Cvetkovski v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Cvetkovski v AAI Limited t/as AAMI [2022] NSWPICMP 489
CLAIMANT:	Danny Cvetkovski
INSURER:	AAI Limited trading as AAMI
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Atsumi Fukui
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	30 November 2022
CATCHWORDS:	MOTOR ACCIDENTS – Medical Review Panel decision; claimant previously assessed by Medical Assessor (MA) and found to have an adjustment disorder with mixed anxiety and depressed mood; decision of MA revoked; claimant suffering worsening features of flashbacks, poor sleep, headaches and nightmares; suggestion by insurer’s expert that claimant was catastrophising and awfulising his situation but the Panel did not accept this; Held – Panel satisfied that the claimant’s condition meets the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) diagnostic criteria of post-traumatic stress disorder; panel determined that the claimant is suffering a non-minor injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Siderov dated 23 March 2021. The Review Panel finds that the claimant has suffered a post-traumatic stress disorder. The claimant has a non-minor injury.

STATEMENT OF REASONS

INTRODUCTION
Background

Danny Cvetkovski (the claimant) seeks a decision that:
a) that the injuries sustained in the motor accident are not minor injuries.
The claimant was referred for assessment by Medical Assessor Siderov. The Medical Assessor found that the following injuries WERE caused by the motor accident:
a) Adjustment Disorder with Mixed Anxiety and Depressed Mood.
Medical Assessor Siderov found that under the minor injury definition of s 1.6(3) of the Motor Accident Injuries Act (the MAI Act), this is a minor injury.
The Medical Assessor found that the following injuries were not caused by the motor accident:
a) post-traumatic stress disorder and Major Depressive Disorder.

The accident

The claimant says that on 1 October 2020, he was travelling along the Grand Parade in Brighton. He was stationary when another car failed to stop in time and collided with the rear of the claimant’s car. This impact was considerable, crumpling the entire boot area and part of the rear passenger area.
Photographs have been submitted of the accident which show a very damaged rear end of what is understood by the Review Panel (the Panel) to be the claimant’s car.

The injuries

The claimant submits that since the accident, he has experienced symptoms indicative of a serious psychological condition. Specifically, the claimant submits that he has suffered from intrusive thoughts, flashbacks, insomnia, negative alternation in mood and hypervigilance. Based on these symptoms, the claimant’s treating General Practitioner (GP), Dr Cvetkovski diagnosed the claimant with post-traumatic stress disorder (PTSD) attributable to the motor vehicle accident.
The claimant submits that the diagnosis of post-traumatic stress disorder was confirmed by Dr Protulipac, the claimant’s treating psychologist, in an Allied Health Recovery Request dated 8 December 2020.

The review

On 24 February 2022, the President’s delegate referred the medical assessments to the Panel on being 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.[1]
[1] 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 new review provisions provide[2] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[2] 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.[3]
[3] Section 41(2) 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.[4]
[4] Rule 128 of the Personal Injury Commssion Rules (PIC Rules)
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
As part of the application for review, the claimant has been re-examined by Medical Assessors Fukui and Jones on behalf of the Panel.

