BYG v QBE Insurance (Australia) Limited
[2024] NSWPICMP 160
•15 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BYG v QBE Insurance (Australia) Limited [2024] NSWPICMP 160 |
| CLAIMANT: | BYG |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Glen Smith |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 15 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor vehicle accident on 6 November 2019 followed by aggression from insured driver and passenger; review of certificate of Medical Assessor (MA) Fukui who certified chronic post-traumatic stress disorder not caused by accident; inconsistency in history Held – certificate of MA Fukui revoked; inconsistencies not mean claimant not have genuine injury or impairment; difficult to conclude exact status of pre-accident health; no treatment since 2017 and on evidence claimant had improved; Panel concluded pre-accident psychological injury in remission; as per Bell v Allianz Insurance Australia Ltd not for Panel to determine whether the aggressive behaviour formed part of single incident involving use or operation of motor vehicle; concluded claimant sustained post-traumatic stress disorder caused by accident; subsequent motor vehicle accident in 2021; considered State Government Insurance Commission v Oakley; concluded case fell within second Oakley category; additional travel impairment subsequent to 2021 accident considered caused by accident and included in assessment travel under psychiatric impairment rating scale; whole person impairment (WPI) assessed at 7% plus 1% for the effects of treatment; new certificate issued determining post-traumatic stress disorder caused by accident giving rise to WPI of 8%. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Atsumi Fukui dated · post-traumatic stress disorder. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 6 November 2019 BYG (the claimant) was a pedestrian at Westfield Shopping Centre at Bondi Junction when a vehicle which had been parked reversed into her as she was walking past causing her to sustain injury (the accident).
BYG was 45 years of age at the date of accident and is now 51years of age.
BYG has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to BYG under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by BYG as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Atsumi Fukui.
Medical Assessor Atsumi Fukui issued a certificate dated 14 September 2022 in which she certified chronic post-traumatic stress disorder was not caused by the accident. It is this assessment which is the subject of this review.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
EVIDENCE BEFORE THE REVIEW PANEL
The Review Panel (the Panel) issued a Direction to the parties on 8 June 2023. The Panel noted the claimant had uploaded to the portal a bundle of documents titled Index of Documents relied upon by the claimant paginated from pages 1 to 61 and marked A1. The Panel directed the claimant to upload to the portal any additional documents sought to be relied upon on or before 7 July 2023. In response to that direction the claimant on 5 July 2023 uploaded to the portal additional documents relied upon by the claimant paginated from pages 1 to 21 including a report of Dr Tarun Yadev.
The report of Dr Yadev had also been attached to an Application to Admit Late Document (AALD) dated 22 June 2023. The Panel notes Dr Yadev is a treating psychiatrist, and the report was not available at the time the application was filed. For these reasons the Panel considers it appropriate to admit the report of Dr Yadev.
The Panel noted the insurer uploaded to the portal a Reply and submissions dated 15 November 2022 paginated from pages 1 to 16 labelled R1. On 2 August 2023 the insurer uploaded additional documents labelled PIC Medical and paginated from pages 1 to 241.
ASSESSMENT UNDER REVIEW
The injury referred to Medical Assessor Fukui for assessment was psychological injury. She issued a certificate dated 14 September 2022 in which she certified chronic post-traumatic stress disorder was not caused by the accident.[3]
[3] A1 p 9.
The injury referred to Medical Assessor Fukui for assessment of permanent impairment was chronic post-traumatic stress disorder.
Medical Assessor Fukui assessed the claimant on 20 July 2022. She stated:
“It was not possible to obtain an accurate history from BYG with extreme difficulty in gaining responses to questions asked. She was vague on detail, was hard to interrupt and had to be repeatedly asked to clarify. She spoke in an emotional and agitated manner at times, and it was not possible to obtain a consistent and accurate history”.
Medical Assessor Fukui reported the claimant grew up in Korea and Japan and moved to Australia in 1998. She reported the claimant transitioned from male following gender reassignment surgery eight years earlier and whilst she had been in a de facto relationship for eight years she had separated from her partner shortly before the assessment. The claimant no longer has an ongoing relationship with her four siblings.
Whilst the claimant denied having had “serious depression” she reported she had undergone counselling because she was upset due to her imprisonment for two and a half years for domestic issues. Medical Assessor Fukui reported the claimant denied seeing a psychologist prior to the accident or being prescribed psychotropic medication and was emphatic she had never suffered from clinically significant psychological symptoms or had treatment.
At the time of the accident the claimant owned a hairdressing business and worked as a massage therapist. She did not work for four months after the accident and then resumed working full time for a floor epoxy company before she ceased working due to pain following a subsequent motor vehicle accident on 17 January 2021 (the 2021 accident).
Medical Assessor Fukui reported a vehicle reversed into her as she walked past causing her to fall to the floor. Two men who got out of the vehicle were aggressive and started swearing at her causing her to feel angry and upset. She also reported pins and needles in her leg. She was transported by ambulance to St Vincent’s Hospital where she was assessed and discharged home.
Medical Assessor Fukui reported the claimant described feeling angry and sad and had nightmares about being sworn at by the occupants of the at fault vehicle. She stated she felt depressed and anxious, noticed a decline in her concentration and memory and had become withdrawn. She resumed driving but felt “scared”. She lost contact with friends and her relationship was impacted by her irritability and arguments. She reported she saw a psychiatrist twice and was prescribed Zoloft. She attended a psychologist for four sessions.
