Buckley v Transport Accident Commission
[2024] NSWPICMP 193
•2 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Buckley v Transport Accident Commission [2024] NSWPICMP 193 |
| CLAIMANT: | Alan Buckley |
INSURER: | Transport Accident Commission |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 2 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant/passenger involved in a motor accident on 3 July 2019 when vehicle lost traction, ran off road and rolled over; chronic pre-existing history of post-traumatic stress disorder; issue whether the motor accident caused an aggravation of the pre-existing post-traumatic stress disorder; claimant re-examined; clinical expertise of the Medical Assessors was that the motor accident caused an aggravation of the pre-existing post-traumatic stress disorder; AAI Ltd v Hoblos and Todev v AAI Ltd applied; aggravation of post-traumatic stress disorder constituted a non-threshold injury; Held – Medical Assessment Certificate revoked; claimant suffered non-threshold psychological injury. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 13 December 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Mr Alan Buckley (the claimant) suffered injury in a motor vehicle accident on 3 July 2019. The claimant was a front seat passenger on the Newell Highway towing a caravan which apparently lost traction and jack-knifed forcing the car to run off the road into a culvert and rolling over coming to rest on its roof (the motor accident).[1]
[1] Insurer’s bundle, p 67.
The Transport Accident Commission insured the owner and driver of the motor vehicle for liability to pay Mr Buckley any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Buckley’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Samuell who issued a Medical Assessment Certificate dated 13 December 2022 (the medical assessment certificate). Medical Assessor Samuell concluded that the motor accident did not cause a psychological injury.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
Statutory amendment
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
REASONS OF MEDICAL ASSESSOR
The Medical Assessor concluded that the motor accident did not cause a psychological injury and that the post-traumatic stress disorder and alcohol use disorder pre-existed the motor accident.
Under the heading “diagnosis and reasons” the Medical Assessor concluded:[5]
“There were conditions of Post traumatic Stress Disorder and Alcohol Use Disorder that pre-dated the subject accident. The subject accident, I accept to have been frightening. It is noted that the pre-existing conditions were considered to be permanent and were the basis for a medical retirement in employment. Mr Buckley argues that following the Post traumatic Stress Disorder course in 2018, his symptoms diminished, but his condition was not cured. He continues to consult with the psychiatrist who treated him before the subject accident and whose treatment is paid for through his workers’ compensation claim. I accept the pre-existing diagnoses of Post traumatic Stress Disorder and Alcohol Use Disorder. He continues to have some features of both conditions and I note that he is consuming at least eight to nine standard drinks per night. There was no compelling evidence that there was a new psychiatric condition arising from the subject accident. It is possible that the subject accident aggravated his pre-existing conditions.”
[5] Insurer’s bundle, p 829.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The insurer was requested and filed a bundle of documents of all materials that had been filed in the matter.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[10]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[10] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
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 the motor accident is a threshold injury for the purposes of the 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:
“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 Diagnostic imaging is not considered necessary to assess threshold injury.
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 diagnosis of psychological 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 (DSM-5), Fifth Edition, 2013, 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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that that the claimant had not filed medical evidence in support of the claim concerning psychological injury noting the extensive history of psychiatric injury arising from the previous employment as a police officer with the Victoria police questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
Claimant’s submissions
These submissions sought leave to review the medical assessment.
The claimant submitted:
“What is the error made by the decision maker
The examiner has stated that my PTSD was not caused by the accident as it has been present for many years which is true. The examiner also stated that it is possible the MVA has aggravated the PTSD and my dispute is that it should be treated as a new injury.
How is this material to the outcome of the decision
The examiner has in my view failed to address the real issue of this possibility but has left it as unexplained. I believe that an aggravation of an existing injury should be treated as a new injury and assessed as to whether or not it is a minor or non-minor injury.”
Insurer’s submissions dated 28 October 2022[13]
[13] Insurer’s bundle, p 880.
The insurer filed submissions on whether the physical injuries and psychological injury were a minor injury caused by the motor accident.
The insurer noted that the claimant had not served any medical evidence in support of the claim the psychological injury was a non-minor injury noting the extensive history of psychiatric injury arising from the claimant’s previous employment as a police officer with the Victorian police.
The insurer referred to a Medical Panel report dated 23 July 2004 which assessed psychiatric impairment at 30% and noted that the claimant’s condition was unlikely to improve significantly in the foreseeable future.
The insurer disputed that the claimant’s post-traumatic stress disorder had resolved at the time of the motor accident. It noted the report of Dr Paul Kornan dated 1 May 2013 which opined that the claimant presented with ongoing symptoms of chronic post-traumatic stress disorder and recurrent major depressive disorder. The claimant at that time was receiving treatment from his psychologist, Dr Peter Marriott and relied on the use of Zoloft and Stilnox. Dr Kornan opined that the claimant’s incapacity for suitable employment arising from his workplace psychiatric injuries were likely to continue indefinitely.
