Gad v Allianz Australia Insurance Limited
[2024] NSWPICMP 475
•16 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Gad v Allianz Australia Insurance Limited [2024] NSWPICMP 475 |
CLAIMANT: | Belinda Gad |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
MEMBER: | Ray Plibersek |
MEDICAL ASSESSOR: | Gerald Chew |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 16 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was the driver of a car that was in a T-bone collision with another car in an intersection; Medical Assessor found the claimant sustained numerous injuries which was assessed at a whole person impairment (WPI) of 7%; Medical Review Panel’s opinion was that the claimant suffers from both post traumatic stress disorder which is resolving and a persistent depressive disorder caused by the subject accident giving rise to WPI of 6%; claimant reported a prior history of psychological symptoms that pre-dated the subject motor accident; Medical Review Panel noted that in her social media the claimant demonstrated examples of social functioning and social activity with friends and family different to the levels she reported experiencing to the Medical Review Panel at the re-examination; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under section 7.23(8)(b) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Certificate of Medical Assessor Samson Roberts dated · DSM-5- post-traumatic stress disorder, and · DSM-5- persistent depressive disorder. |
STATEMENT OF REASONS
BACKGROUND
On 15 May 2019 Belinda Gad (the claimant) was involved in a motor vehicle accident at the intersection of Poppendetta and Luxford Road, Bidwill NSW. Ms Gad reported her car was hit by another car turning right across the path of her car. She reported injuries to her chest, back, left knee and leg.
Ms Gad has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Ltd (the insurer) is the relevant insurer with liability to pay any damages to Ms Gad under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by
the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment of the claimant’s psychological injury was referred to Medical Assessor Samson Roberts (psychiatrist) who assessed her on 22 March 2022. Medical Assessor Roberts issued a certificate dated 18 April 2022 which certified that as a result of the result of the subject accident the claimant sustained post-traumatic stress disorder and major depressive disorder and assessed her degree of whole person impairment (WPI) at 7%.
The claimant has sought a review of Medical Assessor Roberts’ certificate dated
18 April 2022.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Review Panel notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the Medical Assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the Medical Assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the Medical Assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available to him. His Honour stated that:
“In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”[3]
[3] Per Elkaim AJ at [45] – [46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41] – [44].
CERTIFICATE OF MEDICAL ASSESSOR ROBERTS
The injury referred to Medical Assessor Roberts for assessment was psychiatric injury –major depressive disorder/ post-traumatic stress.
Medical Assessor Roberts issued a certificate dated 18 April 2022 certifying that as a result of the subject accident the claimant sustained post-traumatic stress disorder and major depressive disorder and assessed the degree of WPI at 7%.
Medical Assessor Roberts provided a history of the claimant's psychosocial background and pre-accident functioning. The motor accident consisted of Ms Gad being involved in a not-at-fault T-boning of another vehicle and ending up on the wrong side of the road in the path of oncoming traffic. He described her deterioration in mood, flashbacks, impaired concentration and memory and an ongoing fear of motor accidents. Treatment consisted of duloxetine
60 mg and psychological consultation which included eye movement desensitisation response (EMDR). He noted some inconsistencies which were addressed. There was no pre-existing or subsequent impairment. He assessed whole person impairment at 7% (222233) and made no allowance for treatment effect. There was no reference in the certificate to the report of Dr Khan.Medical Assessor Roberts diagnoses and conclusion about causation were as follows:
“The history presented by Ms Gad reflects her involvement in a serious motor vehicle accident which resulted in physical injury and as a result of which she continues to experience intrusion symptoms, anxious avoidance and hypervigilance. In this regard her account reflects a diagnosis of Posttraumatic Stress Disorder. In addition she described prominent depressive symptomatology and a range of associated symptoms consistent with the DSM-5 diagnosis of Major Depressive Disorder.
1.The psychiatric symptomatology presented by Ms Gad arose as an effect of the subject motor accident. She did not present a past history of psychiatric vulnerability nor did she describe any other circumstances of a nature that could be construed to have contributed to the causation of her condition.”
REVIEW PROCEDURE
The claimant has sought a review of the medical assessment of Medical Assessor Roberts.
The application was lodged within 28 days of the date on which the Certificate of Medical Assessor Roberts was made available to the parties.[4]
[4] Section 7.26(1)(b) of the MAI Act.
On 4 July 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The claimant’s ground for review were that the Medical Assessor failed to consider and engage with the medico-legal report of Dr Abdal Khan. The delegate confirmed that the report of psychiatrist Dr Abdal Khan was made available to Medical Assessor Roberts but he did not refer to it in his reasons. On that basis she concluded the medical assessment was incorrect in a material respect and referred it to a Review Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).[5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 27 July 2023 the Panel agreed an examination was necessary. All Panel members have had no previous involvement with the claimant or with this matter.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued Directions to the parties dated 27July 2023 which required each party to file an indexed, paginated bundle of documents and requested Ms Gad to attend a medical examination.