The 2021 accident was a rear end collision and whilst BYG did not note any injuries at the time, she went to St Vincent’s Hospital the next day because of neck pain.
Medical Assessor Fukui reported towards the end of the assessment BYG disclosed she had been hearing voices which started a month after she started taking Zoloft. She had presented to Royal Prince Alfred Hospital requesting admission but had not been admitted and had been referred for follow up by the local Community Mental Health Team but had not answered calls. She described contacting Beyond Blue whenever she felt distressed.
Medical Assessor Fukui concluded there were significant inconsistencies in the history provided by BYG as to her psychiatric history. She noted the clinical notes of her general practitioner (GP) indicated recurrent depressive and anxiety symptoms in response to psychosocial stressors. In 2016 BYG presented with anxiety and depression relating to relationship problems. She also reported depressive symptoms in relation to her transgender status, reporting poor sleep, appetite changes, suicidal ideation and decreased concentration. During 2017 BYG reported psychological symptoms related to a workplace incident.
When BYG consulted Dr Chiam, psychiatrist she reported a diagnosis of attention deficit hyperactivity disorder (ADHD) in Korea and was prescribed dexamphetamine through adolescence. He also reported a history of self-medication with illegally acquired dexamphetamine up to several years earlier and a background of depressive disorder from 20 years earlier.
Medical Assessor Fukui also noted there was no record of police attending the accident and concluded her claim of being threatened by the occupants of the vehicle was unsubstantiated. In a statement BYG stated the men swore but it was the view of Medical Assessor Fukui that this did not constitute a life-threatening trauma as inferred to Dr Parmegiani.
Medical Assessor Fukui concluded the claimant was an unreliable historian and the veracity of her complaint was doubtful. She considered there was evidence the claimant embellished her symptoms by claiming that she feared for her safety by being abused by the occupants of the insured vehicle and by reporting auditory hallucinations. She concluded:
“Her long-standing history of psychological symptoms (which she denied) suggests personality vulnerabilities with antisocial features given her forensic history and history of abusing a controlled substance (dexamphetamine). For these reasons, I decline to make a diagnosis.”
Medical Assessor Fukui excluded the diagnosis of post-traumatic stress disorder because the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria were not met. She noted the absence of characteristic post-trauma symptoms such as true flashbacks, hypervigilance and dissociation. She also concluded the fact that BYG returned to work full time in a new job four months after the accident was inconsistent with a clinical manifestation of chronic post-traumatic stress disorder.
REVIEW PROCEDURE
BYG has sought a review of the medical assessment of Medical Assessor Fukui.
The application was lodged on 11 October 2022. On 29 November 2022 the delegate of the President extended time for the making of the application for review. The delegate was satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the medical assessment to the Panel .[4]
[4] Section 7.26 of the MAI 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.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 29 November 2023 the Panel agreed an examination was necessary.
Application for personal injury benefits (the application)
In the application dated 5 December 2019 the claimant described her injuries as follows:
“When ute revercing vehicle hit me
Whilst Walking behind vehicle Back pain
And panic I remember ambulance
Took me to St Vincent ER unit
Had ct scan &exray
3AM discharge me
L4 and L5low back disc.[sic]”[6]
Treating medical evidence
[6] PIC Medical p 8.
Ambulance service
On 6 November 2019 the following case description was recorded:
“O/A pt laying left lateral on the ground after been struck by a reversing ute at low speed. C/O pain to lower back and left leg. O/E P-patent, B – Euponeic, nil SOB, lungs clear on auscultation, nil pain on inspiration C- Normotensive, regular radial pulse, appeared well perfused, nil haemorrhage, D-Alert and orientated, CGS 15, appeared well perfused, afebrile, Pearl, PT denies head strike, NIL: LOC, nil C-spine tenderness, pain to lumbar spin on palpation, nil signs of obvious trauma, nil altered sensation, Pt could move toes however would not let us take her sock off to look for pedal pulse and cap refill. Pt offered pain relief however Pt only wanted Panadol. Nil other signs of trauma, only graze on left knee”.[7]
St Vincents Hospital
[7] PIC Medical p 26.
The presenting problem was lumbar sacral pain post being hit by reversing car travelling at low speed.[8] She was reportedly struck to the right side of her body and fell down. She denied any head strike. She underwent a pelvic X-ray and a CT scan of the lumbar spine but discharged prior to the reports being finalised. She refused analgesia and was advised to follow up.
[8] PIC Medical p 43.
The nursing record states:
“At approx. 2030 hrs
- Walking very low speed < 5 kph
- Struck by car reversing out road
- Knocked pt to ground
- Landing on lumbar region.
Nil headache, LOC, neck pain, chest trauma, rib trauma.
Unable to walk at scene
Was visibly upset
Events witnessed.
C/O lumbar pain and sacral area”.[9]
[9] PIC Medical p 56.
The notes further record “very anxious”.
Myhealth Central Park
On 3 February 2016 BYG consulted Dr Godfrey GP for depression.[10] He reported a long history of depression, treated in the past with medication. Dr Godfrey reported BYG had anxiety and depression relating to relationship problems. He reported trouble sleeping and noted BYG had requested a referral to a psychologist.
[10] A1 p 42.
On 14 September 2016 Dr Huang GP reported depressive symptoms with anhedonia, decreased concentration, decreased motivation, self-guilt, poor sleep, appetite changes and suicidal ideations previously.[11]
[11] A1 p 42.
