BQD v Allianz Australia Insurance Limited
[2023] NSWPICMP 264
•9 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BQD v Allianz Australia Insurance Limited [2023] NSWPICMP 264 |
| CLAIMANT: | BQD |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| SENIOR MEMBER: | Brett Williams |
| MEDICAL ASSESSOR: | Thomas Newlyn |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 9 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment in accordance with section 7.26; dispute about whether the claimant’s psychological injury resulting from the accident was a ‘minor injury’ (now ‘threshold injury’); where Medical Assessor (MA) certified that chronic adjustment disorder with anxiety was caused by the accident and is a minor injury; claimant sought a review of decision; Held – the claimant suffers adjustment disorder with mixed disturbance of emotions and conduct, persistent, and that this condition was caused by the accident; the diagnosed condition is a threshold injury; while the certificate issued by the MA uses the term ‘minor injury’ and the Panel found that the claimant’s psychological injury is a ‘threshold injury’, the Panel considered that this is a change of terminology only, that did not require it to issue a new certificate; Medical Assessment Certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate of Medical Assessor Fukui dated 4 March 2022. |
BACKGROUND
BQD (claimant) made a claim for statutory benefits on Allianz Australia Insurance Limited (insurer). Relevantly, he alleges that he suffered psychological injury as a result of his attendance on 26 April 2018 at the scene of an accident in which his brother was involved[1] (accident). In this regard, the claim form records that:
“…I was not physically involved in that accident, however, I attended the scene minutes after the accident and witnessed my brother crushed and stuck in the car, which has left me traumatised.”
[1] The claimant also claims that he suffered physical injury as a result of the accident.
A dispute arose between the claimant and the insurer as to whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), his psychological injury resulting from the accident is a minor injury. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The medical dispute was assessed by Medical Assessor Fukui (Medical Assessor). The Medical Assessor gave a certificate dated 4 March 2022 wherein she certified that chronic adjustment disorder with anxiety was caused by the accident and is a minor injury for the purposes of the MAI Act (Medical Assessment).
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (Review). On 26 April 2022 the President’s delegate determined that the medical assessment was incorrect in a material respect and referred the matter to a review panel. This review panel (Panel) was constituted by the President of the Personal Injury Commission (Commission) to conduct the Review.
The Review is not limited to a review of only that aspect of the Medical Assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the Medical Assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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 proceedings solely based on the written application: Rule 128 of the Rules.
On 6 March 2023 the claimant and the insurer were directed by the Panel to lodge with the Commission a joint agreed bundle that contained all material relied on by the parties for the purposes of the Review, together with the submissions they rely on for the purposes of the Review.
On 14 March 2023 the Panel informed the parties that it considered a re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined on MS Teams by Medical Assessors Newlyn and Hong on behalf of the Panel on 12 May 2023.
STATUTORY PROVISIONS
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act and includes a ‘threshold psychological or psychiatric injury’. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(3).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 …
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
ASSESSMENT UNDER REVIEW
The Medical Assessor gave a certificate dated 4 March 2022. She certified that chronic adjustment disorder with anxiety was caused by the accident and is a minor injury for the purposes of the MAI Act.
In her reasons, a history of the claimant’s attendance at the scene of a motor accident in which his brother was involved was recorded, as was the subsequent development of psychological symptoms. The Medical Assessor recorded a history that the claimant had been assaulted two days prior to the assessment.
The Medical Assessor found that the claimant was a vague historian and that he provided inconsistent information. In her view, he was guarded about his history of substance use, forensic history, and the recent assault resulting in a black eye.
There was, in her opinion, no formal thought disorder or psychotic symptoms. Nor was there evidence to suggest cognitive impairment. The Medical Assessor considered that the claimant’s “vagueness” was more likely to be related to withholding information. The Medical Assessor concluded at [16] that the history provided by the claimant was “clearly unreliable”.
The Medical Assessor expressed the opinion that the claimant had cannabis use disorder and likely other substance use disorder including prescription medications. She found that the substance use disorder was unrelated to, and pre-dated, the accident.
The Medical Assessor stated that “[i]f the information he provided is to be accepted, his history indicates an initial acute stress reaction and subsequent development of chronic adjustment disorder with anxiety”. In her opinion, the claimant did not meet all the diagnostic criteria for post-traumatic stress disorder.
The Medical Assessor determined that the claimant developed his reported psychological symptoms in response to the accident and, accordingly, it could be described as causally related. In her opinion, the claimant’s condition was best characterised as an adjustment disorder, that had become chronic. Given that diagnosis, the Medical Assessor determined that the injury was a ‘minor injury’.
MATERIAL BEFORE THE REVIEW PANEL
As already recorded, the Panel directed the parties to provide a joint agreed bundle of documents that contained all material relied on by the parties for the purposes of the Review.[2] The Panel has read and considered the material in the bundle provided.
[2] AD2.
Neither party has provided submissions to the Panel as directed on 6 March 2023. The submissions lodged by the claimant, after the Commission followed the parties up in relation to the provision of submissions in response to the Panel’s direction, are all included in the joint bundle.
The directions made by the Panel on 6 March 2023 required submissions from the parties for the purposes of the review being conducted by the Panel. What the Panel has been provided with are submissions relied on at earlier phases of the medical dispute, namely the insurer’s internal review, the initial assessment conducted by the Medical Assessor, and the claimant’s application for review of the Medical Assessment. As to the latter submissions, they address matters that go to s 7.26(2). The Panel is not concerned with whether there is reasonable cause to suspect that the medical assessment was incorrect in a material respect; the Panel is conducting a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
In any event, on 2 May 2023 the Panel informed the parties in writing that, as neither party had provided it with submissions as directed on 6 March 2023, it intended to proceed on the basis that the only submissions relied on by the parties for the purposes of the Review are those contained in the joint bundle.