The claimant’s submissions

In his review application, the claimant says that the Medical Assessor was incorrect because;
a.    Medical Assessor Sidorov failed to adequately consider and take into account the contemporaneous medical evidence by treating psychologist Dr Zoran Protulipac;
b.    Medical Assessor Sidorov was in error in relying on a malingering test used by Dr Jeffrey Baron Levi, and
c.     Medical Assessor Sidorov has not adequately set out the path of his reasoning/reasoning process in providing an opinion which led to his findings of a minor injury classification.
The claimant submits that since the subject motor vehicle accident, he has experienced symptoms indicative of a serious psychological condition. Specifically, the claimant has suffered from intrusive thoughts, flashbacks, insomnia, negative alteration in mood and hypervigilance.
The claimant says that based on his symptoms, his treating GP, Dr Nick Cvetkovski at Family Medical Clinic, diagnosed the claimant with post-traumatic stress disorder attributable to the motor vehicle accident,
The claimant was subsequently referred to a psychologist based on persistent and severe psychological symptoms such as “worsening features of flashbacks, poor sleep and waking in the middle of the night, nightmares…”. Dr Cvetovski also noted the claimant was prescribed Zoloft medication.
The diagnosis of post-traumatic stress disorder was confirmed by Dr Protulipac, the claimant’s treating psychologist, in the Allied Health Recovery Request dated 8 December 2020. The claimant has remained under the treatment of Dr Protulipac. In his report dated 29 January 2021, Dr Protulipac says that since the accident, the claimant has developed
“significant psychological problems, in particular, symptoms of trauma, stress, insomnia, anxiety and depression. He continued experiencing recurrent, intrusive memories of the accident followed by somatic reactions and became avoidant towards driving, attending the site of the accident, and traffic in general. He developed severe hyper-vigilance and frequent nightmares of unspecific content”.
The claimant says that the Medical Assessor failed to adequately consider treating evidence of the treating psychologist, Dr Protulipac.
Dr Protulipac reported that the claimant did not suffer from any pre-existing mental condition. Based on his psychometric assessment of the claimant, Dr Protulipac confirmed the claimant met the DMS-5 criteria for diagnoses of Post-Traumatic Stress Disorder as well as Major Depressive Order. In the same report dated 29 January 2021, Dr Protulipac attributed all of the claimant’s psychological injuries to the subject motor vehicle accident as the claimant did not suffer from any psychological injuries prior to the accident
The claimant says that the assessor ought to have given stronger consideration to the treating evidence and the treating practitioners diagnoses.
In his certificate at page 6, Medical Assessor Sidorov considered the report of Dr Baron-Levi dated 12 January 2021 and more specifically, the malingering test administered by Dr Baron-Levi. Based on the test, the claimant says that Medical Assessor Sidorov formed the view that the claimant was catastrophizing his pain situation.
In response to this, the claimant submits firstly that the malingering test employed by Dr Levi was administered in January 2021, which was around 11 months prior to the examination of Medical Assessor Sidorov. The claimant submits that the Medical Assessor failed to consider the period of time between the assessment of Dr Levi and his own assessment which crucially involves the claimant’s benefits being cut off from the insurer in April 2021, and thereby losing access to necessary treatment and wage benefits.
The claimant submits that his injuries “will have” worsened during this period.
The claimant says that evidence of a treating practitioner, in this case Dr Protulipac should be considered above evidence of non-treating psychologist being Dr Levi.
The claimant submits that the Medical Assessor gave disproportionate attention to the opinion of Dr Levi, a medico-legal doctor and not his treating psychologist. For that reason the claimant says that the Medical Assessor should have given special consideration to the opinion of the treating psychologist.
The claimant submits that Medical Assessor Sidorov has effectively ignored well established principles in the field of forensic psychiatry which reveal the rather high number of false positive results from malingering tests. The claimant refers to a study published in the National Library of Medicine titled ‘False positive diagnosis of malingering due to the use of multiple effort tests’ which the claimant says reveals that false positive rates for effort tests increase significantly as the number of indicators that are administered is increased.
The claimant submits that Medical Assessor Sidorov incorrectly misrepresented the medical report of Dr Protulipac and failed to acknowledge the comprehensive diagnosis made by the claimant’s treating psychologist in accordance with the DMS 5 criteria.
The claimant says that on page 6 of the certificate under ‘Diagnosis and Reasons’, the Medical Assessor again failed to mention the PTSD diagnosis made by both treating psychologist Dr Protulipac and psychiatrist Dr Hyde. The claimant says that the Medical Assessor failed to outline why he did not accept the diagnoses made by the abovementioned practitioners. The claimant submits that detrimentally, the Medical Assessor instead focused on only the malingering test administered by Dr Baron-Levi, who is not the claimant’s treating psychologist.

