Elammar v AAI Limited t/as AAMI
[2024] NSWPICMP 280
•8 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280 |
| CLAIMANT: | Hassan Elammar |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 8 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was driving home on 10 July 2020 on the M5 after work; he was travelling in the middle lane of three at approximately 100 kilometres per hour; the insured vehicle was travelling in the same direction; the two vehicles swerved into each other; there was an altercation between the two drivers; the claimant was struck by the insured vehicle as the claimant attempted to prevent it departing the scene; the insurer denied liability for the claim on the bases that the claimant was wholly at fault and that he suffered minor (now threshold) psychological injuries in the accident, namely adjustment disorder with mixed anxiety and depressed mood; Medical Assessor Wayne Mason so certified; certificate confirmed; Held – Review Panel finds PTSD not caused by the motor accident; motor accident caused the claimant to suffer an opioid use disorder in sustained remission, which is a non-threshold injury; Review Panel did not so certify as that condition/disorder outside terms of referral; Mandoukos v Allianz Australia Insurance Ltd applied. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel confirms the certificate of Medical Assessor Wayne Mason dated |
STATEMENT OF REASONS
INTRODUCTION
Hassan Elammar (the claimant) was involved in a motor vehicle accident on 10 July 2020 when he was travelling home on the M5 after work. He was travelling in the middle lane of three at approximately 100kmph . The insured driver was travelling in the same direction in lane three closer to the median strip. The vehicles swerved into each other in circumstances that are contested. Both drivers pulled into the emergency lane at the side of the road and exchanged details. Another driver took dashcam footage of the incident. There was then an altercation between the claimant and the insured driver resulting in the claimant’s being on the bonnet of the insured vehicle as it moved forward. The insured driver then braked heavily causing the claimant to be propelled forward to the left on the side of the carriage way. The insured driver departed the scene. Police attended and subsequently interviewed both drivers and obtained footage from the M5 cameras at the scene. The claimant was issued with a Traffic Infringement Notice for causing the initial collision by not merging from one lane into the other safely. The insured driver was issued with a Traffic Infringement Notice for negligent driving.
Member Boyd-Boland certified on 22 September 2021, after conducting a fully-contested hearing, that the motor accident was caused by the insured driver and that the claimant’s statutory benefits should be reduced by 10% for his contributory negligence.
The claimant says that he suffered various physical injuries to his cervical spine, lumbar spine, both shoulders and right foot, as well as psychological injuries. He specifies severe shock, post-traumatic stress disorder, severe anxiety and depression.
AAMI (the insurer) indemnified the owner and/or the driver of the insured vehicle for liability to pay to the claimant damages and statutory compensation benefits under the Motor Accident Injuries Act2017 (the MAI Act). The insurer denied liability for the claim on the basis that the claimant was wholly at fault and that he suffered minor (now threshold) injuries in the accident.
NATURE OF THE DISPUTE AND MATTERS IN ISSUE
The issue presently in dispute is whether the referred psychological injuries caused by the accident relevantly are threshold condition for the purposes of the MAI Act. The referred psychiatric condition is severe shock, post-traumatic stress disorder, severe anxiety and depression.
There is a certificate dated 9 October 2023 by Medical Assessor Yu Tang Shen who certified as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%:
· Adjustment Disorder with Mixed anxiety and depressed mood
Medical Assessor Shen found no pre-existing whole person impairment as there was an absence of evidence to indicate any significant impairment prior to the subject accident. His assessment included an adjustment of 1% for treatment effects. Medical Assessor Shen said that the adjustment disorder with mixed anxiety and depressed mood had resolved. In so far as the Review Panel is aware, the parties accepted Medical Assessor Shen’s certificate.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Review Panel, reviewing a decision of a Medical Assessor.[1]
[1] 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.[2]
[2] 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.[3]
[3] Section 7.26(6) of the MAI Act.
THRESHOLD INJURY
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
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 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 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.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.”
ASSESSMENT UNDER REVIEW
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of the review was conducted by Medical Assessor Wayne Mason on 29 November 2022. Medical Assessor Mason certified on
5 December 2022 as follows:
The following injury caused by the motor accident:
is a MINOR INJURY for the purposes of the Act.
- Adjustment disorder with mixed anxiety and depressed mood
Medical Assessor Mason also found that the claimant did not suffer post-traumatic stress disorder caused by the motor accident.
THE REVIEW
The application for review of the medical assessment of Medical Assessor Mason was made by the claimant on 10 January 2021, within 28 days after the parties were issued with the original Certificate of the medical assessment, for which the review is sought.
The claimant submits that Medical Assessor Mason fell into error when diagnosing the claimant with an adjustment disorder with mixed anxiety and depressed mood.
The claimant further submitted that the Medical Assessor fell into error when determining that the following injuries:
1. post-traumatic stress disorder;
2. severe shock; and
3. severe anxiety and depression,
did not arise as a result of the subject accident.