On 15 May 2017 Dr Huang reported a work place incident and noted the claimant was seeking a compensation lawyer. He diagnosed post-traumatic stress disorder. He recorded:
“ever since it happened been feeling very snappy
feeling her personality has changed
startled very easily and feeling annoyed very easily
getting anxious/nervous when people approach her
hard to maintain daily function at work
and also affecting her social life
Depressed mood +++
Anhedonia++
Decreased concentration++
Self-guilt+
Poor sleep++
Appetite changes++
Suicidal ideations -“
On 17 May 2017 and again on 22 May 2017 Dr Huang reported mood and affect was appropriate, cognition was normal, insight and judgment was good and there were no suicidal ideations.
On 22 July 2017 Dr Huang reported post-traumatic stress disorder was much improved and the claimant was ready to move on.
On 18 December 2017 Dr Huang provided BYG a letter to see a specialist re gender transition. Dr Huang reported BYG was transitioning and felt anxious sometimes.
On 9 November 2019 BYG reported the accident to Dr Huang.[12] The record reads:
[12] A1 p 47.
“was hit by an ute in a car park at Bondi Junction as pedestrian
Hit for L hand side
Went to hospital
See d/c for details
Here to chase up report
Feeling a bit shaken
But generally feeling Ok
…
Lower back L side pain”.
On 22 November 2019 Dr Huang recorded:
“Mental health consult
Been feeling sad for years
Used to see consuler but hasbt goine [sic]
Pt describes decreased libido and sense of emptiness
Depressed mood++
Anhedonia – not rally, still enjoys painting at home
Decreased concentration++
Decreased motivation++
Self-guilt very much so
Poor sleep yes
Appetite changes no
Sucidal ideations - in the past, as least 5-6 years ago, also had self-harm attempts, but at the moment no”[13]
[13] A1 p 47.
On 22 January 2020 Dr Huang reported BYG was also having nightmares and feels very shaken. BYG consulted Dr Huang in respect of her mental health on 5 February 2020, on 2 September 2020 when it was reported her relationship had broken down and she felt very depressed, on 14 October 2020, on 21 October 2020, on 23 October 2020, on 18 November 2020, and on 1 December 2020. On 9 December 2020 Dr Huang reported the claimant had presented to the Camperdown Acute Team.
On 8 January 2021 Dr Huang reported the claimant had attempted suicide in November, she described feeling tired during the day, she had flashbacks about the accident and had a lack of motivation.[14] Dr Huang reported the claimant’s appearance was dishevelled. A mental health care plan was agreed. BYG consulted Dr Huang about her mental health again on 24 February 2021 when he reported increased pain and also post-traumatic stress disorder.[15]
[14] A1 p 57.
[15] A1 p 59.
Royal Prince Alfred Hospital
On 20 April 2020 the claimant presented to Royal Prince Alfred Hospital for anxiety and depression, but she was unable to wait for an assessment.[16]
[16] PIC Medical p 110.
On 19 October 2020 BYG presented to Royal Prince Alfred Hospital with chronic sciatica and requested analgesia.
On 8 November 2020 BYG presented at Royal Prince Alfred Hospital complaining of neck pain.[17] She had been riding a push bike when she was bumped from behind and fell over the handle bars. She wished to leave to attend a work meeting.
[17] PIC Medical p 118.
Dr Toon Kin Chiam, psychiatrist
BYG was referred to Dr Chiam.[18] On 9 October 2020 he reported:
“In November last year she suffered a traumatic accident in which she was a pedestrian hit by a reversing car. She fell onto the ground. Two men, including the driver, then came out of the car and swore as well as made denigrating comments at her. She felt threatened and was worried that they would reverse into her again”.
[18] A1 p 39.
He reported after the accident the claimant became depressed and anxious, she felt suicidal at times and had rung helplines and presented herself to Royal Prince Alfred Hospital on two occasions. He also reported a sense of hopelessness, insomnia, and repeated nightmares and flashbacks of the incident. She has become more socially withdrawn.
Dr Chiam reported a past episode of depression in 2000 which responded to anti-depressant medication. He also reported attention deficit disorder diagnosed at age 11 and the use of dexamphetamine treatment in her adolescence. He reported BYG self-medicated with dexamphetamine several years ago.
Dr Chiam diagnosed post-traumatic stress disorder on a background of depressive disorder 20 years earlier.
Dr Tarun Yadev, psychiatrist of Monarch Mental Health Group
Dr Yadev providing a report after he saw BYG for an initial assessment although it is not clear when that occurred.[19] He reported BYG denied any past history of psychological health concerns prior to the accident in 2019 except for seeing a psychologist in 2011 for a couple of sessions.
[19] AALD p 3.
Dr Yadev reported features consistent with a history of post-traumatic stress disorder including irritable and angry mood with emotional lability. He also reported significant hyperarousal and anxiety symptoms with panic attacks in the middle of the night, difficulty connecting with people and nightmares disrupting sleep. He also reported some features of avoidance behaviour. Dr Yadev also reported features of atypical depression with sad and angry mood, reduced socialisation and feeling of “leaden paralysis”.
Dr Yadev diagnosed major depressive disorder with post-traumatic stress disorder. He concluded BYG was suitable for the Monarch emerge treatment program and, in the meantime, recommended a trial of Prozosin 1mg at night time.
Medico-legal evidence
Report of Dr Ben Hooi-Beng Teoh, psychiatrist
Dr Teoh assessed the claimant on 26 October 2021 and provided a report dated 10 November 2021.[20]
[20] A1 p 28.