The insurers submissions

The insurer reports that the claimant’s GP, Dr Nick Cvetkovski provided a diagnosis of PTSD and depression.
The insurer says that in a subsequent referral to a psychologist, Dr Cvetkovski then reported symptoms including worsening features of flashback, poor sleep, nightmares, anxiousness when in cars.
From December 2020 to late January 2021, the insurer says that the claimant’s psychologist provided a diagnosis of PTSD and reported symptoms including trauma, pain, anxiety, depression and insomnia.
The insurer notes that there were limited signs or symptoms reported by the claimant’s GP or physiotherapist that would support this diagnosis and further the diagnosis was not made with reference to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria.
The insurer says that following an independent medico-legal examination in January 2021 commissioned by the insurer, Dr Baron-Levi, psychologist, did not provide a psychological diagnosis under the DSM-5 and concluded that the claimant was “catastrophising his pain”.
The insurer notes that following an independent medico-legal examination in January 2021 commissioned by the claimant’s solicitor, Dr Protulipac, provided a diagnosis of PTSD and Major Depressive Disorder.
The insurer submits that Part 5.11 of the Guidelines states the assessment of whether a psychiatric illness is present must be made using the DSM-5 Criteria.
Further, the insurer says that Part 5.12 of the Guidelines states if the person’s symptoms do not meet the assessment criteria for a psychiatric illness under the DSM-5 (aside from adjustment disorder or acute stress disorder), then the person has a minor injury.
The insurer submits that the findings of Dr Protulipac were in direct contradiction to the findings reported by both Dr Baron-Levi and Dr Smith (relating to physical injuries) which concluded that symptoms were “manufactured” by the claimant.
The insurer submits that based on the fact there is evidence to support that the claimant is manufacturing the physical injuries, the insurer highlights that this also casts doubt on the validity of the alleged psychological injuries.
Accordingly, the insurer submits that any alleged psychological injury is minor and additionally the reported manufactured symptoms do not fall outside the definition of a minor injury.

