Bjelan v AAI Limited t/as GIO
[2022] NSWPICMP 241
•31 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bjelan v AAI Limited t/as GIO [2022] NSWPICMP 241 |
| CLAIMANT: | Stefan Bjelan |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL: | Member Belinda Cassidy Dr Matthew Jones Dr Michael Li Ying Hong |
| DATE OF DECISION: | 31 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; dispute about whether claimant’s psychological injury is a minor injury for the purposes of the MAI Act; Claimant’s physical injuries included left knee, back and left shoulder; had treatment including injections but felt there was no improvement; psychologist diagnosed posttraumatic stress disorder (PTSD); Held- the claimant had a major depressive disorder which is a non-minor injury; Claimant did not have PTSD; an adjustment disorder or a persistent depressive disorder; no issue of principle. |
| DETERMINATIONS MADE: | The Review Panel: 1. Revokes the certificate of Assessor Sidorov dated 10 June 2021. 2. Certifies that the claimant’s psychological or psychiatric injury is not a minor injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
On 22 January 2020, Stefan Bjelan was a front seat passenger in a car being driven in a westerly direction through the M5 Tunnel near Arncliffe, when the car he was in was hit from behind by another vehicle.
On or about 10 February 2020 Mr Bjelan made a claim for personal injury benefits on the GIO, the third-party insurer of the vehicle that caused the rear-end collision[1].
[1] R4 page 13 of the insurer’s bundle.
On 24 March 2020, GIO accepted liability for the claim and began paying Mr Bjelan his statutory benefits. On 4 May 2020, GIO wrote to Mr Bjelan advising him that GIO denied liability to pay him benefits beyond the first 26 weeks after the accident. While GIO accepted Mr Bjelan was not wholly or mostly at fault, GIO terminated Mr Bjelan’s benefits on the basis the injuries he sustained in the accident were minor injuries[2].
[2] R9 page 36 of the insurer’s bundle.
After the claimant sought an internal review of that decision, on 16 June 2020 GIO affirmed its original decision.[3] The claimant was dissatisfied with that result and lodged an application for assessment of a medical dispute with the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority. With the abolition of DRS, the resolution of the dispute lies with the Personal Injury Commission (the Commission).
[3] R13 page 57 of the insurer’s bundle.
The dispute was referred to Assessor Sidorov who determined that the claimant’s only psychological injury was a minor injury. The claimant was dissatisfied with that result and lodged an application for review of that decision with the Commission.
The President’s delegate determined there was reasonable cause to suspect an error in the assessment and allowed the Review. The President then convened this Panel.
LEGISLATIVE FRAMEWORK AND CASE LAW
Legislative provisions
The claimant’s accident and claims arising from that accident are governed by the Motor Accident Injuries Act2017 (the MAI Act). Under that Act, the claimant is entitled to make two claims:
(a) a claim for statutory benefits (income support and treatment expenses) under Part 3 of the Act, and
(b) a claim for damages (non-economic loss and limited economic losses) under Part 4 of the Act.
Statutory benefits are available to claimants regardless of fault and even if the claimant is at fault[4]. There is no entitlement to benefits beyond the first 26 weeks after the accident if the claimant is wholly or mostly at fault or if the claimant’s only injuries are minor injuries[5].
[4] Section 3.1 of the MAI Act.
[5] Sections 3.11(1) in regards to income support benefits and 3.28(1) in relation to treatment and care benefits of the MAI Act.
The claimant can make a claim for damages but cannot recover damages if he has sustained only minor injuries[6].
[6] Section 4.4 of the MAI Act.
Section 1.6(1) of the MAI Act defines a “minor injury” as:
(a) a soft tissue injury, or
(b) a minor psychological or psychiatric injury.
Section 1.6(3) further provides that a minor psychological or psychiatric injury is an injury which is “not a recognised psychiatric illness”.