In response to these directions the solicitors for the insurer and claimant each filed a number of bundles of documents and also made application to admit late documents. An application was made by the solicitors for the insurer dated 22 September 2023. The Panel has decided to admit all late documents in the interests of justice under rule 67 (3) of the Personal Injury Commission Rules 2021 and Procedural Direction PIC3.
The Panel notes that the parties have provided extensive medical records, reports and clinical notes relating to the claimant’s psychological and physical injuries. The Panel has read and carefully considered all of these medical records, reports and notes before it. The Panel has not referenced or summarised the records relating to Ms Gad’s physical injuries unless they are relevant or have some bearing on the consideration of Ms Gad’s psychological injuries which are the focus of this Panel’s reassessment process.
If some of the medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. See Roger v De Gelder [2015] NSWCA 211 and Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119 which decided that there is no requirement for a Medical Assessor to address each and every report which offers a different opinion and explain how and why his/her own opinion differed.
In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[8]
Pre-accident records
[8] Sections 3 and 42 Personal Injury Commission Act 2020.
There are comprehensive medical and clinical records relating to Ms Gad’s pre-accident medical history.
The pre-accident records also show a prior history of occasional treatment and counselling for anxiety and stress.
The pre-accident medical records from Valley Plaza Medical show that Ms Gad was treated by Dr Kim Ong and various other doctors. There was a previous record under the name of Linda Gabriel. The record commences in 2016. Previous prescriptions indicated diazepam 2 mg was prescribed in January 2018. On 17 January 2017 palpitations after receiving text message from husband who has AVO in place. On 8 January 2018 90-year-old mother died a few days ago of pancreatitis; anxious and tearful, attended funeral with husband, diazepam 2 mg. On 5 March 2019 family stress, issues with 18-year-old daughter, pins-and-needles and tingling feelings, possible ECG changes, referred to hospital.
Post-accident records
NSW Ambulance Service and hospital records
NSW Ambulance Service report indicates a 45-year-old female with traumatic chest pain had self-extricated following a head-on collision at approximately 40kmph. Airbags had deployed. A vehicle turning from a side street collided almost directly head-on. She denied loss of consciousness, spine or neck pain and was fully oriented. GCS 15. She was transported to Nepean Hospital.
Nepean Hospital ED discharge summary dated 15 May 2019 indicated the claimant was in a likely head-on motor accident in which airbags deployed and the car was written off. She remained conscious and self-extricated. Primary survey was clear. Secondary survey indicated tender anteroinferior sternum, tender left knee, associated bruising and swelling and a small graze. She was discharged on paracetamol and ibuprofen for general practitioner (GP) follow-up. There was no reference to psychological injury.
Medical records from Liverpool Hospital show that on 23 September 2019 the claimant presented with central chest pain.[9] On 21 April 2021 presented with chest pain; investigations indicated pain was non-cardiac and probably secondary to stress, dehydration and possible cholelithiasis. Discharged the next day. On 7 May 2022 attended with palpitations, investigations NAD. Symptoms most likely due to a panic attack in social circumstances.
Motor Accident Personal Injury Claim Forms
[9] Claimant’s bundle A13.
In her Motor Accident Personal Injury Claim Form dated 25 May 2019 [10] Ms Gad reported her car was hit by another car turning right across the path of her car. She reported injuries to her chest, back, left bottom knee and leg.
Treating general practitioner records
[10] Claimant’s bundle A 2 pp 434-438.
There are a large number of treating GP records that have been supplied to the Panel by both the claimant and insurer’s solicitors including from Valley Plaza Medical Centre and Hurstville City Medical Centre. [11]
[11] Claimant’s bundle A 3 and A 12 pp 18-397 and 702- 718.
The records from Valley Plaza Medical Centre Patient health summary include the following clinical notes.
On 21 May 2019 first attendance post-motor vehicle accident; physical complaints but no reference to psychological injury. On 24 May 2019 CTP form completed. On 11 June 2019 mobilising better, no reference to psychological injury. On 23 June 2019 presents with left chest pain; ECG NAD, for cardiology follow-up. On 15 January 2020 ongoing right shoulder pain since post-motor vehicle accident; no reference to psychological injury. On15 June 2020 requested referral to cardiologist for follow-up; ECG NAD possibly anxiety related; mirtazapine 15 mg prescribed. On 22 July 2020 anxiety associated with sleep problem; mirtazapine 15 mg at night prescribed. Liverpool Hospital discharge summary dated 7 July 2018 indicated the claimant presented with patchy areas of numbness on the left side of the face and upper and lower limbs. This appeared to be associated with anxiety regarding mother's funeral for three days. MRI brain; outpatient neurology follow-up arranged.