The medical evidence

The claimant was referred to Dr Protulipac on 8 December 2020. He provided a report dated 29 January 2021.
Dr Protulipac said that the results of his examination revealed that the claimant suffered from chronic pain as well as severe symptoms of trauma, anxiety, depression and insomnia. He was treated by way of cognitive behavioural therapy.
Psychologically, the claimant reported;
(a)   frequent headaches;
(b)   symptoms of trauma including hyper-vigilance;
(c)   depressed mood;
(d)   elevated anxiety, irritability, impulsiveness, hyperventilation and tightness of the chest;
(e)   severe sleep impairment including nightmares;
(f)    reliance on pain medication for pain relief and management of mood and sleep;
(g)   results of the Beck Depression Inventory were in the range of “severe” which indicated a presence of depression, and
(h)   the claimant’s results on Post Traumatic Stress Disorder Screen (as per DSM IV criteria) suggest a presence of PTSD, an anxiety disorder which can develop after exposure to one or more terrifying events that threatened or caused grave physical harm.
Dr Protulipac said the claimant experienced impaired attention, concentration and short-term memory caused by chronic pain and insomnia, limitations in driving caused by the symptoms of trauma, lethargy, loss of motivation, inability to engage in psychomotor retardation caused by depression and irritability, impulsivity and psychomotor agitation caused by elevated anxiety.
An Allied Health Recovery Request dated 20 October 2020 noted factors which impacted on the claimant’s progress as being, amongst other things, “paranoia and anxiety, guarding, driving again – psychiatrist”.
The next Allied Health Recovery Request of 8 December 2020 only referred to a diagnosis of PTSD.
There is a report of Ms Vesna Stamenkovic, psychologist, dated 9 October 2021. The claimant had been referred for counselling under a mental healthcare plan and was given a diagnosis of post-traumatic stress disorder, anxiety and depression. This referral was from Dr Qureshi on 11 February 2021.
The claimant was noted to have been compliant with treatment and attendance. His progress had been slow. This was put down to the severity and complexity of the presenting comorbid psychiatric conditions plus other environmental circumstances contributed to by the accident. These included financial losses and debts due to inability to return to work, a feeling of lack of support from the claimant’s employer and chronic pain and poor physical recovery despite engaging in conventional treatment.
The claimant was reported to continue to experience disturbed sleep, persistent avoidant behaviours towards driving or attending the site of the accident, recurrent and intrusive thoughts of the accident, fearful and hypervigilant responses which remind him of the accident, marked physiological distress with significant heightened levels of blood pressure needing medical attention, affected sleep, poor emotional regulation and feelings of anger and irritability, poor concentration and, anxiety and low mood.
Several tests were undertaken including;
(a)   R-12IMT which was said to be a widely used neuropsychological tool to evaluate the limiting of functional memory complaints and examinee effort. The claimant obtained a score which deemed him to be trying his best and thus his responses were considered to be confident with integrity when interpreting results.
(b)   DASS21 Depression Anxiety STRESS Scale with scores indicating extremely severe stress with extremely severe depressive and anxious symptoms.
(c)   GAD-7 Generalised Anxiety Disorder assessment. The claimant was reported to score extremely highly which indicated the presence of situational severe anxiety disorder. The GAD finding was classified as extremely severe.
(d)   PTSD-PCL-5 was applied which is a screening tool to assist with diagnosis of PTSD using the DSM V psychiatric manual. Results indicated moderate to high symptoms associated to post-traumatic stress disorder.
Ms Stamenkovic said that the claimant’s results obtained by mental health screens concurred with reported and observed symptoms which confirmed diagnosis consistent with DSM 5 being that of PTSD and adjustment disorder with mixed anxiety and depressed mood.
The claimant was examined by Dr Hyde, psychiatrist, who provided a report to the claimant’s GP on 5 November 2020.
His mood was described as depressed and anxious and his affect was restricted.
Dr Hyde said that the claimant met the criteria for DSM 5 diagnosis of an adjustment disorder with depressed mood and post-traumatic stress disorder.
The claimant was reviewed by Dr Baron-Levi, psychiatrist, who provided a report of 12 January 2021. Certain tests were undertaken by Dr Baron-Levi who prepared a report for the insurer.
A Test of Memory Malingering (TOMM) was undertaken as a measure of exaggeration of symptoms and less than optimal performance or malingering. Dr Baron-Levi said that the results indicated, together with the clinical interview, that the claimant was catastrophising his pain situation. Dr Baron-Levi described catastrophising as something involving an exaggerated negative mental set brought to bear during actual or anticipated painful experience
Dr Baron-Levi said that the second of the test results, suggested that the claimant was not putting in a credible performance.
Dr Baron-Levi referred to a report of Ms Chamberlain dated 22 October 2020 from APM. He referred to the claimant being transported by ambulance to hospital and then an initial report from Ms Chamberlain. The panel does not have this. Apparently, Ms Chamberlain said that the claimant displayed catastrophising characteristics.
Dr Baron-Levi agreed with Ms Chamberlain’s assessment of the claimant and said that he believed that he was catastrophising or awfulising his situation which was borne of the fact that he had always been a fit and active person, had never been admitted to a hospital, apart from his birth, and that this setback was no doubt a shock to his system which appeared to overwhelm him.
In his opinion, the results of the TOMM, the measure of malingering, would suggest that the claimant may have been exaggerating his symptoms as a result of catastrophising his situation, whether deliberately or unwittingly.

Medical examination

The claimant was examined by Medical Assessor Jones and Medical Assessor Fukui on 1 August 2022. Their report follows and is adopted by the Panel.

Details of who attended the assessment

The Panel psychiatric assessment took place on 1 August 2022. It was via audio-visual link through the MS Teams platform, organised by the Commission.
Present were Mr Cvetkovski, Dr Atsumi Fukui and Dr Matthew Jones.
Mr Cvetkovski is a 37-year-old man who is currently living in Hurstville with his mother and father who are well and retired. He has a younger brother who is married with children and lives in Georges Hall. He described his relationship with his brother as “strange and love/hate” and they do not have daily contact, but they are there for each other.