The claimant’s treating psychologist, Dr Mariette, provided a report dated July 2013 which refers to the claimant’s ongoing psychological condition.
The insurer referred to the consultation notes from Modern Medical Balwyn. It noted that the records were undated, but read in the context of the other documents, suggested that the claimant continue to consult his general practitioner (GP) in relation to his ongoing post-traumatic stress disorder in the years leading up to the motor accident.
The claimant was reviewed by Dr Arthur Velakoulis, treating psychiatrist, who provided a report dated 29 December 2017. The doctor confirmed that the claimant presented with ongoing chronic post-traumatic stress disorder, recurrent major depressive disorder, alcohol use disorder and marital and family issues.
Insurer’s submissions dated 18 January 2023[14]
[14] Insurer’s bundle, p 867.
These submissions were filed opposing the application to review the medical assessment certificate.
The insurer submitted that the Medical Assessor carefully considered the evidence before reaching his decision. It was submitted that the Medical Assessor provided a substantial summary of the claimant’s medical psychosocial history which both pre-and postdated the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
A Medical Panel report dated 23 August 2004 certified the claimant’s permanent impairment resulting from the accepted anxiety and depression work injury as 30%.[15]
[15] Insurer’s bundle, p 803.
Dr Paul Kornan, psychiatrist, provided a report dated 1 May 2013.[16] The doctor noted that the claimant ceased working in 2000 and had not worked since that time.
[16] Insurer’s bundle, p 73.
In relation to the mental state examination, the doctor noted a disorder of perception, with recurrent nightmares, intrusive thoughts and being hyper-alert. There was ongoing significant subjective distress, anhedonia, anxiety and depression as well as significant muscular tension features.
Dr Kornan diagnosed chronic post-traumatic stress disorder and major depressive disorder and opined that the claimant was unfit for employment. The doctor noted that the claimant was consulting Dr Marriott, psychiatrist, every eight weeks or so, and was taking Zoloft, 50 mg per day.
Dr Peter Marriott, psychiatrist, provided a report dated 2 July 2013.[17] The doctor noted that he had been seeing the claimant every three to four weeks and had been treating him since April 2003.
[17] Insurer’s bundle, p 83.
Dr Marriott diagnosed chronic post-traumatic stress disorder, panic disorder, recurrent mood disorder, anger problems secondary to post-traumatic stress disorder, chronic pain syndrome and minimal traumatic brain syndrome due to his injuries. At that time the claimant was prescribed Zoloft, Stilnox and Rivotril.
Various certificates of capacity dating from 2014, completed by Dr Mark Spring, referred to acute anxiety, depression and post-traumatic stress disorder.[18]
[18] Insurer’s bundle, p 136, p 145, p 147, p 156, p 160, p 172.
In 2015 Mr Buckley underwent radical prostatectomy for high grade prostate cancer.[19] Subsequent review in 2018 indicated the claimant continued to do well following the radical prostatectomy.[20]
[19] Insurer’s bundle, p 383.
[20] Insurer’s bundle, p 415.
In 2016 Mr Buckley underwent L3/4 and L4/5 decompression and fusion.[21]
[21] Insurer’s bundle, pp 389 - 394.
Dr Arthur Velakoulis, psychiatrist, provided a report dated 29 December 2017.[22] The doctor noted that the claimant presented with a history of chronic post-traumatic stress disorder, recurrent major depressive disorder, alcohol use disorder and marital and family issues associated with prominent social, recreational and vocational impairment over many years.
[22] Insurer’s bundle, p 411.
Dr Velakoulis opined that the claimant continued to suffer from post-traumatic stress disorder, recurrent major depressive disorder and alcohol use disorder associated with multiple impairments.
A report from the Melbourne Clinic dated 24 May 2018 noted the claimant had successfully completed the 10-week PTSD program which consisted of two days per week and a one-day family and friends session.[23]
[23] Insurer’s bundle, p 820.
Medical evidence
The ambulance report noted a single car motor accident with the motor vehicle towing a large caravan which lost control at approximately 90 kmph and rolled. The ambulance officer recorded neck, shoulder and abdominal pain.[24]
[24] Insurer’s bundle, p 89.
The hospital notes recorded a similar history of the motor accident with the claimant presenting with various physical injuries.[25]
[25] Insurer’s bundle, p 108.
The claimant completed a claim form dated 16 July 2019 in respect of the motor accident. The claimant stated that the motor accident caused various physical injuries and:[26]
“A very traumatic accident which left a deep psychological impact.”
[26] Insurer’s bundle, p 67.
A certificate of capacity dated 3 August 2020 completed by Dr Spring, GP, noted various symptoms including “PTSD symptoms”.[27]
[27] Insurer’s bundle, p 464.
