Fayad v AAI Limited t/as GIO
[2023] NSWPICMP 505
•10 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Fayad v AAI Limited t/as GIO [2023] NSWPICMP 505 |
| CLAIMANT: | Ahmad Fayad |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 10 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Hong who found the claimant had a persistent depressive disorder and a somatic symptom disorder with predominate pain and assessed 7% whole person impairment (WPI); claimant injured in an accident on 20 April 2018 suffering physical disabilities and subsequently to this a psychiatric disability; claimant became dependent on consumption of cannabis but ultimately was able to cease this; claimant has been able to continue his employment; claimant originally assessed with a psychiatric impairment of 17% and 16% but the panel is found that the claimant had made a satisfactory adaptation to his injury; panel assessed the claimant as having 6% WPI and having an adjustment disorder with mixed anxiety and depressed mood; Held – certificate of MA Hong revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Hong dated 25 March 2022. The Panel determines the following injuries caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%:2. · Adjustment Disorder with Mixed Anxiety and Depressed Mood. |
STATEMENT OF REASONS
BACKGROUND
Medical Assessor Hong (the Medical Assessor) found the following injuries were caused by the motor accident:
• Persistent depressive disorder, and
• Somatic Symptom Disorder (with predominate pain).
The Medical Assessor determined the following injuries caused by the motor accident gave rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:
· Persistent depressive disorder
· Somatic Symptom Disorder (with predominate pain)
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
• Chronic Disorder with predominant pain and a major depressive disorder.
Ahmad Fayad (the claimant) has sought a review of the certificate and reasons of the Medical Assessor.
The accident
On 20 April 2018 the claimant was driving on his own along the Hume Highway, Warwick Farm, when the car in front of him stopped. He slowed down and then a collision occurred when the insured car following him failed to stop. He said that the car behind was driving at 70 kmph. His car was pushed forwards and collided with the car in front. Altogether there were four cars involved. The airbag in the claimant’s car was deployed. His car was written off by the insurer.
The claimant went home in a tow truck. He later went to Liverpool Hospital and stayed for three or four hours.
Claimant’s submissions
The claimant says that the Medical Assessor did not take an adequate history of the frequency of consumption by the claimant of cannabis. He did however remark that “I do not believe his cannabis use reaches the criterion for a substance use disorder”. The claimant says that the Medical Assessor provided no explanation of how he arrived at that conclusion.
Because of the subject accident, the claimant says that he reported to the Medical Assessor that he consumed cannabis to help him cope with pain and anxiety. The claimant says that prior to the accident, he would smoke cannabis recreationally, however, following the accident, he would smoke cannabis daily.
The claimant says that the Medical Assessor noted that he would purchase cannabis without a prescription however six months prior to his assessment, he obtained a prescription from his general practitioner (GP). The claimant says that he informed the Medical Assessor that he would not smoke when he was required to work or drive his truck.
The claimant says that notably, he previously provided a history to other doctors including Dr Allan, consultant psychiatrist, that he would smoke cannabis up to five times daily and stopped because “it was making me dumb; it did get rid of the depression but I couldn’t keep doing it”.
The claimant says that he provided a history to Dr Vickery, psychiatrist, that “I gave up a week ago when I was high and I was holding my daughter and I felt it wasn’t right”. The claimant says that despite these attempts to quit smoking cannabis, he did not and instead, he was granted a prescription.
The claimant says that the Medical Assessor did not take an adequate history of the frequency of consumption of cannabis. The claimant says though that the Medical Assessor did, however, remark that “I do not believe his cannabis use reaches the criterion for a substance use disorder”. The claimant submits that the Medical Assessor provided no explanation of how he arrived at that conclusion.
The claimant submits that if the claimant’s consumption of cannabis was not considered substance abuse, then the Medical Assessor ought to have considered whether an adjustment for the effects of treatment should have been made. The claimant submits that cannabis satisfies the criterion of clause 6.222 of the Motor Accident Guidelines as it is an effective treatment for, amongst other things, depression, which is presumably what it was prescribed for. The claimant says that he made clear that he consumed cannabis for both his physical and psychological injuries.
The claimant says that the certificate of the Medical Assessor is erroneous in a material respect because:
(a) he has not provided an adequate explanation as to why the consumption of cannabis did not amount to a substance abuse disorder, noting the above history;
(b) if he did not consider cannabis gave rise to a substance abuse disorder, he ought to have given consideration as to whether any adjustments for the effects of treatment should have been made, noting it was prescribed to him by his GP. He did not do so, and
(c) an adjustment in terms of treatment or a determination that it amounts to a substance use disorder can have a material effect upon whether the claimant exceeds the statutory threshold for non-economic loss.
The claimant has made submissions regarding the psychiatric impairment rating scale (PIRS) assessment.
Regarding social functioning, the claimant refers to the Medical Assessor noting that the claimant’s wife moved out of their home and that they had been separated for six months. The claimant says that the Medical Assessor did not take a history about the effect the claimant’s injuries have had upon his ability to care for his children, apart from noting that he sees them regularly.
Further, the claimant says that the Medical Assessor noted that the claimant had lost friends and Dr Tanveer Ahmed noted the claimant has difficulty caring for his children.
The claimant says that whilst he still remains in contact with his wife and they are civil, he has lost his partner and close friends. He noted that his wife and family considered him to be lazy.
