BAI v QBE Insurance (Australia) Limited
[2022] NSWPICMP 344
•3 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BAI v QBE Insurance (Australia) Limited [2022] NSWPICMP 344 |
| CLAIMANT: | BAI |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| CHAIRPERSON: | Dr Wayne Mason |
| MEDICAL ASSESSOR: | Dr Doron Samuell |
| MEDICAL ASSESSOR: | Dr Sharon Reutens |
| DATE OF DECISION: | 3 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of an assessment of a claim for damages under Motor Accidents Compensation Act1999; previous assessment of 16% whole person impairment for major depressive disorder; review panel concluded all injuries referred for assessment were not caused by the motor accident; assessment of degree of whole person impairment was therefore not required. |
| DETERMINATIONS MADE: | 1. All the injuries referred to me for assessment have been assessed and determined not caused by the motor accident. An assessment of the degree of permanent impairment of these injuries is therefore not required.2. |
Background
The medical assessment conducted by Assessor Enrico Parmegiani was referred to this Review Panel for determination under section 63 of the Act.
All Review Panel members confirmed that they had no previous involvement with this matter, or with the above injured person. All Review Panel members also confirmed that there was no conflict or any other reason that they would be unable to approach this review with an open mind.
Conduct of the review
The Review Panel met by teleconference on 29 July 2022. Medical Assessor Mason acted as Chairperson for the Review Panel. The Review Panel determined the matter could not be determined on the papers and a re-examination was necessary.
Assessments under Review
Medical Assessor Parmegiani had certified the following in relation to whole permanent impairment:
a.The claimant suffered major depressive disorder as a consequence of the subject accident. He assessed whole person impairment at 16%.
Disputes and issues identified by the parties
The Review Panel considered the application and noted that the following aspects of the assessment were disputed:
The insurer submitted the medical assessment was incorrect because of assessment of causation, subsequent injury/exacerbation and apportionment, over-reliance on the claimant's subjective account and assessment of all areas of functioning in the psychiatric impairment rating scale.
The claimant did not agree that a review was warranted.
Summary of documents considered
5. All Review Panel members confirmed that they had received and considered the following documentation:
· The certificate issued by Assessor Parmegiani on 8 December 2020
· Application for review and attached documents
· The Statement of Reasons issued by the President’s Delegate on 21 April 2021 referring this matter to a Review Panel
· All the documents which were provided to Assessor Parmegiani prior to the assessment under review.
Reasons
Matters considered and decided by the Review Panel
The Review Panel considered afresh all aspects of the assessment under review.
Evidence considered
7.The panel considered the documentation provided which is summarised below.
Assessor Enrico Parmegiani provided a certificate dated 8 December 2020. He diagnosed major
depressive disorder of insidious onset as a consequence of chronic pain caused by the motor accident. He noted previous motor vehicle accidents prior to the age of 15 years which may have given rise to claims for physical and psychological injuries. The claimant could not recall if he had been treated for psychiatric conditions in the past. He was not aware of any psychiatric illness. He noted a fracture of the right metatarsal in 2019 requiring ORIF. There was rhinoplasty for obstructed breathing at age 8. He had molars extracted prior to the accident. He denied a forensic history. There had been a compensation payment for the third motor accident for physical injuries to his neck, lower back and shoulder. He was also involved in an off-road dirt-bike accident in 2019 which was not covered by insurance. He was a single man who born in Australia of Palestinian parents and living with his parents and six siblings in Greenacre. For the last 2 years he had been working full-time as a labourer in the building industry. He complained of fatigue and drowsiness. He was the third of seven children born in Bankstown Hospital. His father was a security guard and his mother a homemaker. He denied abuse or trauma in childhood. He attended Punchbowl public school and Strathfield South high school where he completed year 12 in 2015 but did not obtain an ATAR. He stated he was suspended a few times for swearing and back chatting and that his grades were average. He was working in the construction industry on weekends while at school. He completed a bachelor of construction management at the University of Western Sydney early in 2020. He was working full-time in the building industry since 2019. He stated he took a few weeks off school following the subject motor accident in June 2015 because of pain but was not given any special consideration for his HSC exams. There had been a relationship for 12 months around the time of the accident which broke up a few months later because of his "attitude". There had been no relationships since. The subject motor accident occurred when he slowed behind a driver making a left-hand turn into a driveway and was rear ended by a following vehicle. He described the accident as terrifying, and said his head went back and forth and he felt pain immediately. He was able to get out of the car and exchange details with the other driver. Neither police nor ambulance were called. He was driven home by his brother in another vehicle, had a shower, took some Panadol and went to sleep. Subsequent symptoms consisted of pain in his low back and neck. He stayed home, consulted a GP after a few days and had x-rays and an MRI scan. This showed a bulging disc at L5. He used analgesics