The claimant submits that, for the purposes of the claim, the motor vehicle accident is to be regarded as extending from the initial sideswipe to the subsequent dislodging of the claimant from the vehicle intentionally (the bonnet incident).
The claimant submits that Medical Assessor Mason failed to provide a clear path of reasoning as to why the claimant is suffering from adjustment disorder with mixed anxiety and depressed mood as opposed to severe anxiety, depression and severe shock. There are detailed submissions as to why the claimant satisfies the criteria prescribed by DSM-5 for a diagnosis of post-traumatic stress disorder by reference to the various criteria.
The claimant submitted that the Medical Assessor regarded the motor accident as being limited to the sideswipe incident, excluding the subsequent bonnet incident, but that submission is not borne out by a fair reading of the Medical Assessor’s reasons.
The claimant’s review application was opposed by the insurer.
The insurer submitted that the complaints made by the claimant are no more than expressions of dissatisfaction with the Medical Assessor’s diagnosis and findings rather than being reviewable errors.
As to alleged error with respect to the accident circumstances, the insurer concedes that the accident comprises both the initial sideswipe, and the subsequent interaction between the parties, viewed as a whole. It submitted that Medical Assessor Mason “clearly understood the precise circumstances of the subject accident and formed his opinions based on the evidence obtained from the claimant and the available object evidence, which includes CCTV and Dashcam Footage”.
As to alleged error with respect to diagnosis, the insurer submits that Medical Assessor Mason considered the claimant’s subjective reporting, the objective evidence and considered each of the diagnostic criterion for post-traumatic stress disorder, as specified by the DSM-5, in detail. It notes that Medical Assessor Mason formed the opinion that the claimant’s symptoms were “best characterised by the DSM-5 condition Adjustment Disorder with Mixed Anxiety and Depressed Mood” which it was open to the Medical Assessor to do.
As to the alleged failure to engage with relevant materials, the insurer submitted that Medical Assessor Mason was entitled to form his own opinions, including his own independent assessment of the claimant, based upon the evidence before him, at the time of the assessment, his clinical examination and the claimant’s self-reported history, which is exactly what the Medical Assessor did, in the insurer’s submission.
As to the alleged failure to provide adequate reasoning, the insurer submitted that the certificate demonstrated clearly that Medical Assessor Mason reviewed all documents provided by both parties, took a detailed pre and post accident history from the claimant, conducted a thorough examination and subsequently provided his opinion and reasons. The insurer notes that the claimant did not attribute any psychiatric condition to the initial sideswipe collision, as was found by Medical Assessor Mason, based on the available evidence.
For all of the foregoing reasons, the insurer submitted that the claimant’s review application should be dismissed.
President’s delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 13 February 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment is incorrect in a material respect. The basis of that decision was stated to be the claimant’s submission that there are inconsistencies between Medical Assessor Mason’s description of the claimant’s current symptoms and functioning and his finding that the claimant did not meet the diagnostic criteria for post-traumatic stress disorder. Accordingly, the application was accepted.
The Review Panel is to assess and determine whether the claimant suffered a psychiatric condition, caused by the motor accident, and whether any such condition is a threshold injury for the purposes of the MAI Act. The referral to Medical Assessor Mason, and to the Review Panel, specifies severe shock, post-traumatic stress disorder, severe anxiety and depression. The Review Panel notes general use of the term “depression” does not provide a definable psychological injury in compliance with guidelines. A DSM-5 TR diagnosis of a specific depressive disorder (i.e. major depressive disorder) requires all criteria for the disorder to be meet. The criteria as defined in DSM5 TR for depressive disorders include symptoms, other criteria including exclusion criteria for accurate defining of a psychological injury caused by a depressive disorder. Similarly, the term “severe anxiety” fails to define which anxiety disorder the person suffers for the same reasons as for the general term “depression”.
The Review Panel notes the reference (at page 419 of the joint bundle) to the claimant’s having suffered severe anxiety and recurrent panic attacks following a motor accident on
11 February 2019 following which he was referred to Mr Mohammed Ziedni for psychological treatment. There also is reference to the claimant’s having been referred to Kasim Abaie. The claimant’s solicitors conceded that the Review Panel should be provided with those clinical records. In the event, they could not be obtained.As the insurer concedes that the motor accident comprises the initial sideswipe incident and the subsequent interaction between the parties, including the bonnet incident and its sequelae, the Review Panel will assess the matter on that basis.
