because of which she had been overprotective office children since. He noted that she would receive 12 or 13 sessions of psychological treatment with Sana Zaarour which helped her morale. She had developed a car phobia after the accident involving her daughter in 2013 coupled with problems sleeping and she was treated with both citalopram and Epilim though she could not tolerate higher doses of citalopram. He noted a minor motor vehicle accident in 2013 which had not resulted in a claim. He noted that she had been highly anxious before the subject accident, had required medication, that she was overprotective of her children, and that she had some lower back pain although she could drive and could see friends as well as concentrate and clean the house. He thought that there was very likely an exacerbation of underlying condition but concluded, “At this point she seems to be back to her previous baseline as far as I can ascertain. There is no real change to her mental state” and considered that the lack of intimacy with her husband was likely to be the result of pain. He concluded, “It is possible that the accident of 1 December 2017 exacerbated an underlying psychiatric condition briefly but at this stage I can find no evidence of any permanent psychiatric or psychological impairment related to this accident”. He noted that the claimant had “pre-existing depressive and anxiety type symptoms before the subject accident and although they had improved, she was still symptomatic before the accident, still seeing a psychologist and taking antidepressants”.
PRE-ACCIDENT HISTORY
The claimant is a 50-year-old married homemaker. She lives with her husband and three daughters and one son ranging in age from 23 years to 16 years. She is now on the disability support pension which she has been receiving for the last three to five months.
She had been on citalopram before the accident and had been seeing her psychologist since 2013 after she witnessed her daughter who had been in a serious accident. She saw her once a month.
The Panel asked her about her 2013 accident. It involved her youngest daughter who was three or four years old. The family arrived at her mother in law’s. Her daughter rushed across the road and a car hit her. Her daughter had injuries to her face and had an injury to one of her facial bones. She was hospitalised one or two days and since then has been an anxious and isolative child. She had attended some kind of psychological therapy at a centre until she was older. She continues to suffer constant headaches, has chronic pain in her legs, and cannot play sport but the doctors say there is nothing wrong. She said there had been some improvement in her daughter’s conditions.
The accident “did affect me a lot when it first happened but I’m grateful she is OK”. She said of the accident, “I remember it all the time – I still remember it in my dreams”.
She “wasn’t driving back then” but was on her Learner’s licence. She said, “It took me a long time to get my licence, but it was with the help of the doctors and the therapy and my husband encouraging me to drive”.
The Panel drew her attention to the report of Dr Anthony Samuels who had documented that she had had a car phobia before 2017. She said her anxiety then was “more about my daughter being a pedestrian and I’d be scared she would get hit so I always would hold her hand”.
She had never been in the paid workforce in Australia. Between the two accidents, she seems to have managed to care for her house and was “doing everything including taking care of my mother-in-law with the help of my husband but everything was normal”.
She seems to have gone out socially between the two accidents again asserting, “Everything was OK – we used to go out – socialise – go to the beach – this last accident that I had – it’s affected everything”.
She maintained that her energy levels and concentration were much better saying, “I feel that what happened to me now was 100 times worse than what happened to my daughter”. The Panel put it to her that this seemed incongruous. She said that what happened to her daughter was “shocking but back then I was healthy, and my daughter is healthy and came out of the accident and after [the second] accident, I lost my independence, I couldn’t do my duties – my sexual life has been affected – all these things affect you more”. She perceived her relationship with her family as “normal” between the two accidents. She denied any other history of psychiatric illness. She has had diabetes since 2014 or 2015 and is taking diabetic tablets and Ozempic and Trulicity. She had been otherwise medically well. She does not drink alcohol. She does not smoke. She does not use drugs. She does not gamble.
She denied any history of problems with the law. She had no other claims history apart from one relating to the 2013 accidents. She knew of no family history of psychiatric illness. She hails from Lebanon. She has been in Australia since 2000. All her siblings are in Lebanon, but she has uncles and aunts in Australia. She is one of 11 kids. She grew up in a village. Her father worked in construction and her mother was a homemaker. She spoke of a good childhood, and she moved to the city so she could work. She worked as a nurse in a hospital and studied nursing. She came to Australia to join her husband. Her husband had been a painter. He has not worked in Australia. He was carer to his mother and is now her carer and gets a payment from Centrelink.
On the day in question, she was taking her children to school when a car collided with her vehicle. She says she lost consciousness. Her car hit the concrete stairs of a cake shop. Air bags deployed and there was smoke. She was taken by ambulance to hospital. She wanted to go home because she became incontinent and “I just wanted to change my clothes”. She said of the accident, “The impact was strong and till today I get scared”.
EXAMINATION FINDINGS
She did not sustain any fractures “but my whole left side is sore – my left arm – my breast – my whole life has changed – my mental health – my relationship with my husband – we have not been intimate”.
She has had physio and hydrotherapy and has had painkillers and ointments but has not seen any improvement. She has been to a pain management clinic which “gave me some exercises… but I can’t do them – every time I try to do the exercises, the pain gets worse – my right side is OK – any movement I make – it makes the pain worse on the left side – especially the left breast”.
