El Mohamed v AAI Limited t/as GIO
[2023] NSWPICMP 85
•7 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | El Mohamed v AAI Limited t/as GIO [2023] NSWPICMP 85 |
| CLAIMANT: | Ahmed El Mohamed |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Atsumi Fukui |
| MEDICAL ASSESSOR: | Michael Li Ying Hong |
| DATE OF DECISION: | 7 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of minor injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 14 September 2019; Medical Assessor certified acute stress disorder; a minor injury; Held – diagnostic criteria for post-traumatic stress disorder met; claimant suffered non minor injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Doron Samuell dated · post-traumatic stress disorder. |
STATEMENT OF REASONS
introduction
On 14 September 2019 Mr Ahmed El Mohamed (the claimant) was driving a Toyota Corolla with his mother as passenger. His car was stationary on the M5 when the car behind collided with the rear of his car at an approximate speed of 100kmph pushing it into the car in front (the accident). The airbags deployed. Mr El Mohamed asserts he sustained the following injuries in the accident:
· neck injury;
· injury to both shoulders;
· injury to the back;
· right ear ringing;
· injury to the right foot;
· injury to the left big toe;
· headaches;
· anxiety, and
· psychological sequalae.
Mr El Mohamed is 28 years of age and was 25 years of age at the time of the accident.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr El Mohamed under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr El Mohamed lodged an Application for personal injury benefits dated 23 September 2019.
The insurer issued a liability notice accepting liability for the first 26 weeks following the accident.
On 17 December 2019 the insurer issued a liability notice declining liability for benefits beyond 26 weeks on the basis the injury sustained by the claimant was a minor injury for the purposes of the MAI Act.
On 15 January 2020 the claimant sought an internal review of the insurer’s decision declining liability.
On 25 February 2020 the insurer issued a Certificate of Determination – Internal Review where the decision to decline liability beyond 26 weeks was affirmed.
As a result, Mr El Mohamed has no entitlement to ongoing statutory payments under the MAI Act.
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor 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 minor 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.[1]
ASSESSMENT UNDER REVIEW
[1] Section 7.20 of the MAI Act.
The following injury was referred for assessment:
· psychiatric condition - whether psychological sequalae including anxiety, depression and post-traumatic stress disorder caused by the motor accident is a minor injury for the purposes of the Act.
The dispute in relation to the psychiatric injury was referred to Medical Assessor Samuell who assessed the claimant on 25 August 2021 and issued a certificate dated
8 September 2021.[2][2] AD2 p 4.
Medical Assessor Samuell reported Mr El Mohamed was not observed to be distressed or disordered, and his level of self-care and grooming appeared to be normal. His psychomotor functioning was normal, his cognitive functioning was normal at a clinical level, and he did not look anxious or depressed. Mr El Mohamed was working without medical restriction and was not undertaking treatment.
Medical Assessor Samuell found sufficient evidence in the contemporaneous records to be satisfied Mr El Mohamed developed psychological symptoms of clinical significance following the accident. He determined the accident had caused a psychological injury but found the duration of the symptoms was insufficient to diagnose post-traumatic stress disorder. He found the accident caused an acute stress disorder although at the time of his assessment he considered the symptoms were not clinically significant or impairing and concluded the acute stress disorder was in remission.
Medical Assessor Samuell noted that under Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) an acute stress disorder is defined as a minor psychological or psychiatric injury for the purposes of the Act.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Samuell within 28 days of the date on which the certificate of Medical Assessor Samuell was made available to the parties.
On 3 December 2021 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 Review Panel (the Panel).
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 that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. [3] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] 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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 18 July 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal an index marked AD1 and a bundle of documents marked AD2. The solicitor for the claimant uploaded to the portal a bundle of documents marked AD3. The Panel has also considered the records of Royale Medical Centre and Psychology Solutions which were uploaded individually to the portal on 17 July 2022.
On 25 October 2022 the Panel agreed an examination was required.
MINOR INJURY- STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act. Section 1.6(3) of the MAI Act defines a “minor psychological injury” as:
“A minor psychological or psychiatric injury is (subject to this section) a psychological injury that is not a recognised psychiatric injury.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a minor psychological or psychiatric injury.
Part 1, cl 4(2) of the MAI Regulation provides the following:
“Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act:
(a)Acute stress disorder; and
(b)adjustment disorder.”
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 8.2 of the Guidelines commenced on 8 April 2022 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, Part 5 of 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.”
Clause 5.10 of the Guidelines provide:
“In assessing whether an injury is a minor psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.”
Clause 5.11 of the Guidelines provide:
“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.”
Clause 5.12 of the Guidelines provide:
“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.”
