Dokoza v AAI Limited t/as GIO
[2023] NSWPICMP 626
•28 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dokoza v AAI Limited t/as GIO [2023] NSWPICMP 626 |
| CLAIMANT: | Lidia Dokoza |
| INSURER: | AAI Ltd t/as GIO |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 28 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant involved in a motor accident on 2 September 2020 from rear-end collision; issue of threshold injury; claimant re-examined by both Medical Assessors; finding of non-threshold psychological injury based on the absence of prior psychological history, the absence of any other explanation for the psychological symptoms, acceptance based of the claimant’s account of her symptoms and presentation and the observations of the treating psychologist; Held – medical assessment revoked; finding made that claimant suffered a non-threshold psychological injury. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review revokes the certificate dated 31 March 2022 and certifies that the claimant sustained a non-threshold psychological injury cause by the motor accident. |
REASONS
BACKGROUND
Ms Lidia Dokoza (the claimant) sustained injury in a motor accident on 2 September 2020. The claimant was a driver of a stationary vehicle at traffic lights when she was rear-ended by the insured.[1]
[1] Insured bundle, p 24.
The insurer is liable to pay to Ms Dokoza any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issue presently in dispute is whether Ms Dokoza’s psychological injury caused by the motor accident are a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be 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. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Medical Assessment
The medical dispute was referred to Medical Assessor Hong who issued a Medical Assessment Certificate dated 31 March 2022 (the medical assessment certificate).[3] Medical Assessor Hong found that the motor accident caused an adjustment disorder which was a minor injury as defined in the MAI Act.
[3] Insurer’s bundle, p 204.
The Medical Assessor noted the development of a neck tremor approximately six weeks after the accident but made no diagnosis of those symptoms.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The medical assessment certificate was issued when the relevant term was minor injury which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
The medical assessment certificate and the parties’ submissions were made prior to 1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The claimant applied for a review of the medical assessment.
The President’s delegate referred the matter to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[5] 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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
OTHER MEDICAL ASSESSMENTS
Medical Assessor O’Neil provided a certificate dated 29 June 2022[9] when he concluded that the claimant’s tremor was psychosomatic or functional. He also concluded that the claimant did not have cervical dystonia with tremor.
[9] Insurer’s bundle, p 221.
Medical Assessor O’Neil concluded:[10]
“I believe stress related to the accident is a major factor in the current presentation and I believe Ms Dokoza should be separately assessed by a psychiatrist.”
[10] Insurer’s bundle, p 226.
Medical Assessor Woo provided a certificate dated 23 April 2022.[11] The Medical Assessor concluded that the claimant suffered a number of injuries which were “soft tissue” injuries as defined in the MAI Act.
[11] Insurer’s bundle, p 213.
Medical Assessor Woo noted the claimant had headaches and dystonic tremor which was outside his area of expertise.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[12]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[12] This sub-section was amended by Amendment Act, Schedule 1 [5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that an acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association in May 2013 (DSM 5).
The assessment of a psychiatric illness otherwise must be made based on DSM 5.[13]
[13] Clause 5.11 of the Guidelines.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[14]
SUBMISSIONS
Claimant’s submissions undated[15]
[14] See s 3B(2) of the Civil Liability Act 2002.
[15] Insurer’s bundle, p 59.
These submissions contested the insurer’s internal review decision.
The claimant submitted that a number of significant injuries, including psychological injury, were caused by the motor accident which were non minor. Reference was made to the general practitioner (GP) referral dated 14 January 2021 which diagnosed “anxiety and depression with potential PTSD”.
Claimant’s submissions dated 28 April 2022[16]
[16] Claimant’s bundle, p 1.
These submissions contested the medical assessment. The claimant referred to the opinion provided by Ms Rosanna Genua, psychologist in a report dated 8 June 2021 who diagnosed Major Depression and Generalised Anxiety Disorder.
The claimant referred to the decision of David v Allianz[17] and Lynch v AAI Ltd[18] that a non-minor injury could occur at any time. Having regard to the opinion of Ms Genua, the claimant’s condition at a prior time satisfied the definition of a non-minor injury.
Insurer’s submissions dated 31 March 2021[19]
[17] [2021] NSWPICMP 227.
[18] [2022] NSWPICMP 6
[19] Insurer’s bundle, p 72.
The insurer submitted that the GP has not provided a specific psychological diagnosis.
The insurer noted the claimant’s psychologist made a diagnosis of major depressive disorder and generalised anxiety disorder due to an alleged tremor that developed since the motor accident.
The insurer submitted that the photographs show minimal damage indicative of a low velocity collision and that the psychological injures are grossly disproportionate to the mechanism of injury. It submitted the psychologist’s diagnosis “cannot be substantiated”.