SUMMARY OF EVIDENCE
Claimant’s statement
The claimant relies on his statement dated 23 September 2019. The statement has been considered in totality. The statement records details of the claimant’s pre-accident circumstances, and his relationship with his family, particularly his brother. He provides details about his attendance at the accident scene. The Panel notes the contents of his statement at [15] – [28]. He states that he thought his brother was dead. He says he was in shock. He states that he was “unable to put into words the trauma this caused [him]”.
The claimant states that on the night of the accident his body was shivering and he felt numb. He attended the hospital after the accident where he was told that his brother had been placed in a coma. He states that the family was told that “when and if” his brother woke up he may not be able to walk and talk. He recalled being told that his brother had suffered a head injury and that he may completely lose his memory.
The claimant states that he visited his brother in hospital. As the days passed he continued to lose hope for his brother; he thought he would never wake up. Paragraphs [33] – [37] of the statement are noted.
The statement records that the claimant attempted to take his own life. He states that he no longer wanted to live and saw it as the only way to escape reality.
The claimant states that since the accident “life had been anything but normal”. He recounts changes in his brother’s behaviour that he has observed since his discharge from hospital.
The claimant states that his life has been ruined by the accident, and that he is struggling mentally. He states that he is living his life with severe depression, anxiety and post-traumatic stress disorder. He states that his life is miserable, that he hasn’t felt relaxed since the accident, and was seeing a psychologist to help him cope with the aftermath of the accident.
Other evidence
Medical file of Dr Marwan Aloe, General Practitioner (GP):
Dr Aloe’s medical file lists symptoms and treatment but sometimes does not provide context for a cause. Before the accident there is no mention of recreational drug use; after the accident there is one mention of recreational drug use. Dr Aloe’s medical file contains letters from Dr Roberts that detail recreational drug use with no comment from Dr Aloe.
The clinical record begins on 26 April 2007 with the last clinical contact recorded on 14 May 2020. On 29 June 2016 it is recorded that the claimant experienced “general tiredness” and was a heavy smoker.
16 January 2018 Dr Aloe recorded usual alcohol use of 2-3 times a week.
Mental health symptoms entries after 26 April 2018:-
1 May 2018 anger
3 May 2018 anger, anxiety, restless. Mental health K10 to K 10 15. GP Mental Health Treatment Plan.
10 May 2018 letter Created to Mental Health Plan
26 June 2018 mandible fracture anger
17 September 2018 lethargy
21 September 2018 anxiety, anger, had counselling. psychologist recommended a psychiatric review.
3 October 2018 anxiety recurrent. now not depressed.
10 October 2018 anxiety depression.
12 March 2019 Seroquel prescribed.
3 July 2019 Well. “want to stop taking Marijwana” [sic]. no withdrawal symptoms. Insomnia. “advice” [sic] to start sport.
5 July 2019 lethargy.
16 March 2020 facial injury. Sustaine [sic] in alleged assault. swelling. bruising. fractures.Undated Certificate of Capacity diagnoses Anxiety with capacity for work from 1 July to 1 August 2020.
The medical file of Life Guidance Psychology (Ms Tiba, psychologist) includes clinical notes that commence on 22 June 2018 with the last clinical contact on 5 October 2018. There were five treatment sessions. No mental health diagnosis was recorded. Low mood and sleep disturbance were noted most frequently. In October 2018 the claimant was able to increase social activity. Complaints of anxiety, fear and low mood are recorded. Difficulties sleeping are recorded on 7 September 2018.
The SIRA minor injury case studies 010-18, 020-18, 023-18, 035-18 are listed as dealing with post-traumatic stress disorder, depression, acute stress reaction, psychiatric injury, and non-minor injury. These case studies are informational for use by non-clinicians.
The records of Dr Roberts, psychiatrist, have been reviewed and considered. The doctor’s records include a number of reports addressed to Dr Aloe. The doctor reported on 6 November 2018. That report records that the claimant was feeling anxious, that he wakes up with “death thoughts”, felt depressed and could not find happiness. He described feeling closed in, and complained of a decline in appetite, an inability to enjoy himself and that he felt sad. The claimant “asserted that a factor in him developing these symptoms related to his brother being involved in a massive motor vehicle accident”. He commented that as a result of the accident he was separated from his friends, including on social media. The claimant also provided a history of drug use that resulted in seizures. The doctor recorded a history that the claimant referred to having commenced substance use from the age of 15 “if not before”. He told the doctor that he had stopped using non-prescription substances after his brother’s accident.
The doctor referred to the use of a range of non-prescription drugs. There were problems with memory and concentration recorded. Suicidal thoughts without acts were recorded. There was a history of the claimant being involved in “a couple of minor accidents with no major injuries”. In the doctor’s opinion, the claimant’s “extensive drug history [would] have inevitably resulted in dysfunctionality”. The doctor expressed the opinion that while the claimant may have developed a reaction to his brother’s involvement in the accident, his use of substances had been so significant that it would be difficult “on reasonable psychiatric grounds” to determine what would be attributable to the accident as opposed to substances.
In a report dated 6 February 2019, Dr Roberts recorded that the claimant was eating and sleeping well. He had been prescribed Avanza and had reverted to using marijuana. In a report dated 3 March 2019 the doctor recorded that the claimant is a poor treatment prospect; he continued to use marijuana and was consuming alcohol to the extent that he becomes “really drunk”. In the doctor’s opinion, the claimant’s unreliability as a historian was indicative of abuse of both alcohol to excess and non-prescription substances.
