Dangol v Allianz Australia Insurance Limited
[2024] NSWPICMP 393
•20 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dangol v Allianz Australia Insurance Limited [2024] NSWPICMP 393 |
| CLAIMANT: | Nawa Dangol |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 20 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; post-traumatic stress disorder (PTSD); adjustment disorder with anxiety and persistent depressive disorder; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 23 July 2020; Medical Assessor (MA) Verma found claimant sustained an adjustment disorder with depressed mood which is a threshold injury for the purposes of the Act; Held – claimant did not satisfy DSM-5 criteria for PTSD due to the absence of avoidance symptoms; claimant sustained an adjustment disorder with anxiety and a persistent depressive disorder which is not a threshold injury; Medical Assessment Certificate of MA Verma revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Surabhi Verma dated 6 February 2023 and issues a new certificate determining that the following injury caused by the motor accident is not a threshold injury: · an adjustment disorder with anxiety; and · a persistent depressive disorder. |
STATEMENT OF REASONS
INTRODUCTION
On 23 July 2020 Mr Nawa Dangol (the claimant) was driving his vehicle at Woodbine when the insured vehicle turned right across his path colliding with the front of his vehicle and causing all airbags to deploy (the accident).
Mr Dangol lodged an Application for personal injury benefits dated 27 July 2020 in which he documented the following injuries he sustained in the accident:
· small bruise on seatbelt – area on my hip;
· chest wall discomfort – on seatbelt area;
· neck pain and fells weird and tired;
· pain and numbness on left shoulder, and
· headache.[1]
[1] Claimant’s bundle p 23.
AAI Limited trading as GIO (the insurer) is the relevant insurer under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Dangol’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the motor accident were threshold injuries.
On 8 March 2022 the claimant served on the insurer a report of Ivan Bakich, psychologist dated 13 January 2022 and invited the insurer to revise their liability decision on the basis Mr Bakich had diagnosed post-traumatic stress disorder which was a non-minor (threshold) injury.[2]
[2] Claimant’s bundle p 28.
On 22 April 2022 the claimant requested an internal review pertaining to the minor (threshold) injury decision based on the opinion of Mr Bakich.[3]
[3] Claimant’s bundle p 30.
The insurer issued a Certificate of Determination dated 10 May 2022 affirming the original decision following completion of the internal review.[4]
[4] Claimant’s bundle p 32.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[5]
[5] Section 7.20 of the MAI Act.
Medical Assessor Verma issued a certificate dated 6 February 2023 in which he certified that the psychological injury sustained by Mr Dangol caused by the accident was a minor (threshold) injury.
The claimant has sought a review of the certificate of Medical Assessor Verma.
DOCUMENTS BEFORE THE REVIEW PANEL
The Review Panel (Panel) issued a Direction to the parties on 20 November 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal documents paginated from pages 1 to 84 (claimant’s documents). The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 437 (insurer’s documents).
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)adjustment disorder.”
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
ASSESSMENT UNDER REVIEW
Medical Assessor Surabhi Verma issued a certificate dated 6 February 2023 in which he certified the following injury caused by the accident was a minor (threshold) injury for the purpose of the MAI Act:[6]
· adjustment disorder with depressed mood.
[6] Claimant’s bundle p 10.
The insurer referred for assessment was:
· psychiatric condition – major depressive disorder, generalised anxiety disorder, panic disorder and post-traumatic stress disorder.
The claimant was 41 years of age at the time of the accident. He worked as an operation assistant at St George Hospital. He has not worked since the accident.
Medical Assessor Verma reported a few hours after the accident Mr Dangol started experiencing uneasiness, shoulder and neck pain. He saw Dr Darwish neurosurgeon for his physical injuries. He attended physiotherapy and had cortisone injections which alleviated some of his shoulder pain. It was suggested he undergo surgery for his back pain although this has not been approved by the insurer.
Mr Dangol reported he developed mental health issues soon after the accident. He started ‘fearing cars’, feeling low and was worried he wasn’t able to contribute to the household. He was irritable, snappy and started having conflicts with family members. His sleep was disturbed and he had nightmares of falling in a trench. He had nightmares at least twice a week and he felt “blank” at times. His appetite was disturbed and he described some impairment of his attention and concentration although he was still able to do some gardening, household chores and care for his children.
Medical Assessor Verma found the claimant presented with symptoms consistent with an adjustment disorder with depressed mood. He found Mr Dangol did not have enough symptoms to be diagnosed with major depressive disorder. He noted his function was improving and he had been socialising with extended family members. He reported feeling positive about the future and denied any worthlessness, hopelessness or helplessness.