MATERIAL BEFORE THE REVIEW PANEL
Post-accident medical records
The claimant presented to hospital on the day after the motor accident complaining of back, neck and hand pain.[20]
[20] Insurer’s bundle, p 28.
A claim form dated 9 September 2020[21] referred to the motor accident causing varying symptoms including spasm, anxiety and “PTSD”.
[21] Insurer’s bundle, p 22.
Subsequent certificates noted severe back pain caused by the motor accident.[22]
[22] Insurer’s bundle, p 51.
On 12 October 2020 the GP referred the claimant to Dr Griffiths for opinion and management of a new tremor that commenced after a spinal MRI scan.[23]
[23] Insurer’s bundle, p 40.
Dr Griffiths, neurologist, provided a report dated 18 December 2020. The doctor noted a history of the claimant developing tremors after she underwent an MRI scan on 6 October 2020.[24]
[24] Insurer’s bundle, p 42.
Dr Griffiths found no sinister neurological process and diagnosed a functional tremor. The doctor referred the claimant to a psychologist who specialised in functional tremors.
In response to the insurer’s questions dated 8 December 2020, Dr Griffiths diagnosed secondary tremors caused by the motor accident that developed after the MRI scan.[25]
[25] Insurer’s bundle, p 149.
Dr Balaji Kalband, neurologist, opined that the claimant suffered from dystonic tremors and recommended gabapentin.[26]
[26] Insurer’s bundle, p 182.
Ms Rosanna Genua, psychologist provided a report dated 8 June 2021.[27] The psychologist opined that the reported symptoms were consistent with the DSM 5 diagnosis for Major Depressive Disorder and Generalised Anxiety Disorder due to the claimant’s reaction to her injuries, pain and tremor.
[27] Insurer’s bundle, p 177.
Photographs of the motor accident show minor front damage to the insured vehicle.[28]
[28] Insurer’s bundle, pp 108-109.
MEDICAL EXAMINATION
The claimant was examined by both Medical Assessors on 24 November 2023. The examination report is as follows.
“Background
The Medical Assessors examined Ms Dokoza at 1pm on 24 November 2023 via telehealth using the Microsoft Teams application. Ms Dokoza was unaccompanied for the interview and located at her home.
Ms Dokoza lives with her husband and three children aged 13,11 and 9 years. She is in receipt of the carer’s payment for her 11-year-old son who has autism.
The Subject Motor Accident
When asked to describe the motor accident, the claimant reported that on 2 September 2020 she was stopped at traffic lights driving a Jeep Grand Cherokee with towbar. On her way to pick the children up from school when she was rear ended by a Toyota Yaris hatchback travelling around 50 km/hr.
The claimant said that after the impact she remembered calling her husband to collect the children. Both parties got out from the vehicles and exchanged information. She reported that she immediately at the time of the motor accident experienced pain in her upper back, shoulders and neck. She recalled phoning the police. She was not knocked unconscious in the motor accident.
The vehicles had to be separated as the towbar fixed to her vehicle had become stuck in the front end of the other car. Once separated the claimant was able to drive her vehicle to consult her GP soon after the motor accident. The claimant said that her GP diagnosed her with whiplash injury.
Symptoms
The claimant reported that she experienced pain in her neck, shoulders, upper back and attended her GP immediately after the accident. The claimant said that the next day her shoulders were ‘seizing up’ so she attended Fairfield hospital for x-ray. The claimant was discharged after about 6 hours.
The claimant reported that the pain was ongoing from the date of the motor accident until the time of this re-examination. Around a month after the motor accident
latershe started to develop a tremor in her neck. She said that this occurs daily and is made worse by movements of the head and neck. She said that this causes pain which is severe and debilitating.The claimant said that because of the pain and tremor she
hasfelt low in mood. She feels depressed and down and worries she is a failure most days. She feels worthless. Her sleep is poor, and she is woken up by pain and tremor most nights. The claimant reported she was unable to sleep in a normal bed. She had changed to sleep in a recliner chair such that her neck and head can be supported in sleep. Her weight has fluctuated. At the time of this assessment, she had gained more than 30 kgs in weight. She has had thoughts of just ‘leaving’ and has felt hopeless for her future. She often suffers from depressive ruminations and finds herself thinking that her family is ‘better off without her’. She has withdrawn from most social activities. She attends much fewer events with her children. She attended about one quarter of her usual sporting games she would have attended with her children prior to the motor accident. She typically cancels or withdraws from social engagements with her family.Treatment
The claimant attended her GP and neurological specialists regarding the tremor and pain. The claimant has had multiple investigations including a sedated MRI scan of her brain. The claimant has been prescribed various pain relief medications and also was administered two Botox injections which only provided partial relief.
The neurological medical opinion is that the tremor is not caused by any identified organic medical condition. The neurological opinion concurred with the conclusion that the tremor was functional in nature. She was compliant with the use of gabapentin as a pain management strategy, but this caused excessive weight gain.
