Elia v Allianz Australia Insurance Limited
[2024] NSWPICMP 74
•14 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Elia v Allianz Australia Insurance Limited [2024] NSWPICMP 74 |
| CLAIMANT: | Deniz Elia |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 14 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical assessment threshold injury; adjustment disorder with depressed mood; medical assessment incorrect in the material respect; statutory provision of Motor Accident Injuries Act 2017; Held – no convincing evidence of pre-existing disorder; no evidence of prior psychological or pharmacological treatment; certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Thomas Newlyn dated 4 July 2022. |
STATEMENT OF REASONS
INTRODUCTION
Deniz Elia (the claimant) was involved in a motor accident on 28 August 2020. She was a front seat passenger wearing a seat belt in a stationery four-wheel drive vehicle when the vehicle in which she was travelling was hit in the rear by another vehicle. The airbags were not deployed. The car was driveable. The police and ambulance did not attend the scene of the accident.
The claimant requested the insurer concede that her injuries ought to be considered non-minor for the purposes of the Act. This concession was not forthcoming and the matter was referred for medical assessment to Medical Assessor Thomas Newlyn. He examined the claimant on 25 May 2022 and determined that the claimant suffered an adjustment disorder with depressed mood and this was a minor injury for the purposes of the Act. The claimant sought a review of this determination on the basis that the Medical Assessor failed to provide adequate reasons in relation to the diagnosis of injuries caused by the accident and, in particular, in relation to the failure to diagnose post-traumatic stress disorder.
The matter was referred to the President’s delegate, Tammy O’Carroll, who in a decision dated 21 October 2022 determined that she was satisfied that there was a reasonable cause to suspect that the medical assessment was incorrect in the material respect. Thereafter the issue of whether or not the claimant had sustained an injury which can now be classified as a minor injury (now called threshold injury) was the matter to be determined by the Medical 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 the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The Panel determined that an examination of the claimant was required. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
The threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the Motor Accident Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The applicant insurer has sought a review of a certificate of Medical Assessor Thomas Newlyn and submits that the medical material does not support a finding that the claimant sustained a threshold injury.
RE-EXAMINATION FINDINGS
The medical panel examined Mrs Elia at 2pm on 24 January 2024 via telehealth using the Microsoft Teams application. Mrs Elia’s identity was confirmed by her NSW Driver’s License. Claudia El Brihi, interpreter, was present during the assessment.
The claimant lives in Yagoona with her husband, 30-year-old daughter and 2-year-old grandson. She has two older children who live independently in Milperra and Mt Druitt.
The subject motor accident
When asked to describe the motor accident, the claimant reported that on Friday
28 August 2020 she was in the front passenger seat of a Mercedes SUV in Homebush driving home from dinner when she was hit from behind by a sedan. She could not remember what make or model of sedan this was. She said that she was “in shock”. They exchanged details then drove home.
Symptoms and treatment after the accident
The claimant reported that she experienced pain in her right shoulder on the Friday night and went to see the doctor on Monday. She said that she had a scan and was told she has a “tear” in her shoulder.
She said that not long after the accident she was “scared” about driving. She began having dreams about her or her children being injured.
She said that her daughter does most of the cooking and cleaning because of her shoulder.
She said that she still attended Church but less regularly than before.
She confirmed that she didn’t report any psychological symptoms to her general practitioner until around May 2021. She saw a counsellor in Bankstown on two occasions but “didn’t like it” so stopped. She did not consult a psychiatrist.
Current and proposed treatment
The claimant is not engaged in any treatment for psychological or psychiatric issues.
Past psychiatric history
The claimant initially denied any past psychiatric history. She denied any previous diagnosis or treatment. She denied any psychiatric hospitalisations.
She was asked about reference in the material to past mental health issues. She said that in 2003 after her sister’s death she was upset because her sister passed away so young with leukaemia. She said that she was distressed for about a week. She did not seek any therapy or medication. She said that in 2014 she was worried as her brother was sick and passed away from Diverticulitis. She said that this only affected her for a number of months and she did not have any therapy or medication.
Medical history
The claimant reported a history of kidney stones however said that she has not had any for 10-12 years. She takes Ural for this condition.
She reports a history of hypertension on medication.
She had a motor accident in 2005 and injured her shoulder. She denied any psychological symptoms from this.
Personal history
She was born in Lebanon and is the youngest of eight children. She got married age 21 and migrated to Australia with her husband. She is an Australian Citizen. Her husband worked at a RSL club. She said that she had a “beautiful” childhood with lots of friends and families around. She denied ever directly witnessing any war or conflict. She denied being the victim of any abuse or trauma. She attended school to the equivalent of year 10 or 11. She is of Christian faith and attends Church. She previously worked with her husband then was a homemaker.
She did not know of any family psychiatric history.
She denied the use of alcohol or recreational drugs.
Mental state examination
The claimant appeared to be lying in her bed for the duration of the interview. She was reasonably and appropriately groomed. She engaged freely and easily. She reported a “depressed and worried” mood. Her affect was reactive. 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 was no suicidality.
Diagnosis and reasons
The claimant suffers from an adjustment disorder.
She fulfils DSM-5 criteria as follows:
“A she developed emotional symptoms in response to the motor accident within 3 months.
B these symptoms are clinically significant as she reports marked distress.
C the disturbance does not meet the criteria for another disorder and is not merely an exacerbation of a pre-existing disorder.”
She does not have post-traumatic stress disorder. The subject accident does not meet Criterion A as there was not exposure to actual or threatened death or serious injury. She does not have intrusive symptoms. Her description of dreams clinically are not of the quality or content associated with intrusive symptoms of post-traumatic stress disorder.
She does not have an exacerbation of a pre-existing disorder. There is no convincing evidence of a pre-existing disorder and no evidence of prior psychological or pharmacological treatment.
“D The symptoms do not represent normal bereavement.
E Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.”
While it is more than six months after the accident, the pain (a consequence of the accident) is ongoing and continues to cause the adjustment disorder.
Conclusion
The claimant suffers from an adjustment disorder with depressed mood which is a threshold injury.
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