Subsequent certificates refer to a similar diagnosis.[28]
[28] Insurer’s bundle, p 511, p 518, p 526, p 533, p 538, p 541, p 545, p 555.
A certificate of capacity dated 8 June 2022 completed by the GP, noted that the motor accident caused various physical injuries and “PTSD symptoms”.[29]
[29] Insurer’s bundle, p 42.
Statement
The claimant provided a statement dated 17 June 2022.[30]
[30] Insurer’s bundle, p 33.
The claimant discussed physical injuries caused by the motor accident. In relation to the psychological injury caused by the motor accident the claimant stated:
“As a police officer of over 30 years, I have attended many serious and fatal car accidents both in the country at metropolitan areas and suffered PTSD for some years.
In 2018 I completed an emergency services PTSD coping course for 10 weeks under the supervision of psychiatrist Dr Arthur Velakoulis at The Melbourne Clinic which was very successful.
The accident has caused my symptoms to return.
I have not been assessed for PTSD resulting from this accident.
The report of Dr Velakoulis referred to in Dr Doig’s report is dated 29.12.2017 and is not relevant to this accident.”
Other Medical Assessment
Medical Assessor Kenna issued a medical assessment certificiate dated 11 January 2023.[31] The Medical Assessor found that the motor accident caused soft tissue injuries to the cervical spine, left hip, thoracic and lumbar spine.
[31] Insurer’s bundle, p 831.
The Medical Assessor noted:[32]
“The overall history has become complicated significantly by a wide range of both pre-existing and subsequent post-accident health matters unrelated to the MVA. For example, he’s undergone a lumbar fusion in 2016 (pre-accident) and post accident - coronary artery graft stents (five) in 2020, right hip replacement in 2020 in prostate cancer.”
[32] Insurer’s bundle, p 847.
RE-EXAMINATION
Mr Buckley was examined by both Medical Assessors on 14 March 2024. The examination findings of the Medical Assessors are:
“Who attended the assessment
The assessment occurred via MS Teams.
Drs Hong and Smith were in their Sydney offices and Mr Buckley was at home alone.
History
Psychosocial history and pre-accident history
Identifying Details
Mr Buckley is a 73-year-old man living with his wife in an independent apartment in a retirement village in Wheelers Hill (a suburb of Melbourne). He said that they had moved into that accommodation around seven weeks ago. He has a 48-year-old daughter and a 52-year-old son and four grandchildren. He said that his stepson has two grandchildren. He receives superannuation from the Victorian Police and he also is reliant on savings. His wife worked previously as ‘national credit manager’ for SmithKline Beecham.
Personal History
Mr Buckley reported that he was born in Bendigo and there were no perinatal complications. He said that he grew up in Bendigo until age nine and his family then moved back to Melbourne. His mother passed away from ovarian cancer in 1967 at age 47. His father worked as ‘chief buyer for Repco’ and passed away at age 88 in 1999. He had a younger sister, who passed away in 2013, from pancreatic cancer. He has another younger sister and a younger brother.
Mr Buckley described as childhood as ‘pretty good’ and there was no history of physical, emotional or sexual abuse. He attended St Benedict’s Primary School and Salesian College, completing ‘Fifth form’. He said that his mother was medically unwell with cancer towards the end of his schooling and this impacted on his academic achievement. He said that after leaving school, he worked in a bank but noted, ‘I didn’t like it very much’. Mr Buckley reported that he was married from age 21 until 31. He has been in his current relationship since 1982 and they were married in 1996.
Mr Buckley reported that he commenced work with the Victorian Police in 1969 and he ceased work in 2000. He was medically retired in 2003. He was diagnosed with posttraumatic stress disorder (PTSD) and major depressive disorder, seeing the psychologist, Mr Gus Carfi, and the psychiatrist, Dr Peter Marriott, until around 2015, when Dr Marriott passed away. He then commenced psychological therapy with
Mr Mark Belanti. He saw Dr Arthur Velakoulis, psychiatrist, from 2017 and he was admitted to the PTSD program at the Melbourne Clinic in February 2018, attending two days per week for 10 weeks. Mr Buckley described this treatment as very effective. He continued to see Dr Velakoulis every three months and he was prescribed escitalopram 20mg daily (selective serotonin reuptake inhibitor antidepressant/antianxiety medication, SSRI). Mr Buckley reported that the intrusive flashbacks and memories of traumatic incidents experienced in his work with the Police were ‘always there, you learnt to live with it, that hypervigilance uses up all your energy, that’s why we got the caravan’. Mr Buckley said that until the course that he attended at the Melbourne Clinic in 2018, ‘I was having flashbacks, I was getting away from Melbourne, to get away from triggers’. The program focussed on meditation, mindfulness and self-awareness, ‘being kind to yourself’. He said that due to his reduced anxiety after the program, his escitalopram dose had been reduced to 10mg daily and the memories and flashbacks of traumatic incidents were reduced in frequency and intensity and were more manageable.In terms of general medical history, Mr Buckley reported that he had his shoulders reconstructed in 2009 and 2014 and hip replacement surgery in 2021. He had a prostatectomy in 2015 for prostate cancer and he has been cancer free since then, having a blood test for the Prostate Specific Antigen yearly. He said that he had a double spinal fusion in 2016. He said that in 2019, he was told that he needed a stent after an angiogram but he did not have the stent at that time. He suddenly felt breathless in July 2022 and he had five coronary artery bypass grafts. He said that his mood was not severely affected after this and he noted, ‘it was good because I was alive’.