The claimant was referred to a cardiologist on 10 October 2017 with atypical chest pain. There was a medical history of endometriosis, hypertension, gestational diabetes in 2009, migraine in 2011, fatty liver in 2012, impaired fasting glycaemia in 2015 and anxiety in October 2017. On 5 August 2019 she was referred to a surgeon for cholelithiasis. Developed anxiety in October 2017. On 13 December 2019 Centrelink medical certificate indicates unfit for work for one month due to pain and depression. Similarly from 15 January 2020. On
18 June 2020 referred for treatment of recurrent palpitations.On 8 August 2019 a mental health care plan was prepared by GP Dr Maher Miad of Campsie Medical Centre. He made a diagnosis of generalised anxiety. He provided a referral for cognitive behavioural therapy.
The records from Hurstville City Medical Centre health summary include the following clinical notes. The Patient health summary of Hurstville City Medical Centre dated 14 August 2020 Dr Henry Tang is the treating GP. Current medications were mirtazapine 30 mg and diclofenac 50 mg TDS. The record commences on 15 August 2019.
On 15 August 2019 presented following motor vehicle accident six or seven weeks ago still feeling chest pain; wants to see a cardiologist. Panadeine Forte two tablets at night as needed prescribed. On 27 August 2019 did not use Panadeine Forte. Maxigesic prescribed. On 6 September 2019 referred to psychologist Dr Leila Osmani. On 17 September 2019 referred to psychologists Mr Chris Laundy and Ms Deborah Martin-Smith.
On 11 October 2019 driving assessment done, crying over weight gain of 10kg since injury, tense when driving, impression post-traumatic stress disorder, referral to psychologist. No previous history of depression or anxiety. On 8 November 2019 mirtazapine 15 mg at night; patient tearful and is still scared of driving, seeing psychologist weekly, CTP payments stopped. Wants to see psychiatrist. On 6 December 2019 mirtazapine 30 mg, mood not low, poor sleep for three to four hours. On 10 January 2020 drove to Gold Coast and back. On
7 February 2020 anxious, mood swings, crying, not coping at home with four kids, screaming once in the car, still on mirtazapine 30mg. On 10 March 2020 says psychologist told her not to do any work. On 8 May 2020 dizziness, called ambulance, did not attend ED. Sleeping only two hours/day.The treating GP records from Hurstville City Medical Centre contain copies of reports and notes from treating psychologist Ms Deborah Martin-Smith. In records dated
26 September 2019 Ms Deborah Martin-Smith wrote that she had provided treatment under work cover. She noted the claimant was a social worker in a casual position working with violent teenagers in group homes. She noted anxiety about multiple stressors. Ms Deborah Martin-Smith said the claimant returned to work after the accident but was working in an office to avoid risk of further injury. After this history the psychologist stated "on assessment, it is clear that Belinda is suffering from severe PTSD". She also diagnosed depression. She stated there is no history of psychological disorder or trauma in her life. Proposed treatment was CBT with eventual EMDR.
On 26 April 2020 treating psychologist Ms Deborah Martin-Smith provided an update. EMDR was discontinued because it provoked too much anxiety. CBT was continued with some gains. Pain continues to be a problem. She has developed sleep paralysis which has increased old sleep issues.
Medico-legal reports
There are numerous reports from various specialists including from psychiatrists and a treating clinical psychologist.
Reports of Dr Graham George, psychiatrist
The report from Dr George notes the psychiatric diagnosis is post-traumatic stress disorder of a mild to moderate degree.[12] He writes that the claimant has mild symptoms of post-traumatic stress disorder. Dr George says he sees the claimant as having residual symptoms only.
[12] Claimant’s bundle R 14 pp 628- 629.
The claimant acknowledged some depression following the death of her 90-year-old mother three years earlier. She denied any other past psychiatric history. She receives treatment for endometriosis. There was pilonidal sinus surgery 10 years ago and two caesarean sections. Her initial marriage of 18 years to a man 20 years her senior ended due to domestic violence. She was a single mother for a few years and then had a 13 year relationship with a partner who was unemployed and verbally abusive so she left him. She had lived in Melbourne, Brighton Le Sands, Riverwood and now Busby. She had been in a new relationship for four months with a 52-year-old man who worked as an electrician and was supportive.
Dr George’s assessment of WPI is an aggregate of 7 with the median class of 1 (1,1,1,1,2,1) which gives a total WPI of 0%.
Reports of Dr Abdual Khan, psychiatrist
The are reports from Dr Abdal Khan dated 2 February and 28 February 2022. [13]
[13] Claimant’s bundle of documents A 5 pp 663-677.