In the circumstances, the claimant submits that his impairment for social functioning is better categorised as class 4.
Regarding concentration, persistence and pace, it was noted that the claimant reported to the Medical Assessor that he has concentration and memory problems, which he attributed to his cannabis consumption. The claimant says that despite this, the Medical Assessor said that the claimant could concentrate on intellectually demanding tasks for one hour and stated “e.g. to obtain contracts and assign work to subcontractor drivers”.
The claimant says that his occupation simply requires him to allocate work to subcontractors. It does not involve intellectually demanding tasks. The claimant says that the Medical Assessor misapplied the criteria for concentration, persistence and pace. The claimant says that the Medical Assessor considered the claimant’s prior occupation as a truck allocator and noted that he did not make any mistakes.
The claimant submits that the Medical Assessor used the claimant’s prior state of functioning when adjudicating on his present state, and therefore fell into error. In particular, the claimant says that the Medical Assessor did not take into account the claimant’s consumption of cannabis over his present employment and whether that has reduced his concentration, persistence and pace.
The claimant relies upon a report of Dr Allan, consultant psychiatrist. The claimant says that Dr Allan formed the view that the claimant’s psychological injuries fell into class 3 as the claimant was unable to read to any extent. The claimant said that this is something that the Medical Assessor did not consider.
The claimant submits that having regard to his forgetfulness and the fact he is easily overwhelmed by information, his impairment is better categorised as class 3.
Insurers submissions
The insurer submits that the Medical Assessor’s reference to the Motor Accident Injuries Act 2017 (the Act), the Motor Accident Guidelines (the Guidelines), and the Motor Accident Regulations was not incorrect in a material respect and therefore the matter should not be referred to a Review Panel.
The insurer submits that the Medical Assessor relied on his clinical expertise, setting out a clear path of reasoning in support of the permanent impairment determination.
The insurer submits that the claimant’s contentions are merely a difference of opinion to that of the qualified Medical Assessor, and, essentially, have no merit. The insurer submits that a difference of opinion does not in any way constitute a material error.
The insurer says that the Medical Assessor provided determinations with respect to causation and reasons. The insurer notes that the Medical Assessor provided a clear path of reasoning between the mechanism of the accident, the nature of the injury, and the claimant’s presentation at assessment.
The insurer submits that essentially, the Medical Assessor was best placed to make the determination pertaining to the diagnosis given the plethora of evidence before him. Following on from this the insurer submits there is no indication throughout the certificate that the Medical Assessor was incorrect in a material respect.
The insurer also submits that it is also abundantly clear that the Medical Assessor noted his consideration of the medical evidence and the information therein.
The insurer submits that the Medical Assessor’s medical assessment certificate, with reference to the Act, the Guidelines, and the Regulations was not incorrect in a material respect.
Medical evidence
There is a Discharge Referral from the Liverpool Hospital dated 23 April 2018. The claimant presented with neck pain following a rear ending by another car. He went home after the accident and had neck pain and pain all over his body, with no limb symptoms. He was tender in the mid neck. A CAT scan of the neck was undertaken, which was normal. His collar was removed. He was given a prescription for Endone and it was recommended he see a general practitioner.
The insurer noted the internal review certificate February 2021, and reiterated the claimant’s whole person impairment (WPI) was below 10% and there was no new information after that review. The insurer considered Medical Assessor Samuell’s certificate, who said that there was no psychiatric diagnosis. Reference was made to Dr Ahmed, psychiatrist, who diagnosed Adjustment disorder with WPI 17%. Dr Vickery, concluded there was no psychological diagnosis and the insurer relied on Dr Vickery’s assessment and said that this ought to be favoured.
Medical Assessment Service Certificate from Dr Samuell dated 29 November 2019, reported there was no psychological injury and recorded Mr Fayad had no psychological treatment. He has a needle phobia. He experienced neck pain.
Dr Dias, occupational physician, providing a report of 24 August 2020, recorded that the claimant attended for the first time after the accident to his GP, Dr Khan on 8 May 2018. There was no mention of the use of cannabis as a pain reliever. Dr Dias said:
“As a result of the significant subject motor accident Mr Fayed sustained an acute musculo skeletal injuries to his lumbar spine (an acute L4/L5 disc protrusion) cervical spine, left shoulder and thoracic spinal regions. He has continued to experience ongoing symptomatology in his neck, lower back and left shoulder regions on a continual basis over the course of the past 28 months. His lower back condition has been associated with persisting left lower limb radicular symptomatology and science over the course of the past 28 months. In my opinion, the causal chain stemming from the subject accident to Mr Fayad’s current conditions remains unbroken”.
Dr Vickery, provided a report of 7January 2021. He said there was no past psychiatric history. He noted the claimant’s pain and physical restrictions, he had several sessions of counselling and did not like opening up to strangers, and did not continue. The claimant said that he could not return to bobcat driving due to pain, and did office work as a trucker operator and was made redundant in June 2020. He had used cannabis 1g daily for pain but said that he gave up a week earlier prior to the examination. Dr Vickery noted Medical Assessor Samuell’s Medical Assessment Service Certificate and said there was no psychological diagnosis and no WPI.