Mr Cvetkovski was in a relationship until two months before the Panel assessment having met his partner in around July 2020. The Panel asked Mr Cvetkovski why the relationship ended, and he said that since his accident on 1 October 2020 he has had ongoing issues with anxiety, stress, his behaviours and his current situation. He said that he cannot say that it was 100 percent certain of the reason. He said there was a lot of fighting, and he became very needy and required help. He said there were other reasons, however he “asked her many times” and still has a lot of questions. He reported that he has never been married and has no children.
The Panel asked Mr Cvetkovski if he was currently working, and he said he is “attempting to”. He said he has had many failed attempts. He had a trial in a job a few months ago but encountered some issues with the Roads and Traffic Authority. He said that due to his post-traumatic stress disorder and anxiety he lost his commercial licence three weeks after the assessment. He had his medical examination for his class of licence approximately a month before the assessment. He previously had a road train licence as well as a motorcycle licence.
He said that his psychological issues are a big problem. He has had 17 incidents at his current work with a local company, however these have been minor. He is not able to do his job properly and he sometimes has small accidents.
Mr Cvetkovski stated that for the first six or seven months after the accident he could hardly work because he was heavily medicated. He was unable to work for the following 18 months. For the last two and a half to three months he had been trying to obtain work. He has spent more than a year at home. He said he was “kind of forced to go back” because AAMI terminated his payments, he lost everything, and he had no choice. He was not receiving any other income.
Mr Cvetkovski reported that he has returned to his previous employer, Sky Roads, having tried three or four others. He has had training for local container work using his HC licence and he is not loading or unloading. The containers have four attachment pins. The Panel asked him how he was finding the work and he said he struggles with it, and he “panics a lot”. He said the panic is his worst symptom and he is scared and wary about causing real issues or problems. He also reported that loud bangs startle him, and this was never an issue before the accident. He was ready to go work in the mines before the accident.
Mr Cvetkovski denied past history of mental health problems and specifically any history of anxiety, depression or trauma. The Panel addressed with him regarding the incident in 2014 when he was stuck in an elevator for half an hour with friends and he had some problems breathing. He avoided going in elevators for a few months. He had no treatment and his symptoms settled.
He has no family history of mental health problems.
Mr Cvetkovski has smoked tobacco and drinks alcohol but does not take recreational drugs. He said he drinks only if he goes out socially. He has no history of problematic gambling, no history of addiction to prescription medications and no history of excessive caffeine intake.
There was no forensic history. Mr Cvetkovski denied any history of work-related injury or worker’s compensation. He had no other major motor vehicle accidents, nor been involved in any other compensation or litigation process.

Psychosocial history

Mr Cvetkovski was born in the King George V Building at Royal Prince Alfred Hospital and grew-up in the St George area. His parents are still married, and he has a younger brother by four or five years. His mother worked at the airport and his father was a mechanic and truck driver. His parents are of Macedonian background.
Mr Cvetkovski denied having any perinatal complications and there was no history of postnatal depression in his mother. He had no major illnesses as a youngster and said he could not have asked for any better upbringing. He commenced his early schooling without incident and attended primary school at Carlton South Public School and then to Liverpool Boys High School finishing half-way through year 10. He subsequently completed the School Certificate a year later. He worked with his father in concreting and then moved into trucking and mechanical work. Mr Cvetkovski continued in mechanic work, initially with light vehicles, then heavy vehicles, and then started driving heavy vehicles. His goal was to drive road trains in the mines.
Mr Cvetkovski denied any childhood trauma, childhood sexual trauma or any bullying.
Mr Cvetkovski has had two significant relationships lasting between two to four years. He has no children.

History of the motor accident

The date of accident was confirmed as 1 October 2020. Mr Cvetkovski was alone in a work vehicle. He had come back from Brisbane, into the depot, parked the vehicle, entered his personal vehicle and went home for his 10 to 12-hour break. He said it was about 10.00pm, he had stopped, was stationary when he was rear-ended by another vehicle. He said he heard a bang and he “blacked out”. His seatbelt broke after his head hit the mechanism. He was taken to St George Hospital and remained there for a day and described his experience as “dark and black”. He stated that he has no clear memory of the accident.