In a report dated 2 February 2022 Dr Khan noted the claimant presented with pervasive symptoms of trauma, depression and anxiety. Treatment consisted of psychological counselling and mirtazapine 30 mg at night. Duloxetine 30 mg in the morning had been added by her pain management specialist. The claimant was raised in Australia by her Lebanese parents with her 12 siblings.
He diagnosed both post-traumatic stress disorder and major depressive disorder. He assessed WPI as an aggregate of 18 with the median class of 3 (2,3,2,3,3,5) which gives a total WPI of 22%.
Report of Ms Deborah Martin-Smith clinical psychologist
There are a number of reports from Ms Deborah Martin-Smith clinical psychologist. [14]
[14] Claimant’s bundle A 9 at pp 345- 350 and 694 - 698.
There is some uncertainty about when Ms Deborah Martin-Smith first consulted with the claimant. A report dated 26 April 2020 by Ms Deborah Martin-Smith records that she first saw the claimant on 26 September 1999. Although in another report dated 4 August 2022 she writes that she first saw Ms Gad on 26 September 2019 on referral from Dr Henry Tang.
In a report dated 26 September 2019 Ms Deborah Martin-Smith records that the claimant told her that when the accident occurred her car airbag hit her really hard in the stomach and she blacked out. Ms Deborah Martin-Smith writes that it is clear that the claimant is suffering from severe post-traumatic stress disorder. She meets all the criteria for this diagnosis. She is also depressed and at some point she should consider an antidepressant for assistance.
In a report dated 26 April 2020 Ms Deborah Martin-Smith notes that she first saw the claimant from a referral from her GP Dr Tang on 26 September 1999. [15]
[15] Claimant’s bundle pp 340- 341.
In a report dated 29 September 2020 Ms Deborah Martin-Smith provided the following information. There was a consultation following presentation to hospital with chest pain. There had subsequently been 23 consultations. Post-traumatic stress disorder was diagnosed; PCL-5 score was 78/80 on 26 September 2019. BDI was 11/40 which indicated mild mood disturbance only just beyond the normal range.
There is a report dated 4 August 2022 from Ms Deborah Martin-Smith clinical psychologist. [16] This report notes an attendance following presentation to hospital two days earlier with chest pain. Says that the claimant had attended on 35 occasions with the last appointment on
4 August 2022. She referred to the claimant recovering consciousness. She noted the claimant was often too scared to drive to the consultation. Current complaints are ongoing pain in her arm, chest, neck, back, face and shoulder. She also continues to suffer from headaches. She has also experienced lymphoma [sic] in her left leg and foot. Ms Martin-Smith went on to provide commentary on activities of daily living. She noted sleep paralysis which reactivated insomnia from the past. Her diagnosis was post-traumatic stress disorder.[16] Claimant’s bundle A 9 at pp 694 - 698.
Report of Professor Ian Cameron
There is a report from Medical Assessor Professor Ian Cameron who provided a certificate dated 27 February 2022. [17] In this report he diagnosed soft tissue injuries to the cervical spine, thoracic spine, lumbar spine and left knee which gave rise to WPI of 2%. The 2% impairment arose from the left knee soft tissue injury. He noted the soft tissue injuries to the chest, stomach and head did not result in permanent impairment. A review by a Medical Panel of Medical Assessor Cameron's certificate found there was 0% WPI arising from the subject motor accident.
Social media and corporations records
[17] Claimant’s bundle A 9 at pp 678 - 688.
There are a number of photos, posts and records from various social media platforms.[18] These include the following. Video on “Casting Networks Profile”, includes the comment; “Hi, I’m Belinda Gad, I enjoy acting and modelling and I look forward to working with you”. The claimant appears to be bright, smiling and well presented. There are a number of Linda Ena Facebook posts dated, 6 October 2021 five fashion posts, 14 October 2021 one clothing post, 3 November 2021 photo shoot advertisement under an umbrella and
22 November 2021 three days of filming with what looks like hospital bed. There is a Facebook post for the claimant’s wedding on 15 January 2023.[18] R20 – R25.
There are a number of corporations records from ASIC for a number of office holder positions from various companies including extract for Youth and Family Services Ltd. Belinda Gad appointed as Director on 25 October 2022. The company is registered as an Australian charity.
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors provided written submissions dated 26 May 2022 about Medical Assessor Robert’s assessment.[19]
[19] Claimant’s bundle A1 pp 1 -7.
The claimant argues that the assessment of Medical Assessor Roberts erred in his Psychiatric impairment rating scale (PIRS) assessment with respect to the categories of:
(a) social functioning;
(b) concentration, persistence and pace, and
(c) adaption.