Medical Assessor Verma found Mr Dangol did not report experiencing pervasive anxiety occurring more days than not for at least six months to satisfy the criteria for the diagnosis of generalised anxiety disorder.
In relation to panic disorder Medical Assessor Verma found Mr Dangol did not have persistent concern or worry about additional panic attacks or their consequences or significant maladaptive change in behaviour related to the attacks.
In relation to post-traumatic stress disorder, he stated Mr Dangol reported having intrusive symptoms like nightmares but he did not have prominent avoidance symptoms which were required for the diagnosis.
OTHER MEDICAL ASSESSMENTS
Certificate of Medical Assessor Jonathan Herald
Medical Assessor Herald issued a certificate dated 17 November 2021 in which he certified the following injuries caused by the accident were threshold injuries for the purposes of the MAI Act:
· lumbar spine – soft tissue injury;
· cervical spine – soft tissue injury, and
· left shoulder – impingement syndrome.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Verma within 28 days of the date on which his certificate was made available to the parties.
On 5 April 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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.[7]
[7] 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.
Treating medical records
iFamily Medical Centre
Mr Dangol consulted Dr Mohammad Awais, general practitioner (GP) on 23 July 2020. Dr Awais recorded:
“the pt was driving n a 50 zone rd when a car coming from opposite side took a sudden turn and ended up right in front of his car
there was a head on collision
all the air bags in the car were deployed.
he denies any head injury
a small bruise on his seat belt area in his hip
some chest wall discomfort on the seat belt area
neck feels a bit weird and muscle appear tight
he also has some left shoulder pain issues.
…Says he feel stressed and stil in trauma about what happened [sic]”.[8][8] Insurer’s bundle p 95.
In a Certificate of capacity dated 23 July 2020 Dr Awais diagnosed “acute stress reaction”.[9]
[9] Claimant’s bundle p 46.
On 8 December 2021 Dr Awais referred Mr Dangol to Mr Ivan Bakich psychologist for depression issues.[10]
[10] Insurer’s bundle p 248.
On 17 February 2022 Dr Awais reported Mr Dangol had been diagnosed with “PTSD and Major Depressive Disorder”.[11] Dr Awais recorded the claimant felt down and depressed, he was angry, and irritable. Dr Awais completed a GP Mental Health Treatment Plan.[12]
[11] Insurer’s bundle p 74.
[12] Insurer’s bundle p 313.
Dr Awais issued a Certificate of capacity dated 11 March 2022 when he added the additional diagnoses of major depression, general anxiety issues and post-traumatic stress disorder to the diagnosis of acute stress reaction.[13]
[13] Claimant’s bundle p 82.
On 18 January 2021 Dr Darwish recommended the claimant undergo foraminal discectomy and decompression of the left C5, C6 and C7 nerve roots.[14] The insurer declined liability for the proposed surgery.
Mr Ivan Bakich, clinical psychologist
[14] Insurer’s bundle p 161.
Mr Bakich provided a report dated 28 February 2022.[15] He reported the claimant was a
40-year-old person who presented with sadness more days than not, lack of energy, lack of motivation, loss of interest in activities he previously enjoyed, insomnia, loss of libido, increased irritability and suicidal ideation. He reported excessive worries, feeling/being keyed up and on edge; and intrusive and avoidant memories of the accident. He reported flashbacks of the accident, intrusive dreams and nightmares and fear of driving when children were in the car. He noted; “He reported symptoms closely resembling symptoms of PTSD”.[15] Claimant’s bundle p 43.
He reported as a result of the accident Mr Dangol was suffering from the following:
(a) major depressive disorder, severe, recurrent, with melancholic features;
(b) generalised anxiety disorder;
(c) panic disorder, and
(d) posttraumatic-stress disorder.
SUBMISSIONS
Claimant’s submissions
The claimant provided undated submissions in support of the application for review.[16] The claimant submitted Medical Assessor Verma failed to effectively engage with the medical material provided to him and the opinion of the claimant’s treating practitioners Dr Awais and Mr Bakich as to a diagnosis of post-traumatic stress disorder.
[16] Claimant’s bundle p 1.
The claimant notes that the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for the diagnosis of post-traumatic stress disorder requires criterions A to H to be satisfied. Criterion C discusses avoidance to be affiliated with distressing memories, reminders and thoughts of the accident.