MATERIAL BEFORE THE REVIEW PANEL
The parties provided a joint bundle of documents comprising the following material:
1. claimant’s submissions dated 27 January 2021 relating to the dispute regarding his psychological injuries;
2. the insurer’s submissions dated 26 February 2021 relating to the claimant’s alleged psychological injury (paragraphs 17 to 23) to the effect that the alleged psychological injury is minor;
3. certificate of Medical Assessor Mason (previously summarised);
4. CCTV – dashcam footage;
5. liability notice dated 3 November 2020 denying benefits after 26 weeks due to determination that the claimant was wholly or mostly at-fault and that he sustained minor injuries as a result of the accident;
6. letter dated 14 December 2020 from the claimant’s solicitors seeking internal review of liability notice;
7. insurer’s internal review decision dated 7 January 2021 and Statement of Reasons confirming the declinature on the basis that all injuries (including severe shock, post-traumatic stress disorder and depression) are relevantly minor injuries;
8. claimant’s submissions made to the President’s delegate (previously summarised);
9. insurer’s review application reply submissions (previously summarised);
10. decision of the President’s delegate dated 13 February 2023 (previously summarised);
11. documentation produced by Al-Zahraa Medical Centre as at 29 July 2022 which indicate a pre-existing psychological complaint and referral in May 2019/2020 for management of severe anxiety and depression;
12. insurer’s WPI reply submissions dated the issue 18 July 2023 which inter alia addressed the claimed psychological injury;
13. report dated 26 July 2023 by Dr Inglis (Howe) Synnott, consultant psychiatrist, qualified by the insurer’s solicitors. Dr Synnott opined that, at the time of his assessment, there was no current psychiatric condition. He thought that the claimant suffered post-traumatic stress disorder “in the early stages after the motor accident” which had resolved. Dr Synnott expressed doubts about the claimant’s accuracy and credibility. Dr Synnott reviewed the medical documentation regarding pre-existing injuries and conditions. Dr Synnott was unwilling to provide a diagnosis and prognosis due to his questions about the accuracy and credibility of the claimant’s account and what can be confidently attributed to the subject motor accident in a psychiatric assessment, and
14. certificate of Medical Assessor Yu Tang Shen dated 13 October 2023 (previously summarised).
RE-EXAMINATION
The joint assessment report from Medical Assessor Baker and Medical Assessor Hong is as follows:
“BACKGROUND
1. There is a dispute between Hassan Abd Elammar (the applicant) and the insurer about:
· whether the injury is a threshold injury under Schedule 2, s 2(e) of the Act,
Threshold injury dispute to be assessed.
2. The following injuries were referred by the Personal Injury Commission (Commission) for further assessment:
· Post-traumatic stress disorder
· severe shock; and
· severe anxiety and depression
SUBMISSIONS
3. The submission from the applicant for this review was considered.
The Panel noted that the part of the submissions relevant to this review were Psychological Injuries.
The claimant states he suffers from:· Severe shock;
· Post-traumatic Stress Disorder;
· Severe anxiety and depression;
The applicant submits that without a formal diagnosis from the claimant’s psychologist, it would be unreasonably premature to conclude that the claimant has suffered a minor (threshold) psychological injury.
The applicant seeks to have the Certificate of Assessor Mason dated 5 December 2022 overturned.4. The submission from the insurer for this review was considered.
By certificate dated 5 December 2022, PIC Medical Assessor Mason diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, which is considered a threshold (minor) injury for the purposes of the Motor Accidents Injuries Act.
The insurer disputes that the applicant has demonstrated any material error in Assessor Mason’s assessment.5. The issue presently in dispute is whether the psychological injuries caused by the accident relevantly are threshold injuries for the purposes of the MAI Act.
SUMMARY OF DOCUMENTS CONSIDERED
6. Documents
The Panel has considered the documents provided in the application.
The Panel has considered the document provided in the application and the documents and certificates relating to the previous application.
The Panel has considered the documents provided in the previous reply and the documents and certificates relating to the previous reply.
The Panel has watched and listened to the CCTV Footage, NSW Police Force Audios (i.e. two audio recordings) and the Witness Dashcam footage, forwarded with the review documents.7. Additional late documents
The Panel did not receive the clinical records of Mohammed Ziedni and Kasim Abaie, on, or before 28 February 2024.
REASONS8. Who attended the assessment?
The claimant attended the assessment alone, via video-conference. The assessment was conducted with Assessors Baker and Hong both attending the assessment.
HISTORY9. Psychosocial history and pre-accident history
The applicant stated that he was born in Canterbury Hospital. He reported that he had lived with his parents and siblings since his birth. He said his father was 52 years of age and his mother 48 years. The applicant was the second child of a five-sibling family. He had 3 sisters and one younger brother. His younger brother was married and living outside the home. His elder sister is married and living with her family outside the family home. The applicant was 26 years of age at the re-examination. His two younger sisters were 18 and 16 years of age. His father had recently retired from the green grocery store he managed. His mother was fully occupied with home duties. The applicant was in receipt of the Australian Government Jobseeker allowance. The applicant was not in a relationship before or after the motor accident. The applicant said he spent most of his time helping his parents. He would drive to his brother’s house to give him lunch made by the applicant’s mother about five days per week. He would also deliver items for his father by driving to and from the family home and the drop off location. He would also assist with some duties that his mother asked of him.