Dr Allan, psychiatrist, provided a report on 13 January 2021. He reported that there was no past psychiatric history, before the subject accident, the claimant smoked cannabis on social occasions, and increased after the subject accident to manage pain and mood, and stopped two months before this examination as it made him dumb. He had no interest in further psychological treatment, after two sessions with a psychologist. He diagnosed a Somatic Symptom Disorder with predominant pain that had become chronic. He provided a PIRSassessment with a rating of, 2,2,2,3,3, 3 and a WPI assessment of 15%.
Dr Donnellan, neurologist, in a report of 31 October 2018, noted maximal tenderness in the vicinity of the L4/5 vertebral segment on the left. An investigation report noted an annular tear of this disc.
Allied Health Recovery Requests noted anxiety and depressive symptoms secondary to the subject motor vehicle accident.
Dr Ahmed, provided a report of 20 August 2020. He noted the circumstance of the subject accident, and diagnosed an adjustment disorder. There is some isolation from his friends. He provided a PIRS rating of, 2,3,2,2,3,4 and a WPI assessment of 17%.
Dr Smith submitted a report to the insurer dated 15 May 2019. He referred to a radiology report in the correspondence. He said the claimant had an MRI of his neck, low back and the left shoulder at the request of Dr Herald, an orthopaedic surgeon in Liverpool. The MRI was undertaken on 29 July 2018. There are no notes from Dr Herald. Very minimal disc dehydration is described at C4-5 and CS-6 with minimal disc bulging at C4-5. At L4-5 there is a posterior annular tear with a central disc protrusion of moderate size indenting the thecal sac and impinging on the LS nerve roots. The MRI of the right shoulder demonstrates no abnormality.
Dr Smith said that there was nothing objectively wrong with the claimant on clinical examination. He said that the claimant had some rather unusual symptoms and that he thought he was injury focussed.
Dr Keller, orthopaedic surgeon, provided a report to the insurer dated 19 November 2020. Inspection of the cervical spine was normal. He demonstrated a full symmetrical range of motion including flexion and extension 45°, rotation of both sides 90°, flexion to both sides 40°. There was no spasm. The claimant reported pain on cervical flexion. Sensation to light touch was normal and symmetrical in both upper limbs. He demonstrated a full symmetrical range of motion in both shoulders including flexion and abduction to 180°. There was a full symmetrical range of motion in both elbows, wrists and all fingers. There was a full symmetrical range of motion in the thoracolumbar spine including extension 30°, flexion 90°, flexion and rotation of both sides 45°. There was no spasm, but he reported pain on flexion. Power and sensation to light touch were normal and symmetrical in the lower limbs. Straight leg raise was 80° on both sides. Essentially the examination was unremarkable.
There is a certificate of Medical Assessor Cameron dated 21 October 2019 for physical injuries. The Medical Assessor conclude that the lumbar spine disc protrusion L4/5 was not a threshold injury but the cervical spine and left shoulder injuries were threshold injuries.
Medical Assessor Cameron found causation for the claimant’s lumbar disc injury was established for multiple reasons.
(a) Firstly, he referred to the nature of the crash with multiple impacts, including a significant initial impact, which could have caused an injury to the lumbar intervertebral disc.
(b) Secondly, the claimant stated that low back pain commenced soon after the crash and the certificate from the general practitioner supported this. The Medical Assessor said that this was consistent with a disc injury.
(c) Thirdly, at the age then of 27 years, the claimant was less likely to have degenerative changes to his intervertebral discs than a person twenty or more years his senior. The Medical Assessor said that there was no other credible reason to explain the disc injury.
(d) Fourthly, the imaging suggested that there was a disc protrusion which is a condition that is in addition to fissuring of the annulus of the intervertebral disc.
Medical Assessor Hong provided a certificate of 25 March 2022. He assessed a 7% WPI and concluded that the claimant had a persistent depressive disorder as well as Somatic Symptom Disorder with predominate pain.
The Medical Assessor noted that the claimant had not had surgery and reported that he is afraid of needles and had declined cortisone injection. The claimant was reported to have had physiotherapy and had training at the gym to help him rehabilitate. His main current problem was predominantly his left shoulder and back, and said that he had tried to do his best but really could not do much. He complained that he experiences "pins and needles".
Psychologically, the claimant said that he cannot do a lot of things because of pain and when he has spare time, he feels like he is thinking too much and that everything changed after the subject accident. He described depression and anxiety symptoms.
The claimant also reported he has been using cannabis to help him cope with pain and anxiety. The claimant said that before the accident, he used cannabis on the weekend and since the accident, he smoked daily. He was buying it without a prescription, and in the last six months before this assessment, his GP started prescribing legal cannabis. The Medical Assessor reported that he asked the claimant whether there had been any problem due to cannabis. He responded that he has been forgetful and that his wife was not particularly happy with him smoking cannabis. He said that when he has to drive his truck, when he is working, he would not smoke cannabis because he would not want to be caught and lose his licence. The claimant said that he does not use other substances or alcohol.
It was noted that the claimant’s anxiety symptoms were triggered by over-thinking. He was said to have urinary symptoms from anxiety and no panic attacks. He reported having sleep problems often waking up four times during the night from "pins and needles".
The claimant reported being depressed and having reduced enjoyment. He has concentration and memory problems he said from cannabis. The claimant said that he rarely has nightmares, he said because of cannabis. He feels tired at times. He has memories of the subject accident sometimes. He yells when frustrated but does not become physically aggressive. He has suicidal thoughts but he has never attempted suicide because of his religion.