SUBMISSIONS
Claimant’s submissions
In submissions prepared for the purposes of his application for internal review dated
21 December 2020,[3] the claimant argued that, as a result of witnessing the accident, he has sustained severe psychological injuries. It is argued that the claimant immediately began to experience psychological symptoms following the accident. Those symptoms, it is argued, have led the claimant to “adopt a habit of substance abuse”.[3] The internal review related to the insurer’s decision of 20 November 2020 that the claimant’s psychological resulting from the accident was a ‘minor injury’.
The submissions refer to, and rely on, the clinical notes of Dr Aloe. Reference is made to treatment provided by, and the records of, Ms Tiba and Dr Roberts, psychiatrist. The submissions recorded at [15] are noted. The submissions record that the claimant did not have a history of seizures prior to the accident related to drug use. At [19], the submissions state that:
“Dr Roberts notes that the [c]laimant is unreliable as a historian. It appears that the history he has obtained from the [c]laimant is not reflective of the [c]laimant’s instructions and not reflective of the [c]laimant’s medical evidence.”
The submissions record that the claimant’s “significant use of substances” only commenced after the accident, and as a result of him witnessing his brother being involved in the accident. He points to the absence of a history of drug “abuse” prior to the accident in the records of Dr Aloe. It is submitted that if “drug abuse” is attributable to his psychiatric condition, it “only follows the motor vehicle accident and should be considered a self-destructive ‘reactive/arousal’ symptom which forms part of the [DSM]-5 criteria for PTSD”.
It is submitted that the claimant’s reported symptoms are not indicative of an adjustment disorder. The submissions go on to address the DSM criteria for a diagnosis of post-traumatic stress disorder, by reference to evidence that includes his statement of 23 September 2019 and records from treatment providers.
It is argued that, based on the clinical findings contained in the medical evidence, the claimant has sustained “more than a minor psychological/psychiatric injury, which meets all criteria associated with PTSD as per the [DSM]-5”.
The claimant’s submissions dated 5 February 2021 were prepared for the purposes of an application for a medical assessment in relation to a ‘minor injury’ dispute. That application related to both physical and psychological injuries and, with respect to the psychological injuries, was ultimately the subject of the Medical Assessment under review by the Panel.
The submissions canvas relevant legislative provisions, documents relied on, the circumstances of the accident, treatment, and the nature of the injuries the claimant suffered as a result of the accident.
The submissions take issue with “observations” made by Dr Roberts in his reports, including with respect to seizures, and the claimant’s pre-accident drug use. The submissions also canvas errors said to have been made by the insurer with respect to its ‘minor injury’ decision.
As with the earlier submissions, these submissions argue that the claimant’s symptoms are “not indicative of an adjustment disorder”, and address the DSM-5 criteria for post-traumatic stress disorder. Reference is made to the claimant’s statement, and symptoms recorded in the records from his treatment providers.
The claimant argues that all criteria associated with post-traumatic stress disorder “as defined by DSM-5” are satisfied. That being the case, he argues that his psychological/psychiatric injuries sustained as a result of the accident are more than minor injuries.
The claimant’s submissions of 18 March 2022 were lodged in support of his application for a review of the Medical Assessment. The Panel notes that an application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect: s 7.26(2) MAI Act.
The submissions address purported failures on the part of the Medical Assessor. The claimant argues that had the Medical Assessor considered and taken into account all of the evidence, she would have been satisfied that he had met all of the diagnostic criteria for post-traumatic stress disorder.
It is argued that the Medical Assessor failed to address and consider significant evidence as referred to at [8], and that she failed to take into account relevant history and evidence as referred to at [10] – [11], that would have supported a finding that his symptoms met diagnostic criterion 1 of post-traumatic stress disorder in accordance with DSM-5.
The submissions address the Medical Assessor’s findings about, and evidence relevant to, avoidance symptoms, reactivity/arousal symptoms, substance abuse disorder, and mood/cognition symptoms. With respect to substance abuse, the claimant submits at [16(c)] that the Medical Assessor “…inappropriately concluded that [he] now has cannabis use disorder and likely other substance use disorder, which [he] submits is not supported by any available evidence”.
The claimant argues that the Medical Assessor took into account an irrelevant matter, namely an assault that occurred days prior to her examining him. In this regard, the claimant argues that the Medical Assessor failed to give proper reasons as to why the assault causing a black eye was relevant to his mental state at the time of assessment.
The claimant argues that the Medical Assessor diagnosed him with initial acute stress reaction (ASR) which had developed into adjustment disorder with anxiety. He relies on Minor Injury Case Study 020/18, which was provided to the Medical Assessor. The submissions record that, in Case Study 20/18, the claimant, who experienced symptoms similar to those he experienced, immediately after the accident experienced an onset of ASR. The submissions state that in that case study, it was found that, as the symptoms lasted longer than one month and fulfilled the diagnostic criteria for post-traumatic stress disorder, the claimant’s symptoms remained consistent with the DSM-5 diagnosis of post-traumatic stress disorder.
The claimant argues that the Medical Assessor “erred in opining that [his] Chronic Adjustment Disorder with Anxiety is a minor injury and that he has not sustained PTSD and MDD”, and that she “failed to consider the objective evidence contained in the clinical records and contemporaneous evidence before her when assessing MDD and PTSD under the DSM-5 criteria; re-experiencing, avoidance, reactivity/arousal and mood / cognition symptoms”.