The applicant reported that he had no difficulties with his birth and early development. He reported that he attended Athelstane primary school in Arncliffe and then James Cook high school in Kogarah until year 9. On direct questioning the applicant was asked what the reasons were in shifting between James Cook high school to Hurstville boys high school for year 10. The applicant said that he was not interested in learning at school. He said he was involved in a number of fights at school. He said that his parents decided to have him shift to an all-boys high school. The applicant was never expelled or referred to a school counsellor or, a child psychologist. He was never in difficulty with the law prior to leaving school in year 10.
The applicant reported that at school he was mainly interested in soccer. He was left-handed and right footed. He played as a left back defender.
The applicant reported that he commenced smoking cannabis. He would mix cannabis with tobacco. He said that he learnt to drive. The combination of cannabis with tobacco resulted in him receiving fines and loss of licence. He said he had his licence suspended about 10 times. He reported that he had been warned by a local court magistrate (a judge) that one of his cannabis tests had also returned a methamphetamine trace. The applicant said that he had never used any amphetamine-like substance. He said he had attended psychologist for treatment of his pre-existing cannabis use and he stopped cannabis prior to the motor accident on 10 July 2020. He reported at his peak of consumption he would spend about 100 to 200 dollars per week on hydroponic flower heads (buds).
The applicant said he was initially employed as an apprentice carpenter. He worked in roofing construction. He reported that he lost his first job as the company closed. He only completed about half his apprenticeship. He then found work as a carpenter’s assistant labourer. He worked until the onset of the COVID pandemic. The construction company closed and he had no work.
The applicant reported that he was able to find work about two days before the motor accident on 10 July 2020. He said he was driving home from his worksite and during his journey home the motor accident happened.
The applicant was asked had he had any prior motor accidents or physical injuries. The claimant provided a complex history of various injuries and confirmed the injuries listed in the forwarded documents. He said he could not remember specific dates.
The applicant confirmed the following listed in his medical recorded forwarded with the documents:
Injury to his right arm whilst hammering 20 July 2017.
Injury to his right great toe when a circular saw fell whilst he was using the saw on 4 April 2018.
Passenger in motor accident on 11 February 2019. He said his brother was driving. He experienced back pain. On 16 May 2019 the general practitioner considered the applicant may have post-traumatic stress disorder. The applicant was referred to Muhamad Ziedni. The applicant was asked at this assessment what did he consider the referral to Mr Ziedni was in relation to, the applicant thought the focus of treatment was to help in relation to stopping his cannabis consumption. The applicant said that Mr Ziedni had left Sydney.
The applicant was asked whether he had developed any psychological injury from any of the above traumatic events in his life. He said he did not have a pre-existing posttraumatic stress disorder however he did acknowledge a problem with overuse of cannabis and panic attacks when he ‘tried to cut down’ the use of cannabis mixed with tobacco.
The Panel notes that anxiety symptoms such as panic attacks, irritability, agitation as well as angry outbursts can present clinically during withdrawal from cannabis.
Alterations in anxiety are more common in people who mix cannabis with tobacco and use higher amounts of cannabis.
Laceration to the left lower leg which was closed with sutures on 2 March 2019.
Physical assault with him receiving multiple punches in the face with CT evidence of a small right orbital floor fracture and persistent diplopia (double vision) on 10 March 2019.
Physical assault when he was struck in the back and right side of his face. He presented to hospital for treatment due to pain the following day, he had a CT of his spine that noted an T11/T12 wedge fracture on 9 November 2019.
Fall onto his right hand on 24 December 2019 he had a painful wrist and was treated with a cast for his thumb injury.
Pillion passenger, fall off motorcycle, at about 60 kph whilst wearing helmet. He did not lose consciousness and his dislocated left shoulder was reduced in hospital. He had multiple skin abrasions as he did not have protective clothing other than his helmet on 26 February 2020.
The applicant’s general practitioner referred the applicant to return to Kasim Abaie on 28 May 2020, prior to the motor accident on 10 July 2020. At that time the applicant was experiencing anxiety and more frequent panic attacks.
The applicant was documented by his general practitioner on 19 May 2019 as suffering from “Severe anxiety, recurrent panic attacks after MVA (date if most recent prior accident 11/02/19). ?PTSD , Counselling and support Refer to Psychologist for CBT.”
The applicant was asked again, did he suffer from any psychiatric or psychological condition prior to the index motor accident on 10 July 2020. The applicant replied at the examination that he considered his anxiety and panic attacks to be related to his cannabis mixed with tobacco usage.
The applicant said he did not have ‘PTSD’. The applicant was asked what he understood by the letters ‘PTSD’ he replied, “posttraumatic stress disorder” and related this to him having fallen off the car bonnet with the high risk of being run over by the at fault driver or another car from the highway.