The Medical Assessor said that the claimant did not have a past psychiatric history. He used cannabis intermittently without any evidence of impairment or complication. The Medical Assessor said that the onset of his psychological symptoms was directly and proximately related to the accident. The Medical Assessor said that in addition to anxiety and depressive symptoms, the claimant also started using cannabis daily to cope with his stress and pain. His psychological symptoms have not remitted over time. He determined the subject accident had directly and plausibly caused his current psychological injury.
The Medical Assessor found a (PIRS) rating as follows;
Psychiatric diagnoses 1. Persistent depressive disorder 2. Somatic Symptom Disorder (with predominate pain) Psychiatric treatment description Psychologist
Category Class Reason for Decision 1. Self Care and Personal Hygiene (current) 2 Mr Fayad reported neglecting his self-care. He said he skips meals from a poor appetite, and his weight is overall stable. He showers daily.
He is capable of independent living.
2. Social and Recreational Activities 2 He attends regular social recreational activities with his family and friends. Overall, he has been attending less since his injury, usually once a month.
His physical injuries and chronic pain are not assessable in the PIRS.
3. Travel 2 Mr Fayad is anxious and does not want to be near the location of the accident. He can drive his car and truck and drive on the highway. 4. Social Functioning 3 Mr Fayad's relationship with his wife has deteriorated in the context of his irritability, and they separated 6 months ago and remains on good terms as co-parents.
He has lost some friends.
He is able to maintain a few long-term friendships. The relationship with his general family is reasonable.5. Concentration, Persistence and Pace 2 Mr Fayad reported having reduced concentration. He does not smoke cannabis when he has to drive or work, and can focus on intellectually demanding tasks for 1 hour, e.g. to obtain contracts and assign work to subcontractor drivers. He also worked as an allocator previously without making mistakes. 6. Adaptation 3 He can perform full-time work with a different employer, in less stressful jobs. List classes in ascending order: 222 233
Median Class Value: 2 Aggregate Score: 14 % Whole Person Impairment: 7 %
Panel medical examination
The claimant was examined on behalf of the Panel by Medical Assessor Mason and Medical Assessor Chew. Their examination report follows.
Mr Fayad is a 31-year-old man who lives with his mother in her home in western Sydney. He separated from his wife and 2 young children 2 years ago. He has his own transport business which consists of a tip truck and one employed driver. He said he does not drive the truck and work is allocated by a previous employer, Eastern Plains Hire. He stated there is very little income from the business after he meets costs and he is not in receipt of any Centrelink benefit.
Psychosocial History
Mr Fayad was born in Lebanon. He was unable to clarify which part of Lebanon. He described a normal birth and development. His father died at 24 years of age in 1996 or 1997. The family migrated to Australia when he was 20 months of age and following his father's death his mother worked to support them. He is the youngest of 3 children with a 45-year-old brother who works as a rigger and a 41-year-old sister who is married with 3 children. He described a happy childhood which was okay and said he suffered no form of abuse. During childhood he lived in 7 different homes. He attended McCallums Hill primary school and then Strathfield South high school where he completed year 10 at the age of 17. He said his grades were average but he did very well in food technology.
He completed a TAFE certificate in hospitality and worked at McDonald's, Hungry Jacks, and various coffee shops. He went on to work as an assistant for a plumber and then spent 4 or 5 years working as a spray painter in a business run by an extended family member. He then worked as a rigger for 3 or 4 years and said with some pride he held a ticket which enabled him to do every task, including the most dangerous. He then worked for PX Civil driving trucks and earth moving equipment up until the time of the motor accident.
Mr Fayad married 26-year-old Ayesha and they lived in their own home in Liverpool. They have a 3-year-old daughter and a 2-year-old son. He said they separated 2 years ago as a consequence of the motor accident but he does not really know why. He said she is cooperative and allows him to see the children on a regular basis.
Leisure activities prior to the motor accident consisted of going hunting with friends for pigs and kangaroos in the Bathurst area. He said farmers paid them to reduce the load of feral animals on their properties. He also enjoyed riding quad bikes and jet skis. As an adolescent he was involved in karate and cage fighting. Prior to the accident he had been attending the gymnasium up to twice daily for both fitness and body building.
He was involved in a previous motor vehicle accident at 17 years of age. He said a lady rear ended his vehicle at approximately 10 kph and the accident did not result in a claim. He lost his licence for 2 years for travelling at 85 kph in a 60 kph zone while he was still on his red P plates. Forensic history consists of a goods in custody charge when he unwittingly attempted to pawn a stolen item for a younger friend; he said no charge was recorded.
There was no significant medical history apart from childhood asthma which still requires occasional Ventolin use. He said he had not undergone surgery.
From a psychiatric point of view, he has had a severe needle and blood phobia since the age of 6 years. He mentioned when he was a young child, he had an excessive fear of dying which has resolved. With regard to family psychiatric history, he said his brother has either schizophrenia or bipolar disorder but has not been admitted to hospital, is working and is in a healthy relationship.
Current medications consist of Panadeine Forte, 2 tablets approximately 3 times per week to enable him to sleep because of lower back pain. He said he uses Nurofen at the same time.