and attended physiotherapy, exercise and specialist consultation. Psychological symptoms consisted of isolating from family within 4 or 5 months, staying in his room, missing meals, avoiding contact with people, being afraid of leaving his room and gradually becoming more short tempered. He watched YouTube videos on depression and web forums on suicide prevention because of suicidal ideation. He saw his GP who referred him to psychologist Mr Medhat Metry in 2017. He was commenced on venlafaxine 75 mg by his general practitioner which helped with his mood but caused fatigue, drowsiness and agitation. There was no psychiatric treatment. Current symptoms consisted of slightly improved pain, persistent headaches, sadness and anger, and difficulty deriving enjoyment from life. His mood was low in the morning. There were negative ruminations about his predicament, feeling he was a failure without a future and would be better off dead. He was tearful while describing thoughts of suicide. He reported going to bed at 5 PM when he returned from work, watching documentaries on his phone and then trying to sleep from 10:30 PM. He usually fell asleep by 11 PM or midnight, woke at 2 AM and 4 AM and finally at 6 AM with the alarm, still feeling tired. He frequently missed meals and had lost 30 kg since the accident. Energy levels were poor, he lacked motivation for social life and had no interest in finding a new girlfriend or other close intimate relationship. He continued using venlafaxine but had ceased psychological consultation because it was not effective. He was sad in appearance, moved slowly and was often tearful. His beard was not well trimmed but he was reasonably well dressed. Speech was slow and monotonous, affect was depressed and he cried frequently. Cognitive function was grossly intact while insight and judgement were at best fair. Whole person impairment was assessed at 15%. Assessor Parmegiani stated his psychiatric symptoms were understandable and did not appear to be exaggerated or embellished. The documentation reviewed included 2 IME reports by Dr Ashraf Phillips who diagnosed a major depressive disorder with comorbid PTSD, obsessional symptoms and panic attacks in June 2018. Whole person impairment was calculated at 24%. Subsequent assessment in May 2019 resulted in similar diagnoses with whole person impairment of 19%. Treating psychologist Mr Medhat Metry diagnosed major depressive disorder in November 2018 and assessed whole person impairment of 19%. Dr Graham George provided a report in March 2019 recording a similar history but noted the claimant was not a reliable historian and suggested forensic psychological testing. Dr George noted a prior diagnosis of PTSD following earlier motor vehicle accidents prior to 2006 when he would have been 9 years of age. Assessor Parmegiani believed his condition had stabilised. He provided an assessment of whole person impairment as follows:
Self-care and personal hygiene 3: He was sometimes prompted by his mother to eat and did not take care of his room at home. He was assessed as moderately impaired.
Social and recreational activities 3: He did not go out spontaneously to visit friends or family and did not attend coffee shops, movies or restaurants. He was moderately impaired.
Travel 2: He commuted to work by driving from Greenacre to Concord. He avoided unfamiliar places. He was mildly impaired.
Social functioning 3: There was reduced interaction with family, he easily lost his temper, and had no interest in forming a relationship with a new girlfriend. He lost a girlfriend after the accident. He was moderately impaired.
Concentration, persistence and pace 2: Subjectively his memory and concentration were not the best and he sometimes made mistakes with his calculator. He watched documentaries on his mobile phone, used Facebook rarely, managed his own bills, and had no hobbies or pastimes. He stopped going to the gym because of his poor mood and loss of interest. He had completed a university course after the accident. He was mildly impaired.
Adaptation 2: He had graduated with a university degree but was working in a labouring position full-time. He was mildly impaired.
Whole person impairment was 15% with a 1% treatment effect taking the total to 16%.Complete record of the medical and dental Centre Punchbowl at 25 August 2020. The record appears to commence on 16 February 2019. On that date venlafaxine 75 mg was prescribed. On 2 March 2019 trochanteric bursitis was diagnosed. On 31 July 2019 a foreign body had been removed from his eye at hospital. On 30 October 2019 he reported suffering a Lisfranc injury to his right foot on 20 October 2019 repaired by ORIF in hospital; there was also left wrist pain. Endone 5 mg prescribed. On 13 November 2019 he remained in a cast. On 2 December 2019 he presented seeking psychological referral following the June 2015 motor accident. Stated he had impaired concentration which is why he had the dirt bike accident. He said he had been trying new activities to improve his mood and function. Rx of 75 mg continued. On 10 December 2019 he had progressed to a Cam boot. On 9 January 2020 he requested blood tests; had been using testosterone. On 13 January 2020 he complained of pain at the base of the first MTP. He was pain free in his right foot on 16 March 2020 and had hardware removed in April 2020. Past medical history consists of adenoidectomy in 2005, left sacral fracture in 2015, right meniscal tear and surgery in 2018, and Lisfranc fracture and keratoconus in 2019. Correspondence indicates a problem since childhood with both hips being anteriorly offset. The claimant had corneal surgery consisting of a Keraring implant in approximately August 2018 for successful repair of keratoconus, improving sight in his left eye from 6/6 to 6/6 on 20 March 2019. The orthopaedics Department of Concord Hospital noted the claimant was non-compliant with the request to wear a Cam boot to aid recovery of his Lisfranc fracture.