He reported on 6 November 2019 BYG was a pedestrian in a carpark when she was hit by a reversing car. She said there was no one around and the driver of the car was abusive and threatened to drive into her again.
Dr Teoh reported the claimant’s involvement in the 2021 accident when she injured her neck. At the time of the 2021 accident the claimant was working as a labourer in a construction site six days a week but had not been able to return to work.
Dr Teoh reported the claimant suffered from:
· intrusive memories of the accident;
· avoidant behaviour and worrying about her safety;
· insomnia and nightmares, agitation, and hypervigilance, and
· was easily startled and irritable.
Dr Teoh concluded the claimant’s presentation was consistent with a diagnosis of chronic post-traumatic stress disorder caused by the accident.
Dr Teoh provided a rating on 1 for self-care and personal hygiene, a rating of 3 for social and recreational activities, a rating of 2 for travel, a rating of 3 for social functioning, a rating of 3 for concentration, persistence and pace and a rating of 5 for employability. He assessed a total 19% whole person impairment (WPI).
Dr Graham Vickery, psychiatrist
Dr Vickery assessed the claimant at the request of the insurer and provided a report dated 10 May 2022.
Dr Vickery reported the current symptoms as “feeling so depressed”, disrupted sleep with the pain and “screaming out” which occurs two or three times a week and headaches. BYG reportedly stated, “everything in my life was turned bad with the pain and my relationship has not been good”. She reported clear auditory hallucinations “telling me that my life is finished and that it is time for me to go and I have to push the voice away and ignore it”. She described reduced hygiene and grooming, a lack of motivation, a lack of confidence, a lack of enjoyment and feeling trapped in herself. BYG reported she was not driving since the last accident and was anxious as a passenger.
Dr Vickery reported a long pre-existing history of being treated for depression, insomnia and anxiety associated with a vulnerability to experiencing bouts of depression and anxiety related to personal stressors. He also noted there had been suicidal ideation and “voices” arising from a relationship breakup in 2020. He noted the 2021 accident which resulted in neck, back, wrist and leg injuries.
Dr Vickery reported the claimant referred to the onset of lower back pain radiating into the left leg for which she undertook chiropractic treatment and physiotherapy. He reported she stated, “I was walking and swimming every day and I was feeling good”. He noted she obtained employment as a construction coordinator in March 2020 consistent with her reported recovery from any injury. Dr Vickery noted the accident was at low speed and minor and injury would not have been expected to give rise to any permanent impairment.
Dr Vickery concluded there was no relationship between the alleged psychiatric injury and disabilities and the accident. Any injury due to the accident would have been transient and minor in nature. He concluded the alleged psychiatric injury and disabilities were due to the 2021 accident and personal stressors.
Other medical assessments
Certificate of Medical Assessor Parmegiani[21]
[21] A1 p 19.
Medical Assessor Parmegiani issued a certificate dated 12 May 2021.
Medical Assessor Parmegiani reported the onset of the following symptoms after the accident:
· feelings of embarrassment, she felt depressed, and she was unable to sleep as she ruminated on her experience;
· driving related anxiety;
· she continued to have recurrent nightmares of accidents, and of being bashed and she sweated profusely during her sleep; and
· she had increasing suicidal ideation.
And at the time of the assessment BYG reported the following symptoms:
· continued to ruminate on the accident, to experience recurrent memories of the event, and to experience flashbacks related to the accident;
· continued to experience problems of decreased reactivity and lack of enjoyment and she remained irritable and easily angered;
· often ruminated on how her life has changed since the accident;
· she felt that her life was not worth living, had tried suicide by carbon monoxide poisoning in November 2020 and on a further occasion, but no longer felt suicidal;
· believed that she will die soon, although she could not be certain from what reason exactly;
· sleep disturbance and ruminating on her problems;
· no enjoyment consuming food and ate less frequently and had consequently lost 5kg in weight;
· poor levels of energy and low motivation;
· lost her libido;
· required prompting by her partner to care for herself;
· could not be bothered to see her former friends or to leave the house;
· managed to walk to the local shops alone, but felt unable to drive because of persistent anxiety when she attempted to do so, and
· her rapport with her partner had deteriorated since the accident and the relationship was “empty”.
Medical Assessor Parmegiani certified the experience of the accident was a traumatic one for the claimant, leading her to fear for her life or physical safety. Afterwards she experienced several symptoms consistent with an acute stress reaction, which persisted past the one-month mark thereby fulfilling the diagnostic criteria for post-traumatic stress disorder. He also concluded in the presence of concurrent chronic pain BYG also developed symptoms of secondary depression.
Medical Assessor Parmegiani certified the following injuries caused by the accident were not minor (threshold) injuries for the purposes of the MAI Act:
· post-traumatic stress disorder in partial remission, and
· major depressive episode in partial remission.
Certificate of Medical Assessor Alan Home
Medical Assessor Home issued a certificate dated 25 March 2021 certifying the claimant had sustained a lumbar spine soft tissue injury, aggravation of underlying lumbar spine spondylosis, a minor (threshold) injury for the purposes of the MAI Act.
He also certified that a thoracic spine soft tissue injury had resolved and was not caused by the accident.
Claimant’s submissions
The claimant provided submissions dated 11 October 2022.[22] The claimant submitted Medical Assessor Fukui had not afforded her procedural fairness where she had not brought to the claimant’s attention various inconsistencies in accordance with clause 6.41 of the Guidelines.
[22] A1 p 1.