Medical Assessor Verma noted in his certificate that the claimant “would feel scared about the accident… He currently reports ongoing negative ruminations, nightmares…He is able to drive but feels apprehensive when a car comes close to him…”. The claimant submits these symptoms satisfy Criterion C and are consistent with the medical records. Mr Bakich identified symptoms including “intrusive and avoidant memories of a MVA [sic]” and Dr Awais provided a diagnosis of post-traumatic stress disorder.
The claimant provided undated submissions in support of the application for determination of the threshold injury dispute. The claimant relies upon the opinion of Mr Bakich and Dr Awais.
The claimant notes in his report dated 28 February 2022 Mr Bakich reported as a result of the accident Mr Dangol is suffering from the following:
(a) major depressive disorder, severe, recurrent, with melancholic features;
(b) generalised anxiety disorder;
(c) panic disorder, and
(d) posttraumatic-stress disorder.
In relation to the insurer’s position that there is insufficient evidence that the correct diagnoses presented by Mr Bakich meets the relevant DSM-5 criteria, the claimant notes that Mr Bakich states his diagnosis is made according to DSM-5. Mr Backich also identifies symptoms suffered by the claimant including:
“…excessive worries, feeling/being keyed up and on edge, and intrusive and avoidant memories of the accident. Mr Bakich notes that the claimant continues to suffer from flashbacks of the accident, intrusive dreams and nightmares, and fear of driving when children are in the car.”
The claimant also notes that Dr Awais provided a diagnosis of post-traumatic stress disorder in his Certificate of capacity dated 11 March 2022.
Insurer’s submissions
The insurer provided submissions dated 14 March 2023.[17]
[17] Insurer’s bundle p 2.
The respondent notes Criterion C of the DSM-5 includes persistent avoidance of stimuli associated with the traumatic event beginning after the traumatic event occurred. The insurer notes Medical Assessor Verma found the claimant did not have prominent avoidance symptoms.
It is also noted that the claimant, whilst apprehensive was driving post-accident. Further the insurer submits that driving slowly to maintain a good distance from other cars does not constitute avoidance symptoms.
The insurer submits Medical Assessor Verma engaged with the report of Dr Bakich where on pages 9 and 11 of her certificate she considered his various diagnoses.
The insurer provided submissions dated 19 August 2022 in relation to the initial threshold injury dispute.[18]
[18] Insurer’s bundle p 6.
The insurer highlights the delay in any allegation of psychological injury. Not only was psychological injury not alleged in the Application for personal injury benefits but consultations with 1 Family Medical Centre between 27 July 2020 and 6 December 2023 do not reference any psychological symptomology. The first reference to “PTSD and major depressive disorder” within the records of 1 Family Medical Centre is on 17 February 2022. The insurer also notes that the first consultation with Mr Bakich was on 13 January 2022, which is over 1.5 years post-accident.
THE MEDICAL EXAMINATION
Mr Dangol was interviewed by Senior Medical Assessor Mason and Medical Assessor Chew on 17 June 2024 using the Microsoft Teams application with a good internet connection. The interview commenced at 11.30am and concluded at 12.55pm.
Brief personal details
Mr Dangol is a 42-year-old married man who lives with his 40-year-old wife Astha and two children, an 11-year-old son and a 6-year-old daughter in their own South Western Sydney home.
Psychosocial history
Mr Dangol was born in Kathmandu Nepal. He described a normal birth and development and is the second of six children consisting of three males and three females. His 65-year-old father is a retired builder and his 64-year-old mother did not work. He described a normal family life and denied any form of abuse throughout childhood. He attended a private boarding college in Kathmandu from year K to year 10 at which English was the spoken language. He then left school and completed years 11 and 12 on his own, completing the Higher School Certifice (HSC) equivalent in 2005. He went on to study Spanish for two years at a private college and was awarded a certificate.
On leaving school Mr Dangol started a hardware and construction material supply business from his home. He said he did this for three or four years and made a living. He married in 2007 and then migrated to Australia with his wife who completed cooking courses and later studied nursing.
Mr Dangol said initially it was hard to find work in Australia. He undertook cleaning and painting jobs and went to the country for two week periods to earn money while his wife studied. He then found a permanent cleaning job and in 2008, found work with a catering company contracted to the World Youth Day for the visit of Pope Francis. He subsequently obtained work in the kitchen at Prince of Wales Hospital Randwick and the Forensic Hospital at Malabar. This continued until 2012 when he obtained a position as an assistant in the operating theatre suite at St George Hospital. He was not working as a nurse and was responsible for the transport of patients, supplies and blood. He worked in this role until the accident.