10.History of the motor accident
The applicant was asked about the motor accident and the applicant said he had stopped his usage of cannabis mixed with tobacco prior to the motor accident. He said he had realised that the cannabis was ‘affecting’ him. He had been at home without work for many months during the pandemic.
The applicant said that he was about to start working for ‘A class carpentry’ and he was returning from his first day. He stated this was a trial day with his prospective employer. This was supported by his ‘Application for personal injury benefits’ handwritten form dated 3 August 2020. The form documented: ‘- was on Jobseeker for a few months leading up to accident & found work on the day’. A different font of ink documented ‘…but had not commenced paid employment.’
The following was documented in handwriting on the initial form: ‘I (the applicant) was driving along M5 when motor vehicle registration no. AD22DC…tried to merge into my lane. (I was in the middle) and he scratched side of my car. I pulled over and after getting his licence…ran my over.’
The applicant had documented the following on the form: ‘Injury to my neck, right shoulder low back and foot, severe shock, PTSD & depression.’
In response to the question: Were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident?’ The applicant stated: ‘Yes’ depression & anxiety, insomnia, medication given after accident”.
The applicant re-confirmed the above at this examination.
He said that he had been driving his mother’s four-wheel drive to and from work. He was returning home in his mother’s car, when the events leading to the motor accident occurred.
On 10 July 2020, the applicant was driving home from work. He reported that he was ‘side-swiped’. His mother’s car was damaged. He said he was ‘not very upset’ but wanted to do the right thing by his mother. He pulled over with the other driver. A third driver who had recorded the incident on his dash cam also stopped and offered support to the applicant. The third driver offered to send the dash cam footage to the applicant. The applicant identified the footage when it was shared with him during the examination.
The applicant said the dash cam driver left. The applicant went to the window of the car of the driver at fault. The applicant could smell a strong odour whilst the at fault driver was talking to him. The applicant said he thought the at fault driver was driving whilst affected by alcohol. The applicant told the driver to wait as he planned to call the police.
The applicant said he was not angry or upset and he was not emotionally distressed at this point. The applicant reported that he then went to the front of the other driver’s car to photograph his number plate.
The applicant was shown the footage from the CCTV of incident leading to the motor accident. The applicant was able to identify himself as the person in the high visibility orange work shirt.
The applicant was able to explain his understanding of the motor accident. The applicant said whilst in front of the other driver’s vehicle, that driver drove slowing into him. He hit the bonnet to say ‘stop’. The other driver did not stop and continued to accelerate from the emergency lane. The applicant jumped in the air a little and fell forward onto the bonnet. He tried to stabilise himself by holding on to the windscreen wiper blades.
The other driver continued to accelerate and moved towards the lane of the main traffic stream. The applicant stated that he ‘rolled off the bonnet’. He said he feared he might be run over or be in the first lane of the highway. He said he did not lose consciousness. He was anxious and distressed as he thought he could be killed, seriously injured or run over by the other driver or another vehicle. He was not in pain.
The other driver was observed by the applicant to nearly cause another accident with a semitrailer. The other driver fled the scene.
The applicant called for help. He used the emergency telephone number. The applicant was aware that there was a recording of his calls. He said he told them that he was almost ‘run over’. He said he called for the police and then the ambulance. The emergency services did not attend as fast as the applicant expected. He called for the emergency services again. The police attended the scene. The applicant asked for the ambulance service not to attend.
The applicant reported the incident to the police officers who had attended the scene. After giving his statement to the police. The applicant felt he was ‘ok’ to drive. He drove his mother’s vehicle, identified by the applicant as the ‘dark four-wheel drive’ involved in these events home. He drove home to sleep that night.11.History of symptoms and treatment following the motor accident
The applicant was in pain and had difficulty sleeping. His mother drove him to St George Hospital. He attended the emergency department. He also attended his general practitioner on discharge from the emergency department the same day.
The attending medical practitioner in her summary of care provided to the applicant documented:‘…presented 1 day after an MVA for pain in the 3rd - 5th toes of right foot and unable to weight bear on same, pain in left shoulder, pain in right elbow, generalized back pain and right gluteal pain.’
He ‘…reports that he was involved in a MVA yesterday at 4pm where a driver had driven an initially stationary car into him and then thrown him off the bonnet after braking all of a sudden. He denies head strike or LOC and was able to weight bear after the accident. However, he experienced generalized pain overnight and was unable to weight bear on his right foot today…X-ray right foot and ankle – no fractures…likely MSK (musculoskeletal) pain.’
The general practitioner was also attended on the 11 July 2020.
The applicant said he was prescribed Tramadol and fluoxetine for his injuries. He reported he was referred to a physiotherapist. The general practitioner on 11 July 2020 gave ‘advice to see his (the applicant’s) Psychologist for CBT’. The applicant reported due to Mr Ziedni leaving, he had attended Mr Abaie. He said that he was usure of the last date he had attended but he believed he last attended Mr Abaie in ‘June 2020’ prior to the motor accident.