Submissions dated 22 April 2022 were lodged by the claimant in response to the insurer’s submissions dated 13 September 2022. The submissions address the application of criterion ‘B’ for the diagnosis of post-traumatic stress disorder, and evidence relevant to that criterion.
The submissions state that “it is not apparent that the [Medical Assessor] has complied with cl. 6.41 of the Motor Accident Guidelines”, and that “it is not apparent” that the Medical Assessor attempted to elicit any information directly from the claimant relevant to assessment of criterion B for the diagnosis of post-traumatic stress disorder. It is also submitted that “it appears, that she has generally, and wrongly, formed a view as to the Claimant’s credibility…and has not attempted to elicit information relevant to the assessment as to whether he meets the criteria for diagnosis of PTSD”.
As to the submission in relation to cl 6.41, the Panel notes that that clause of the Guidelines relates to the assessment of permanent impairment. As cl 6.1 makes clear, Part 6 of the Guidelines has been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident. The Panel considers that the submission should be treated as a submission to the effect that the Medical Assessor was required to afford the claimant procedural fairness.
Insurer’s submissions
In submissions dated 23 April 2021, the insurer argues that the claimant sustained a “minor psychological injury” as a result of the accident. Reference is made to material from treatment providers, including Drs Roberts and Aloe and Ms Tiba.
In the insurer’s submission, the claimant’s symptoms are consistent with a diagnosis of adjustment disorder, and that that injury is a ‘minor injury’ in accordance with cl 4 of the Regulations. The insurer argues that the claimant’s symptoms do not meet the DSM-5 criteria for major depressive disorder or post-traumatic stress disorder. The insurer also argues that the claimant’s symptoms may be the effect of substance abuse.
In submissions dated 13 April 2022, the insurer addresses s 7.26 of the MAI Act, and the claimant’s submissions that the Medical Assessment was incorrect in material respects.
The submissions address the DSM-5 criteria for a diagnosis of post-traumatic stress disorder. The insurer argues that there is no persuasive evidence of avoidance symptoms. It is also argued that, considering the assault, that occurred some days before the Medical Assessor examined the claimant, would have been a traumatic experience, his reaction to it was clearly relevant as it acts as a baseline to permit a comparison of his reactions to both the assault and the accident. That is, as both incidents were traumatic, his reporting distress in response to the accident is at odds with his failing to report distress in response to the assault, and undermines his complaints as to the effect the accident had on him.
As to the SIRA Minor Injury Case Study 020/18, the insurer argues that it was irrelevant for the purposes of the Medical Assessment, and was not binding on the Medical Assessor. The insurer submits that whilst there may be similarities amongst assessments, the Medical Assessor was required to apply the evidence at hand to formulate her conclusions, without regard to material in other claims.
The insurer expressly “denies” that the Medical Assessor failed to consider the relevant material, and otherwise submits that there is absolutely no evidence of the claimant having suffered from intrusion or avoidance symptoms in the past. Accordingly, it is argued that criteria B and C of the DSM-5 for a post-traumatic stress disorder diagnosis was never a possibility.
As to the claimant’s submission that the Medical Assessor should have diagnosed him as suffering from a major depressive disorder, the insurer argues that he has not specifically addressed the diagnostic criteria for that condition.
In the insurer’s submission, in terms of both differential diagnoses, much would have depended on the claimant’s credibility and reliability as a historian. The insurer argues that, despite what the written evidence says, both the Medical Assessor and
Dr Roberts concluded that the claimant was unreliable, vague, and tended to exaggerate.In short, the insurer argues that the Medical Assessment was not incorrect in a material respect.
RE-EXAMINATION
Medical Assessors Newlyn and Hong (Medical Assessors) re-examined the claimant on behalf of the Panel by MS teams on 12 May 2023. The claimant’s statements during the examination are printed in italics.
Preamble
The claimant was 25 years, 4 months at the re-examination. He was assessed using MS Teams Video conferencing. There were initial problems with the videoconference and he logged off and logged on again, and the Panel was able to complete the assessment without difficulties. He was at home in a room described as a study room. My parents and brother are at home. His older sister was at work and his younger sister was at school.
Medical History
The claimant recalled his height as 190 cm. I don’t remember when I was measured. He reported he weighed 86 kg. I was 100 to 110 kg at the accident.
He is right-handed.
All my problems started after the accident. I was never injured.
Dr Aloe’s records note some falls and fractured metacarpals in 2020 and 2015. Operations: None recalled.
Allergies: None to medications.Education History
The claimant completed year 11. He began in an electrical apprenticeship but changed to excavation. He has an excavation certificate. He has an HR truck licence.
Employment History
After leaving his apprenticeship he worked as a courier, HR driver and excavator. He worked as an NBN excavator before the accident.
I was travelling for the NBN and I couldn’t travel after the accident. I was off work for maybe a year. I am not too sure. Then I went back to work courier driving but I’m not doing that any more. I lost interest. I had a good job with Startrack. I felt I couldn’t talk with people. I couldn’t socialise.
He fell and injured his foot in August 2021 and was not working at the time he was assessed by Medical Assessor Fukui in November 2021.
After the injury, I returned to work and stopped work in August 2022. I have had no interest in going back to work. I am on Jobseeker and I have been looking for employment where I don’t have to socialise. I have been looking for labour work. I wanted to get my own van and carry on but I can’t socialise at the moment.Economic status
He receives Jobseeker payments.
Psychosocial History
Family History
The claimant’s parents migrated from [redacted] in 1995. His father is retired. His mother is retired from child-care. I may lash out and upset them, but I love them unconditionally.
I was the favourite son that kept the family together.
He is the eldest of 4.