Leisure activities prior to the accident consisted of playing soccer and going swimming with family and friends. Mr Dangol enjoyed outings with the children, taking them to the park and to swimming and martial arts lessons. He said his wife has a large extended family with a number of cousins in Sydney and they enjoyed getting together.
Mr Dangol denied any past insurance claims and denied any history of problems with the law. He stated there had been no major medical problems in the past and he had not undergone surgery. He was not on any regular medication prior to the accident. He denied both past and family history of psychiatric illness.
Mr Dangol said he smokes three or four cigarettes per day. He consumes one or two glasses of red wine three or four times weekly. He denied the use of recreational drugs and gambling. He said he had not used cannabis for pain control.
Current medications consist of Mobic (Meloxicam) twice daily and Panadeine Forte (Paracetamol 500mg/Codeine 30mg) twice daily plus extra for breakthrough pain. He said he was using Lyrica (Pregabalin) in the past but had stopped regular use. Mr Dangol said he occasionally takes Lyrica if he develops a bad migraine headache which can last for two or three weeks.
History of the accident
The accident occurred at 8.45am on 23 July 2020. Mr Dangol was travelling in a south easterly direction on North Steyne Rd Woodbine. He said an oncoming vehicle made a right-hand turn across his path into Cronulla Crescent resulting in a head on collision. He said there was no time to apply the brakes and all airbags deployed. He was wearing a seatbelt. His two children were in the rear seat, one on a booster and the other in a capsule. His children were screaming and crying and smoke was coming from the car. He said he got out quickly to attend to the children and bystanders helped them exit the vehicle. Emergency services attended. Because the children were not bleeding he stated he did not need an ambulance. Mr Dangol said his son had a seatbelt bruise and his daughter was okay. He took time to settle the children and after 10 or 15 minutes phoned 000. Police and Fire & Rescue attended and people gathered to help. He said nobody was bleeding so an ambulance was not necessary.
Mr Dangol denied head injury or loss of consciousness. Injuries consisted of a small bruise from the seatbelt on his hip, chest wall discomfort in the seatbelt area, neck pain, pain and numbness in his left shoulder, and headache. He phoned his cousin who collected them and took them home. He also phoned his wife who came home from work. Mr Dangol said the motor vehicle was written off by the insurer.
History of symptoms and treatment following the accident
Mr Dangol said he was initially shocked and disorganised and was unable to sleep that night because of discomfort in his shoulder and neck. He said his neck was swollen so he went to see his regular GP Dr Awais. He ordered X-rays and an ultrasound which he said revealed multiple disc bulges and a pinched nerve. He was referred to neurosurgeon Dr Darwish who ordered an MRI scan. Mr Dangol was referred for physiotherapy which he attended for approximately 12 months. He said it helped to some degree but did not get rid of the pain. Dr Darwish then followed this up with cortisone injections to his neck and shoulder. Mr Dangol said these helped somewhat but the pain came back. He said he had a constant pain in his neck and both shoulders with the left worse than the right and the pain was radiating down into his arms.
Mr Dangol described disturbed sleep. He found it hard to get to sleep and woke in the middle of the night due to pain. He said the pain was also constant throughout the day. On direct enquiry he said he did not have any cervical surgery. He said up until that point he was always hopeful of getting better. He was commenced on Lyrica which he took for quite some time but in the end it did not make a lot of difference. He stopped using Lyrica except when he developed a bad migraine. He was commenced on an anti-inflammatory agent (Meloxicam) and Panadeine Forte which he continues to use.
Mr Dangol was asked about psychological symptoms. He said in the beginning he was hopeful his physical injuries would resolve but as this did not happen he began to lose confidence. He described being unable to drive due to the fear of having another motor accident and he became particularly anxious if other vehicles came too close. He said he became quite depressed because he was unable to help the family with the household work although he gradually tried to do a little bit. He said because it was necessary for his wife to work he started to drive the children to school after a few weeks. This took approximately 8 to 10 minutes.
Mr Dangol described the development of flashbacks. He said he could not say exactly when they started but they caused him more anxiety. He was asked to describe the flashbacks and he said if he wakes up from sleep he finds himself thinking about the accident. He also said if he is sitting alone not doing very much they accident comes into his mind. He said this affected him in his daily life and makes him restless and he finds it hard to breathe. He said it grips him with fear. He added at times he has a vision of after the impact and he sees and hears it as well. The Panel attempted to clarify the nature of these symptoms and it emerged that while there were reminiscences there were also visual images which were true flashbacks.