R1. Insurer submissions indicate the claimant was involved in 3 prior motor accidents. On 25 June 2006 he was a restrained front seat passenger holding his 4-week old brother on his lap with his mother driving. The vehicle was struck on the left passenger side by an unidentified vehicle. His mother lost control and hit a telegraph pole. He allegedly sustained injuries to the neck and both wrists. On 6 July 2006 he was a rear seat passenger when his vehicle was rear ended. He complained of generalised muscle aches and headaches together with neck back and limb pain. This accident was reported on 12 January 2007. On 2 July 2012 he fell on a bus striking his shoulder when the driver braked suddenly he attended Bankstown Hospital with left shoulder and knee pain plus neck pain. In February 2017 he suffered left shoulder pain as a result of being hit by somebody. In November 2017 he underwent septoplasty. In May 2018 he suffered a right medial meniscal tear requiring arthroscopy and repair in June 2018. The subject motor accident occurred on 17 June 2015 but was not reported to police until 2 September 2015 at Bankstown. The insurer submits there is barely any damage to the claimant's vehicle, supporting the notion that it was a low speed collision. Neither police nor ambulance were called. In his initial claim form there was no mention of psychological injury. This was first noted in a report by Dr Ashraf Phillips on 18 June 2018, who diagnosed major depressive disorder, post-traumatic stress disorder and panic disorder. The claimant saw psychologist Mr Medhat Metry on 30 September 2016, more than 1 year after the motor accident. He diagnosed major depressive disorder. The insurer noted Dr Graham George regarded the claimant as an unreliable historian. Dr George noted there was a report from paediatric respiratory physician Dr Hugh Allen who noted PTSD in relation to the 2006 accidents. He had travelled to Palestine for a month in 2017 with her family members. The insurer noted behavioural and educational problems in school both prior to and after the subject motor accident.
R2. MAPICF dated 19 October 2015. The claimant stated the accident was reported at Revesby police station on 21 June 2015. The claimant was the restrained driver of a vehicle who slowed to let the vehicle and head turn into a driveway. The vehicle was then rear ended by a following vehicle. Injuries were listed to back and neck. Neither police nor ambulance attended. Previous accidents were noted on 20 June 2006 and 20 July 2006 both giving rise to neck and back problems. There was also an accident on 2 July 2012. The claimant was a student at the time of the motor accident.
R4. Photographs of the other vehicle involved in the collision shows minimal damage to the front number plate.
R8. Assessor Kalev Wilding provided a certificate dated 20 February 2017 in which he determined musculoligamentous strains to the cervical and lumbar spine gave rise to whole person impairment of 0%. Trochanteric bursitis was not caused by the subject motor accident. A minimally displaced fracture of the sacrum which had not been claimed as an injury was caused by the subject motor accident. This had resolved. Assessor Wilding’s description of pain was as follows “BAI complained that he experienced constant aching in his neck. There was no radiation of pain into his upper limbs. BAI complained that he experienced constant aching in his lower back which radiated into both buttocks and down the medial aspect of both thighs and down the anterior aspect of both tibia to the great toes. The pain was not in a radicular pattern. He said that standing in one spot for a period of time aggravated his back symptoms. He did not know how long he had to stand in one spot before his symptoms were aggravated. He said prolonged sitting also aggravated his back symptoms and therefore he could not sit through a movie”.
R9. Psychiatrist Dr Graham George provided an IME report dated 19 March 2019. With regard to prior psychiatric history he noted “BAI said that he had never had any mental health issues prior to his motor vehicle accident. However, in a report by Dr Hugh Allen, Respiratory and General Paediatrician dated 21 January 2009, Dr Allen reported "BAI was diagnosed with post-traumatic stress disorder six months after the accident". He had an accident on 25 June 2006 and second accident on 6 July 2006. I believe that Dr Allen was referring to the first accident. Dr Allen went on to state, "this would appear to be unusual and very late for this type of presentation. PTSD more frequently occurs in the first three to six months. There is a delayed form, which is well described and is uncommon". Dr Allen commented that "in the first report by Dr Mansour, there was no mention of psychological issues, fear of car trips or any phobias, nightmares, flashbacks, acting out or sleep disturbance. The implication was that these symptoms were reported subsequently.”” Dr George concluded “I am unable to diagnose BAI with a psychological injury related to the subject accident. I do not find him to be a reliable historian”. He recommended forensic psychological assessment to assess he reliability as a witness.