EVIDENCE BEFORE THE REVIEW PANEL
Liverpool Hospital
Mr El Mohamed attended Liverpool Hospital following the accident on 14 September 2019. He complained of reduced hearing in his right ear, a bruise to the chest and bruising of the abdomen. He was reportedly not distressed. He underwent a CT scan of the brain, a CR Thoracic Aortogram and a CT scan of the abdomen and pelvis. The impression was as follows:
· no intracranial haemorrhage or skull fracture;
· no fracture in the chest, abdomen or pelvis;
· no pneumothorax, and
· no evidence of any mesenteric injury.
Clinical notes of Royale Medical Centre
Mr El Mohamed consulted Dr Magdy Girgis, general practitioner (GP) on 16 September 2019 when she reported he was the driver of a car which was hit from behind by another car on the freeway causing the airbag to explode. Dr Girgis reported complaints of neck pain, shoulder pain, back pain, left big toe pain and ringing in the right ear. She also noted
Mr El Mohamed was anxious and getting nightmares.On 3 October 2019 Dr Antwan Barich reported inter alia “emotionally affected and insomnia especially sometimes wake up due to shoulders or back pain concentration decreased noticeable and decreased memory”.
On 21 November 2019 Dr Barich completed a GP Mental Health Care Plan, where he identified insomnia, reduced concentration, reduced memory, anxiety and depression. He referred Mr El Mohamed to psychologist Ms Boutros and provided him with material regarding depression, anxiety and bipolar.
On 27 November 2019 Dr Barich reported Mr El Mohamed was awaiting counselling, his sleeping was affected since the accident and he had decreased concentration.
The records cease on 12 February 2020 when Mr El Mohamed attended for a respiratory tract infection.
Psychology Solutions
Mr El Mohamed saw Ms Boutros on 25 January 2020 when she reported he was traumatised in the aftermath of the accident. She reported sleep issues were ongoing, pain and ruminating thoughts.
An Allied health recovery request (AHRR) completed by Zeina Boutros dated
25 January 2020 provided a diagnosis of post-traumatic stress disorder. The signs and symptoms were reported as follows:· flashbacks of car accident;
· anxiety driving;
· elevated stress;
· hypervigilant in motor vehicle;
· exaggerated startle effect;
· fear of being in traffic – others coming to a complete unexpected stop;
· racing thoughts;
· loss of interest in usual activities;
· persistent ruminating thoughts;
· ongoing pain;
· difficulty focusing;
· difficulty sleeping;
· irritability;
· generalised sadness;
· emotional lability;
· shortness of breath;
· tightness of chest;
· shaking hands;
· easily distracted;
· elevated anger levels, and
· difficulty regulating emotions.
Mr El Mohamed completed the Depression Anxiety Stress Scale (DASS) with a normal score for depression and stress but an extremely severe score for anxiety. He was reported to be struggling with tasks such as cooking, cleaning and was unable to complete domestic duties. His sleep pattern was disturbed and he woke fatigued. He avoided driving, had lost interest in usual activities and felt generalised sadness. Mr El Mohamed was unmotivated, he had reduced socialising and ceased Oztag and cricket.
The records included non-attendance fees for 29 February 2020 and 14 March 2020.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 20 March 2022 in support of the application filed in the Commission in response to the insurer’s liability notice and minor injury determination dated 17 December 2019. The claimant submits the liability decision was not performed in accordance with the Guidelines where the insurer had not arranged for the claimant to undergo an assessment by an independent medical practitioner who was able to make a diagnosis under DSM-5.
The claimant provided submissions dated 6 October 2021 in support of the application for review. The claimant submits he has sustained more than an acute stress disorder and that the duration of his symptoms was sufficient to satisfy the diagnosis of post-traumatic stress disorder. The claimant notes he was referred to a psychologist after the accident and that the GP reported he had been diagnosed with post-traumatic stress disorder. Further it is noted the GP Mental Health Plan reported the claimant suffered from sleeping issues as well as depressed/anxious mood.
The claimant notes the DASS 21 instrument rated the claimant’s anxiety as high and the AHRR dated 25 January 2020 provides a diagnosis of post-traumatic stress disorder. It is noted the clinical records from Royal Medical Centre confirmed entries of ongoing sleep difficulty, decreased concentration and anxiety/depressed mood.
Insurer’s submissions
The insurer provided submissions dated 12 November 2021 addressing the question of whether the certificate of Medical Assessor Samuell was incorrect in a material respect.[6]
[6] AD2 p 1.
The insurer provided submissions dated 8 April 2020 relying upon the internal review decision as the basis for the minor injury determination.[7] In the Internal Review statement of reasons dated 25 February 2020 the insurer notes no psychological diagnosis was reported in either the hospital discharge summary and or the Certificate of Fitness dated 18 September 2019. The insurer notes the claimant was reportedly not distressed when he presented to the Emergency Department.