Mr Dangol was asked if he had traumatic dreams about the accident. He said he does have dreams of falling down the stairs or of another car ramming him. He added he has not had a pleasant dream since the time of the accident. He said when he is sitting alone he gets lost in his thoughts. He said he is unable to drive long distances due to pain and fear. He has managed to travel in a car for three hours as a passenger but needed to take regular breaks.
When asked about mood Mr Dangol said he has constantly been very unhappy and has not been able to enjoy anything since the accident. He said he gets very angry over minor issues.
This impacts badly on his children and his relationship with his wife. Mr Dangol said he feels useless because he cannot do anything and he feels very upset because he is unable to play with his children. However, he has not attempted to harm himself. He said it has crossed his mind that he should go away for a long time. He is distressed that he has been unable to earn and he feels like a failure because he is not a good husband and father. He also said his concentration is diminished.
When asked about the future Mr Dangol said he feels absolutely hopeless because he will not be able to do anything. He is unable to play with his children and it falls on his wife to do all the work to earn money for the family. He said with great sadness his daughter was three years of age when the accident happened and he has not even been able to pick her up. He regrets he has lost that time when they could have been developing a closer relationship and he cannot get it back.
When asked about treatment he said he attended regular counselling with a psychologist Mr Bakich. This was initially on a weekly basis and then fortnightly. His said his GP had not prescribed any psychotropic medication and he had not consulted a psychiatrist.
Injuries or conditions since the accident
Mr Dangol denied any injuries or conditions since the accident.
Current symptoms
Mr Dangol said he continues to feel depressed because he is unable to work and enjoy being with his children. He continues to experience fear while driving and has ongoing dreams and images of the accident. He described a sense of helplessness and hopelessness in regard to the future but denied suicidality. He did not endorse avoidance symptoms and is able to travel past the site of the accident.
Current and proposed treatment
He currently continues to see his psychologist infrequently through Medicare funding. He said it is not frequent enough although he does feel better after a session. He continues to consult with his neurosurgeon Dr Darwish. He also attends physiotherapy sessions through Medicare funding and again said this is insufficient to provide lasting relief of pain.
Mental State Examination
Mr Dangol is a right-hand-dominant 42-year-old male whose appearance is consistent with his stated age. He was identified from his photograph on his NSW driver's licence. He was located in his home in South Western Sydney. His wife was present throughout the interview for his support but made no contribution.
Mr Dangol was neatly dressed and well presented. He was depressed in appearance and his range of affective expression was restricted. He did not smile throughout the interview but was not overtly tearful or extremely distressed. He described significant neck, shoulder and arm pain – worse on the left than the right – but there was no evidence of pain behaviour throughout the interview. He described no enjoyment in life and regretted his inability to engage actively with his children because of pain.
In addition, Mr Dangol described fear of driving, intrusive recollections of the accident and frightening dreams. He also experienced flashbacks. He denied avoidance symptoms when specifically questioned.
Mr Dangol was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current functioning
Self-care and personal hygiene: Mr Dangol said he showers regularly although he needs assistance from his wife to wash his back. He wears clean clothing. He attempts to contribute to the household work within the limits of his physical capability.
Social and recreational activities: Mr Dangol said he does nothing except he takes the children to the park. He said they have had to cease taking them to swimming and martial art lessons because of fear of driving and finances. He said he does not see any friends. He sees less of his wife's extended family because he does not feel like social activity.
Travel: Mr Dangol can drive for only 10 to 15 minutes due to fear and pain. He has been able to catch a train if accompanied. He flew overseas to Nepal with his family one year ago.
Social functioning: Mr Dangol said his wife is supportive but he is difficult to live with. He said he does make efforts to try to get along but he is verbally aggressive towards her and the children and then is sorry for his behaviour. He said they are not in danger of separating.
Concentration, persistence and pace: He said he is able to concentrate on a television program for approximately 45 minutes. He tends to read on his phone or computer. He did not appear to have significant concentration difficulties throughout the interview.
Adaptation: Mr Dangol is unable to work because of his physical injuries. He does some housework at home such as washing dishes and preparing lunch for the children. He does some cooking and laundry but is unable to take it out of the washing machine and hang it out. He said he cannot do any of the yard work.