The claimant also submits that the Medical Assessor failed to consider and engage with the medico-legal report of Dr Abdal Khan. The claimant emphasises that the history obtained by Medical Assessor Roberts and Dr Khan at the time of the examination differed greatly.
The claimant submits that Medical Assessor Roberts’ findings in his certificate indicate that the claimant suffers from concentration and memory impairments of which represent at least a moderate class 3 impairment and not a mild impairment.
The claimant further submits that in light of the findings of Dr Khan and the history the claimant provided to Medical Assessor Roberts regarding her moderately impaired concentration, pace and persistence, the claimant submits that her adaptability and employability is totally impaired. As such, her lack of adaptability represents a class 5 impairment.
The claimant submits that the Medical Assessor should have provided more expansive explanations as to why he disagreed with the medico-legal opinion of Dr Khan, particularly why his class findings for the PIRS categories of “Social Functioning”, Concentration, persistence and pace” and “Adaption” differed.
Insurer’s submissions
The insurer provided submissions dated 10 June 2022 and 1 September 2023. [20]
[20] Insurer’s submissions R6 and R 17 pp 1-3.
In the submissions dated 10 June 2022 the insurer’s solicitors request that the Commission confirm whether or not the Commission did provide the report of Dr Khan dated
2 February 2022 to Medical Assessor Roberts. If not Medical Assessor Roberts ought to be requested to provide an amended certificate taking into account the opinion of Dr Khan dated
2 February 2022.In the submissions dated 1 September 2023 the insurer’s solicitors submit that the additional material that is provided in its second bundle of documents is inconsistent with the claimant’s alleged incapacity to work and socialise.
The additional documents relied upon by the insurer to support its submissions include the following:
“(a) Enclosure R18 contains Facebook posts belonging to a “Linda Ena” (an alias of the claimant) referring to the claimant having engaged in two separate “photoshoots” and a ‘film’.
(b) Enclosures R19 and R20 show a ‘Casting Networks’ profile belonging to the claimant, that encloses a video understood to have been filmed sometime during 2021.
(c) Enclosure R22 contains a Facebook post depicting the claimant at her recent wedding (understood to have taken place sometime during early 2023).
(d) Enclosures R23 and R24 records the claimant as having been appointed as a ‘Director’ of ‘Youth and Family Services Ltd’ on 25 October 2022, and remaining as a ‘Director’ as at 22 August 2023.
(e) Pages 3-7 of enclosure R25 identifies the claimant as having been appointed the CEO of ‘Qualify Now Pty Ltd’, trading as ‘Australian Learning Academy’, on 16 September 2022 and remaining as ‘CEO’ as at 22 August 2023.”
RE-EXAMINATION AND MEDICAL ASSESSMENT
On 18 October 2023 Ms Gad was interviewed via telehealth by psychiatrists Medical
Assessors Gerald Chew and Wayne Mason.Ms Gad (now Mrs Ena) is a 50-year-old woman who married 58-year-old
Mr Francesco Ena on 14 January 2023. She is not working and said she has been in receipt of the disability support pension since July last year as a consequence of mental health difficulties and physical injuries arising from the motor accident. Her husband works as a carpenter specialising in patios and awnings. She has five children, a 28-year-old daughter who lives in Adelaide and works as a hotel manager, a 20-year-old daughter who married and left home last year, a 19-year-old son who lives at home and is planning to enter the NSW police force, a 14-year old daughter who attends a private school and a 12-year-old son who is in year 6. Her 20-year-old daughter is in receipt of the carers benefit for looking after Ms Gad.
Psychosocial history
Ms Gad was born in Liverpool Hospital. She reported a normal birth and development. Her father died at 74 years of age of an asbestos related condition when she was 21 years of age; he had worked at Cable Makers. Her mother died of pancreatitis and diabetes at age 90 in 2018; she had not worked. Ms Gad is the youngest of 13 children. She said two of her brothers have died. She grew up in the Green Valley and Liverpool areas and described being spoiled during childhood. She denied any form of abuse during childhood and said she had a good upbringing. She attended Busby high school to year 12 which she completed in 1991 with an above average HSC result. She went on to obtain a Bachelor of Education at Macquarie University in 1995.
She has been involved in a number of long-term relationships. The first was with 70-year-old Hamid with whom she had her 28-year-old daughter. She said it was not exactly an arranged marriage but they were introduced by her father when she was 17 and she then eloped with him. She remained with him for 12 years. She experienced domestic violence during the marriage and was afraid to leave; she eventually did so with the help of one of her brothers and his friend. She said during the time with Hamid she lost a lot of weight "because she wanted to be skinny"; she denied depression or anorexia. She said the weight was put back on after she left and she raised her daughter as a single mother for one or two years.