The general medical practitioner on 2 November 2020 documented that the applicant stuffed from ‘Depression – Major’. The applicant was prescribed fluoxetine 20mg daily.
The general practitioner had also prescribed Tramadol 100mg twice daily for pain, an opioid-based analgesic medication. The applicant was smoking tobacco, 10 cigarettes daily. The term ‘PTSD after MVA, Counselling and Support, Continue on LOVAN, refer to psychologist for CBT’ was documented by the general practitioner on 24 November 2020, 25 April 2021,16 January 2022, and 18 January 2022. The medical record forwarded ceased at this time. The applicant reported he lost contact with Mr Abaie.
The applicant was asked about his treatment. He said that he was worried that he was becoming, ‘addicted to tramadol’.
The applicant reported that he felt he was having trouble weaning off Tramadol. He said he would experience difficulty reducing the dose. He said he sought help. The applicant received a ‘low dose of methadone’ initially. He said he was quickly changed to a monthly injection of buprenorphine as an injection. The treatment worked. He ceased all opioid medication and continued tobacco smoking. The applicant did not provide advice that he returned to Mr Abaie since the motor accident. Routine clinical treatment would require the applicant to have received motivation counselling. The motivation counselling would most likely continue whilst evidence-based medication treatment and stabilisation of the applicant’s opiate use disorder occurred. On the opioid use disorder entering early remission to the medication used to stabilise the applicant’s condition was slowly withdrawn. The psychological service is routinely provided by a drug and alcohol counsellor during this phase of treatment. The medication is provided by a NSW Government trained prescriber. The forwarded documents could not provide verification of this part of the applicant’s history provided at this examination; however his report is consistent with standard clinical practice.
The applicant stated that he did suffer from altered mood with anxiety, depressed mood, panic attacks, irritability, poor sleep, lack of motivation, insomnia and disturbing dreams.’ These symptoms are as documented in the report. These symptoms are in common with posttraumatic stress disorder, major depressive disorder with anxious distress, adjustment disorder with mixed anxiety and depressed mood as well as substance use withdrawal including cannabis and opiates.
Fluoxetine (Lovan) 20mg is often prescribed in this setting to help recover and stabilise ‘depression’, depressed mood, ‘anxiety’ and panic attacks.
The applicant had been treated for his physical injuries and was assessed by the physical injury assessors prior to this assessment. He did not report using ongoing physical treatments or pain medication other than paracetamol.
The applicant spontaneously offered that his parents had advised him recently that, “it was time for him to get going again.” He reported accepting his parents’ advice and he was compliant with their direction. He would wake at between 5 – 6 am and take food to his brother most workdays prior to this examination, such that his brother could enjoy their mother’s cooking at lunch. He would drive and collect items required by his father and his father’s extended family most days. He would assist with some of the chores required to be completed by his mother.
The applicant had participated in family and cultural practices. He had attended a mosque on two occasions and the local prayer room for lectures on two occasions during 2023. He had also commenced fasting during daylight hours as part of the 2024 Ramadan religious observances.12.Details of any relevant injuries or conditions sustained since the motor accident
Nil.
13.Current symptoms
The claimant’s current symptoms do not meet diagnostic criteria for posttraumatic stress disorder caused by the applicant been involved in the incident where he believed he was at serious risk of injury or death by been run over by the at fault driver or other driver on the highway.
The Panel concluded he has developed an opioid use disorder in sustained remission DSM5TR code F11.20, after the subject injury, which was caused by opioid prescribed for pain symptoms arising from the subject accident. This condition has remitted.
The Panel concluded the applicant has a non-threshold injury, as the determination applies to a recognized psychiatric illness that occur at any time between the subject accident and the day of the examination.
The diagnosis is defined by the following symptoms and highlighted in bold:Opioid Use Disorder in sustained remission DSM5TR code F11.10
A. A problematic pattern of opioid use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:
1. Opioids are often taken in larger amounts or over a longer period than was intended.
The Panel accepts the applicant’s report that he increasing amounts of Tramadol prescribed, as this was supported by the initial documented dose been much lower than the dose recorded at the time of the last prescription record. The Panel accepts that the applicant reported taking Tramadol over a longer period than was intended.2. There is a persistent desire, or unsuccessful efforts cut down or control.
The Panel accepts the applicant’s report of this symptom as the applicant independently went to the opiate rehabilitation service for treatment.
3. A great deal of time is spent in activities necessary to obtain the opioid, or recover from its effects.
4. Craving, or a strong desire or urge to use opioids.
5. Recurrent opioid use resulting in a failure to fulfill role school, or home.
6. Continued opioid use despite having persistent or recurrent social or problems caused or exacerbated by the effects of opioids.