Section 1.6(4) provides that the Motor Accident Injuries Regulation 2020 (the Regulation) may prescribe include or exclude certain injuries from the definition of minor injury and section 1.6(5) the Motor Accident Guidelines (MA Guidelines) may provide for the assessment of whether an injury is a minor injury.
Clause 4 of the Regulation provides that the following are minor injuries:
(a) acute stress disorder, and
(b) adjustment disorder.
The clause also provides that those two illnesses are to have the same meaning as the conditions in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5)[7].
[7] Published by the American Psychiatric Association in May 2013.
Part 7 of the MAI Act provides for the resolution of disputes that arise in connection with claims. Schedule 2 to the Act, clause 3(e) declares a dispute about “whether the injury caused by the motor accident is a minor injury for the purposes of the Act” to be a medical assessment matter. Medical assessment matters are determined in accordance with the provisions of Division 7.5 of the MAI Act.
Case law
In David v Allianz Australia Insurance Ltd[8] a Medical Review Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury”. At [98] the panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.”
[8] 2021 NSWPICMP 227 (David).
The Panel found at [104] that if it is established (following an assessment that complies with clause 5.5 of the MA Guidelines) that there are at least two clinical signs of radiculopathy (as set out in clause 5.6) present at any time, the injured person falls outside the definition of ‘minor injury’.
In Lynch v AAI Limited t/as AAMI[9] a Medical Review Panel considered the same issue in respect of a psychiatric injury. At [68]-[69] the Panel concluded that Ms Lynch suffered from a “Specific Phobia of Driving” which was a non-minor injury as well as a major depressive disorder now in remission, but which was diagnosed in 2020. This was also considered to be a non-minor injury. After citing David, and considering clauses 5.10-5.11 of the MA Guidelines where the word “present” is required for a psychiatric injury, the panel said at [72]:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
[9] 2022 NSWPICMP 6 (Lynch).
In summary the two cases above have found that the issue of minor versus non-minor is assessed by the Panel but if, at any time the claimant’s accident related injury falls outside the definition of “minor injury” contained within section 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.
ASSESSMENT UNDER REVIEW
Assessor Sidorov issued a certificate dated 10 June 2021. He notes that he was asked to assess a “psychiatric condition – psychological injury – severe depression and post-traumatic stress disorder”.
The claimant was at that time 47, living with his partner and working as a carpenter 25-30 hours a week.
The claimant denied having any previous mental health issues or having psychological counselling or psychiatric treatment. He admitted to having a previous gambling problem and an increase in irritability and aggression which appears to be related to his inability to have children.
The claimant described the accident, the development of pain, his attendance on his general practitioner (GP) and the prescription of pain killers. Mr Bjelan is reported to have said his pain fluctuates and his mood fluctuates along with the pain. He has good days and bad days.
Mr Bjelan denied nightmares but says he wakes during the night with pain. He said he is somewhat apprehensive of being in a car and was frightened of further collisions however this has subsided. He denied thoughts of harm (to himself or others) and suicide.
He told Assessor Sidorov he had been prescribed escitalopram, tramadol and bromazepam until the insurer stopped paying for them and he now takes paracetamol for pain most days.
Assessor Sidorov said the claimant was rational, oriented, had good insight and rational judgment and was consistent. The claimant reported memory and concentration problems.
While the Assessor noted Dr Protulipac’s diagnosis of post-traumatic stress disorder and major depressive disorder on 26 August 2020, he did not address why he did not find such disorders. Assessor Sidorov diagnosed an adjustment disorder with mixed anxiety and depressed mood and said at [19]:
“Based on Mr Bjelan’s account and review of associated documents, he meets the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood as per DSM-5. This is based on the history of Mr Bjelan developing low and unstable mood, significant anxiety, sleep disturbance, irritability, difficulties with concentration which started after the motor vehicle accident and particularly secondary to the sequelae of pain and limitations in mobility and physical functioning.”
As the diagnosis was one of an adjustment disorder, clause 4(2) operated to deem this injury as a minor injury for the purposes of section 1.6 of the MAI Act.