His younger brother [redacted] was injured in the accident. I help him with everything. He has not been able to work since the accident. I think he is getting Lifetime Care. He always has appointments. Doctors come and check him. I don’t care about that.
I care about his health.
I am not very interactive with my sisters.
[redacted] was doing TAFE work
[redacted] is in high school. I check if she needs anything but I am not communicative. I mainly check up on my brother. My sisters are basically at home.
I wouldn’t be able to leave my family. Since the accident I need to be on top of my family and make sure of them. I am very protective, especially of my brother.
Developmental History
The claimant denies any significant childhood symptoms.
No childhood sexual or physical trauma reported.
Relationship history
I had a girlfriend for a year after the accident.
At first the claimant said that he had ended a yearlong relationship recently. However, when reminded he had told Assessor Fukui in November 2021 he was in a relationship he said it ended in 2022.
In early 2019 he told Dr Roberts he had recently ended a relationship.
Dr Aloe’s records note intercourse in early 2018 and November 2019.Chemical Dependency History
I stopped smoking cigarettes for my health. I had started smoking cigarettes after the accident because of the stress. I am vaping and I had never done that before the accident.
Vaping was mentioned when the claimant was asked about recreational drug use.
Dr Aloe’s clinical notes record ‘heavy’ cigarette smoking in 2016.
When asked about Dr Roberts’ description of his alcohol use The claimant said: I was just a little kid talking. I was going out with my friends and drinking. I never drank every day.
I think I have drunk 5 times in my whole life. I might have had a couple of drinks after rugby. It was never heavy drinking.
Dr Aloe recorded alcohol use 2-3 times weekly on 16 January 2018.
In 2019 Dr Roberts recorded heavy alcohol use.
Medical Assessor Fukui noted social alcohol use in 2022.
His history about his alcohol and cigarette use has not been consistent, based on document review, and his replies to queries from the Medical Assessors based on the histories recorded by Drs Alone and Roberts, and Medical Assessor Fukui. The Medical Assessors raised these inconsistencies with the claimant. His response was that the histories were incorrect, or that he “didn’t do that”.
Recreational drug use history
I think I was over 18 when I first tried drugs and I was never a kid who used regularly. Once at a party I tried MDMA and cocaine. I tried marijuana once but I felt there was no happiness from it. I don’t remember using Valium before the accident. Nothing was an addiction. I was playing rugby league. It was nothing like extensive use. After the accident I did try drugs but it was never an addiction. It was to make it better but it made it worse. I tried MDMA at a festival and never touched it again. After the accident I got Endone myself for the pain. I never used drugs heavily. I was never an addictive personality. I did continue marijuana. That is not addictive. I use prescribed marijuana and I take it for sleep and my appetite. I use it when I can’t eat or sleep about once a week.
In his 25 October 2018 initial assessment Dr Roberts listed in his handwritten notes the use of cannabis, cocaine, MDMA, ecstasy, GBH, anabolic steroids, Endone, Valium and Xanax as drugs regularly used starting possibly at age 15. The anabolic steroids had resulted in erectile dysfunction.
In her reasons, Assessor Fukui noted the use of cannabis, MDMA cocaine, Valium and Endone from age 17-18. The claimant was using cannabis regularly in 2021 but had earlier denied current use.
The history of drug use obtained on 12 May 2023 is not consistent with the handwritten notes of Dr Roberts and the observations of Dr Fukui. The claimant was firm in his repudiation of reports of significant recreational drug use.
The claimant’s recreational drug use after the accident was not, in the Medical Assessors’ opinion, a symptom of post-traumatic stress disorder but related to previous recreational drug use.
The claimant has now obtained a prescription for medical cannabis use.Forensic History
The claimant reports anger management problems. It is severe since the accident.
I am always on edge and stay in.
I had to go to court 2 weeks ago. That was because of assault charges from 3 years ago. The charges were false. I pleaded not guilty. The court saw where I was and said I was not guilty.
I do remember hanging around with some kids when I was a teenager. I remember being in a car and being arrested. I don’t think there was a court hearing.
Medical Assessor Fukui obtained a similar history of his mid-teen arrest. However, she did not obtain a history of the 2020 assault charge.
No gambling problem was reported.
The claimant said he had not made any compensation claims before the 26 April 2018 MVA.
He was a pedestrian struck by a car in 2012.
In my 2021 work accident I was seconded to another company when I was injured. They gave me a percentage. I saw a physiotherapist and got back to work.Psychiatric History Prior to the Motor Accident
The claimant denied significant psychiatric history and no treatment before the accident, denying the history Medical Assessor Fukui obtained of consultations with a psychiatrist and psychologist when the claimant was about 18-20 years old for treatment to come off drugs.
Pre-Accident Functioning
The claimant reported no problems in any area of functioning.
In self-care, he reported showering morning, evening and after training.
He was socially active.
Relationships with family and friends were good.
He drove for work.
He reported no problems with focus or attention.
He said he worked as an excavator.
History of the Motor Accident
When asked about his memory of the accident and the aftermath the claimant began an extemporaneous stream-of-consciousness retelling of his feelings and the events at the time. When interrupted he returned to his recounting of events.
The memory is that I get flashbacks all the time. It is always in my head. I was hanging out and was told there was an accident. When I got to the scene I saw the tree squashing the car. There was blood and I thought my brother was alive as his eyes were open. I thought he was dying and smashed the window to get him out. I broke my hand. I told everyone to back off, started losing hope, and thought my brother was dying. The ambulance arrived when I was trying to open the door. Then I waited while they cut the door open and tried to be by his side the whole time. We followed the ambulance to Liverpool Hospital.