With regard to substances, he said he does not use alcohol and does not gamble. He smokes between 35 and 40 cigarettes/day. He commenced using cannabis in his teens, initially 1 joint per week with mates which increased to 1 joint per day. He continued to use cannabis at approximately this level up until the motor accident. He said in the past he had tried cocaine but did not continue. He denied the use of other recreational drugs and had never injected drugs.History of the Motor Accident
Mr Fayad said he was on the way to get his HC licence. He was wearing a seatbelt and was stationary. A Lexus IS200 driven by woman hit the rear of his vehicle at 80 kph. He said he had seen the car approaching in his rear-view mirror and had tried to brace himself. The car in front of him had moved to the left lane and he was propelled forward 1 car length and hit the second car in front. He said there were 2 impacts, and he was in shock.
He said he was able to get out of his vehicle. The lady who hit him rushed to her back seat to get her children out of the car and he tried to assist her. He said he then sat at the bus stop and went with the tow truck driver who delivered his vehicle to his home. He said within 1 hour he was in excruciating pain in his shoulders, back and neck and his wife took him to Liverpool Hospital.History of Symptoms and Treatment
Mr Fayad said he arrived at the hospital about 2 hours after the accident and he was there for about 6 hours. He was provided with a neck brace but did not cooperate because it was too tight around his neck. He had scans and x-rays which revealed no bony injury. He said he discharged himself against medical advice and was sent home on Nurofen. He had declined blood tests because of his blood and needle phobia.
Physical symptoms consisted of ongoing neck, back and shoulder pain. At that point there was no radiation of the pain. He later developed pain radiating into his legs. He was referred for physiotherapy and had 10 sessions. A GP provided him with Endone and Tramadol which he took for approximately 1 month and he then switched to cannabis. He initially used street cannabis but did find a general practitioner at Ingleburn who prescribed a 10 g jar of cannabis flowers which he used in a bong. He continued this for 1 or 2 years at the level of approximately 1 g/day; he said consumption increased to 20 cones per day. He said it was relatively effective in terms of analgesia, but he did not like the negative effects of causing him to “zone out” at work and he made the decision to stop using cannabis. He said he used diazepam to treat the withdrawal side-effects and successfully ceased the drug over a 2-week period. He said he has not had any since. Mr Fayad said he did try CBD oil but it was not helpful.
Current lower back pain levels are intermittent. He said he has good days and bad days. On some days he is not disabled by pain unless he does too much physical exertion. On other days for no apparent reason the pain can be bad. He said he can mow the lawn for his mother for 15 minutes but then is in pain for the next 3 hours. Current medication is Panadeine Forte, 2 tablets plus Nurofen to help him sleep approximately 3 times per week when the pain is bad at night.
With regard to psychological symptoms, he said he was initially fearful while driving. He said he was always checking traffic behind him in his rear-view mirror. He described this as always being paranoid. He said he would dream of an accident or smash perhaps once or twice per month, but it was not a replay of the subject accident. He said 1 week ago he had a dream in which a truck was flipping but he was not in it.
Mr Fayad said the main issue is the pain which really gets him down. He said he is 31 years of age and is unable to work because of the pain. He said he did try to drive his truck on one occasion but lasted only 4 hours and was then in intense agony. He also tried driving an excavator but lasted only 30 minutes. He has qualifications which enable him to work (referring to his rigger’s certification) but is unable to use them. He said he still makes efforts to keep active but he cannot do anything productive.
He attributed the end of his marriage to his work injuries but appeared to have little insight into the exact cause of the separation. When directly asked if he was distressed by it he said of course he was but he was unable to explain why it happened. Later in the interview he stated he believes he was being too lazy and his wife was doing everything for him and it became too much for her. He enjoys seeing the children on a regular basis but is distressed by the fact that he cannot play with them or pick them up. He said sometimes it makes him not want to see them. He said things are civil with his wife.
The panel enquired about work after the motor accident. He said he commenced as a truck allocator at Eastern Plains Hire one year after the motor accident and worked there for 2 years on a full-time basis when he was made redundant because of Covid. He was asked why he did not return to that work and he said the company only offered him the role of a site coordinator in Melbourne. He was unable to do this because the role involved walking around the work site which he could not do because of back pain. He said while he was working at EPH he "zoned out a lot"; the boss kept asking if he was okay so he ceased using cannabis for this reason.
Mr Fayad described a sense of hopelessness about the future. He said he is unable to find an office job because he cannot sit down all day. He also said he cannot do full-time work because he "zones out". He cannot drive because of lower back pain and is unable to work again as a rigger also because of pain.
When asked about psychological treatment he said his GP had referred him to psychologist Ms Charmaine Mubarak but he said he did not feel comfortable to open up to a woman. He said he had only 2 or 3 sessions and did not continue because he did not feel they were getting anywhere. There has been no psychiatric treatment and no psychotropic medication prescribed.Injuries or Conditions Since the Motor Accident
Mr Fayad denied any further injuries, conditions or traumas since the motor accident.
Current Symptoms
Mr Fayad was clear that his major problem is intermittent lower back pain. He said if he does very little it does not bother him too much but if he attempts any activity the pain is exacerbated. As a consequence, his mood is then lowered and he experiences a sense of helplessness and hopelessness for the future. He also described some anxiety while driving that he will be subjected to another rear end collision.