R10. Complete record of the medical and dental Centre Punchbowl at 31 January 2019. The record commences on 19 March 2001. On 22 December 2006 a whiplash injury was noted and CTP form completed. On 12 January 2007 the date of the second accident was recorded as 6 July 2006. On 22 January 2009 he was noted to be upset re childhood obesity. 23 November 2011 recurrent migraine. On 31 July 2012 the claimant reported the bus accident of 2 July 2017; X-rays normal. 12 November 2014 punch injury to right hand one month earlier. On 19 June 2015 he presented following the motor accident 2 days earlier resulting in pain in his entire back worse in the mid and upper back. On 31 August 2015 low back and neck pain and stiffness continuing. On 1 September 2015 there was a normally displaced fracture in the anterior aspect of the left sacrum involving the sacroiliac joint. The back pain continuing on 9 October 2015. On 13 October 2015 all x-rays were reviewed and there was no evidence of fracture. 23 August 2016 BMI 33.2; height 178 and weight 105.3 kg. On 29 September 2016 he was referred to psychologist Mr Medhat Metry because he needed counselling. On 13 February 2017 he presented with left shoulder pain after being hit by somebody. 29 March 2017 left shoulder pain affecting his activities. 22 September 2017 presents with depression and anxiety prior to going overseas; venlafaxine 75 mg and diazepam 2 mg prescribed. 16 November 2017 functional rhino septoplasty on 13 November 2017. 21 February 2018 anxiety/depression venlafaxine 75 mg and diazepam 2 mg prescribed. 7 May 2018 hurt his knee while playing football and MRI scan ordered. 21 June 2018 he had diathermy of the inferior turbinates. 22 June 2018 arthroscopic repair of right medial meniscus tear. On 26 August 2018 he had ophthalmic surgery for keratoconus. 31 January 2019 trying to keep fit and active by doing physical exercise.
R11. Records of Paediatrician Dr Albert Mansoor of July 2007 indicated he was extremely sceptical that the claimant had suffered psychological injury.
R12. Discharge summary of Bankstown Hospital dated 2 July 2012 indicates he attended following a fall on a bus complaining of left shoulder pain. He was discharged with analgesia.
R13. Records of Strathfield South high school indicated multiple lateness, attendance and behavioural problems until April 2014. The claimant was slightly below average in the 2010 NAPLAN results.
R14. WSU academic transcript Indicates completion of 220/320 credit points in the Bachelor of Construction Management Course as of summer 2019.
R15. Police report indicates the claimant attended at Bankstown police station on 2 September 2015 to report the subject accident at the urging of his solicitor.
R16. Prior GIO files noted.
A3. Psychiatrist Dr Ashraf Phillips provided an IME report dated 18 June 2018. His description of the accident included claimant's car was damaged badly and the entire rear came off. He said he hit his head on the steering wheel but denied any injury. Two days later he had upper and lower back pain. Present symptoms consisted of anxiety and depression plus insomnia. He described a loss of appetite resulting in weight loss of 30 kg. He described flashbacks and nightmares. He was fearful of driving but resumed within 1 or 2 weeks. He described self-neglect. He also described panic attacks and anger resulting in destruction of property. He described some obsessional symptoms. He is able to use public transport. He is not in employment. He had consulted psychologist Mr Medhat Metry. He was studying at the University of Western Sydney. He had been using venlafaxine but ceased because he felt worse when he stopped. He denied past mental health problems. He denied behavioural problems at school. He is in receipt of unemployment benefits. 3 past physical injuries resulting in compensation claims were described. Objectively he noted mildly depressed mood. On this basis Dr Phillips diagnosed a major depressive disorder, post-traumatic stress disorder, obsessive symptoms and panic attacks. He assessed whole person impairment at 24% (333334).
A2. Dr Phillips provided a further report dated 3 May 2019. He had lost a further 5 kg. He was working. He had attended 16 sessions of CBT with Mr Metry. Again he assessed mood as mildly depressed. He diagnosed a depressive episode with PTSD, OCD and panic symptoms. He assessed whole person impairment at 19% (332333).
A4. Treating psychologist Mr Medhat Metry provided a report dated 12 November 2018. The claimant had first attended on 30 September 2016, 15 months after the subject motor accident. He described the motor accident as another car severely impacting the rear of the claimant's car. Symptoms were described as depressed mood, anxiety and panic attacks. He denied past psychiatric history. DASS 21 scores were all extremely severe. Diagnosis was major depressive disorder. He assessed whole person impairment at 19% (332333).