I hoped he would wake but I had the thought he would not wake. We were practically best friends. We played rugby together; it was something big in my heart and I haven’t been the same since. In the hospital I had the flashback of the phone call and rushing to the car.
I get flashbacks of my brother’s face. That started a couple of days after the accident and now I get them at least once or twice at night when I am fighting to sleep for 2-3 hours, if I do sleep. I haven’t had a deep sleep since. I have flashbacks that wake me and I have to run and check my brother. I check my brother and may wake him up. The feeling makes me check my whole family. If I hear of a car accident or see one I call my brother and all my family phones. It is especially if I see an accident. I have lost interest in life. It was more after the accident at the hospital.
He was asked about his brother’s progress.
[redacted] is still very bad and he struggles in his sleep. He is always struggling in his sleep. I am afraid to get in a car since the accident. It doesn’t stop me driving but makes me cautious. I have had a lack of appetite since and I have lost heaps. I was around the 100 to 110 kg mark. I now weigh around 80 kg. I was always athletic and was always in the gym.
I have lost interest. I have lost interest in employment.
I can’t socialise and I have problems speaking with people. It has forced me to keep my feelings inside. I am always miserable. My relationship with my girlfriend for a year ended last year. I was miserable in the relationship. I was never happy going out with her.
I have not been able to keep a relationship. My family and I don’t go out much. I was going out with friends when I spoke to Dr Roberts. Since the accident I feel locked in at times.
I am always on edge and angry. I will lash out at my brother. I am being overprotective. I may not want him to leave my sight.
I don’t know why I have lost interest in footy. I did play 2 years ago and didn’t last more than 4 games. I totally gave up as there was no motivation and I was overthinking.
I could not travel far and needed to be around my brother. I did go back and play after the rugby injury. For years straight I have had problems with my feet from stress. Stress got to me a lot. I wanted to play for my brother as he lost that future. I could play rugby but is almost 2-3 years and have not thought of footy. It was my brother’s accident that changed it.
Injuries have never fazed me. When I try to go back to life I keep thinking about the accident and can’t socialise. I started overthinking and kept the trauma. I was always happy and outgoing. Now I can’t settle and wake from nightmares. I always plan to walk in a circle 2-3 hours a day, which helps. It helps me go out.
If mum needs milk and asks me to go to get it, it may take me 2 days to get ready to get it. I could only work 2-3 days at a time now. I was not reliable working in concreting with a friend. I tried form working but that didn’t work. Sometimes I didn’t wake up or I was too stressed to leave the house.
History of Treatment Following the Motor Accident
The claimant was prescribed pain medicine for his fractured metacarpal. He consulted psychiatrist Dr John Roberts in late 2018 and early 2019.
He did try treatment but gave me medicine I should not have been on. He gave me Seroquel and it didn’t make me feel better. He ended up putting me on Axit that didn’t work. I decided to leave him without notice. He has said he couldn’t offer treatment. He asked me for a sperm count but I don’t know why. It was a waste of money and time.
Dr Roberts’ clinical notes state in March 2019 that the claimant was a poor treatment prospect because of marijuana use and drinking alcohol until really drunk, ending a relationship. He had stopped taking Axit because of a Heliobacter infection not because it made him “lazy”. A sperm count was ordered because of the history of impotence and use of anabolic steroids.
A psychologist, Ms Tiba, was seen after the accident. I saw her once a week but I can’t remember how long. To be honest opening up is very hard. I didn’t know how to express my trauma. It was not really helpful. I can’t communicate face-to-face. I was always going back home and going through the trauma and flashbacks. Even medicinal marijuana affects me. Growing up I was happy and had no stress. The accident is affecting everything.
I now have a bad memory and forget appointments. It brings back the trauma and I can’t afford it.
I had a cast on my hand. I paid for a physiotherapist at my own time and expense.Details of Any Relevant Injuries or Conditions Sustained Since the accident
There were two facial injuries noted in Dr Aloe’s clinical record.
The claimant injured his knee playing rugby in 2019.
In 2021 Medical Assessor Fukui recorded an assault two days before her assessment.
In June 2018 Dr Aloe recorded a mandible fracture that was treated conservatively. At first the claimant could not recall the injuries.I was hit in 2018 and just remembered it but I can’t recall that moment. I don’t know how it happened.
In April 2019 he injured his left knee playing rugby and a medial meniscus tear was treated conservatively.
In March 2020 he needed surgical treatment of a zygoma and maxilla fracture.
I am overprotective of my brother. I took my brother to get a drink. We were walking when a group of people tried to rob him, launched into him and I was hit. I don’t remember it all. The only thing I remember is making sure my family is OK. I have a scar that helps me remember.
The claimant was charged with assault for the 2020 incident and the charges were dismissed in early May 2023.
On 30 November 2021 Medical Assessor Fukui wrote that the claimant reported he was assaulted on 28 November 2021 in his car after eating late at night.
I don’t remember that.
Current Symptoms
It was bad at the start and it is getting worse now because the trauma is being brought up. Now when I sleep I have nightmares of losing my brother. I get separation anxiety about him. My lack of appetite is worse and I feel sick.
Current and Proposed Treatment
The claimant is not prescribed any usual psychotropic medicine. Instead, he is prescribed medicinal cannabis that he smokes when needed. He said this was about once a week.
The claimant receives general practitioner care. I feel that counselling doesn’t work. No matter what I do, negative thoughts about the accident come way on top of it.
The claimant does not receive psychiatric or psychological care. Obviously I can’t afford to see anyone. I feel that counselling doesn’t work. No matter what I do negative thoughts about the accident come way on top of it.