It is submitted the finding that the claimant was an unreliable historian was significant and Medical Assessor Fukui failed to give the claimant an opportunity to respond, particularly where the claimant was assessed by telephone only and where the interpreter was in a separate location.
The claimant submits caution should be exercised when considering clinical notes alone. In Mason v Demasi, Basten JA said at [2]:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)the health professional who took the history has not been cross examined about:
i. the circumstances of the consultation;
ii. the manner in which the history was obtained;
iii. the period of time devoted to that exercise, and
iv. the accuracy of the recording;
(b)the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course Of which it was being deployed in the proceedings;
(c)the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[23]
[23]Mason v Demasi [2009] BAWCA 227.
The claimant notes the report by Medical Assessor Fukui that the NSW Police did not attend the scene of the accident was incorrect referring to the statement of Constable Gabriel of Waverly Police who stated she and Constable James attended the accident scene on 6 November 2019 but did not file a formal report due to the nature of the accident.
The claimant also notes relevant entries in the clinical notes of the treating GP on 14 September 2016 and on 18 December 2017 but no further consultation until 9 November 2019 after the accident.
Insurer’s submissions
The insurer provided submissions dated 13 April 2022.[24] The insurer refers to the clinical history recorded in the clinical notes of Myhealth Central Park which it is submitted provides evidence of a pre-existing impairment which should be deducted from any impairment arising from the accident.
[24] PIC Medical p 76.
The insurer submits the following issues are relevant to the categories of adaption, travel and social functioning:
· the claimant was a self-employed barber at the time of the accident, but obtained employment as a construction coordinator in March 2020, four months after the accident. The claimant worked eight hours a day six days a week and continued in that role until February 2021, and
· the claimant was terminated from her role as a construction coordinator after the 2021 accident.
The clinical notes of Royal Prince Alfred Hospital show the claimant was involved in a subsequent accident on 6 November 2020 when a vehicle collided with her as a cyclist. The insurer submits this demonstrates the ability to engage in social and recreational activities and also the ability to leave her house and travel on her own relevant to the category of travel.
The insurer submits little weight should be given to the opinion of Dr Teoh who failed to consider the impact of the 2021 accident and did not have a history of the pre-existing psychiatric condition. Dr Teoh also recorded incorrectly that the claimant had not been prescribed medication for her psychiatric condition, noting she had been prescribed Valdoxan.
The insurer provided submissions dated 15 November 2022 addressing the issue to be determined by the delegate.
MEDICAL EXAMINATION
BYG participated in the examination by video link with Medical Assessor Hong and Medical Assessor Smith who were both in their Sydney offices. Ms Sunghee Kim was the interpreter. BYG was at home. The assessment took 90 minutes.
History
History of the accident
BYG reported that late in the day, around 5.00 or 6.00pm on 6 November 2019 she was walking back to the Westfield car park at Bondi Junction. She remembered it was quiet and nobody was around. Suddenly a ute hit her from behind as she was walking. She reported she blacked out for a few seconds and was in shock. She remembered two people, including a big guy got out of the ute and started swearing at her, saying things like “what the f…”. She recalled she was scared as nobody else was around, she could smell alcohol coming from them, and they were very aggressive towards her. She told them “Leave me alone, just go”. She remembered the police arrived very quickly; she did not know who called them, and the two people jumped into the car. She did not know what happened to them. She recalled being very scared during the accident and was shaking and kept wondering “why did the men not say sorry” and instead became angry and aggressive towards her.
The ambulance took her to St Vincent’s Hospital where she had a CT scan and examinations over a few hours, before being discharged. She remembered there was blood in her urine when she went to the toilet.
BYG reported that physically, she suffered injuries with severe back pain from the accident, although the insurer disputes it is from the accident. She finds it hard to stand for long, for example washing dishes for five minutes can cause significant pain. She said sitting down is even worse for her back.
History of symptoms and treatment following the accident
BYG said immediately after the accident she had a lot of stress and started having problems with breathing, inhaling and exhaling. She reported the same night, she started to become depressed. She said when she lay in bed she had problems breathing, as if she did not have enough oxygen. She had a lot of pain symptoms and felt that her body was “all shut down”. She had bad dreams. She remembered her heart rate was fast from the anxiety. She was upset as she remembered the men screaming at her.
She finds it hard to sleep in bed now and prefers to sleep on the couch.
She said that since then, when she walks past people who remind her of the men, such as big muscly guys, she becomes scared and will walk the long way around to avoid them. She said her palms start to sweat and her heartbeat becomes very fast.
BYG reported a few days after the accident, she saw a GP and had other scans, including an ultrasound. She has not had surgical treatment since the accident.
She said that about a month after the accident, she saw her GP regarding her stress and was referred to a counsellor in Ashfield (the name could not be recalled), and later she started consulting with Dr Chiam, psychiatrist. This was maybe a year later. She said she was prescribed a psychotropic medication, but it did not work.
Psychosocial history and pre-accident history
BYG was born in Korea and came to Australia in 1998. She grew up with her parents and has three siblings. She is not aware of a family history of mental illness.
In terms of general history, BYG reported that she started transitioning from male to female when she was 29. She had surgery, the last one was in 2016. She has been on hormonal therapy over the years and does not require any other surgery now.
In terms of general medical diagnosis, she does not have cardiac, thyroid or liver disease.
In terms of education and employment history, she had studied industrial design at university and had done other studies, such as tourism, hotel management and she also undertook a hairdressing apprenticeship. She also completed a traffic control certificate, but only worked one day at that job.