Part 2. MVA 6 July 2006 consisted of being rear-ended while waiting to turn right. Car driven by mother. In a report dated 20 January 2009, paediatric respiratory physician Dr Hugh Allen did not feel the claimant met criteria for PTSD. On 25 June 2006 the claimant was a restrained passenger in a car driven by his mother. An unidentified vehicle collided with the car causing it to strike another vehicle and a telephone pole. The claimant was a restrained front seat passenger nursing his unrestrained 6 week old brother/sister. Psychiatrist Dr Jeff Bertucen provided an IME report dated 5 April 2009. The claimant was accompanied by his father, He noted the claimant's mother Shefa appears to be suffering PTSD and panic attacks from an earlier severe motor accident in 2004. He noted the claimant appeared to have recovered from any acute stress reaction/PTSD symptoms and if anything was suffering from a chronic pain disorder. He assessed whole person impairment at 1% (2, 1, 1, 1, 2, 1).
The panel concluded there was no evidence of any pre-existing psychological condition or impairment arising from the two motor accidents in July 2006 when the claimant was 8 years of age. It was decided to focus the re-examination on recent events, and in particular the history of symptoms over the last 7 years since the subject motor accident.
History
9.Psychosocial history and pre-accident history
BAI is a 24-year-old man who lives at home with his parents and 6 siblings in Greenacre. He is working full-time as a leading hand in the construction industry with Sheeth Constructions. He said his work mainly involves labouring and he is sent to different construction projects around Sydney. He said he is not in a relationship and has no children.
He said his 52-year-old father is now working on a casual basis. He was employed as a security guard but stopped full-time work following heart surgery 1 year ago. He said his mother had been employed in the Post Office prior to having children; she is currently not working. There are 7 children in the family aged between 12 and 30 years, consisting of 3 girls and 4 boys.
When asked about his childhood, he said it was very family oriented and he was well treated by his parents and siblings. He denied any form of abuse throughout childhood. He attended Punchbowl primary school and then Strathfield South high school where he completed year 12 in 2015. He said he did the final exams but did not obtain sufficient marks to obtain an ATAR. He acknowledged his behaviour was not ideal during high school and he was suspended on quite a few occasions because of uniform problems, behavioural infringements and negligence. He said he had never been expelled. He was questioned further about his disciplinary problems in high school and he tended to downplay them.
With regard to further study, BAI completed a bachelor of construction management through the Parramatta campus of the University of Western Sydney between 2018 and 2021. He said with this qualification he hopes to climb the ladder in the construction industry and eventually obtain work as a project manager. The panel noted obtaining a degree indicated a well-developed capacity to concentrate, focus, persist and remember; BAI responded that his results were really not that good, that he only obtained passes and credits. He said he obtained the answers to some of his exam questions by looking out the window and seeing construction equipment.
He said he was involved in a relationship with a girl for 1 year while he was still at school. He said it was not that serious and she was simply a school girlfriend. They did not live together and she had never been introduced to his family. BAI said she broke up with him because after the accident he did not care for her anymore and he started arguments. He said he is heterosexual in orientation but has not been involved in any more relationships since the motor accident because he does not want to hurt a partner because of his symptoms.
With regard to work he said he started in 2015 after completing his higher school certificate. He was initially employed on a part-time basis in the building industry for 20 hours/week and then he gradually built up to a full time in 2019, apart from a 2-month interruption due to Covid and two 3-month interruptions due to further physical injuries (a medial meniscus injury in 2018 and a fracture of his foot in 2019). He has been working full-time since then. He insisted he has been retained on light duties and given simple tasks such as sweeping. The panel noted this is inconsistent with the fact that he has attained the position of leading hand but he insisted he only performs sweeping duties.
Leisure activities prior to the subject motor accident consisted of playing rugby league and hanging out with family members and friends and going on outings to the park and to the beach. He also enjoyed dirt-bike riding.
Past insurance claims consisted of 2 motor vehicle accidents in 2006. His mother was driving in each instance. He claimed injuries to his back and legs. He stated there was no psychological injury. The panel noted he had been assessed by IME psychiatrist Dr Jeff Bertucen which suggests there was a claim for psychiatric injury; however Dr Bertucen diagnosed only a pain condition. There was a further injury in 2012 when he fell in a bus and injured his shoulders and back. All of these claims resulted in financial settlements for physical injury. BAI stated there was no psychological injury arising from the accident in 2012. He was questioned regarding his behavioural problems at school and was asked if he had been required to attend any form of treatment. He said the only treatment he received was tutoring to improve his grades. However he then said he had been referred to the school counsellor. He denied any past history of problems with the law.