[7] AD2 p 19.
The insurer argued the claimant had not established he met the DSM-5 criteria for post-traumatic stress disorder. The insurer conceded the claimant met Criteria A and Criteria B but not Criteria C where it was not clear whether the claimant was avoiding driving due to psychological or physical symptoms. The insurer also submits Criteria D was not met where the claimant’s psychologist did not comment on how his reported negative mood was related to the accident. Similarly, the insurer argued Criteria E was not met where the claimant’s psychologist did not comment on how the symptoms of hypervigilance, disturbed sleep, exaggerated startle response, difficulty focusing, irritability, elevated anger levels and difficulty regulating emotions were related to the accident. The insurer submitted Criteria F was not met as there was no evidence to show how long the symptoms were present. The insurer argued Criteria G was not met because the claimant had not established that the impairment in his functioning was related to his psychological injury and not pain related.
THE MEDICAL EXAMINATION
The claimant was assessed by Medical Assessor Fukui and Medical Assessor Hong via videoconference. Medical Assessors Fukui and Hong were in their Sydney offices and Mr El Mohamed was in his home and unaccompanied.
He changed his name to Adam Humoudi after the accident. He said it was because he has always been known as Adam by his co-workers. His grandfather had changed the surname from Humoudi to Mohamed when he came to Australia because of personal family disagreements; as a family they felt it was better to return to the original surname.
History
Psychosocial history and pre-accident history
Mr El Mohamed has not had any previous motor vehicle accidents.
He was born in Australia and grew up with his parents, being the youngest of four sons. He described a good upbringing and his father passed away in 2010. There was no developmental trauma identified. His mother has depression.
He does not have cardiac, thyroid or liver disease.
He does not have drug or alcohol problems.
Mr El Mohamed does not have a past psychiatric history.
He finished Year 12 at school and went to university to study business and commerce but did not finish the degree. He has always worked in the banking industry. At the time of the subject accident, he was working for U-Bank and was a full-time home loan specialist engaged in sales work.
History of the motor accident
On 14 September 2019, Mr El Mohamed was driving on the M5 motorway. His mother was a front seat passenger. He said everything happened in a flash and was very sudden. He was driving at 100kmph and remembered that the car in front of him suddenly braked. He applied his brake and was then rear-ended and pushed into the car in front. He was the second in a pile-up of five vehicles. The airbags in his car were deployed.
He immediately checked on his mother as he was worried she was injured. He then called an ambulance, and his mother was taken to Liverpool Hospital. She stayed for three hours and was released but she had suffered a wrist fracture and had neck and back problems. He stated she still has not recovered. His car was later written off by the insurer.
Mr El Mohamed waited for a tow truck and later his family collected him. He was subsequently taken to Liverpool Hospital and released at 9:00pm that day.
History of symptoms and treatment following the motor accident
Mr El Mohamed recalled worrying his mother was seriously injured and he feared for her. Physically, he reported developing back problems with shooting pain down his legs. He said he has a lumbar disc problem but does not know what the exact pathology is. He also has neck and shoulder pain. He said most of the problems have improved and the main issue now is his back.
Mr El Mohamed has difficulty recalling details of the events that followed. He said it was partly because he was shocked at the time and because there were a lot of things happening in his life. He was getting ready to be married, was building a new home and had a new job. He stated that he did not have a lot of time to pay attention to himself.
He described being fearful with these thoughts centred on his mother rather than on himself. He felt numb. The Panel discussed his driving and noted that he could not drive for about a month after the accident. He had a new job which started one month after the accident, and hence he had no choice but to drive from Campbelltown to Parramatta, on the motorway again. However, he found he was very cautious and if cars were braking, he would 'buckle', meaning he would suddenly brake. Mr El Mohamed found he became anxious; his heart rate went up and his legs started to shake uncontrollably. He also described intrusive thoughts about having accidents when driving. This has improved but is an ongoing occurrence.
In the period after the accident, Mr El Mohamed described experiencing anxiety and having images of the car accident when sleeping. He stated the nightmares subsided a long time ago but during the day he intermittently remembered the accident, which led to his legs shaking and his heart racing. He cannot recall how long these symptoms persisted. He confirmed he saw a psychologist and reported his symptoms to the psychologist at the time.
Details of any relevant injuries or conditions sustained since the motor accident
In 2021 Mr El Mohamed was driving with his wife and mother as passengers. They were on the M5 motorway when a car from another lane suddenly drove towards him. They had a near miss on the road and apparently, the offending vehicle later struck another car. He said that it happened not far from where the subject accident occurred.