BYG was asked about her past psychiatric history, including prior to the accident and any previous symptoms or psychiatric diagnoses. She said she was doing barber work and had a normal life with no psychiatric problems. The assessors emphasised through the interpreter, that the question related to previous symptoms at any time in her life before the accident. She said the only time she had counselling was in 2011 for one session. There was an assault involving several people and she was worried about HIV; and she attended the gender clinic who organised one session with a counsellor for her.
Medical Assessor Hong and Medical Assessor Smith made enquiries with BYG regarding the diagnosis of Attention deficit hyperactivity disorder, and treatment with Dexamphetamine and/or taking her friend’s Dexamphetamine when she was in Korea. Her response was “never”. The assessors discussed with BYG information contained in Dr Chiam’s records. She said she had never taken Dexamphetamine, either prescribed or from a friend. She said she discussed this issue with her lawyer and then she went to see Dr Chiam to have his record fixed, because his records were wrong.
BYG was asked about the episode in 2000 but again she said it was not her. The Medical Assessors raised with BYG entries made by different GPs relating to her previous psychological health, including an entry dated 3 February 2016, a long history of depression and depression after a relationship breakup. Her response was that she did not have a relationship breakup at that point and she did not have long-term depression. She said she did not go to a counsellor at that time, although later she acknowledged that she may have been referred to one.
The Medical Assessors asked BYG about an earlier diagnosis of post-traumatic stress disorder. BYGe said she had not heard of post-traumatic stress disorder in the past and the records do not relate to her.
BYG was asked about compensation claims before 2019. She said she had never made a claim for compensation. The Medical Assessors discussed with her several entries from her doctors, including Dr Godfrey and Dr Huang in 2016 and 2017 relating to a workplace incident and post-traumatic stress disorder, a list of psychiatric symptoms and associated psychiatric impairment, and that she had asked for referral to a psychologist at one point. BYG said she was working as a barber at the time, and she does not remember anything about those entries, and she did not go to a counsellor. BYG said she had not taken any medication and has never suffered post-traumatic stress disorder, despite what Dr Huang had written.
Having considered her GP entries, BYG said she think she had a work incident on 7 April 2017 and this was related to a job she had as a traffic controller, which she only did for one day. She could recall no other information.
In terms of substance use, she was adamant she has never used cannabis. The record stating, she had used cannabis once did not relate to her. She denied using other recreational drugs or illicit substances.
In terms of forensic history, in 2008, BYG said she had a relationship lasting six years and they had purchased a house together, however, the relationship ended, and she moved out. She went to New York for a month and then returned to Australia but could not find her ex-partner. She went to a lawyer to settle their finances and needed to show the document to her ex-partner, however, there was a dispute related to $7,000. BYG's ex-partner called the police and charged her. She said she was not stressed about that issue because she “deserved it”. When asked BYG said the charge was kidnapping and she was imprisoned for two and a half years in Silverwater and Long Bay gaol. She said she had slapped her ex-partner but did not do anything else.
Details of any relevant injuries or conditions sustained since the accident
In January 2021, she was driving in Blacktown on the Prospect Highway at a traffic light, when she was rear-ended. Her window cracked on impact, and she blacked out. She preferred to catch Uber. She remembered in the accident a loud banging sound like thunder. She was in shock and suffered pain. The tow truck came. The next day she went to St Vincent’s Hospital and had an MRI scan but did not stay long because it was during the Covid pandemic. She said she suffered neck pain from this accident, but the lawyers told her because she had pre-existing neck pain, she could not claim for that injury.
BYG reported that since the 2021 accident, she had experienced anxiety as a passenger and when driving. When other cars come close, she gets startled and sometimes calls out in fear. She said she did not drive "on and off" after that accident and became scared if she had to drive through tunnels or on the bridge. She reported she can drive now for 15 minutes to the Sydney central business district (CBD) and to the shops. Since the 2021 accident she has not been able to drive out of Sydney because she does not drive on highways.
On 6 November 2021 BYG was in Glebe and riding her bicycle. She said a car with an older female driver hit her at an intersection. Her bicycle was damaged, but she did not suffer any injury and did not go to hospital.
Current symptoms
BYG described chronic anxiety and dysregulated moods with depression. She reported concentration and memory problems and intermittent suicidal ideation. She has poor sleep, often wakes up every two hours and has nightmares. She described distressing memories related to the accident. She reported she is involved in a lot of fights (verbal), and argues with people in the shops, and swears. She said she never swore before the accident. She does not act out or push anyone. She described breathing difficulties, somatic symptoms of anxiety, and panic attack-like symptoms. She reported her weight has not changed for many years.
She described auditory phenomena and hearing "voices" with words like "I am finished", which she stated is like an "echo" in her ears. The Panel concluded these do not have true psychotic qualities and are more consistent with her traumatic experiences and personality factors.
Current and proposed treatment
BYG takes Zoloft 100mg and hormonal therapy.
She stated her treating team had discussed TMS (transcranial magnetic stimulation), but she could not afford it.
She said on one occasion she was sick and missed an appointment with Dr Chiam and he charged a cancellation fee. She was upset about it and so she changed psychiatrist but could not recall the name of the new psychiatrist. The last time she saw a psychiatrist was in October 2023 and she is awaiting an appointment with a different doctor in Bondi Junction.
She reported the last time she saw a counsellor, or a psychologist was probably in 2022 and she has a referral to see another psychologist now.