In terms of drug and alcohol history, Mr Buckley stated that for many years, he had been ‘drinking too much, sharing a bottle of wine, maybe a bottle and a half’. He said that Dr Velakoulis ‘was big on me having dry days’. He denied problematic benzodiazepine and opioid medication use. He denied illicit substance use. He ceased smoking cigarettes at age 42. He denied excessive caffeine consumption and problematic gambling.
Mr Buckley denied a known family history of mental health issues.
Pre-Accident Functioning
Mr Buckley said that he and his wife built two houses and ‘flipped them’ for profit. He frequently travelled with his wife in the caravan around Australia. He had been to Queensland in 2018, on three occasions.
Mr Buckley said that in early 2019, his PTSD symptoms were ‘fantastic, I had stopped blaming myself for everything that went wrong’. He was playing golf in the Victorian State Seniors side, playing off a handicap of three, at least twice per week. He enjoyed spending time with his grandchildren. He said that he had travelled overseas, including on a river cruise in Europe in 2015.
History of the motor accident
Mr Buckley reported that on 3 July 2019 at around midday, he was travelling from Victoria to Queensland with his wife. His wife was driving a Jeep Grand Cherokee, towing a new caravan less than a year old and he was seated in the front passenger seat. He said that the weather was fine. Mr Buckley stated that they were travelling on the Newell Highway at around 80km/hr, driving around a right hand bend, ‘the caravan jack-knifed on us, we went right, left, hard left, we were going to run over a little blue car coming from the other direction, my wife decided she wasn’t going to kill someone else, she pulled hard to the left, we went over a culvert and flipped’. He said that he lost consciousness ‘when it hit the concrete culvert’. He regained consciousness ‘upside down’ and he felt ‘disoriented, the airbags went off, there was dust was everywhere, we were in a dry creek bed’. He tried to push the window out and he finally realised that they were upside down. He checked to see that his wife was okay and then exited the vehicle, ‘we were pretty shaken up, we stood there and looked at the carnage’. Mr Buckley stated that ambulance and Police arrived and they were taken to the Parkes Hospital Emergency Department (ED). He had hip, neck, back and scalp ‘scrapes and bruises’ but no fractures. His wife also had superficial physical injuries but no serious injuries, ‘she has a lot of mental scars’. Mr Buckley stated that they were observed for four hours in the ED and then discharged. He said that he stayed in Parkes for some days and then a friend came to take him back home. He said that his wife was ‘in such a mental state, that they went to a local clinic, the local doctor signed an insurance certificate, and we were able to get home’. He stayed with friends for a couple of days at Barooga and then he brought all of his belongings back to Melbourne. Mr Buckley said that the vehicle and the caravan were written off.
History of symptoms and treatment following the motor accident
Mr Buckley said that when he was in Parkes, ‘there was not much to do, my wife was a mess, she couldn’t sleep’. His alcohol consumption escalated, ‘we had enough wine with us to last four weeks, my stepson worked for a wine company’. He was sharing 1.5 to two bottles of wine per night with his wife. He said that after the accident, his alcohol consumption escalated to two to three bottles of wine per night. Around 18 months ago, he reduced his alcohol consumption somewhat on Dr Velakoulis’ recommendation and he started to have some alcohol-free days. He was prescribed thiamine but no other medications to assist with reduction of alcohol use. He described marked tolerance to alcohol.
Mr Buckley said that after the accident, ‘the insurance company blamed my wife as the driver, that her driving was the cause of the accident’. He said that around six weeks after the accident, he met a retired Police officer playing golf and that officer had previously been involved in ‘fatal accident reconstructions’. Mr Buckley discussed his motor accident with the retired officer who advised that he read a Coroner’s report about a similar jack-knife accident caused by ‘road-rutting and tar shine’ which had resulted in fatalities. Mr Buckley said that whilst he was reading that report, ‘everything I had blocked out for years [from his work in the Police] came back’. He reported that he experienced intrusive memories of motor accidents involving serious injuries and fatalities and he also experienced intrusive memories of his motor accident. His sleep was affected, waking up every couple of hours, dreaming about being back at work, ‘in the Police Force, flashbacks’. Mr Buckley was able to make submissions and the insurer changed the finding on causation, that his wife was not at fault.