She was next in a relationship with 64-year-old Sean for approximately five years. She said he was a Lebanese man who used her to obtain Australian residency. They had two children together, Chloe aged 20 years and Jayden 19 years. They separated at her insistence. She again denied any psychological difficulties during the separation process which she acknowledged was difficult at times. She stated that there were interactions that could be regarded as “verbal abuse” but thought that this was normal in the process of separation.
She was then in a relationship with 50-year-old Ehab for 12 years. They had two children together, Suzanne aged 14 and Yazen aged 12. She said the relationship ended when he fell in love with an older woman. She denied psychological distress during the process of separation although again acknowledged it was difficult at times. She stated that there were interactions that could be regarded as “verbal abuse” but thought that this was normal in the process of separation.
She met her current partner Francesco Ena in 2019 prior to the subject motor accident. They married in January 2023 and he has sons aged 19 and 26 who spend every second week in the home with Ms Gad.
With regard to work Ms Gad taught as a primary school teacher for two years at Springvale in Melbourne and then at Dulwich Hill/Campsie in Sydney on a casual teaching roster. She said she completed a diploma in counselling in 2009 and then worked as a youth worker with BRC. In 2017 she completed a diploma in case management through TAFE and then worked for family services through Zest Care doing case management work. She referred to this as being a social worker. She was doing this work at the time of the subject motor accident. She said she went back for a few weeks after the accident but was then retrenched. She was unable to remember exactly when she stopped work.
Leisure activities prior to the motor accident were largely sporting related and consisted of tennis, squash and attending the gymnasium frequently. She said she also liked drawing. She denied any past insurance claims and said there had been no history of problems with the law.
With regard to past medical history she said there was a problem with a rapid heart rate which her cardiologist assured her was not physical in origin. When questioned about a possible anxiety basis for the condition she did not agree this was the case. She had a cholecystectomy earlier this year and said she has difficulty with a fatty liver for which she is receiving treatment which includes an increase in the dosage of Ozempic. She denied any past and family history of psychiatric illness.
Current medications consist of duloxetine 30 mg, atenolol 50 mg at night, Olmetec (olmesartan 20 mg/hydrochlorothiazide 12.5 mg) in the morning, Ozempic 1.0mg weekly, rivaroxaban 20 mg 1 daily and Serc (betahistine) 16 mg three times daily.
Ms Gad denied the use of cigarettes, alcohol, recreational drugs and gambling.
History of the motor accident
Ms Gad said she was alone in the car travelling along Luxford Road on her way to work. She had come through a school zone where she had been travelling at 40kmph and was just beginning to increase her speed. A vehicle travelling in the opposite direction made a right-hand turn across her path and Ms Gad was unable to avoid a T-bone collision with the passenger side of that vehicle. She was wearing a seatbelt and airbags deployed. She said her car ended up on the other side of the road but did not collide with any other vehicle.
Ms Gad said she briefly blacked out in the accident and when she woke up she was unable to get out of the car. She said three people including a nurse helped her from the vehicle. She said the nurse called an ambulance and she recalled police were in attendance. She was transported by ambulance to Nepean Hospital where X-rays revealed no fractures. Drug and alcohol testing was performed and she was discharged with analgesic medication.Ms Gad was questioned about the fact that the ambulance report specifically recorded there was no loss of consciousness. She said she could not specifically remember back to the time of the accident but during an EMDR procedure with her psychologist she recalled that she did lose consciousness.
History of symptoms and treatment
Ms Gad said when she was discharged from hospital she was experiencing pain in her chest, shoulder, neck and entire back. She said she went to bed for a week and used the analgesic medication in the hope that the pain would resolve. When this did not happen she attended her GP about one week later. She said she was suffering from pins-and-needles and numbness in the legs. The back pain was terrible and she was unable to sit for too long because of the shoulder pain. She was referred to a physiotherapist but not to any other physical specialists at that time. She said she was eventually referred to a pain specialist at Royal Prince Alfred Hospital but could not remember his name; he prescribed the antidepressant duloxetine in the hope that it would modulate her pain. Since then she has consulted another pain specialist, Dr Dutka, on two occasions but said she is unable to afford further consultations. She continues to use duloxetine 30mg. Currently pain in her neck, shoulder and back continues at a level of 5/10 on a visual analogue scale. She also has difficulty with headache which she said comes from the shoulders.