BYG has never had a psychiatric admission.
Clinical examination
Mental state examination
BYG had long dark hair and wore light cosmetics. There was no psychomotor slowing or abnormal movements. There was no apparent distress during the assessment. She was mildly restricted in her affect range and presented as serious. She spoke spontaneously. She was not thought disordered and the history she provided was easy to follow, although some histories were not easy to clarify. She remained focused throughout the assessment. She recalled all information quickly and easily, except her pre-accident psychiatric history.
Current functioning
BYG is 52 years old and lives on her own.
She was living with her boyfriend. She explained he was from a different ethnic background and his family wanted him to have babies. They had been together since 2014, but eventually the relationship ended, and he married someone else in 2018. She said they are still good friends, and she has had no other partners since then. The Panel tried to explore the nature of the breakup and she said she had no sexual desire and the relationship ended. Later, she revealed that she came home when she was not expected to, and discovered he was naked with another person. She said she did not blame him because he was young (there was an age gap of about 15 years), and she ended the relationship.
The Panel asked BYG about a suicide attempt after the relationship breakup. She did not believe she attempted suicide after a relationship breakup or because of it. She stated she had attempted suicide because of the way her life is. She said even three months ago she had attempted suicide by setting a charcoal fire in her room, but the smoke alarm went off; she told Dr Huang about this. There was no specific triggering event, although later she said she was upset because a Korean singer, whom she had known in Japan, had recently passed away.
She does not have drug or alcohol problems now.
She said that she normally had good concentration but now she cannot focus, and when she watches television she is constantly changing channels. The Panel pointed out she was able to focus quite well during the 90 minute assessment. She acknowledged she focussed well on the day of the assessment.
She said her ex-partner is a good friend now, but she has no other friends. On further enquiry, she said this was because she is not young anymore. She had thought about going to art classes where she could make friends but said her dogs would bark if she was not at home. Although she has no close friends, she still has contact with acquaintances or friends that she met through her ex-partner, and they help her find different jobs.
BYG's father passed away and all her other family are in Korea, except for one brother in Australia. She said they basically "abandoned" her because of her gender reassignment. She has not spoken to or seen her mother for about 20 years. She said she had seen the brother in Australia once, but he did not talk to her. She said that even when she was in gaol, they did not call her.
When the accident happened, she had two jobs; she was a massage therapist and a barber and she cut men's hair. She said the two jobs operated from the same business – she operated the business and she often worked six days a week. Clients would come in or she would do callouts to client’s homes.
After the accident, she could not go back to work because she could not carry the massage table and her tool box which were heavy, especially if she had to use stairs. She said if she took an Uber to an address there would be no profit left, so it did not make sense to work.
About four months after the accident, she obtained a job in an epoxy paint business. It took two hours in an Uber to go to work and this caused severe back pain. She could not drive at that point and therefore, she said she was sacked.
She reported she had performed barber work intermittently since. However, her employers often complain that she goes to the toilet too much and she has been sacked several times.
In the last 12 months, she said she has probably worked two or three shifts a week, between 10.00am and 4.00pm, 9.00am and 1.00pm, and 1.00pm and 5.00pm, or around 14 to 15 hours a week. However, recently she lost a job again.
She no longer does massage work as she cannot physically do the work.
Comments of consistency
The Panel noted inconsistencies in the history provided by BYG and the available medical records. However, the Panel notes that the presence of inconsistencies does not mean BYG does not have a genuine injury or impairment, but it makes it much harder to make a reliable assessment of her impairment.
DETERMINATION
Diagnosis
BYG reported that she had no pre-accident psychiatric difficulties, and other than one session of counselling after an assault many years ago, there was no other psychiatric history. This is markedly different to her treatment record, in which several clinicians noted that she suffered multiple episodes of psychiatric symptoms with different treatments and diagnoses. The last entry was in 2017, and there was some evidence she had improved since that last episode. The Panel could not reconcile this with her. Given the markedly different history, it is difficult for the Panel to conclude the exact status of her pre-accident psychological health. However, as there were no further treatment entries and she continued working and reported functioning well generally, the Panel accepted her pre-accident psychological injury had entered remission.
After the accident, she described suffering anxiety and depression, and trauma symptoms, which are consistent with post-traumatic stress disorder. Having considered the nature of the subject accident and available evidence related to her past psychiatric history and other life stressors, the Panel concluded her current psychological injury is a new episode of post-traumatic stress disorder in a vulnerable individual, rather than an aggravation of a pre-existing post-traumatic stress disorder. The Panel has not diagnosed major depressive disorder and has subsumed her depressive symptoms as part of her post-traumatic stress disorder.
BYG's impairment is permanent and entrenched.
The Panel assessed her current psychiatric impairment, and noted her physical impairment and pain are not assessable under the Permanent Impairment Rating Scale (PIRS).
Causation
BYG disputed that she has a relevant pre-existing psychological condition. The Panel noted she has a pre-accident psychiatric history, spanning over decades according to the available medical evidence, although there were no entries between mid-2017 and 2019.
There are multiple factors that can contribute to her current psychiatric condition. The Panel have considered their potential contribution, in terms of the nature of the identified stressors, duration and relative impact. The Panel concluded there is more than a negligible contribution from the accident to BYG's current psychological injury, as her employment history was more erratic following the accident and before the 2021 accident and this increased occupational impairment is partly related to her psychological health.