REVIEW OF THE EVIDENCE
The application for personal injury benefits (the claim form)[10] dated 10 February 2020 lists only physical injuries that is injuries to the neck, left and right shoulders, lower back and left knee. The certificate of capacity / fitness (medical certificate) completed by Dr Kris Tomka[11] notes injuries to the neck, both shoulders and lower back (not the knee) and recommends physiotherapy and pain management and advised lifting and other restrictions. There is no mention of any psychological or psychiatric symptoms.
[10] R4 of the insurer’s bundle.
[11] R5 at page 18 of the insurer’s bundle.
Two allied health requests dated 10 March 2020[12] seeking hydrotherapy and physiotherapy note pain was causing the claimant to lose sleep and that there has been depression after the accident. A further allied health request for physiotherapy dated 8 April 2020[13] suggests lower back and shoulder pain was improving, the claimant was still having difficulty sleeping but there is no mention of depression in this document. A further request for physiotherapy dated 7 May 2020[14] does not mention depression but notes the claimant is fatigued after work and upset having to come to physiotherapy after work. The physiotherapy request dated 4 June 2020[15] notes “gets frustrated when in pain”.
[12] R6 and R7 at pages 21 and 26 of the insurer’s bundle.
[13] R8 at page 31 of the insurer’s bundle.
[14] R10 page 42 of the insurer’s bundle.
[15] R 12 page 52 of the insurer’s bundle.
The insurer has included in the documents several imaging documents including ultrasounds of the left (30 April 2020) and right (18 May 2020) shoulders as well as MRI scans of the cervical and lumbar spines (18 May 2020).
The insurer’s internal review decision 16 June 2020[16] deals only with the claimant’s physical injuries to the neck, lower back and shoulders. The documents considered at the internal review are identical to the documents provided to DRS and the Commission for the original medical assessment.
[16] R13 page 57 of the insurer’s bundle.
A bone scan requested by Dr Peter Giblin dated 16 June 2020[17] was provided by the claimant noting degenerative and arthritic changes in the neck, lower back, both acromioclavicular and sacroiliac joints.
[17] Document A7 in the Commission’s electronic file.
The claimant uploaded to the portal an allied health request dated 24 June 2020[18] from Dr Protulipac seeking approval for eight sessions of counselling for “Major Depressive Disorder, Single Episode, Severe, without Psychotic Features”. The request was approved by the insurer on 25 June 2020.
[18] AD3 in the Commission’s electronic file.
Dr Protulipac a clinical psychologist provided a report dated 26 August 2020[19]. The report commences with “thanking you for requesting a psychological evaluation and report”. The document does not identify who requested the evaluation and report. It appears to be a medico-legal type report which may have been requested by the claimant’s solicitor. The report includes the following:
(a) the claimant developed significant pain in neck, lower back and shoulders, he was referred to Dr Giblin, medication and physiotherapy which did not relieve the symptoms;
(b) the claimant experienced “recurrent intrusive memories of the accident followed by frequent nightmares, avoidant behaviours, hyper-alertness, fear, stress, anxiety, depression, insomnia, loss of concentration, forgetfulness, and frequent headaches.”
(c) Mr Bjelan was diagnosed “as per DSM V” with post-traumatic stress disorder and he has had weekly treatment;
(d) the claimant was forced to work part time on light duties and restrict his activities of daily living;
(e) he became irritable with poor impulse control and he had his partner had frequent quarrels leading to the dissolution of their relationship, and
(f) Mr Bjelan had no previous accidents, conditions or psychological history.
[19] AD2 in the Commission’s electronic file.
Dr Protulipac says he used a “battery of psychological assessment instruments” to evaluate the claimant including:
(a) the Beck Depression inventory which was in the range “severe” indicating the presence of depression;
(b) the Beck Anxiety inventory also in the range of “severe” indicating the presence of anxiety, and
(c) posttraumatic stress disorder screen suggest the presence of a posttraumatic stress disorder developed after exposure to “one or more terrifying events”.