Mental State Examination
Appearance: His tattoos were only visible on his right arm because he was wearing a hoodie.
Grooming: Neatly groomed. His hair was of medium length. His beard was trimmed.
Attire: He wore a hoodie.
Activity: He was somewhat fidgety but sat throughout the re-examination. During the long video feed ‘freeze’ his activity could not be seen. When Teams outages occurred early and late in the interview he could persist in re-joining the re-examination.
No psychomotor retardation or agitation observed.
Movements: No tics or vocalisations reported.
Aggression: Aggressive acts towards peers reported in the documents and denied by the claimant.
Impulse control: Impulse control reported as average.
Interaction: Cooperative throughout the interview.
His facial expression was appropriate to verbal content.
Eye contact: Good.Facial Expression: Focused and serious.
Language: Rate: Appropriate although rapid.
Volume: Average.
Coherence: He talked in a stream of conscious manner so once he began to speak he moved from topic to topic with no pause. His narrative direction was internally inconsistent with a focus on stressing disability. He could be interrupted by firm challenges.
Affect: Intense and consistent with thought content.
Phobias: None reported.
Obsessions: None observed or reported.
Dissociative: No behaviour observed.
Perceptions: No anomalies reported.
Hallucinations: None reported.
Delusions: None reported.
Sensorium: Clear.
Memory: His memory was variable with many events from his past not recalled.
Concentration: Not impaired as shown by clinical observation. He could present a coherent and focused history.
Abstraction: He used abstract concepts without difficulty.
Knowledge: Fund of information was as expected.
Attitude: His focus was on the accident.
Current Functioning
The claimant reports significant personality change since the accident.
The claimant said he did not have a good night’s sleep. I go to bed at 12, toss and turn to 2-3:30, and wake at 6:30. I feel nauseous and stressed. I spend 100% looking out for my brother.
I shower once a day unless I don’t have it in me. I have been thinking of showering all day but haven’t done it yet.
I used to cut my hair with a razor and I was clean-shaven. I cut my beard. I get a friend to cut my hair. I don’t like sitting in a barbershop.
Eats irregularly. I don’t eat breakfast now. I wouldn’t know what to do if it weren't for my mother.
The claimant does complete chores. I try to help as much as I can. I take the washing down but not straight away when mum asks.
I no longer have friends. I always try to meet new people. I went to a festival 5 months ago. I went sober and tried to make new friends. Out of 30 festivals, I went to 4 since the accident. It is a hobby for me. I look forward to going.
The claimant’ intrafamilial relationships are focused on his brother. He reports a positive relationship with his parents but a tenuous relationship with his sisters.
I use Uber. I take public transport. Don’t leave the house. I gave up the car a year ago. I drove for my work. I used to drive to get my mind off things but I saw accidents. I used to go to the beach and sat there for serenity. I never go to the beach. I don’t leave [redacted].
I was very social and popular. I liked making videos and blogging. I check my socials on Snapchat where there are 1-2 friends. I take a quick look. I watch TV always the 6 PM news. I don’t have Facebook. I don’t remember the happy memories from my childhood. I lost it all. I can never watch an entire movie. 20 minutes in I am fidgety and on edge. I like to walk it off.
Tasks are often unfinished.
Works at activities at an average pace.
The claimant stopped courier work in August 2022 reporting a lack of motivation.
Does not meet personal standards.
No regular religious observance. Muslim. I am not praying but I have belief. I don’t go to the Mosque any more.Consistency of Presentation
As noted by other clinicians there was a problem with consistency. The claimant described his feelings in a stream-of-consciousness answer while avoiding some issues and contradicting himself at other times. The claimant did not satisfactorily explain his history of recreational drug use or the history of assault. In the case of assault he did not recall. While saying he did not go out he also reported working, taking his brother out and attending festivals. While agreeing that he had been socially active he also said that this was much less interaction than before and that in the case of his brother this was caring rather than brothers enjoying each other’s company. Inconsistency between the history of current psychiatric symptoms and presentation at the re-examination interview was an overarching observation that was raised often with the claimant. When there were differences in history reported by other clinicians, those histories were refuted by the claimant.
C. Deliberations of Medical Assessors
The Medical Assessors reconvened by Teams immediately after the re-examination of the claimant.Injuries
In considering the claimant’s symptoms the Medical Assessors agreed that after the accident the claimant developed mental health symptoms that have continued and were present at the re-examination on 12 May 2023.
Prior psychiatric problems.
Despite documents from Dr Roberts describing previous substance use, the claimant denied meaningful use of recreational drugs when asked about the discrepancy. His GP records mention alcohol use in January 2018 while he denies regular use. The claimant’s concern about the deleterious effects of anabolic steroids mentioned by Dr Roberts can be taken as a marker for recreational use. Behavioural problems leading to arrest as a teenager were described as “hanging around with some kids”. The claimant denied any other mental health issues and there is no contemporaneous documentation of any mental health problem. A clinical psychiatric diagnosis cannot be made because diagnosis depends on agreed history from the person along with contemporaneous documents and statements from reliable clinically trained witnesses such as psychiatrist or psychologists. The claimant is firm in his denial of symptoms that would meet DSM-5-TR criteria for the diagnosis of a clinical disorder.
Stabilisation
The Medical Assessors considered the question of stabilisation and found that the claimant’s psychiatric disorders from the accident had stabilised.
Psychiatric Diagnosis
The Medical Assessors considered the question of psychiatric diagnosis.
The Medical Assessors determined that following the accident the claimant met the DSM-5-TR criteria for the clinical diagnosis of adjustment disorder with mixed anxiety and depressed mood.