In Bell v Allianz Insurance Australia Ltd the court considered an incident involving the use of a motor vehicle followed by threatening behaviour.[25] The court considered it was not part of a Medical Assessor’s function to determine the scope of the accident stating at [12]:
“That it was not part of the medical assessor’s function to determine the scope of a motor accident, where that issue was controversial, was explained by the Court of Appeal in AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales),(“AAI Ltd”). McColl JA stating:
‘If, however, in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events and leave it to the court to determine whether or not the events constitute a ‘motor accident’.” [26]
[25] Bell v Allianz Insurance Ltd [2022] NSWSC 1108.
[26] AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368.
The Panel is satisfied that it is not required to determine whether the aggressive behaviour formed part of a single incident involving the use or operation of a motor vehicle in concluding that the claimant has sustained post-traumatic stress disorder caused by the accident.
She has encountered other traumatic incidents, and whilst she dismissed these as being irrelevant, it seems unlikely that they have not affected her mental health to a degree.
In particular, the Panel notes that the 2021 accident led to an increase in the claimant’s anxiety as a passenger and when driving. She can no longer drive on highways and is not comfortable driving for longer than 15 minutes.
The Panel proposes to have regard to the Oakley principles having regard to the aggravation of her travel impairment caused by the 2021 accident. In Slade v Insurance Australia Ltd t/as NRMA[27] Wright J considered the relevant legal principles derived from State Government Insurance Commission v Oakley[28] as they apply to medical assessments. In Slade Wright J stated at [104]:
[27] Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031.
[28] State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003; 10 MVR 570.
“The principles in Oakley establish, relevantly for present purposes, in effect that:
(1) Where the further injury or impairment results from a subsequent incident, which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage should be treated as caused by the earlier motor accident. In this situation, par 1.34 is not engaged because the ‘injury or condition’ is not ‘unrelated’.
(2) Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but impairment is sustained or is greater because of aggravation of the earlier injury, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.
(3) Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but the impairment sustained includes no element of aggravation of the earlier injury, the subsequent incident and further impairment should be regarded as causally independent of the earlier motor accident.”[29]
[29] Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031
The Panel finds the current case falls within the second Oakley category because the impairment sustained by the claimant in the 2021 accident is greater because of the aggravation of the earlier injury caused by the accident. Accordingly, the Panel considers the additional travel impairment should be treated as caused by the accident the subject of this claim and included in the assessment of travel under the PIRS.
PERMANENT IMPAIRMENT
Psychiatric Impairment Rating Scale
Current PIRS
Category Class 1. Self Care and Personal Hygiene 2 BYG said she only showers once a week. She eats regularly and her weight has been stable for many years. She attends to all the household chores, cooking and shopping and maintains her general independence. She has suicidal thoughts but does not need an admission. 2. Social and Recreational Activities
2
She engages in regular recreational activities, generally solitary activities or with her dogs. She enjoys taking walks daily for 15 minutes and walks to the park. She goes to the pool for aqua exercises and aerobics. She enjoys her usual pre-accident exercises within her physical capacity. She watches TV at home. She has not painted for around 4 years. She thought about joining an art class but did not proceed due to her dogs.
3. Travel
2 BYG is anxious on the road and only drives locally. 4. Social Functioning
2 BYG's relationship with her partner ended before the accident and she maintains a good relationship with him as a friend. She has some friends or acquaintances she met through her ex-partner and has occasional contact with them.
The relationship with her family ended, and this is unrelated to her psychological injury.
Her irritability affects her interaction with people and her friends.5. Concentration, Persistence and Pace 2 BYG described having poor concentration but acknowledged she focussed well during the assessment. She has never been one to read books and does not engage in other intellectually demanding or complex tasks day-to-day. 6. Adaptation
3 She continues to work intermittently as a barber on part-time hours but has lost several jobs and her capacity to manage stress is one of the factors. She worked on average 15 hours per week in the past 12 months. Her described functioning is between classes and the Panel rated 3. List classes in ascending order: 222223 Median Class Value: 2 Aggregate Score: 13 % Whole Person Impairment: 7 % *%WPI = Percentage Whole Person Impairment
The Panel assesses a 7% WPI.
The Panel has considered the assessment undertaken by Dr Ben Teoh and referred to in his report dated 10 November 2021. In terms of social and recreational activities, Dr Teoh rated 3, however, the Panel considers the provided explanation is consistent with a rating of 2, which is consistent with the rating of the Panel.
Similarly, in in respect of concentration, persistence and pace Dr Teoh rated 3 however, the Panel considers the reasons given are more consistent with a rating of 2 which was consistent with the rating of the Panel.
In terms of adaption Dr Teoh was apparently not aware of the claimant’s capacity to work and that she had returned to work since the accident, meaning his rating is not accurate.
Pre-existing impairment
The Panel has considered the inconsistencies related to her pre-accident psychiatric history.
The Panel also notes no relevant psychiatric history between 2017 and the accident and is unable to be satisfied there was any pre-existing impairment.
As her current psychological injury is a new psychological injury, and there is no evidence of pre-accident impairment, the Panel concluded there was no pre-existing psychiatric diagnosis.
Apportionment
Nil.
Effects of Treatment
The has been symptomatic relief and improvement with treatment. The Panel considers it appropriate to increase the assessable impairment by 1%
The Panel assesses a total permanent impairment of 8%.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Atsumi Fukui dated 8 September 2022 and issues a new certificate determining that the following injuries caused by the accident give rise to a whole person impairment which is not greater than 10%:
·post-traumatic stress disorder.
0
3
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