Dr Protulipac reported that the claimant met the criteria in DSM-5 of post-traumatic stress disorder and major depressive disorder. The doctor said that bearing in mind the claimant was healthy before the accident and these symptoms arose after the accident that these conditions were therefore caused by the accident.
Dr Protulipac thought the claimant was unfit for work and required continued psychological treatment for 12 months and possibly longer.
The Panel notes the assessment by Assessor Margaret Gibson of the claimant’s physical injuries. Her conclusion that the claimant sustained minor injuries being soft tissue injuries to the neck, lower back and both shoulders. Assessor Gibson noted in June 2021 the claimant was living with his partner.
She takes a history of the accident on the M5 motorway while the vehicle he was in was moving and that the impact was a “light impact” and they stopped after the tunnel and exchanged details with the other driver.
PROCEDURAL MATTERS AND SUBMISSIONS
Claimant’s submissions
The claimant’s solicitor provided five paragraphs of submissions with the original application to DRS dated 6 July 2020[20]. The first paragraph was an introductory paragraph, paragraph 5 says that the claimant suffers from a “severe psychological disturbance” and has a psychological injury “to be assessed in due course”.
[20] Document A1 to the original application.
The claimant provided more detailed submissions in support of the review[21] dated 5 July 2021 which assert:
(a) the claimant has seen a psychologist, has had treatment and been diagnosed with post-traumatic stress disorder;
(b) Assessor Sidorov did not explain why there was no diagnosis of post-traumatic stress disorder in the light of Dr Protulipac’s report, and
(c) the assessor has therefore not exposed his path of reasoning.
[21] Document A1 in the review application.
Insurer’s submissions
The insurer’s submissions lodged with the original application for assessment dated 30 July 2020[22] note that the claimant now alleges a psychological injury but that there was no evidence to support it and therefore it should not be referred. The date of these submissions is after the request from Dr Protulipac for counselling sessions was made and after the request was approved by GIO but before the report of Dr Protulipac was written.
[22] Document R3 page 11 in the insurer’s bundle.
The submissions in support of the application for review[23] essentially say that there was no error and that Assessor Sidorov explained why he came to the diagnosis he did and that while he has to give reasons for the disorder he fins after his examination, he does not have to say why he did not diagnose the post-traumatic stress disorder.
[23] Document R1 page 1 in the insurer’s bundle.
Procedural matters
The Panel issued directions to the parties on 16 February 2022. The claimant was directed to upload to the portal an indexed and paginated bundle of documents by 28 February 2022. The insurer was directed to do likewise by 7 March 2022. The insurer complied with the direction, the claimant did not.
The Panel met on 29 March 2022 and issued a report of its discussions and further directions to the parties on 31 March 2022. The Panel referred to the cases of David and Lynch and invited further submissions. Neither party lodged any further submissions.
Neither of the two decisions cited appear to have been subject of a judicial review challenge. The decisions of other Medical Review Panels are not binding on this Panel however this Panel agrees with the reasons of those other panels. Noting that neither party has taken issue with the decisions in these proceedings, the Panel proposes to proceed on the basis that if there is any evidence of the claimant having sustained a non-minor psychiatric injury at any time since the accident, the claimant will be found to have non-minor injuries.
In the report and directions document, the claimant was again directed to upload to the portal a bundle of documents comprising the documents upon which the claimant intended to rely in the review. The claimant again did not comply advising the Panel through the portal that the claimant relies on the documents previously filed (as individual documents) and has no other material to rely on.
The Panel issued a third direction to the claimant on 5 May 2022 requiring the uploading of an indexed and paginated bundle of documents and on 6 May 2022 the bundle was provided.
EXAMINATION FINDINGS
The examination
Mr Bjelan was assessed via audio-visual link by Dr Matthew Jones and Dr Michael Hong[24]. Mr Bjelan was assessed in the presence of a Serbian interpreter who was utilised the interpreter throughout the examination.