Current and Proposed Treatment
Mr Fayad had been referred to psychologist Ms Shona Almoty by his general practitioner in March 2023. He said he has attended 3 sessions, and another has been booked for next week. He said he finds the sessions helpful because she gives him strategies to help him with positive thinking and she teaches him how to relax. He said he did feel more comfortable with her. With regard to his physical condition, he said he had consulted neurosurgeon Dr Nair and he had advised surgery but Mr Fayad said he is terrified at the thought of someone cutting into his back so he has not gone ahead.
Mental State Examination
Mr Fayad is a 31-year-old right-hand dominant man who was casually dressed. He was located alone in the garage at his mother's home. He was identified by his photograph on heavy vehicle driver licence
16084757with expiry date6 February 2027. He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 1 PM and concluded at 2:30 PM.
He was cooperative with the interview and provided information willingly and without prompting. There was no evidence of anxiety or depression throughout the interview. There was a moderate degree of pain behaviour consisting of a need to stand up because of lower back pain. He displayed appropriate reactive affect including humour on some occasions. He appeared to be an honest historian who was not exaggerating his symptoms.
He described intermittent depressed mood arising from back pain and subsequent disability. He said it was not present all the time but could be severe. There was still some anxiety while driving and in regard to finances and the future.
Mr Fayad was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Mr Fayad has not used cannabis for over 2.5 years. Although consumption was most likely at the level of a cannabis use disorder subsequent to the motor accident he was able to cease use without a formal rehabilitation or detox programme He currently does not suffer from a cannabis use disorder and this makes no contribution to current impairment.Consistency of Presentation
Mr Fayad’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis made.
Diagnosis and Reasons.
Mr Fayad was involved in a frightening although not life-threatening motor accident 5 years ago in which he suffered physical injuries resulting in ongoing pain. He was able to work for 2 years in a sedentary role as a truck allocator prior to Covid and has not been able to return to work since because of back pain. He described initial anxiety which he was able to overcome and return to driving but still experiences some fear of being involved in another accident. He does not meet DSM-5 criteria for post-traumatic stress disorder.
Mr Fayad suffers from severe intermittent lower back pain.
Because of the intermittent pain he is depressed on occasions, although when pain is absent his mood is quite bright. Because he does not have ongoing depressed mood on most days the panel has not diagnosed major depressive disorder or persistent depressive disorder.
The most appropriate diagnosis is an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He meets DSM-5 criteria for this condition as follows:
Criterion A is met because emotional and behavioural symptoms commenced within 3 months.
Criterion B is met because the symptoms are clinically significant due to their severity and resultant impairment of functioning. The symptoms arise because of continuing pain caused by the motor accident.
Criterion C is met because it does not meet the criteria for another mental disorder.
Criterion D is met because the symptoms do not represent normal bereavement.
Criterion E is met because the consequences of the accident( i.e. pain) have not terminated.Causation
Medical Assessor Cameron certified Mr Fayad suffered a non-threshold L4-5 disc protrusion capable of giving rise to the claimed back pain. This in turn has caused intermittent symptoms of depression. The Panel concluded the motor accident was severe enough to cause both depressive and anxiety symptoms as described by Mr Fayad. The anxiety symptoms are a direct result of the motor accident. The depressive symptoms are an indirect result. There is no competing cause for the symptoms. The panel is satisfied the subject motor accident was the substantial cause of the condition.
Whole person impairment
When asked to describe his normal routine he said it is boring and he virtually does nothing. He sits in the garage in which he has set up a large television screen with speakers, a computer and an Xbox console. He said he watches documentaries on television and listens to music.
(a)Self-care and personal hygiene: 1. Mr Fayad said he showers once or twice daily and does wear clean clothing. The panel noted his hair was neatly cut and beard neatly groomed. He said a relative comes to the house to do this for him. His nutrition is adequate although said he has lost a lot of weight because he is not as active in the gymnasium. He said he is 186 cm tall and weighs 97 kg; BMI was calculated at 28.0 which is in the high overweight range. He is unimpaired.
(b)Social and recreational activities: 3. He said he does very little. He does not go out to clubs, hotels or entertainment venues. He no longer goes shooting, quad bike riding or jet ski riding. He said friends come by occasionally and urge him to go out with them but he refuses because he cannot keep up with them physically. He said he will occasionally join them at the club to watch a state of origin rugby league game. He is moderately impaired.
(c)Travel: 1. Mr Fayad is able to drive. He said he worries at times while driving but can do so. He said he has not used public transport in a long time but could do so if necessary. He travelled by plane to Tamworth with a friend 1 year ago but needed to use Valium to do so. He is unimpaired.
(d)Social functioning: 3. Mr Fayad separated from his wife 2 years ago because of symptoms arising from the motor accident. He said they remain on good terms. He agreed to move out and live with his mother. He does see the children. His contact with friends has been significantly reduced. He is moderately impaired.
(e)Concentration, persistence and pace: 2. Mr Fayad said he is able to watch documentaries for up to 30 minutes. He is also able to watch a series on television. He said he can follow the plot but sometimes zones out. He manages his own money. He does not need to source jobs for his truck because they are allocated by Eastern Plains Hire. There was no evidence throughout the clinical interview of impaired concentration. Persistence and pace is impaired by his physical symptoms. He is mildly impaired.