Mr Buckley said that for around four or six weeks after the accident, ‘we shut ourselves in the house, if we did go anywhere, it was only local’. He felt depressed, socially withdrawn and reluctant to go out due to his anxiety. Mr Buckley said that they had another vehicle and around two to three months after the accident they went driving, ‘on the back roads. His wife could only drive 300km and then ‘we had to turn around’ due to her anxiety. He saw his psychiatrist, Dr Velakoulis, fortnightly, ‘the treatments were paid for by Victorian WorkCover, he could see I wasn’t going well’. He said that he took public transport to see Dr Velakoulis due to anxiety about driving. The escitalopram dose was increased to 20mg daily for a period of around six months but that was subsequently reduced to 10mg daily, ‘I’m not big on taking medications, I felt dopey’. Mr Buckley said that his anxiety and depressive symptoms improved gradually with treatment. He said that he lost contact with Mr Belanti because he was seeing Dr Velakoulis. He has not been admitted to a psychiatric hospital and he has not engaged in any outpatient groups since the motor accident in 2019.
Mr Buckley saw a neurosurgeon, ‘there was a thought that one of the screws was knocked loose’. He saw an orthopaedic surgeon about his left hip. Dr Patrick Chan referred him to a pain specialist, Dr Barry Slon, and he has performed two denervations (in 2020 and in October 2023). Mr Buckley has seen his GP, Dr Spring, monthly for certificates.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Buckley said that he had a fall, ‘tripping over on bluestone’ in 2020. He said that he needed his hip replaced after that injury and there was a public liability claim for the physical injury. He had a medical panel assessment two weeks ago but the matter has not yet resolved.
Mr Buckley denied involvement in subsequent motor accidents but he noted, ‘we almost had one eight or 10 weeks after the accident, a driver did a U-turn at lights, I was able to swerve around them’. His wife no longer drives and he noted, ‘she is so nervous that it makes me nervous’.
Mr Buckley described problems with his neighbours previously, related to them building a brick wall and this created stress, ‘it became unbearable’ and therefore they moved into the retirement village around seven weeks ago.
Mr Buckley had five coronary artery bypass grafts in around July 2022.
Current symptoms
Mr Buckley reported that he has been more nervous moving into the retirement village, but his mood is ‘alright’. He remains anxious when driving and he avoids driving as much as possible. He said that he sleeps from 11:30pm but he wakes at around 1:30am and 4:00am and he returns to sleep, and he wakes for the day at 8:00am. He has dreams, ‘back at work, policing, sergeant giving orders’. He denied dreams or nightmares of the motor accident in 2019. He said, ‘I don’t want to see another road accident victim in my life, I am that road accident victim now’. He said that friends continue to ask him about the accident, and he then recalls the accident and feels distressed by this. He plays golf one to two times per week, but his handicap is now 14. He said that he goes out walking, but he spends most of his time in the village due to reduce motivation and anxiety. His appetite is reasonable and there has been no major weight change. He denied suicidal ideation, noting, ‘I have three beautiful grandchildren’.
Mr Buckley said that he currently consumes two to three bottles of wine (pinot gris; eight to 12 standard drinks) per night with his wife and he has very few alcohol-free days. He starts consuming alcohol at around 6:00pm. He could not recall his last alcohol-free day.
Current and proposed treatment
Mr Buckley said that he sees Dr Velakoulis, psychiatrist, every two to three months.
Mr Buckley sees Dr Spring, his GP, monthly.
Mr Buckley said that he will see Dr Slon, pain specialist, ‘when the nerves grow back in a year, I’ll be reluctant to do it again’.
Medications
Escitalopram 10mg daily (SSRI).
Gabapentin 100mg nightly (insomnia, restless leg syndrome).
Thiamine 100mg daily (alcohol use).
Crestor (hypercholesterolaemia).
Norvasc (hypertension).
Aspirin 100mg daily (prophylaxis of ischaemic heart disease).
Clinical Examination
Mental State examination
Mr Buckley was visible in the telehealth session from the shoulders up. He appeared reasonably well groomed, wearing a dark shirt and he was clean-shaven. He described his mood as “alright” and his affect was appropriately reactive with some anxiety and distress when discussing the traumatic incidents. He was alert and oriented and his concentration was reasonable throughout the assessment of over 90 minutes in duration.