When asked about past medical history he said the only problems he had arose from the subject motor accident. He was then questioned about childhood history of obesity in 2009. He was also questioned about migraines. He said "now that you come to mention it, I did have these conditions". He said he lost 30 kg by not eating after the motor accident. When the panel pointed out he had been prescribed Duromine to help him lose weight he confirmed this was the case. He said there had been no gastric surgery. He confirmed migraines continue to occur on a random basis after he has a rough day at work. He said they also can be caused by taking venlafaxine. Surgery prior to the motor accident consisted of a septoplasty between the ages of 7 and 9 years.
When asked about surgical problems after the accident he said there were only 3. He referred to medial meniscus damage incurred while playing football with his brothers in the park in 2018. He fractured his foot while riding a dirt bike in 2019 and there was subsequent removal of the hardware in 2020. The panel pointed out there had also been a rhino septoplasty in 2017, diathermy of the inferior turbinates in 2018 and ophthalmic surgery in 2018 resulting in a significant improvement in vision. BAI agreed that was the case and said they had slipped his mind.
He denied any past psychiatric history and said there had been no family history of psychiatric illness. The panel pointed out that in fact his mother had been diagnosed with severe post-traumatic stress disorder following a motor accident in 2004. He again stated "now that you come to mention it, that is the case".
Current medications consist of venlafaxine. He appeared to be confused as to whether he was taking 75 mg or 150 mg. He insisted the dosage had been increased but did not seem sure when this happened. He said he has side-effects from them consisting of migraine, abdominal pain, fatigue and sweating. He said he had not always been reliable in taking the drug and he sometimes let his prescriptions run out. He said he uses ibuprofen infrequently for pain.
BAI denied the use of cigarettes, alcohol and recreational drugs and said he does not gamble. He stated he was not a strictly observant Muslim and simply preferred not to use these substances.
10.History of the motor accident
BAI said he was driving the family Toyota Camry along South Terrace, Punchbowl. At that time he was on his red provisional driver's licence. His cousin was in the front passenger seat. They were both wearing seat belts. He said the car in front indicated to make a left-hand turn into a driveway and had begun to slow down. He also gradually slowed down and he was rear ended by a following vehicle. He was not sure if he was still moving or stopped; he estimated his speed at between 0 and 10 kph.
He said the car behind was travelling really fast; he estimated the speed to be 70 kph and said the impact was so great the entire back part of the car came off. When the panel enquired about this he said the rear bumper was dented and the clips let go, enabling it to fall. The panel informed BAI that they had viewed the photographs provided by the insurer which showed a very mild deformity of the number plate of the vehicle that struck them and that this was inconsistent with his claim that the vehicle was travelling at 70 kph. He insisted the collision was substantial and the car was travelling between 50 and 70 kph.
When asked if airbags deployed he initially said yes. When this was queried further by the panel he said no and then said he was not sure. He said the impact was great and he hit his head on the side pillar. He said he got quite a shock and simply sat in the car. He said his cousin said to him that they had just been involved in a motor accident.
He said they got out of the car and exchanged details with the other driver. He said the car was driveable but he preferred not to drive it because he was fearful, so his brother and a friend came to the accident scene and then drove the car home. He said police, ambulance and rescue services were not called. Without being asked he elaborated and said he was aware that the public were not encouraged to call police for motor accidents because it used up valuable community resources. He in fact agreed that it was not a significant injury that required police attendance.
Following the accident he was driven home suffering from lower back pain. He said his mother gave him pills and he tossed and turned all night.
11.History of symptoms and treatment following the motor accident
BAI attended his general practitioner a few days later because of lower back pain and he was sent for imaging. He said he was not sure if he was prescribed medication but said he used a lot of Voltaren cream which he bought over-the-counter and applied to the painful areas daily.
He said after that "his life took a decline and he was on the rollercoaster". He said at the time of the motor accident in June 2015 he was still 17 years of age and was in the final months of study leading up to the higher school certificate. He said dealing with the pain interfered with his studies and made it hard for him to focus. When asked to explain what he meant by being on the rollercoaster he referred to "the bigger picture" and said it interfered with his ability to network, attend gatherings and work as a volunteer. The panel noted that these activities would normally be restricted by the period of intense study prior to the higher school certificate. He said he did not apply for special consideration at school because of his injuries. He could not explain why this was so and said he was able to do that during his later university studies.
When asked to describe the onset of his psychological symptoms he said he could not pinpoint a particular event. He said the ongoing lower back pain made it impossible for him to do certain things. He said he was still in a great degree of shock and found the whole experience overwhelming. The panel enquired what aspect of the minor motor accident was overwhelming and he was unable to provide an explanation. He said he gradually experienced the development of sleepless nights, poor school performance and he became unable to attend family gatherings.