(f)Adaptation: 2. Mr Fayad is physically unable to work. He said if his physical symptoms could be totally cured he would immediately return to work as a rigger and said he has received repeated requests to return to PX Civil in that role. He said his income is low and his brother helps out financially. He attempts to help his mother with tasks such as lawn mowing and home maintenance but said he always pays for it with pain. There are times when his mood is low when he does not attempt these things. He is mildly impaired.
Scores: 1 1 2 2 3 3
Mean score: 2
Total score: 12
Whole Person Impairment: 6%
There was no apportionment for pre-existing or subsequent injury or condition and no treatment effect allowance.
Final Whole Person Impairment: 6%Psychiatrist Dr Ahmed examined the claimant in August 2020 and assessed whole person impairment at 17%. His assessments of adaptation and concentration, persistence and pace were significantly higher than the assessments by Assessor Hong or the panel. The most likely explanation for this is the fact that he examined the claimant before he had made a satisfactory adaptation to injury and when impairment was worse. This is supported by the fact that when examined by psychiatrist Dr Martin Allan in January 2021 he assessed whole person impairment at 15%.
Documentation Relied on for the Assessment
AD1 Claimant’s Bundle
APIB 25 May 2018. On 23 April 2018 at approximately 12:50 PM the claimant was travelling on the Hume Hwy, Warwick Farm and had come to a stop behind a stationary vehicle. He was rear ended at considerable speed and pushed into the vehicle in front. Injuries were listed as neck, left shoulder, back, legs and psychological. He attended Liverpool Hospital and was discharged on the same day. He indicated he was working prior to the accident but declined to allow the insurer to contact his employer.
Certificate of capacity was provided by Dr Ijaz Khan of Injurycare Pty Ltd which contained a very lengthy description of the accident. He noted the claimant refused a blood test at Liverpool Hospital. Injuries were listed as right and left shoulder, bilateral rib and chest discomfort, C-spine pain, thoracic spine discomfort and lumbar spine problems.
Liverpool Hospital ED discharge referral is dated 23 April 2018. The claimant presented with neck pain following the subject motor accident. He was unsure about loss of consciousness. There was midline neck tenderness at C4/6. He was discharged on analgesia. He refused all blood investigations and forensic bloods and was not compliant with a neck collar. CT brain and spine were NAD.
Psychiatrist Dr Martin Allan provided an IME report for the claimant dated 13 January 2021. He recorded employment as a truck driver/excavator operator prior to the motor accident. The claimant was unable to return to this work but did return to the employment sector as a truck allocator working for APH for 1.5 years; he was laid off due to Covid. He was married with 1 child and another on the way. There was a history of marijuana use which increased following the motor accident and ceased 2 months before the interview. He uses Panadol for pain. He was born in Lebanon and came to Australia. His father died when he was 2. He lived in Yagoona, Kingsgrove and Greenacre and completed schooling to year 10. His motor vehicle was written off in the accident. He described an extreme level of pain. He diagnosed a chronic somatic symptom disorder with predominant pain and a secondary major depressive disorder. The claimant was not keen to use psychotropic medications and has had only 2 sessions with a psychologist; he chose not to continue. Dr Allan assessed whole person impairment at 15% (232233).
Neurosurgeon Dr Michael Donnellan provided a report dated 31 October 2018. He diagnosed a symptomatic left L5 nerve root impingement and discogenic back pain.
On 2 July 2019, treating physiotherapist Mr Wilson Ngo indicated the claimant had 3 remaining consultations but was too busy to attend so therapy was suspended.
Clinical record of Liverpool Hospital indicates the claimant attended on 23 April 2018 as indicated in the discharge summary above.
Clinical record of Injurycare Pty Lid indicates the claimant was referred to psychologist Ms Charmaine Moubarak of Bankstown on 8 May 2018 for treatment of anxiety as a driver and as a passenger. On 14 May 2018 orthopaedic surgeon Dr Jonathan Herald diagnosed an impingement syndrome of the left shoulder and whiplash injury to the neck plus lumbar muscle strain with possible resolving sciatic symptoms. There was a further referral to an unspecified psychologist on 25 January 2019. There was another referral to an unspecified psychologist on 31 January 2023.
Workfocus Australia closure report dated 1 July 2019 indicates the claimant was engaged in full-time employment as a transport allocator with a new employer. He was independent with all self-care activities.
Psychiatrist Dr Tanveer Ahmed provided an IME report dated 20 August 2020. He diagnosed an adjustment disorder with mixed anxiety and depressed mood directly related to the car accident and subsequent physical injury. He noted in the past the claimant was engaged in cage fighting, four-wheel driving and hunting and is unable to do any of that now. He had been working in a truck allocator role with Eastern Plain Hire until 3 weeks earlier when he was made redundant. He was in receipt of the jobseeker allowance. Whole person impairment was assessed at 16% (232234).
Medical Assessor Cameron provided a certificate dated 21 October 2019 in which he certified cervical spine and left shoulder soft tissue injuries as minor injuries for the purposes of the act and lumbar spine L4-5 disc protrusion as not a minor injury for the purposes of the act. Head injury and right shoulder injury were determined to be not caused by the motor accident. 3 sessions of physiotherapy are related to the injury caused by the motor accident. 3 sessions of physiotherapy were not reasonable and necessary in the circumstances and will not improve recovery.