Causation and Reasons
Cause: The claimant had no verified mental health disorder before the accident. There was probable use of recreational drugs, alcohol and anabolic steroids before the accident that did not meet DSM-5-TR criteria for the diagnosis of a clinical psychiatric disorder. The claimant developed expected emotional distress after the accident that then became a persistent adjustment disorder with conduct symptoms. Adjustment disorder symptoms were described on 12 May 2023. His adjustment disorder is not in remission and is responsible for his mental health symptoms. Criteria: Persistent adjustment disorders can continue for more than 6 months, especially if the stressor (in this case Hussam’s injuries) continues.
Signs and symptoms depend on the type of adjustment disorder and can vary from person to person as noted in the psychiatric diagnosis section.DSM-5-TR Psychiatric Diagnosis and Reasons
F43.25 Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, Persistent Adjustment Disorder Criteria: DSM-5-TR Diagnostic Criteria for Adjustment Disorders
A. He developed emotional and behavioural symptoms in response to an identifiable stressor (the accident) occurring within 3 months of the stressor.
B. These symptoms are clinically significant, as evidenced by one or both of the following:
· Marked distress that is out of proportion to the severity or intensity of the stressor, considering the external context and the cultural factors that might influence symptom severity and presentation.
C. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely exacerbating a pre-existing one.
D. The symptoms do not represent normal bereavement.
E. Once the stressor or its effects have ended, the symptoms do not persist for more than an added 6 months.
Specify whether:
- With mixed disturbance of emotions and conduct.
- Note: An Adjustment Disorder may be diagnosed following a traumatic event when an individual displays symptoms of either acute stress disorder or PTSD that do not meet or exceed the diagnostic threshold for either disorder.
PTSD Criteria: Although the claimant meets diagnostic criterion A, B and E for post-traumatic stress disorder he does not, in the opinion of the Medical Assessors, meet criterion C and D and so does not meet DSM-5-TR criteria for the diagnosis of that condition.
A. He was exposed to threatened death and severe injury in the following way:
B The following intrusion symptoms associated with the accident, beginning after the traumatic event occurred:
C Persistent avoidance of stimuli associated with the accident is not present so he does not meet this criterion.
D Negative alterations in cognitions and mood associated with the traumatic event are not constant and he therefore does not meet this criterion.
E Marked alterations in arousal and reactivity associated with the accident, beginning after the traumatic event occurred, as evidenced by the following:
- He directly experienced a traumatic event, the accident, in which his brother was injured.
- Recurrent distressing dreams related to the traumatic event.
- The claimant has shown variable but not persistent avoidance in that he is involved with protecting his brother and does not avoid him.
- He has variable mood and has participated in activities such as footy and festivals. He has had romantic relationships and can experience positive emotions.
· Irritable behaviour and sleep disturbance.
Substance Use Criteria: The claimant admits to some use of recreational substances such as cannabis, cocaine and MDMA. There is a discrepancy between what he told the Medical Assessors about his use of nicotine products and alcohol and what is recorded in Dr Aloe’s clinical records. After the accident Dr Roberts identified multiple substance use while the claimant disclosed use of cannabis, MDMA, Endone, alcohol and nicotine. Dr Roberts and Medical Assessor Fukui found that the history of substance use was not reliable. The Medical Assessors concluded that the history provided by the claimant was not consistent with that recorded in the clinical notes. In the opinion of the Medical Assessors, the evidence did not support the diagnosis of a clinical substance use disorder. DSM-5-TR needs at least two of the listed criteria to diagnose a substance use disorder. The claimant used substances before and after the accident and was prescribed medicinal cannabis after the accident. He said he was not addicted and described a pattern of recreational use and use of cannabis as a prescribed treatment. There is no evidence of the substances causing withdrawal symptoms, inability to control his substance use, functional impairment or social complication. There is no evidence of continuing to use despite a specific substance causing problems to his physical and mental health. While Dr Roberts recorded that the claimant used drugs that resulted in seizures, this was no longer a problem - on its own, this is insufficient to diagnose a substance use disorder. Major Depressive Disorder Criteria The DSM-5 diagnosis needs either pervasively depressed mood or the loss of pleasure in almost all activities. The claimant does not have these cardinal features and he does not have major depressive disorder.
PANEL FINDINGS
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[4] and Insurance Australia Ltd v Marsh.[5]
[4] [2021] NSWCA 287 at [40], [41] and [45].
[5] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination and specific findings pertaining to diagnosis.
The Panel finds that the claimant does not satisfy the DSM-5-TR criterion for post-traumatic stress disorder. Specifically, he does not meet criterion C and D. The Panel also finds that the claimant does not satisfy the criteria for a diagnosis of substance use disorder.
The Panel finds that the claimant suffers adjustment disorder with mixed disturbance of emotions and conduct, persistent, and that this condition was caused by the accident. The Panel finds that but for the accident the claimant would not have developed this condition. The Panel is satisfied on the balance of probabilities that the accident was a necessary condition of the occurrence of the adjustment disorder.
The Panel finds that the adjustment disorder with mixed disturbance of emotions and conduct, persistent, is a threshold injury for the purposes of the MAI Act: s 1.6 MAI Act and cl 4 Regulations.
The certificate issued by the Medical Assessor uses the term ‘minor injury’. The Panel has found that the claimant’s psychological injury is a ‘threshold injury’. As recorded at [3], the term ‘minor injury’ has been replaced with ‘threshold injury’ in the MAI Act. The Panel considers that this is a change of terminology only, that does not require it to issue a new certificate.
Given the Panel’s findings, Medical Assessor Fukui’s certificate of assessment dated
4 March 2022 is confirmed.
0
2
0