[24] In this part of these reasons, a reference to “the Panel” will be reference to the medical members of the Panel only.
Introduction
Mr Bjelan is a forty-eight-year-old man living in Liverpool in South-West Sydney, where he has lived since the year 2000. He lives there with his partner[25], Jadranka who is a teacher. They have been together for 11 or 12 years.
[25] While Mr Bjelan refers to his partner as his wife, they are not married. Out of respect, the Panel will refer to her in the term used by Mr Bjelan.
Mr Bjelan himself is working as a carpenter “as much as [he] can” usually between 10 and twe20nty hours per week. He reported making more mistakes in his work since the accident and, that it is due to the kindness of a friend that he is still able to work. He receives no other income.
Mr Bjelan’s mother and father live nearby. They are elderly and have had medical problems and surgical procedures. He also has a sister in Serbia with whom he has contact at times.
When asked, Mr Bjelan reported he had no children but then asked me to not ask that question again. He said it is his “personal thing, not everyone else’s.”
History of the accident
When asked what happened in the accident, Mr Bjelan said “nothing much.” He said he was a passenger in a vehicle that belonged to a friend, and they were on the way home from work. A car hit their vehicle and “that’s about it.” He said a car run up the back of them in the tunnel. Mr Bjelan told the other driver to pull-up. The drivers exchanged details and “that’s it.” No police or ambulance were involved and both cars drove home. Mr Bjelan was unaware of the ultimate fate of his friends’ vehicle and said he has not seen him for approximately one year. Mr Bjelan went home after the accident.
History of symptoms and treatment following the accident
The Panel asked Mr Bjelan if he noticed any injuries at the time of the accident and he responded that he did not feel well psychologically after that. The Panel enquired as to physical injuries, and Mr Bjelan said that he injured his left shoulder, and he has had pain in the left shoulder since he had the accident. With respect to treatment for his shoulder, he had an injection, but it only helped for a short while. He has undergone no physiotherapy and has had no operations. When asked how his shoulder was progressing, he said it was “like before” being sometimes painful and sometimes not. The Panel asked what limitations Mr Bjelan’s shoulder placed on his day-to-day activities, and he said he was only able to do 10-15% of what he was able to do before the accident. He gave an example that he “can’t work like a normal person.” He was asked what else it interfered with, and he said he does not know when he will get the pain but when he does get the pain he stays home.
The Panel asked Mr Bjelan about other physical injuries given that his claim form listed injuries to left and right shoulder, lower back and the left knee, and Mr Bjelan reported that these injuries were the same as his shoulder and that they were sometimes sore.
With respect to medications, Mr Bjelan takes Panadol or Nurofen when in pain or if irritable. He also takes anti-reflux medication. He said he did see a pain specialist but cannot remember the name. He was sent for an MRI. He does not believe he has gone to a pain clinic. He has not been prescribed many other painkillers.
The claimant reported that he was on no psychiatric medications. We enquired as to any psychological or emotional symptoms following the accident and his initial response was to tell the Panel that his wife has to remind him to shower. Later we asked him why this was the case and he said it was because he forgets to shower but he does not know why. He said sometimes he passes out and falls asleep without having a shower. He also offered that he used to cook but does not cook anymore and he is no longer “one for celebrations”, however he used to be. He said people plead with him to go out, but he cannot bring himself to join them. He also offered that he has some arguments with his wife and people at work. He said these all occurred since he had the accident.
The Panel asked Mr Bjelan if he had seen anyone for psychological treatment and he said that he has seen insurance doctors, his own general practitioner and also Dr Protulipac, a psychologist. He said he does not remember when he started seeing Dr Protulipac, but no longer sees him. He said the only treatment is that when he is in pain, he takes Panadol and “that’s it.” Mr Bjelan then offered that if he were to be paid, he would go to treatment. When asked why he did not consider treatment worthwhile even though he was not being paid for it, he said he did not have the money to attend to treatment such as that.