Medical Assessor Hong provided a certificate dated 25 March 2022 in which he diagnosed persistent depressive disorder and somatic symptom disorder with predominant pain which gave rise to whole person impairment of 7%. He noted 2 previous minor car accidents which did not result in psychological injury. There was recreational cannabis use on weekends prior to the accident. There was no past or family history of psychiatric illness, no forensic history and no developmental trauma. Pre-accident functioning was unimpaired. He described the accident, noting he was wearing a seatbelt and airbags deployed. He noted he was phobic of needles. Treatment consisted of physiotherapy and training at the gym. Pain is a major problem. He used cannabis daily to help him cope with pain and anxiety; this was medically prescribed in the last 6 months. He described anxiety and depressive symptoms but no panic attacks. Sleep is disturbed by pain. There were concentration and memory problems from cannabis. He remembers the accident, yells when frustrated but does not become physically aggressive. He has suicidal thoughts but would not act on them because of his religion. He has not used psychotropic medication and does not wish to do so. He had only 4 or 5 sessions with a psychologist 3 years ago. He noted he and his wife had separated 6 months ago and he has been living with his mother. He has a 2-year-old daughter and a 1 year old son and sees them regularly. His relationship with his wife was described as “civil”. He attends a gymnasium for rehabilitation 3 times per week. He is able to watch television for 2 hours. He can drive. He has regular contact with 3 friends. Employment history is listed as working in coffee shops, hospitality, spray painting and plumbing. He was a rigger for a few years and then became a truck driver. He had been working for PX Civil for about 3 years up to 70 hours/week driving trucks, doing excavation and using a Bobcat. Following the accident he worked for 2 years with Eastern Plant Hire in Parramatta as a truck allocator but was made redundant due to the Covid pandemic. He bought and sold car parts on Gumtree until 1 year earlier. At the time of the assessment he was running his own business as a heavy vehicle contractor; he organised jobs and assigned drivers. He has maintained his heavy vehicle driver's licence. Assessor Hong did not believe the claimant met criteria for major depressive disorder but did meet DSM-5 criteria for persistent depressive disorder. He also diagnosed somatic symptom disorder with predominant pain. He did not believe he met criteria for a cannabis use disorder. He assessed whole person impairment at 7% (222323). There was no apportionment and no treatment effect allowance.
AD2 Insurer’s Bundle
R1. Insurer's submissions in reply to President's delegate. The insurer submits the basis of the application was merely a difference of opinion between the claimant and Medical Assessor Hong and as such has no intrinsic merit.
R2 President's delegate Stephanie Wigan provided a statement of reasons dated 23 June 2022. She noted "the claimant's occupation simply requires him to allocate work to subcontractors. It does not involve intellectually demanding tasks" such as obtaining contracts. She also noted "he did not take into account the claimant's consumption of cannabis over his present employment and whether that has reduced his concentration, persistence and pace". She referred the matter to a review panel.
R3. On 30 March 2021, following Medical Assessor Samuell’s certificate, GIO submitted there was no requirement for whole person impairment assessment because there was no diagnosable DSM-5 psychiatric disorder.
R4. Orthopaedic surgeon Dr Anthony Smith provided a report dated 15 May 2019 in which he concluded there was nothing objectively wrong with the claimant on clinical examination. He stated "he has some rather unusual symptoms. I think he is somewhat injury focused."
R6. Medical Assessor Doron Samuell provided a certificate dated 29 November 2019 in which he concluded psychological injury had not been caused by the subject motor accident. He noted a previous negligent driving charge at 17 and also a charge of goods in custody. At the time of assessment, he was employed full-time doing a desk-based job for 40 hours/week. He was unable to pursue hobbies due to physical problems. Medical Assessor Samuell concluded, "There is no psychiatric diagnosis. Mr Fayad describes a mild degree of common distress that does not reach the threshold of a mental health condition".
R7. St George Hospital discharge referral dated 4 December 2016 indicated the claimant had fallen from a jet ski at 70 kph and was suffering left anterior lower chest wall pain. Chest x-ray revealed no rib fractures.
R8. Occupational physician Dr Andrew Keller provided an IME report dated 19 November 2020. He indicated the diagnosis would be possible soft tissue strains to the cervical and lumbar spine. He believed the injuries had stabilised. He assessed whole person impairment at 0%
R9. Psychiatrist Dr Graham Vickery provided a report dated 7 January 2021. At that time he noted the claimant was buying and selling car parts. He goes fishing several times per week from the riverbank. He goes out for meals with mates and has a good ability to perform his daily tasks. He had been smoking 1 g of strong marijuana per day but had recently given up. He concluded there is no diagnosable DSM-5 psychiatric disorder or injury.
R10. AHRR 1 dated 7 March 2023 is a referral by GP Dr Ijaz Khan to psychologist Ms Shayma Almoty for treatment of an adjustment disorder with mixed depression according to DSM-5. 8 CBT sessions were proposed.
The Panel adopts the report and findings of Medial Assessor Mason and Medical Assessor Chew. The reasons of the Panel are contained within the report and findings.
CONCLUSION
The Panel diagnoses the claimant as having an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
The Panel assesses the claimant’s WPI as 6%.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Hong dated 25 March 2022.
The Panel determines 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.
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