Current functioning
Mr Buckley reported that he showers daily, and he prepares meals noting, “I do a fair bit of the cooking”. He said vacuuming takes 10 minutes in the unit. He also uses a floor cleaner. The gardens and windows are cleaned by the village. He goes walking with his wife. He said that he still enjoys travelling, ‘we had three weeks in Hawaii in February 2023, two weeks in Airlie Beach in 2023 and two weeks in Hobart’. He plays golf once or twice per week. He avoids driving but is able to drive alone in the local area when required. He said that he has not driven to the regional country areas since the accident in 2019. He has taken the train to country regions because of avoidance of driving. He is planning to travel by train soon to visit family in Albury. He is able to travel overseas on aeroplanes. He said that the relationship with his wife is ‘fantastic’. He does not play golf with the Police golf club because he would need to drive 45 to 60 minutes to get there, and he feels too anxious to drive that distance. He drives to his local golf course.
Comments of consistency
There were no significant inconsistencies.
Summary of relevant documentation
Certificate of Dr Doron Samuell, Psychiatrist dated 13 December 2022
In this certificate, Dr Samuell concluded:
‘There were conditions of Posttraumatic Stress Disorder and Alcohol Use Disorder that pre-dated the subject accident. The subject accident, I accept to have been frightening. It is noted that the pre-existing conditions were considered to be permanent and were the basis for a medical retirement in employment. Mr Buckley argues that following the Posttraumatic Stress Disorder course in 2018, his symptoms diminished, but his condition was not cured. He continues to consult with the psychiatrist who treated him before the subject accident and whose treatment is paid for through his workers’ compensation claim.I accept the pre-existing diagnoses of Posttraumatic Stress Disorder and Alcohol Use Disorder. He continues to have some features of both conditions and I note that he is consuming at least eight to nine standard drinks per night. There was no compelling evidence that there was a new psychiatric condition arising from the subject accident. It is possible that the subject accident aggravated his pre-existing conditions…’
Certificates of capacity/certificate of fitness of Dr Spring
In the treating GP certificate dated 3 March 2020, it was noted:
‘MULTIPLE INJURIES RELATED TO CAR ACCIDENT· LEFT SHOULDER, NECK, BACK AND LEFT HIP…
Has had a terrifying car accident…
Currently undergoing treatment by psychiatrist for psychiatric trauma caused by the accident…’
In the treating GP certificates dated 3 August 2020, 20 January 2021, 15 March 2021, 7 June 2021, 1 July 2021, 19 August 2021, 29 September 2021, 18 October 2021, 18 November 2021 and 8 June 2022, it was noted:
‘MULTIPLE INJURIES RELATED TO CAR ACCIDENT -LEFT SHOULDER, NECK, BACK, LEFT HIP & PTSD SYMPTOMS…’
Clinical Notes of Dr Spring, treating GP
Dr Spring’s clinical records were unfortunately not dated.
It was documented in an undated note:
‘Has been better since PTSD course…’
It was documented in an undated note:
‘Talk about PTSD and car accident…’
It was documented in an undated note:
“For certificate for TAC NSW
Having episodes of forgetting what he is doing
Reason for visit:
Post Traumatic Stress Disorder…’
Report of Dr Graeme Doig, Consultant Orthopaedic Surgeon dated 16 May 2022
In this report of an independent medical examination, Dr Doig noted:
‘Diagnosis
Mr Buckley suffered soft tissue injuries to the neck and chest wall.
Prognosis
The prognosis for Mr Buckley's neck condition is reasonably good. He has returned to the majority of his activities of daily living, including playing golf. He experiences intermittent discomfort and slight restrictions in movement.
Discussion
The clinical presentation is consistent with the road transport accident…’
Report from Melbourne Clinic, dated 24 May 2018
In this document, it was noted:
‘…Alan has successfully completed the 10 week PTSD Program. This program consisted of 2 days per week and a 1 day Family and Friends session, a total of 21 days. Alan attended 20 of the 21 days…Depression Anxiety and Stress Scale (DASS 21): a 21 item self-report questionnaire designed to measure the severity of a range of symptoms common to both depression and anxiety. The questionnaire measures symptoms over the previous week. Alan completed the questionnaire at midway, and post completion of the program. His scores indicate improvements in stress, anxiety and depression from midway to the conclusion of the group…
Alan shows significant improvement in self-efficacy to cope with trauma from 34 to 101 (mid-way to post-program). This score indicates a reduced sense of victimhood and above average coping strategies…
Alan engaged well with both group content and discussion. He generally presented as euthymic in mood with reactive affect. His risk remained Low throughout treatment…
Treatment gains included applications of mindfulness skills, grounding, self-compassion and acceptance, particularly as it applied to his family relationships. He also learnt to identify unhelpful thoughts and beliefs and challenge them, as well as reduce hypervigilance…’
The scores on the PTSD checklist (PCL5) were 35 at week 1, 44 at week 5 and 37 at week 10.