History of symptoms and treatment following the motor accident

When asked what he felt around the time of the accident, Mr Cvetkovski said, “there was a big shock” and he tried to touch his legs and he thought he may have been “crippled”. He said the panic attacks and nightmares started within two to three weeks after the accident and the medications that he initially tried made him feel numb for about two weeks. He reported that his condition worsened. He reiterated that he was scared about his career, since he is required to have medical reports every 12 months and he had “never had anxiety and high depression before”.
Mr Cvetkovski reported that he experienced panic when he tried to drive the first few times after the accident. His stomach tensed, and he felt as if something was going to happen. He was not relaxed when he should have been. When he did resume driving there were a number of incidents, however he wanted to return to driving. He avoided the Grand Parade for a long time as he would remember the accident every time, he passed the accident site. The feeling as if “something is going to happen” mainly occurred when he was driving.
The Panel enquired specifically about any other psychological or emotional symptoms emanating from the motor vehicle accident. Mr Cvetkovski responded that he keeps “reliving it, the whole thing” and said he has “bad nightmares”. He becomes “very emotional” and has poor sleep. He said that his symptoms are tormenting him and he has never felt like this before.
He stated that he was previously hard working and ambitious but “everything has changed” since the accident. He stated that the accident and injuries have had a massive impact over the two years since the accident, and he has lost his savings and loved ones.
Mr Cvetkovski stated that he had never suffered from anxiety symptoms because he was “too busy for it”. However, when alone, he has bad nightmares and keeps reliving the accident. He reported that he has also died in his dream. When he is driving, he worries that someone is going to strike from behind him. He does not take his nieces in a car because of this fear.
From a physical perspective, Mr Cvetkovski developed problems with pins and needles in his left leg and in winter he gets tension in his lower back. He thinks he has an L5 nerve compression because he experiences numbness in his leg and also has sharp pains in his left shoulder. He has not had surgery but has undergone physiotherapy which was progressing quite well until AAMI “turned it into a minor injury”. He was attending physiotherapy three times a week for his lower back pain and shoulder-pain and he wishes to continue treatment. He attended treatment for six months until April.
The Panel asked about Mr Cvetkovski’s current physical condition. He said that his back pain has increased due to winter. The pain interferes with him being able to stay in one spot. He has lower back pain and cramps at the end of his shift at work.
With respect to treatment, Mr Cvetkovski attended his GP approximately four weeks after the accident. He was prescribed Lyrica, a pain medication and Zoloft. He continues to take Zoloft (sertraline), an antidepressant medication, at a low dose of 50mg.
Mr Cvetkovski was also referred to a psychologist, Vesna, whom he initially consulted every week since two and a half months after the accident. He also sees Dr Protilupac every month whom he saw before commencing treatment with Vesna. He speaks to Vesna weekly and sees her monthly.
Mr Cvetkovski thinks he did see a psychiatrist once, however the insurance company declined to cover the cost.
Mr Cvetkovski reported that he has spoken to Blue Ribbon, a crisis phone-line many times as he did not know what to do with his anxiety and stress levels.

Details of any relevant injuries or conditions sustained since the motor accident

Mr Cvetkovski reported that apart from his relationship breakdown there have been no relevant injuries, conditions or significant life events since the accident.

Current symptoms

Mr Cvetkovski reported that his sleep was “terrible” and he has “outrageous dreams” and nightmares. He also reported he has variable levels of vertigo, which is associated with anxiety. His appetite is low and he is eating poor quality food. His weight fluctuates by 5-10kg and is maintained around 70-80kg. His height is 165cm.
His energy levels are “just below active”, with occasional spurts and he occasionally sleeps during the day. He finds that his mind “doesn’t shut off”. He described his memory and concentration as impaired as he cannot focus for more than about twenty minutes before he starts to become restless. This can impact on his driving. He gets nervous quickly and is easily distractible and his anxiety symptoms come on immediately.
Mr Cvetkovski reported that he has isolated himself. He has not gone out to dinner or to pubs and has not engaged in social activities with his friends. He said he does not “have the passion” and has lost the will to care. He stated that he feels disgusting within himself and feels he looks disgusting.