He said everything was changing. There was a gradual development of difficulties over the next 3 or 6 months. He said he withdrew from friends and family. He said he did go out with friends occasionally but they all told him that he had changed. He added he withdrew from almost everything although he still went to the gymnasium alone. He then said he felt like he was living his life in a bubble and asked the panel if they were aware of the 1998 film “The Truman Show”, in which Jim Carrey lives his life in a studio film set.
He then went on to say he developed extreme anxiety. He said he could be sitting with friends and he would experience a rush and have to leave. He described this as an ongoing “dopamine rush”. He described a sense of emptiness. He said he developed panic attacks and these just came on gradually 3 to 6 months after the motor accident. He said they ruined his relationships and made it difficult for him to go out to events. He said his family told him to see a psychologist or a psychiatrist.
He was asked to describe the development of these panic attacks and again said they came on very gradually. The panel noted that a true panic attack is an overwhelming rush of anxiety which comes on suddenly rather than gradually. He was asked to explain how the panic attacks were connected to a minor motor accident 3 or 6 months ago and again he said it was a networked series of interconnected events.
BAI said that he gradually began to feel like he did not want to leave his room. He avoided going to the doctor initially because he did not want to see the receptionist and have to sign in. He said he thought people were watching him, talking about him and judging him. He said he could hear voices being critical of him. When questioned in detail he denied the presence of auditory hallucinations. The panel noted this description was inconsistent with the fact that he had begun to work part-time and gradually built up to full-time. He responded by saying that he does not feel comfortable joining groups of people at work because he worries they are talking about him. The panel noted this did not stop him from working and he agreed.
BAI saw his general practitioner and was referred to psychologist Mr Medhat Metry in September 2016, 15 months after the subject motor accident. The claimant informed Mr Metry the motor accident consisted of another car severely impacting the rear of his car, which is at odds with the facts as provided by the insurer. DASS 21 scores were all extremely severe. Mr Metry diagnosed major depressive disorder and provided psychological counselling. BAI did not believe the counselling provided by Mr Metry was helpful. Efexor was prescribed by his general practitioner in 2017. He did not think this had been particularly helpful and sometimes did not bother to take it.
12.Details of any relevant injuries or conditions sustained since the motor accident
Following the motor accident he had been punched in the shoulder in 2017. He had further nasal surgery in 2017 and 2018. He had a medial meniscus repair and eye surgery in 2018. He fractured his foot in a dirt bike accident in 2019 following which he was in a plaster cast for 6 weeks and a cam boot for another 6 weeks. There was surgery for removal of hardware in 2020. BAI insisted none of these events caused him any psychological problems. He said the dirt bike accident was minor because he was almost stopped when he lost control of the bike and it fell on his foot, fracturing a metatarsal bone. He denied the 3-month period of enforced rest was a problem, saying he enjoyed the opportunity to recover at home. He made similar remarks about the medial meniscus repair in 2018. He said in fact they gave him a break in which he could focus on his study.
13.Current symptoms
BAI said he feels constantly fatigued and lacks motivation. He said he suffers from insomnia which impacts his ability to work. He said his mother has to wake him up in the morning and make his lunch. At this point in the interview he became tearful and said he was afraid his mother might die, he was anxious about her health and he did not know how he would be because he would have no one to care for him. He said he continues to experience occasional panic attacks saying that someone at work could set him off, particularly if he was in a group of people.
14.Current and proposed treatment
BAI said he plans to continue using venlafaxine although he does not think it is helpful and he is not sure of the dose he is using. He has no plans to continue psychological counselling. He has not consulted a psychiatrist and has no plans to do so.
15. Additional evidence
The panel noted a number of inconsistencies in the claimant's history. These were put to him throughout the interview and his responses have been described above.
Clinical Examination
16.Mental State examination
BAI is a right-hand dominant 24-year-old man whose appearance is consistent with his stated age. He was interviewed using the Microsoft Teams application with a good internet connection. He was located alone in an office at the premises of his lawyer in Parramatta. The interview commenced at 10 AM and concluded at 11:40 AM. He was neatly dressed and well groomed. He was pleasant and cooperative and provided information willingly and without prompting.
There was no evidence of anxiety or depression throughout the entire interview. He was cognitively intact. There was no impairment in concentration evident throughout the interview. He had no difficulty interacting with the panel of 3 psychiatrists and in fact was comfortable in addressing each of us individually using our first names. He made good eye contact. He spoke confidently, although at times appeared to use words whose meanings he did not fully understand. There was no pain behaviour evident.
Throughout the interview his speech was normal in terms of form, rate and content. His range of affective expression was full and appropriate and he was able to display humour appropriately. He denied auditory hallucinations.
BAI was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
17.Current functioning
BAI works from 7 AM until 3:30 PM from Monday to Saturday, occasionally finishing slightly earlier on Saturday. He said his routine is to go to the gymnasium every day after work before he cools down. He then returns home.