The claimant has attended his GP regarding psychological symptoms. The claimant trialled Effexor XR 37.5mg but found no benefit. She has attended psychological therapy with a psychologist, Rose. The claimant continued to attend the psychologist for her ongoing injury suffered in the motor accident.
The claimant has not attended a pain management clinic. The claimant was not referred to a pain clinic by her medical team.
Current and Proposed Treatment
The claimant is currently attending physiotherapy. The claimant engages in hydrotherapy and swimming.
The claimant’s medication includes propranolol, Circadin, Zofran and neurofen. The claimant’s general practitioner prescribed these medications.
She claimant attends psychological therapy with Rose approximately monthly.
Past Psychiatric History
The claimant denied any past psychiatric history.
Medical History
The claimant reported a past motor accident 20 years ago where she fractured her right hand and had a slipped disc. She had no psychological or psychiatric issues from this accident.
Personal History
The claimant was born and raised in Australia. She went to high school in Campbelltown and completed year 10. She then worked in retail at David Jones. Her parents divorced over 25 years ago. She is the youngest of 3 siblings. She has a paternal aunt with schizophrenia. Her grandmother had issues with alcohol.
The claimant’s paternal grandfather passed away a few years ago from ‘old age’ and Parkinson’s Disease. He had been bed ridden for 2-3 years prior. The claimant stated that she had been medical advised that she did not have Parkinson’s Disease herself.
The claimant reported being close to her parents and sister, talking with them regularly. She has a good relationship with her nieces and nephews.
She does not drink alcohol or use cannabis or recreational drugs. She smokes around 10 cigarettes a day. She drinks 1-2 coffees a day.
She is not a victim of abuse.
Mental state examination
The claimant appeared reasonably and appropriately groomed. She engaged freely and easily. She reported a ‘depressed mood’. Her affect was restricted to the dysphoric range. Her speech was of normal rate, rhythm, volume and prosody. There was no formal thought disorder. There were no delusions and no hallucinations. She was oriented to time, place and person. Her cognition appeared grossly intact with no obvious concentration difficulties. There had been feelings of hopelessness and worthlessness. She tried to point out her current tremor in her neck which was difficult to see on the MS Teams video.
Diagnosis & Reasons
The claimant suffers from Persistent Depressive Disorder
DSM-5-TR Diagnostic Criteria for Persistent Depressive Disorder
A. Depressed mood for most of the day, for more days than not, as indicated by either subjective account or observation by others, for at least 2 years.
B. Presence, while depressed, of the following:
·Insomnia.
·Low energy or fatigue.
·Low self-esteem.
·Feelings of hopelessness and worthlessness
C. During the 2 years of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
D. Criteria for a Major Depressive Disorder may be continuously present for 2 years.
E. There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
F. The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
G. The symptoms are not attributable to the physiological effects of a substance or another medical condition.
H. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The Persistent Depressive Disorder is caused by the motor accident. The motor accident caused significant pain and tremor which has led to the development of a depressive disorder.
The claimant does not meet criteria for a Generalised Anxiety Disorder.
Criterion A – excessive anxiety and worry is not a significant feature of her presentation and does not occur more days than not for at least 6 months
Criterion B - excessive anxiety and worry is not a significant feature of her presentation
Criterion C – she only meets 2 of the 6 necessary symptoms to meet DSM5 criteria for this condition. These two symptoms were reported by the claimant as easily fatigued and sleep disturbance at the time of this re-examination.
Criterion D – the physical symptoms cause clinically significant distress
Criterion E – the disturbance is not attributable to substances but may be attributable to a physical condition. The review panel noted that the expert neurological opinion is that the tremor is functional in nature. Whilst hard to see on videoconference the tremor of the claimant’s head was present at the time of this re-examination.
Criterion F – the disturbance is better explained by emotional effects that the functional tremor has on the claimant’s mood. The ongoing emotional effects of anxiety and depressed mood had caused the resulting Persistent Depressive Disorder.
Conclusion
The claimant suffers from a Persistent Depressive Disorder which is a non-threshold injury.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[29] and Insurance Australia Ltd v Marsh.[30]
[29] [2021] NSWCA 287 at [40], [41] and [45].
[30] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[31] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[31] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the comprehensive joint reasons provided by the Medical Assessors.
Based on the clinical findings of the Medical Assessors, the Panel accepts that the claimant suffers from a non-threshold psychological injury caused by the motor accident. Our findings are based on the absence of prior psychological history, the absence of any other explanation for the psychological symptoms and an acceptance, based on the clinical expertise of the Medical Assessors, of the claimant’s account of her symptoms and presentation. We have also considered and rely in part on the observations of the treating psychologist.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Hong is revoked. A new certificate is attached at the commencement of these Reasons
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