Mr Bjelan saw Dr Protulipac, psychologist, six or seven times and he found it helpful with “many things.” Dr Protulipac advised Mr Bjelan to go on walks, to socialise and he found these measures helpful. He said that they were focusing on him not thinking about the accident and trying to lead a normal life.
The Panel enquired again as to psychological or psychiatric symptoms experienced closer to the accident and Mr Bjelan spoke of being irritable and having headaches and being fatigued. He indicated that this was also recently. He said at the time closer to the accident the situation was “only that [he] was scared.” He said as a passenger he feels uneasy, and he finds the sensation hard to explain. When asked about any other symptoms, he said he was irritable, quarrelsome, he was smoking a lot, and he was waking in the night to smoke.
Mr Bjelan said that he had experienced “never anything like this before”. He denied any formal psychiatric history.
Drug and alcohol history
Mr Bjelan smokes 25-35 cigarettes per day. He said he will have a beer, but alcohol has never been a problem for him. He has not touched recreational drugs and has never been addicted to prescription medication. He said he will gamble, and he will gamble on any modality that is available and said it has never been a problem because he has worked and therefore presumably can pay for it.
Medical history
Mr Bjelan said he had never had any major medical problems or any significant surgery previously. The only regular medications he had previously taken were for reflux.
Mental state examination
The assessment took place via audio-visual link. Mr Bjelan’s head and upper torso were consistent with solid, overweight build and Caucasian appearance. He had a dark goatee with grey hair on his cheeks. He had very short hair and beard which were essentially salt and pepper. He wore a grey and black hoodie.
Mr Bjelan was polite, cooperative and attentive and displayed no abnormal movements, however became very irritated at the forty-five minute mark and wanted to leave because there were “too many questions.” He took a small break and returned to the assessment. His speech was normal via the interpreter, and there was no evidence of formal thought disorder or delusional thought processes.
The claimant denied any current thoughts of self-harm or thoughts of harm to others. When asked about his current mood, he said it was “medium, neither, nor.” His affect was somewhat restricted, and he appeared a mixture of surly, disinterested and flat. He denied any perceptual abnormalities. His cognition, insight and judgment appeared grossly intact in the context of the interview. Rapport was limited but facilitated the assessment.
Recent symptoms and functioning
With respect to sleep, Mr Bjelan goes to bed around 9.30 or 10.00pm and about four times during the night he will wake up and smoke. The last time he wakes up is about 5.30am when working and 6.00am when not. His appetite is “so, so” and “can be either.” His weight is about 103-4kg and he says he has put on 4 or 5kg of weight since the accident. His height is 178cm. When asked to describe his energy levels during the day he said they “can go either way” and said the telling factor was “the pain.”
Mr Bjelan does not hold a driver’s licence and said he has never driven. He reported having many friends and he is given lifts to get around for work. He can travel as a passenger but is nervous at times. He said he never catches public transport.
Mr Bjelan reported he is “not cooking anymore” and does very little housework. Although he said his wife needs to remind him to shower, he requires no physical assistance in showering.
Although he is somewhat quarrelsome and irritable, Mr Bjelan reported his relationship with his wife is “fine.” He reported having a lot of friends. When asked what he does with his friends he said he used to do various things like go to clubs, walk, play cards but now this is “less and less.” When asked why he was socialising less, he said it takes him “three seconds to lose [his] temper.”
The Panel asked Mr Bjelan how he passed his time when not working and he said he will go for a walk, have a coffee, go back, walk around and lie down. He will not watch much television but views things on his phone such as news. We asked what he was able to enjoy or gain pleasure from and Mr Bjelan said that before the accident he used to love his work and after work he would go to the club and play cards with his friends, but not for money. He said he sometimes goes out with his friends when they ask him.
Mr Bjelan reported he has not had a holiday in the last two years.