She was asked to describe her psychological symptoms. She said she became “paranoid”, indicating she was always afraid of another accident. She said she was scared another vehicle would come towards her and hit her. She said it was so bad she would grab her partner on the knee. This fear commenced immediately while her partner was driving her home from hospital. She said she did not enjoy being around family and believes she has lost all her family because she does not communicate with them. She began to cry at this point in the interview and said she did not think they liked her anymore. She went on to say she does not have any feelings. She does not sit next to her husband and enjoy talking with him because she feels low and down. She said she feels numb all the time and currently feels distressed. She said she does not enjoy anything, has trouble focusing on television, does not feel happy, and misses the days when she was able to enjoy these things. She said her son complains she does not listen to him. She finds it hard to concentrate. Sleep is variable. She goes to bed between 10:00pm and 1:00am and wakes up around 3:00am and goes back to sleep until 5:00am. She sits in the bed and gets up at 7:30am to get the children ready and then drive them to school. She said she does the household shopping with the children after school because she feels safer if they are with her. She said her oldest son is now old enough to go out on his own but she has a bad feeling about it all the time and worries something bad will happen to him. She said the children have commenced recently going to see their father for a sleepover once per month. She always worries that they will be injured in an accident. She said recently she would not let her younger son have a sleepover with a school friend because she worried something bad would happen.
It was only much later in the interview that Ms Gad mentioned she had developed bad dreams immediately after the motor accident. She said they occurred frequently initially but in recent times have been less frequent. All of the dreams involve motor accidents. She said the most recent dream involved being in a car in a roundabout and another car hit her. She said she woke up distressed.
Treatment consisted of the prescription of the antidepressant mirtazapine 30 mg by her GP Dr Henry Tang. She said this was to help her sleep and to treat depression. He referred her to psychologist Ms Deborah Martin-Smith and she attended sessions on a weekly basis until one or two years ago when funding was withdrawn by the insurer. Treatment was CBT oriented and EMDR was also implemented. Currently she attends on a monthly basis; 10 sessions are covered under Medicare and she pays for the other two sessions. Ms Gad has found the treatment by her psychologist extremely helpful. She has not been referred to a psychiatrist. Apart from the prescription of duloxetine 30mg by her pain management specialist which has replaced mirtazapine she has not used any other psychotropic medication.
Injuries or conditions before and after the motor accident
Ms Gad said there had been no such injuries or conditions. She was questioned about distress concerning the death of her mother in 2018. She acknowledged the loss of her mother had been painful but said she had grieved normally and recovered satisfactorily prior to the accident. Her brother died at 59 years of age in 2022 of liver failure subsequent to hepatitis C infection. She found this distressing but said it was not unexpected.
Current symptoms
Ms Gad continues to have intermittent traumatic dreams regarding the subject motor accident. She is anxious while driving and while travelling as a passenger in a car. She worries there will be another accident. She is anxious about the safety of the children and finds it difficult to let them be independent on an age-appropriate basis. She finds it difficult to take enjoyment in any activities. She said she does not feel happy. She finds it hard to concentrate and focus, especially while listening to her children. Sleep remains disturbed.
Current and proposed treatment
Ms Gad continues to see her psychologist on a monthly basis. She is unable to afford ongoing pain management consultations. She continues to use the antidepressant duloxetine prescribed by her pain management specialist. She said this does help to some extent with sleep and to a mild degree with depression. She said she does attend a physiotherapist and pays for the sessions herself.
Mental state examination
Ms Gad is a 50-year-old right-hand dominant woman who was located alone in a room in her home. She was identified from her photograph on NSW driver licence. She was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 12:30pm and concluded at 2:10pm.
Ms Gad was cooperative with the interview. She appeared to be wearing a dressing gown and her hair was ruffled and unruly and appeared not to have been attended to; she was not wearing make-up. She was depressed in appearance and was frequently tearful during the early stages of the interview. She displayed significant pain behaviour which consisted of getting up and moving around the room on a number of occasions.
She appeared reluctant to provide information regarding her life prior to the motor accident and appeared to resent questions in this area, saying "what does this have to do with my condition from the motor accident". Many questions about past events were met with "I cannot remember".
The Panel noted she was frequently asked early in the interview to describe psychiatric symptoms arising from the motor accident but she did not mention traumatic dreams until near the end of the interview.
It was noted she had no difficulty with concentration throughout the 1 hour and 40-minute interview. Her memory was patchy, being absent for certain facts but highly accurate for others. She appeared to be resentful and uncooperative when questioned about social media posts which were provided by the insurer.
Ms Gad was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current functioning
Self-care and personal hygiene: Ms Gad said she does not shower regularly and relies on her husband Francesco to remind her to do so. If she is not reminded she does not shower and said she would spend the day lying down. She said she does do the laundry but gets her sister to help by hanging it out on the line because of her physical injuries. With regard to housework she said she does a little bit each day so she can keep on top of it. The limitation again is due to her physical injuries. She is moderately impaired.
Social and recreational activities: Ms Gad said she has withdrawn from activities with her extended family members. She sees less of her friends but said her psychologist prompts her to make an effort to keep in touch. She does walk her dog. She said Francesco insists on taking her and the children out for a meal time to time. During winter she was taking her son to soccer. She is mildly impaired.