Consistency of presentation
Mr Dangol was asked why the GP had not recorded psychiatric symptoms until December 2021 when he learned his physical injury was classified as minor (threshold). Mr Dangol said up until then he had hoped his physical injuries would improve but when no further treatment was available from the insurer he felt life was absolutely hopeless.
The Panel pointed out he did not let his GP know about his fear of driving and the flashbacks; he explained this was because he was focussing on a physical cure at that time. Mr Dangol said the psychological symptoms were present, but they were not as important as the physical symptoms. He said he had multiple disc bulges and pain from compression and when the insurer ceased funding he became totally hopeless. He said he felt every door closed on him. He said he ignored his wife and children and spent a lot of time sitting alone. He was then referred to the psychologist who helped by listening and encouraging him. From the description of the sessions, he was not provided with trauma-related CBT (cognitive behavioural therapy) or EMDR (eye movement desensitisation and reprocessing). Nonetheless he said he found the sessions helpful.
In general terms Mr Dangol's presentation was internally consistent, consistent with the documentation provided and consistent with the diagnoses the Panel has made.
PANEL DETERMINATION
Mr Dangol is now 42-year-old man who was involved in accident on 23 July 2020, now 3 years and 11 months ago. It was a frightening accident in that an oncoming vehicle turned across his path resulting in a head on collision. His two young children were in the back seat of the vehicle. He developed soft tissue injuries to the cervical and lumbar spine and an impingement syndrome in his left shoulder.
There was no reference in the GP record to psychological injury apart from acute stress disorder until December 2021 after he learned his physical claim had been assessed as minor (threshold injury). He then consulted treating psychologist Mr Ivan Bakich who diagnosed major depressive disorder, generalised anxiety disorder, panic disorder and post-traumatic stress disorder but did not justify these diagnoses.
Medical Assessor Surabhi Verma issued a certificate dated 6 February 2023 in which she determined Mr Dangol has sustained an adjustment disorder with depressed mood caused by the accident, a threshold injury. She noted some post-traumatic stress disorder like symptoms but stated avoidance symptoms were not prominent and he did not meet the full DSM-5 criteria for that diagnosis.
Diagnosis
The Panel was in agreement with Medical Assessor Verma that Mr Dangol did not satisfy DSM-5 Criterion C for post-traumatic stress disorder in that he did not describe avoidance symptoms, prominent or otherwise. He did however meet all other DSM-5 symptoms for post-traumatic stress disorder. In this regard a diagnosis of adjustment disorder with anxiety is appropriate.
However, it was clear from his description of symptoms and his presentation as described in the mental state examination that Mr Dangol has suffered persistent depressed mood since the time of the accident. The Panel diagnosed Persistent Depressive Disorder. He satisfied Criterion A in that he described depressed mood most of the day for more days than not for at least two years. He satisfied Criterion B with complaints of insomnia, low energy and fatigue, low self-esteem, poor concentration, and feelings of hopelessness. He meets Criterion C in that the symptoms have never been absent for more than two months at a time. Criterion D is met although major depressive disorder has not been present. Criterion E is met because there has never been a manic or hypomanic episode. Criterion F is met because the condition is not better explained by another psychiatric disorder. Criterion G is met because the condition is not due to a substance or another medical condition. Criterion D is met in that it causes impairment in social and occupational functioning.
Causation
In Briggs v IAG Limited trading as NRMA Insurance[19] his Honour Justice Wright stated at [35]:
[19] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
Mr Dangol was involved in a frightening motor accident which did meet Criterion A for post-traumatic stress disorder in that it was a potentially life threatening head-on motor accident. His anxiety was increased by the fact that his children were in the car. The Panel were of the opinion that the accident was capable of causing a significant psychiatric condition.
Notwithstanding, Mr Dangol failed to report his psychological symptomatology until September 2021 but having regard to the test of causation outlined in Briggs, Mr Dangol’s explanation for the absence of complaint, and the absence of any other causative event the Panel is satisfied Mr Dangol initially suffered an acute stress disorder which was consistent with the accident.
Mr Dangol went on to develop an adjustment disorder with anxiety and a persistent depressive disorder. The Panel was satisfied these conditions were caused by the accident.
The Panel finds the claimant has sustained a recognised psychiatric injury which is not a threshold injury in accordance with s 1.6 of the MAI Act and Part 1 cl 4(2) of the MAI Regulation.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Surabhi Verma dated 6 February 2023 and issues a new certificate determining that the following injury caused by the motor accident is not a threshold injury:
· an adjustment disorder with anxiety; and
· a persistent depressive disorder.
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