The Panel reviewed a number of symptoms including whether there was the presence of nightmares during sleep. Mr Bjelan reported that he does not know what it is that wakes him up, but he does get up and smoke. He was unable to describe any re-experiencing phenomena associated with the accident, even when prompted.
With respect to his physical injuries, Mr Bjelan reported they are no better and said he is unable to say that he is in pain all of the time, nor is he pain-free. He said that there are however episodes of pain. The Panel notes the multiple requests for physiotherapy, however Mr Bjelan denied receiving physiotherapy. The Panel suggests the claimant may have been focusing on the current situation when answering that question.
The documentation in the file as provided by the parties is broadly consistent with Mr Bjelan’s reported narrative.
ASSESSMENT
Summary
Mr Bjelan reported a narrative and presented at assessment as consistent with having developed psychological and emotional symptoms following the motor vehicle accident. He also sustained physical injuries. It would appear he initially experienced anxiety and later developed mood disturbance with marked irritability, sleep disturbance, appetite disturbance, low energy and motivation and poor concentration. He received half a dozen psychological sessions which he reported as being beneficial. However, he reported no improvement in his symptoms since they first developed.
There is a complicating factor of continuing, somewhat intermittent, pain which limits Mr Bjelan’s physical functioning and globally effects all of his activities of daily living. Despite this, there are sufficient symptoms and impairment in functioning to diagnose a psychiatric disorder, probably at the milder end of the spectrum.
Does Mr Bjelan have a post-traumatic stress disorder?
The medical members of the Panel reject Dr Protulipac’s diagnosis of post-traumatic stress disorder as Mr Bjelan did not describe an accident of sufficient severity or impact that would satisfy criterion A from DSM-5, nor did he describe re-experiencing phenomena or other predominant clinical features prominent in post-traumatic stress disorder.
Does Mr Bjelan have an adjustment disorder?
The medical members of the Panel reject Assessor Sidorov’s diagnosis of chronic adjustment disorder given the more longstanding and pervasive nature of Mr Bjelan’s symptoms, his presentation at mental state examination, particularly his affect, and his persistent inability to regain enjoyment and pleasure and his relative lack of reactivity of mood.
Does Mr Bjelan have a persistent depressive disorder?
In the clinical experience of the medical members of the Panel there is a possible diagnosis of persistent depressive disorder.
Diagnostic criteria of this condition under DSM-5 are satisfied due to Mr Bjelan’s pervasively depressed mood (as he described being depressed every day for more a few weeks at the peak of his depression), diminished interest and pleasure in activities, fatigue and loss of energy, problems with concentration for most of the time and significant sleep disturbance almost every day. The claimant has experienced these symptoms for over two years which is required to satisfy the diagnosis of persistent depressive disorder and Mr Bjelan would continue to fulfil the criteria for a persistent depressive disorder.
There is significant overlap between this disorder and a major depressive disorder however the latter is the preferred diagnosis. The Panel notes that a persistent depressive disorder would be a non-minor injury in any event.
What is the diagnosis of Mr Bjelan’s condition?
Historical and retrospective diagnosis is fraught with uncertainty however, the medical members of the Panel have a reasonable degree of medical certainty that Mr Bjelan would have satisfied the criteria for a major depressive disorder from sometime between the date of accident and him being referred to Dr Protulipac. This is consistent with Dr Protulipac’s assessment and his treatment of Mr Bjelan.
Mr Bjelan continues to fulfil the criteria for a major depressive disorder. Mr Bjelan’s symptoms have caused him clinically significant distress or impairment in social, occupational and other important areas of functioning.
Given Mr Bjelan’s reported narrative and the mild variability or reactivity of symptoms, he would be considered as having a mild to moderate episode.
CONCLUSION
The Panel is satisfied that the claimant is experiencing a major depressive episode which is a recognised psychiatric disorder as set out in DSM-5 and is not a minor injury for the purposes of section 1.6 of the MAI Act.
It follows therefore that the certificate of Assessor Sidorov must be revoked.
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