Travel: Ms Gad said she is able to drive in the local area for 15 to 20 minutes. She takes the children to and from school in the car. She said she is able to use Uber. She denied driving to and from Queensland as reported by her GP and said Francesco did most of the driving. She does not use a bus or train but believed she would be able to do so if necessary. She has not travelled overseas or by air in Australia. She is mildly impaired.
Social functioning: Ms Gad said she and Francesco get along quite well. She said she does not really talk very much and she is not her same old self. She said their intimate relationship is not what she would wish. The Panel note Ms Gad was able to get married and participate in a wedding. She displayed appropriate concern for the welfare of her children. She is unimpaired.
Concentration: persistence and pace: Ms Gad said she is unable to concentrate really well and because of his cannot read or do puzzles. The Panel note she had no difficulty with concentration throughout the 1 hour and 40-minute interview. She said her memory was terrible but again the Panel noted some degree of selectivity with regard to her memory function. Her ability to persist throughout the interview seemed unimpaired apart from the impact of pain. She is mildly impaired.
Adaptation: Ms Gad said she is unable to work due to a combination of pain, concentration difficulties and depression. She said she is able to manage the housework by doing a little bit each day. The panel note she was a devoted mother who displayed considerable care for the welfare of her children and asked during the interview if she could text to arrange for her daughter to walk home if she was late. She is moderately impaired;
· Class Scores 3 2 2 1 2 3
· Median Score 2
· Aggregate Score 13
· % WPI 6%
Consistency of presentation
There was a discrepancy between the NSW ambulance report and her description of loss of consciousness in the motor accident. She explained this had been a recovered memory during EMDR.
Ms Gad stated the social media posts provided by the insurer were photographs from prior to the date of the accident and did not fairly represent her current state. When questioned about the fact that her wedding photographs were certainly from after the subject motor accident she agreed but stated she was dressed and made up by her attendants which did not require any effort from her.
The Panel regarded her ability to get married and participate in a well-organised wedding was inconsistent with her presentation at interview.
The Panel note she was frequently asked early in the interview to describe psychiatric symptoms arising from the motor accident but she did not mention traumatic dreams until near the end of the interview.
Causation
Ms Gad was involved in a frightening motor accident 4.5 years ago when another vehicle drove across her path and she could not avoid a T-bone collision. Her own car ended up on the other side of the road. The Panel consider the motor accident was of sufficient severity to cause the conditions diagnosed.
Diagnosis and conclusion
Ms Gad meets DSM-5 diagnostic criteria for post-traumatic stress disorder.
Criterion A. She was in a frightening potentially life threatening motor accident.
Criterion B. She described intrusion symptoms consisting of traumatic dreams and memories.
Criterion C. She described avoidance of reminders of the motor accident.
Criterion D. She described negative alterations in cognitions and mood.
Criterion E. She described marked alterations in arousal and reactivity.
Criterion F. The condition has lasted more than one month.Ms Gad also meets DSM-5 diagnostic criteria for persistent depressive disorder.
Criterion A. She described depressed mood most of the day on most days.
Criterion B. She described overeating, insomnia, low energy, low self-esteem, poor concentration and feelings of hopelessness.
Criterion C. She has never been without symptoms for more than two months.
Criterion D. There have possibly been episodes of major depressive disorder.In the Panel’s opinion Ms Gad suffers from both post-traumatic stress disorder which is resolving and a persistent depressive disorder caused by the subject accident giving rise to WPI of 6%.
The Panel note the diagnoses made by psychiatrist Dr Abdal Khan in February 2022 where post-traumatic stress disorder and major depressive disorder were diagnosed. These diagnoses are not at odds with the diagnoses made by the Panel. However there is a significant difference in the assessment of WPI which cannot be explained on the basis of
Ms Gad’s presentation at the re-examination.In reaching its conclusions the Panel has had regard to all the material presented by the parties some of which is referred to above. The Panel notes that Ms Gad reported a prior history of psychological symptoms that pre-date the subject motor accident. The Panel also note the differing diagnoses made by numerous other psychiatrists and psychologists including Dr Graham George and Ms Deborah Martin-Smith. The Panel note that in her social media Ms Gad demonstrated examples of social functioning and social activity with friends and family different to the levels she reported experiencing to the Panel at the re-examination.
CONCLUSION AND CERTIFICATION
The Panel’s opinion is that the claimant meets the DSM-5 diagnostic criteria for post-traumatic stress disorder and also persistent depressive disorder which were caused by the subject motor accident giving rise to WPI of 6%.
The Panel’s certificate is attached at the commencement of these reasons.
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