Reports of Dr Peter Marriott, Psychiatrist
In his treating psychiatrist report dated 30 September 2009, Dr Marriott noted:
‘I generally see Alan every 3-4 weeks at my rooms and have been treating him since April 2003…
Alan is a retired Police Inspector who has been retired since approximately 2003 on ill-health grounds due to his Posttraumatic Stress Disorder. He lives with his wife; he is unemployed and receives Work Cover benefits. Since leaving the Police Force I have continued to support Alan in learning to live with his chronic and moderately severe Posttraumatic Stress Disorder…
Diagnosis and Case Formulation:
1. Chronic Post Traumatic Stress Disorder
2. Panic Disorder
3. Recurrent Mood Disorder, that is depression…’
In his treating psychiatrist report dated 2 July 2013, Dr Marriott noted:
‘Diagnosis and Case Formulation:
1. Chronic Post-traumatic Stress Disorder
2. Panic Disorder
3. Recurrent Mood Disorder, that is Major Depressive Disorder,
4. Anger problems, secondary to Post-traumatic Stress Disorder
5. Chronic Pain Syndrome, due to physical injuries which are directly work-related, included assaults, being king hit, motorcar accidents, and loss of consciousness.
6. He also has minimal traumatic brain syndrome due to his head injuries…’
Report of Dr Paul Kornan, Psychiatrist dated 1 May 2013
In this report of an independent medical examination, Dr Kornan diagnosed:
‘Chronic Post-Traumatic stress Disorder.
Major Depressive Disorder, Recurrent…’
Report of Dr Arthur Velakoulis, Consultant Psychiatrist dated 29 December 2017
In this treating psychiatrist report, it was noted:
‘In relation to post traumatic symptoms, he describes the first onset of dream intrusions as occurring in the 1980s, escalating until 2000, and reducing mildly post his ill health retirement over the last 17 years, although they remain prevalent recurring every one or two days at which point he is commonly awoken. His dream content relates. to a combination of factual policing incident incidents and bizarre content, typically involving scenarios of violence, assaults, corpses, and various other operational situations which he encountered over his long career. In regard to daytime intrusions, he suffers these every one or two days during which time he describes brief visual flashes lasting one or two seconds associated with mild distress. He typically suffers partial and seemingly full dissociative episodes associated with these intrusions. He describes psychological and physiological reactivity when exposed to reminders of his traumas such as certain television content, conversations, police stations, and certain geographical locations that he has attended fatalities over the years. He typically attempts to avoid such triggers, and avoids certain crowded situations and certain social events. He suffers multiple hyperarousal symptoms including interrupted sleep, irritability, and anger which resulted in an intervention order this year as a result of family violence directed at his wife Judy, recurrent hypervigilance and threat assessment when in public and seemingly a diminished startle response. His baseline anxiety is typically 4/10 when at home but can escalate in the face of various triggers such as confronting crowds, noisy environment and other situations…
In relation to depressive symptoms these were first onset in the 1970s and have remained prevalent over many decades. He currently self-rates his mood at 3 or 4/10 which has been the case over the last 12 months or so, deteriorated as a result of being barred access to his grandchildren by his stepson, and also not having seen any of his biological grandchildren. He describes partial anhedonia and a dull existence where he enjoys pursuits such as golf only partially. He has suffered transient suicidal ideation in the form of a hanging during mid 2017 but denies any ongoing intent, past attempts or access to firearms. He concurrently describes symptoms including fatigue, poor motivation, loss of energy, reduced concentration, reduced memory and reduced reading capacity…
In relation to past psychiatric history, he first attended a Victoria Police psychologist in 2000 after which he required time off work and subsequent ill health retirement. In 2001 he attended Dr Rhyll Black and psychologist Gus Carfi for some time. From 2001 until 2017 he attended regular psychiatric care with Dr Peter Marriot and was prescribed Zoloft 50mg and Rivotril 0.5 mg nocte day. He has ceased his medications in recent months. He has recommenced psychological care with Mark Belanti over the last four months following the intervention order. He has not been prescribed other antidepressants nor been in hospital. He states he is not received a trauma focus therapy such as prolonged exposure therapy or EMDR…
Alan presents with a history of post chronic Post-Traumatic Stress Disorder, recurrent Major Depressive Disorder and Alcohol Use Disorder associated with multiple impairments…’
Report of Dr Barry Slon, Specialist Pain Medicine Physician, dated 18 February 2020
In this treating specialist report, it was noted:
‘On 3 July 2019, he was involved in a roll-over motor vehicle accident resulting in both lumbar and cervical pain. There is a history of an L5-L4-L3 fusion by Patrick Chan. He has had various other surgeries including to his shoulder and to his prostate for cancer.
He is a part-time builder and a retired policeman. He probably has post-traumatic stress disorder.