7. Important social, occupational, or recreational activities are up or reduced because of opioid use.
8. Recurrent opioid use in situations in which it is physically hazardous.
9. Continued opioid use despite knowledge of a or recurrent physical or psychological problem that is likely to have been caused or exacerbated the substance.10. Tolerance, as defined by either of the following:
a. A need for markedly increased amounts of opioids to achieve intoxication or desired effect.
b. A markedly diminished effect with continued use of the same amount of an opioid.
The Panel accepts that the applicant was suffering from this symptom as he had reported to Assessor Mason having used cocaine and opiates and confirmed this history at the examination.
11. Withdrawal, as manifested by either of the following:
a. The characteristic opioid withdrawal syndrome
b. Opioids (or a closely related substance) are taken to relieve or avoid withdrawal symptoms.
In sustained remission is defined by DSM5TR as follows: After full criteria for opioid use disorder were previously met, none of the criteria for opioid use disorder have been met at any time during a period of 12 months or longer.14.Current and proposed treatment
The applicant had had ceased treatment prior to this assessment. He preferred to assist his father and mother with their daily tasks. He was compliant and accepting of the benefits of assisting with the daily functioning of the household where he lived. He said, ‘it’s time for me to get going.’
The applicant said that he was not receiving any psychological treatment at the time of the examination.
The applicant had no plans for further psychological or psychiatric treatment.CLINICAL EXAMINATION
15.Mental state examination
The applicant presented as a neatly groomed man with cut hair and a beard that he attends. He spoke in a polite and appropriate manner. He was assessed by videoconference, alone. The applicant’s clothes were laundered and clean.
The applicant was anxious and did demonstrated avoidance. He requested not to view the entire CCTV and audio recordings whilst having identified himself in the CCTV recording. Rapport was established and maintained throughout the examination. He spoke with a normal volume of speech and his rate of speech as well as his prosody of speech were normal. He spoke slowly and deliberately.
The applicant was asked about his illicit substance use, he was able to describe his difficulties and how he had used various substances readily. He reported that he had difficulties when he used cannabis and opiates. He reported having a depressed mood and episodic panic attacks with anxiety whilst trying to manage these substances.
The applicant did not report a depressed mood at the examination. He did report a depressed mood during his recovery from this motor accident.
The applicant was orientated in time, place and person. He complained of difficulty concentrating for long periods. He did not require any assistance when participating in this examination. The applicant was able to manage his affect. He politely requested not to show the full recordings. He was not suffering from any self-harm ideas or plans. His judgment was normal and his insight was normal. He did not report any psychotic symptoms or delusions.16.Current functioning
The claimant’s current functioning was as follows:
Selfcare and personal hygiene
The applicant reported that his mother prepared most of his food before and after the motor accident. He reported that he could do cleaning and house duties as tasked to him by his mother and father. His mother did the laundry before and after the motor accident. His clothing was laundered and clean. The applicant had a short haircut. He reported attending his barber about once every two to four weeks. He reported maintaining his beard grooming it himself.
Recreation and social activities
The applicant reported he was able to leave his home alone. He would assist his father with his daily interest. He was able to participate in traditional short prayers. He was able to participate in the traditional daylight fasting during Ramadan. He had attended two lectures of interest at his local prayer room during 2023. He had attended two services at the mosque during 2023. He was able to use his digital social media. He would socialise with his extended family.
Travel
The applicant reported he was able to travel to his brother’s home with food prepared by his mother most workdays prior to the examination. He was able to drive his father’s vehicle for specific trips to and from members of his father’s social network without impairment. He preferred not to drive on congested highways or throughfares.
Social functioning
The applicant said he had maintained his relationship with his father, mother, sisters and brothers. He did not report any difficulties within his family. He reported he was accepting of his parents help, guideline and direction. He did not have a partner before or after he motor accident.
Concentration persistence and pace
The applicant reported his concentration was poor. He was observed to be able to respond, remain on task and participate for the entire duration of the 90 minute re-examination.
Adaptation
The applicant had not returned to work. He said his parents had been encouraging him to increase his activity in the community, participate in his social relationships with his sisters and brother as well as help with tasks directed by his family. He was accepting of waking between 5 – 6 am each day and drive to his brother’s with his lunch prepared by his mother. He was hopeful of looking for new employment.17.Comments of consistency
The applicant presentation was consistent with the clinical records forwarded with the referral. Specific records from the opiate rehabilitation service provider as well as records from the psychologist were not forwarded.
The applicant spoke plainly and acknowledged the difficulties he had with cannabis and opiates. He was able to report his success in stopping these substances, prior to and after the motor accident.DETERMINATIONS
18.Diagnosis and reasons
The Panel was of the opinion that the best diagnosis that provided a complete understanding of the claimant’s psychological injury sustained in the motor accident was, Opioid use disorder in sustained remission DSM5TR code F11.20 as a result of the subject accident, and this has remitted.
The applicant provided a complex history of various events in his life prior to the motor accident that had caused his general practitioner to consider the diagnosis of posttraumatic stress disorder. The applicant was resilient in relation to the various injuries he had sustained at work, falling from motorcycles or assaults when he had been hit in the face around the right eye without the applicant suffering from posttraumatic stress disorder.