She said of her mental health, “It’s not OK – I’m very tired and exhausted”. She has seen a psychologist and a psychiatrist but the psychiatrist is far away and so she is trying to see a psychiatrist who speaks Arabic.
Her mood is low. She has been prescribed citalopram 20 mg daily which was initiated by her psychiatrist. She feels it has not made much difference. This has not changed after the subject accident. She continues to see her psychologist every four weeks to six weeks. This has not changed after the subject accident.
The panel asked what concerned her most in relation to her mental health. She said, “I get very anxious – I get a lot of anxiety – especially at night – I can’t do my [marital] duties with my husband – I want to do it, but I can’t do it”. She attributes the latter to both her pain and her anxiety “but the pain is worse”.
She would dream about the accident “all night” saying that she feels as though she is falling off her bed and during the day she gets “very scared” while her psychologist tries to encourage her to drive as much as she can.
CURRENT FUNCTIONING
She is a very anxious driver limiting herself to dropping of her daughter at school two or three streets away though usually her children would walk. She would not drive beyond that narrow circuit on her own whereas “before I used to do everything – I’d drive the kids to school – I’d drive to the doctor”. She now relies on her husband to see her doctor and her psychologist. She does not catch public transport saying, “I get scared a lot” though she would go with her husband.
She would spend most of the day sitting or lying down largely because she is in pain. She would read the Koran but “I can’t do more than five – 10 minutes” but would not take in everything. She is limited because she feels tired and anxious “and I can’t sit for a long time”. She will watch TV with her husband, but she cannot sit for a long time because of pain. She does not take in much of what she watches.
She says she has a good relationship with her family but wants them to be with her all the time saying she would get scared for them when they drive off. They do not leave her on her own – there has to be someone with her. For the most part, her husband is with her “day and night”.
She does not go out socially. Her husband and psychologist are trying to “get me out of my isolation – to go out – visit people – have a coffee – I’m trying very hard bit I’m not going well…” and she might go out “once every two months – it depends”. She would venture out with her husband for a necessary outing such as a funeral.
She does not do anything at home. Her family get takeaway food and do all the cleaning. However, her daughter helped her make healthy meals because of her diabetes.
She does enjoy her food. She has lost some weight “but not much” particularly as she does not do any exercise. She gets help from her husband and daughter with changing her clothes – she can shower herself, but her daughter helps her with her hair and scrubbing her body. She showers daily.
MENTAL STATE EXAMINATION
The Panel interviewed the claimant via Microsoft Teams. A good audiovisual connection was established. She was at her home and her head and shoulders were visible. She presented as a bespectacled woman wearing a hijab who provided the history documented above. Her narrative was coherent and largely consistent. Her affect was restricted. There was no evidence of psychosis or cognitive impairment.
CONSISTENCY
The Panel noted the seeming incongruity between her assertion that the current accident was many times worse than the accident involving her four-year-old daughter and noted her response.
DIAGNOSIS
The Panel determined that the claimant had had an exacerbation of a pre-existing post-traumatic stress disorder. It noted her initial exposure to a highly traumatic event – her daughter’s motor vehicle accident when she was four years old which was indisputably a “Criterion A” event as envisaged by DSM-5-TR. It noted that the current accident, while less traumatic had the potential to precipitate a similar psychological injury (DSM-5-TR Criterion A). It noted, furthermore, the presence of ongoing intrusive recall of the 2013 accident, her current high anxiety driving (DSM-5-TR Criterion B), her anxiety if she is left alone to the point that her family have to be with her always, her avoidance of driving (DSM-5-TR Criterion C), her hypervigilance for danger particularly in relation to cars, her social withdrawal with low mood (DSM-5-TR Criterion D), and her reduced concentration (DSM-5-TR Criterion E). It further noted that her symptoms caused her significant distress and psychosocial impairment (DSM-5-TR Criterion G) and the absence of any evidence to suggest that they arose because of the physiological effects of a substance or another medical condition (DSM-5-TR Criterion H).
In short, all criteria of the DSM-5-TR description of post-traumatic stress disorder were fulfilled.
Her life was very much dominated by her chronic pain warranting a diagnosis of somatic symptom disorder with predominant pain. The latter diagnosis does not imply that her symptoms are without pathophysiological basis but reflects rather the extent to which they have come to intrude upon and dominate her life.
CAUSATION
It appeared that post-traumatic stress disorder consequent upon the 2013 accident had gone into partial remission but had been aggravated in the 2017 accident with the emergence of symptoms specific to that event. The 2017 accident appears to have precipitated the re-emergence of a pre-existing and largely quiescent post-traumatic stress disorder.
Her somatic symptom disorder with predominant pain appears to be a fresh injury specific to the 2017 accident.
The claimant has suffered an aggravation of pre-existing post-traumatic stress disorder and somatic disorder with predominant pain. These are non-threshold injuries.
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