He did not develop another psychological injury.
Current symptoms
Mr El Mohamed said he was “snappy” and raised his voice and had “rage”, although this has improved over time.
He reported having gained weight by 15-20kg, and he does not know why. He said that he is still gaining weight. He said he often woke in the middle of the night and ate chocolate and ice-cream. Such behaviour did occur before the accident but it has worsened since the accident.
Whilst his concentration was reported as generally okay, he said that it is poor compared to prior to the accident. His memory remains a problem and he sometimes forgets things, even in conversation.
His sleep remains poor, even though he no longer has nightmares. He stated he has worrying thoughts and suffers discomfort in his back.
He has not had suicidal ideation and has never had pervasive depressive symptoms longer than two weeks.
Current and proposed treatment
Mr El Mohamed has not taken any psychotropic medications and does not wish to. He consulted a psychologist, Zeina Boutrous, for only one or two sessions and does not want more treatment.
Clinical Examination
Mental state examination
Mr El Mohamed was neatly attired and had a crewcut hairstyle and a full beard. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was not restricted in his affect, range or reactivity. His affect was bright and reactive, and he laughed regularly. He spoke spontaneously and readily. He was euthymic and there was no evidence of anxiety or agitation. There was no evidence of any cognitive impairment.
Current functioning
Mr Mohamed lives with his wife and his mother and he has a 6-month-old daughter.
Prior to the accident, Mr El Mohamed enjoyed playing Oztag, tennis with his brother and cricket with a group of friends. Since the accident, he has stopped playing all sports and said it is partly because he is busy and partly because of his back problem.
Before the birth of his baby daughter, he would visit friends and play computer games, but in the last six months he has been more focused on the baby and his family.
He said about one day after the accident, he received a job offer from St George Bank. He subsequently commenced working for St George Bank as a full-time credit analyst in home loan approvals. He continues to work in the same job and said he had no problem in performing in this job.
Comments on consistency
There was no inconsistency identified.
DETERMINATION
Causation
Mr El Mohamed described having experienced fear, anxiety and re-experiencing symptoms immediately after the accident. His psychological symptoms persisted longer than one month and then subsided. There are no other contributing factors identified. The Panel concluded Mr El Mohamed's psychological injury was caused by the accident.
Diagnosis
The Panel adopts the reasoning in David v Allianz Australia Ltd [2022] NSWPICMP 6 that a determination can be made at any time to establish that an injury is not a minor injury for the purposes of the MAI Act. At paragraph [102] the Panel in David stated:
“Clause 5.6 requires that the “the assessment of whether an injury caused by the accident is a minor injury” is based on many factors including prior records and assessments by treating doctors. There is no reason why the reference in clause 5.6(d) to a “thorough physical ... examination” must be undertaken by a Medical Assessor. Presumably an insurer can make an admission that an injury is a non-minor injury without every case being disputed and referred for medical assessment. In those circumstances, the admission will be based on a thorough physical examination conducted by a treating doctor.”
Mr El Mohamed had no prior psychiatric problems. He described his involvement in the accident with his mother and he developed significant psychological symptoms, lasting longer than one month. He confirmed those symptoms when he was reviewed by his psychologist, Ms Boutros, more than one month after the accident. He continues to experience anxiety when driving on the road. His driving anxiety can manifest as uncontrollable leg shaking and rapid heartbeat. He is much more likely to take evasive action on the road, such as braking early.
Overall, the Panel considered his condition to be consistent with post-traumatic stress disorder since the symptoms lasted for longer than one month. His symptoms have improved and have reached substantial remission.
Mr El Mohamed's psychological symptoms fulfilled the DSM-5 diagnostic criteria for post-traumatic stress disorder. The subject incident is consistent with a criterion A stressor, Mr El Mohamed was in a high-speed accident and feared for his mother's life. He developed intrusive memories and nightmares, anxiety when exposed to reminders of the accident, negative cognitions and mood including fear and disengagement from usual activities. He has physiological hyper-arousal with disturbed sleep, concentration problems and elevated startle responses. His symptoms were present for longer than four weeks and were associated with some driving and functional impairment, and the Panel noted additional evidence confirming he did not drive for one month after the accident.
Finally, the Panel has not identified another medical or psychiatric condition that better explains his trauma symptoms. His symptoms have since improved and reached substantial remission.
CONCLUSION
Under Part 1, cl 4(2) of the MAI Regulation post-traumatic stress disorder is not designated a minor psychological or psychiatric injury for the purposes of s 1.6 of the MAI Act.
Accordingly, the Panel finds the claimant suffered injury, namely, post-traumatic stress disorder, caused by the accident which is a non-minor injury.
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