The applicant had been a heavy consumer of cannabis mixed with tobacco, prior to the motor accident. This combination of substances is clinical known to cause increased frequency and increased severity of withdrawal effects including severe anxiety, depressed mood and panic attacks. These symptoms were documented by the general practitioner prior to the motor accident and whilst the applicant reported trying to withdraw from his use of cannabis.
After the motor accident that applicant reported difficulties with opiates. He reported problems with opiates and tramadol at a prescribed dose of about 200mg daily. He sought help. He was stabilised using methadone and withdrawn from opiates with the use of intramuscular buprenorphine as an injection. During this time he again experienced severe anxiety and depressed mood, “depression”. The symptoms were treated with fluoxetine 20mg daily. The withdrawal from opiates was successful. The applicant’s anxiety and depressed mood improved. He ceased fluoxetine. His opioid use disorder had remitted with treatment.
The Panel finds the applicant did suffer from Opioid Use Disorder in sustained remission DSM5TR code F11.10.
The Panel finds that the applicant also experienced anxiety and depressive symptoms associated with the psychological impact of the subject accident and his physical injuries and pain with opioid use. This is consistent with an Adjustment disorder with mixed anxiety and depressed mood DSM5TR F43.23.19.Causation and reasons
The applicant had found work after recovering from his cannabis mixed with tobacco heavy usage prior to the motor accident.
The applicant was psychologically injured due to the dangerous driving of the other driver.
The Panel confirmed the applicant did have a collision on the road with the other driver’s car. Immediately followed the side swipe collision. The applicant pulled over and spoke to the other driver, through the window. The applicant said he was not psychologically or physical injured at this stage.
The applicant walked in front of the at fault driver’s car to photograph his number plate. The at fault driver then started to drive his car towards the applicant. The applicant was forced onto the bonnet and was forcible ejected from the bonnet of the vehicle by the at fault driver braking sharply. The applicant said he was physically injured by the fall off the bonnet. The Panel is not assessing physical injury sustained in this motor accident. The Panel accepts on the face of the evidence that the applicant’s general practitioner treated the applicant from physical injuries, most likely as documented by the medical officer at St George Hospital on 11 July 2020 as musculoskeletal (MSK) in nature.
The Panel’s task is to assess the psychological impact of each event.
The Panel concluded the applicant did not suffer a psychological injury from the side-swipe collision.
The Panel concluded the applicant did not suffer a psychological injury from the from the conversation with the other driver through the vehicle window.
The Panel concluded the applicant did suffer a psychological injury from the collision between the applicant and the bonnet of the other driver’s car and after the applicant fell off the bonnet. The applicant developed physical injuries and pain. His general practitioner treated the applicant with opioid analgesic. The applicant subsequently developed an opioid use disorder. The subject accident is a major causal factor of this non-threshold injury.
The applicant also developed anxiety and depressive symptoms associated with opioid use, and from the fear he suffered when he fell off the bonnet. This is consistent with an Adjustment disorder with mixed anxiety and depressed mood and was also caused by the bonnet event.
Summary of injuries referred by the parties20.The following injuries WERE caused by the motor accident:
· Adjustment disorder with mixed anxiety and depressed mood DSM5TR code F43.23.
· Opioid Use Disorder in sustained remission DSM5TR code F11.10.
CONCLUSION
21.The following injury is a non-threshold injury:
· Opioid Use Disorder in sustained remission DSM5TR code F11.10.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the examination findings of Medical Assessor Baker and Medical Assessor Hong as well as their reasons.
[4] Section 7.26(6) of the MAI Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] The Medical Assessors have explained the basis of their assessment which is not dissimilar to the assessment made by Medical Assessor Shen. The Medical Assessors have considered, but do not accept, the findings of Dr Synnott for the reasons stated.
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel finds that the following injuries WERE caused by the motor accident:
1. adjustment disorder with mixed anxiety and depressed mood DSM-5 TR Code F43.24, and
2. Opioid use disorder in sustained remission DSM-5 TR Code F11.10.
The Review Panel finds that the following injury WAS NOT caused by the motor accident:
1. post-traumatic stress disorder
As previously stated, the Review Panel makes no findings in relation to depression as it is not a diagnosis defined by DSM-5 TR, nor in relation to anxiety, as it is not a diagnosis defined by DSM-5 TR.
Whilst the Review Panel is satisfied that the motor accident caused the claimant to suffer an Opioid use disorder in sustained remission, which is a non-threshold injury, it does not so certify, as that injury/condition falls outside the terms of the referral to the Review Panel, which is aware of the strictures imposed by the recent Court of Appeal decision in Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71.
CONCLUSIONS
For these reasons, the Review Panel confirms the certificate issued on 5 December 2022 by Medical Assessor Wayne Mason.
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