He is a non-smoker who seems to consume at least half-a-bottle of wine per day and does not consider this in anyway problematic…
He has no neurological deficits. He is tender in the left cervical facet column. There is a neat midline scar in the lumbar area. I could not find any specific tenderness but facet provocation manoeuvres are positive in both the lumbar and cervical regions…’
Diagnosis and reasons
The Panel considered that, based on the provided history, the mental state examination and review of documentation, Mr Buckley presented with symptoms consistent with the following recognised psychiatric diagnoses according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022):
1. Aggravation of pre-existing post-traumatic stress disorder (PTSD).
2. Aggravation of alcohol use disorder.
Justification of Diagnosis
Mr Buckley reported symptoms consistent with the diagnosis of posttraumatic stress disorder (PTSD) occurring in response to recurrent exposure to traumatic incidents, involving fatalities, experienced in his work as a Police officer. These incidents included fatalities from motor vehicle accidents. He described involvement in a frightening motor accident in 2019, which involved his vehicle and caravan flipping at high speed and he lost consciousness (Criterion A). He reported recurrent, intrusive distressing memories and nightmares of traumatic incidents (Criterion B). He described avoidance of driving longer distances, particularly on country roads (Criterion C). He has experienced marked negative alterations in cognition and mood (Criterion D). He described alterations in arousal and reactivity with hypervigilance when driving, difficulties with concentration and thinking and sleep disturbance (Criterion E). The symptoms have persisted for many years with an aggravation of PTSD symptoms after the accident in 2019 (Criterion F). The symptoms have been substantially distressing and resulted in impairment (Criterion G). The symptoms are not solely attributable to the physiological effects of a substance or a general medical condition (Criterion H).
Mr Buckley reported excessive alcohol consumption, with marked tolerance and continued alcohol use despite advice to reduce and/or cease by his psychiatrist, consistent with the additional diagnosis of alcohol use disorder.
Causation and reasons
Mr Buckley reported a history consistent with the diagnosis of posttraumatic stress disorder (PTSD), initially developing in response to cumulative exposure to traumatic incidents that he witnessed in his work as a Police officer over many years, including fatalities from motor accidents. He received treatment from psychiatrists, including in an intensive group program at the Melbourne Clinic in 2018 and there was a reduction in the intensity of his PTSD symptoms after that. Mr Buckley reported involvement in a high-speed motor accident in 2019, in which his vehicle and caravan flipped and he lost consciousness. The insurer initially asserted that his wife, being the driver, had been at fault for the accident. Some weeks after the accident, he was talking to a former Police officer who provided him details of a similar type accident that had been caused by ‘road-rutting and tar shine’. Mr Buckley reviewed the Coroner’s report of that accident and in that process he started to experience intense memories, flashbacks and nightmares of traumatic incidents that he had experienced in his work with the Police. He saw his psychiatrist and the dose of escitalopram was increased for around six months. Mr Buckley felt anxious about driving and was avoidant. There was an improvement in his anxiety with the medication and he reduced the medication dose again after around six months.
The Panel concluded that after the motor accident in 2019, Mr Buckley has suffered from a significant aggravation of his pre-existing PTSD, which initially was caused by his work with the Police. He has also suffered from symptoms consistent with the diagnosis of alcohol use disorder in the context of his PTSD symptoms.
There was evidence of an aggravation of his PTSD symptoms, because he saw his psychiatrist for more assertive treatment, his medication dose was increased and his GP provided numerous certificates citing PTSD in relation to the motor accident. There has been an improvement in his PTSD symptoms with treatment but he remains anxious and avoidant of driving due to residual PTSD symptoms in relation to the motor accident in 2019. The aggravation of pre-existing PTSD is considered clinically significant and is caused by the subject accident and by reading the coroner’s court document in response to the subject accident. There is more than a negligible contribution from the subject accident to Mr Buckley’s current psychological injury.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
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[33] and Insurance Australia Ltd v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[35] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[35] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[36] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[36] at [44]-[62].
We adopt the reasoning in AAI Ltd v Hoblos[37] that the psychological effects are evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
[37] [2023] NSWPICMP 210 at [141] – [181] (Hoblos).
Since the reasons were published in Hoblos, the Supreme Court has held that a psychological injury was established if the motor accident aggravated, accelerated or exacerbated a psychological condition.[38]
[38] Todev v AAI Limited t/as GIO [2023] NSWSC 836 (Todev) at [50]-[53].
The Panel adopts the joint examination report of the Medical Assessors. We are particularly reliant on the clinical expertise of the Medical Assessors who jointly undertook the recent examination process and concluded that the motor accident aggravated the claimant’s post-traumatic stress disorder.
The motor accident caused an aggravation of a pre-existing post-traumatic stress disorder. This is not a threshold psychological or psychiatric injury.
CONCLUSION
For these reasons, the Panel concludes that the medical assessment certificate is revoked. For the benefit of the claimant who is unrepresented, we find he has been successful in establishing that the psychological injury caused by the motor accident is not a threshold injury. The new certificate is attached at the commencement of these Reasons.
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