Current and proposed treatment

Mr Cvetkovski is proposing to continue seeing his psychologist on a regular basis. He said he has not yet had a chance to find a psychiatrist for treatment and would be prepared to accept “better medication”.
He feels he would benefit from more physiotherapy but does not think he requires any surgery or other interventional procedures.

Mental state examination

Mr Cvetkovski appeared as a European male with neat, short hair and a long, dark beard. He had a solid build. He had a moustache. He wore a black top and there were no overt signs of neglect. He was polite, co-operative and attentive and displayed no abnormal movements. His speech was normal and there was no evidence of formal thought disorder or delusional thought processes. He denied any current thoughts of self-harm or thoughts of harm to others. When asked about his mood, he reported that he was anxious about life and felt that his career was at stake, and he also felt generally nervous. His affect was relatively bright and generally reactive, congruent and appropriate. He came across as a genuine historian. He denied any perceptual abnormalities. His cognition, insight and judgement appeared intact in the context of the interview. Rapport was excellent and Mr Cvetkovski spoke openly and freely.

Consistency of presentation

There were no inconsistencies in Mr Cvetkovski’s reported narrative or presentation to the Panel at assessment.

Diagnosis and causation

The Panel considered the diagnosis. The documentation supports a diagnosis of post-traumatic stress disorder, or at least a significant anxiety disorder. It is the Panel’s opinion that Mr Cvetkovski’s reported history of the accident and symptoms is consistent with a diagnosis of chronic post-traumatic stress disorder.
His condition meets the DSM-5 diagnostic criteria for post-traumatic stress disorder as follows (in bold):
A.   “Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1.Directly experiencing the traumatic event(s).
2.Witnessing, in person, the event(s) as it occurred to others.
3.Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4.Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
B.   Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s). Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
2.Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s). Note: In children, there may be frightening dreams without recognizable content.
3.Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.) Note: In children, trauma-specific re-enactment may occur in play.
4.Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5.Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C.   Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1.Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2.Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D.   Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia, and not to other factors such as head injury, alcohol, or drugs).
2.Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3.Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4.Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5.Markedly diminished interest or participation in significant activities.
6.Feelings of detachment or estrangement from others.
7.Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E.    Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.Irritable behaviour and angry outbursts (with little or no provocation), typically expressed as verbal or physical aggression toward people or objects.
2.Reckless or self-destructive behaviour.
3.Hypervigilance.
4.Exaggerated startle response.
5.Problems with concentration.
6.Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F.    Duration of the disturbance (Criteria B, C, D and E) is more than 1 month.
G.   The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H.   The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.”
The timing, nature and development of symptoms are consistent with the accident having been the cause of the development of Mr Cvetkovski’s post-traumatic stress disorder. From Mr Cvetkovski’s account, there was a sudden, frightening accident and he feared for his physical safety. There may have been some degree of numbness and dissociation, however he developed re-experiencing phenomena, hyper-alertness, avoidance behaviours and other symptoms over time consistent with the diagnostic concept of PTSD. He continues to have reported symptoms.

Examination outcome

The Panel adopts the report of Medical Assessors Fukui and Jones.

Minor injury

Statutory provisions

A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.
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 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include an acute stress disorder and an adjustment disorder.

106.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 minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A diagnosis for the purpose of a minor 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 minor 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:
“Minor psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a minor 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 minor injury.”

108.Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act at [10]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment at [11] apply. This is because Part 6 is specified as applying only to the assessment of permanent impairment.

Section 1.6(3) of the MAI Act says:
“A minor psychological or psychiatric injury (subject to this section) is a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 1 cl 4 (2) of the Regulations says:
“2) Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act
a)acute stress disorder
b)adjustment disorder
3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)

Conclusion

The claimant meets a diagnosis of post-traumatic stress disorder. This is a recognised psychiatric disorder and is a non-minor injury.

Determination

The Review Panel revokes the certificate of Medical Assessor Siderov dated 23 March 2021.
The Review Panel finds that the claimant has suffered a post-traumatic stress disorder.
The claimant has a non-minor injury.

[2022] NSWPICMP 489

30 November 2022