Self-care and personal hygiene: BAI said he showers only 3 times weekly and his family complain that he is malodorous. He said he is lazy and is not motivated to shower or change his clothes. He does not bother to help with meals or housework and he relies on his mother to take care of him. When asked why he believes a minor motor accident 7 years ago gives rise to such difficulties now, he said it is due to a knock on effect arising from a series of events such as the ‘panic attacks’.
Social and recreational activities: BAI said he sees no one except family members. He goes to work, goes to the gymnasium alone and then comes home. He said he might go out occasionally for coffee or play in the park with his siblings. He had been dirt-bike riding with his brother. He will attend the doctor’s surgery for help with pain, panic attacks or insomnia but is put off by the thought that people might talk about him. When asked how such difficulties arose from a minor rear end motor accident 7 years ago he again replied that it was due to the series of events since then.
Travel: BAI is able to drive and use public transport. He is able to drive to work and was able to fly to Palestine with his family.
Social functioning: BAI said he has problems with a bad temper and he goes off at family members if he hears chewing or drinking noises. This will cause him to go to his room. When asked how this arose from the motor accident 7 years ago he again said it was because of the knock on effect. The panel note the ending of a high school romantic relationship after the motor accident and does not regard this as equivalent to the loss of a partner or spouse.
Concentration, persistence and pace: BAI had no difficulty with concentration, persistence or pace throughout the interview. He similarly had no difficulty with concentration, persistence or pace in his work or in his university studies.
Adaptation: BAI is working full-time. He has been able to complete a university degree. He appears not to contribute to the running of the household because of his mother's inclination to do everything for him.
18.Comments on consistency
There were significant problems with consistency throughout the interview. Essentially BAI has exaggerated the degree of seriousness of the motor accident. His description of the development of psychological symptoms is at odds with the usual time course of psychiatric symptoms. In particular his presentation at interview was totally devoid of any symptoms of a psychiatric condition. His ability to work full-time and obtain a university degree is also at odds with the symptoms claimed. When these matters were put to BAI he stated his problems were due to a network knock on effect of the symptoms over the years. He also said he had created a trail of the symptoms he developed by visiting his GP and reporting the pain and by taking medication.
Panel Deliberations
19.In essence, the panel was not able to make a psychiatric diagnosis of any condition caused by the subject motor accident. Central to this was the mental state examination in which no evidence of symptoms was present apart from anxiety regarding his mother’s health which does not arise from the motor accident.
The description provided by the claimant of the development of symptoms was not consistent with the usual development of psychiatric conditions. His description of the impact of the claimed conditions on his daily functioning was also not consistent with the claimed psychiatric injury.
BAI does not meet DSM-5 diagnostic criteria for major depressive disorder. With regard to criterion A he does not have depressed mood most of the day nearly every day. He does not display markedly diminished interest or pleasure in almost all activities most of the day nearly every day. The panel regards his weight loss as a healthy achievement rather than a depressive symptom. He describes insomnia but if it is present it has not interfered with his ability to work or study. There was no evidence of psychomotor agitation or retardation. There was no evidence of fatigue or loss of energy nearly every day because of his ability to work and attend the gymnasium. He did not describe feelings of worthlessness or excessive or inappropriate guilt. His ability to think or concentrate was not impaired. He did not describe recurrent thoughts of death. Criterion B is not met in that the symptoms did not cause clinically significant distress or impairment.
The panel noted the IME psychiatric reports of Dr George and Dr Phillips. The panel was unable to confirm the diagnoses provided by Dr Phillips and reached conclusions similar to those reached by Dr George.
The panel concluded that in the months following the motor accident it is possible that BAI may have suffered an adjustment disorder with mixed anxiety and depressed mood but this has long since resolved. Currently he suffers no psychiatric condition.
The panel has arrived at a different diagnostic conclusion to Assessor Parmegiani because of the absence of any evidence of psychiatric symptoms throughout the interview.
20.Conclusion on issues raised by the parties
In relation to the issues raised in the application, the Review Panel considered all of the issues raised by the insurer were well founded.
Review panel decision
21.The Review Panel found that the accident was NOT a cause of the following claimed injuries:
Major depressive disorder
22.Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident
The panel made no psychiatric diagnosis arising from the subject motor accident. Calculation of whole person impairment is therefore not required.
Permanent Impairment
The Review Panel’s findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to the findings as stated in the Permanent Impairment certificate issued by Assessor Parmegiani.
Accordingly, the Review Panel has determined that this certificate is revoked and a new Permanent Impairment certificate has been issued by the Review Panel.
Review panel decision
23.The Review Panel found that the accident was NOT a cause of the following claimed injuries:
Major depressive disorder
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