Hamdan v AAI Limited t/as AAMI
[2025] NSWPICMP 215
•28 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Hamdan v AAI Limited t/as AAMI [2025] NSWPICMP 215 |
CLAIMANT: | Shawki Hamdan |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Surabhi Verma |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 28 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury; alleged post-traumatic stress disorder (PTSD) and specific phobia of driving; no complaints of driving phobia immediate post-accident period; motor vehicle accident followed by assault and abuse; symptoms consistent with assault and subject motor accident; subsequent work injury; additional stresses not accident related; physical injuries being threshold injuries; mental state examination; current examination; post-accident injuries consequent on assault; unrelated medical conditions; subsequent workers compensation; criteria not established for PTSD; threshold injury; Held – MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – threshold injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Samuel Doron dated |
STATEMENT OF REASONS
INTRODUCTION
Shawki Hamdan (the claimant) is a 65-year-old man who was injured in a motor vehicle accident, and subsequent assault, on 23 April 2022.
Following the accident an application for personal injury benefits was lodged and statutory payments commenced. Thereafter the claimant sought a concession from the insurer that he had sustained a non-threshold injury. The insurer declined to make this concession and, following a review, confirmed this determination. Thereafter the claimant lodged an application for an assessment of threshold injury. The claimant was examined by Medical Assessor Alan Home on 9 May 2023 who, in a certificate dated 11 May 2023 determined that the injuries to the claimant’s cervical spine, right shoulder and left shoulder are threshold injuries.
The claimant was examined by Medical Assessor Doron Samuell in respect to psychological injury. Following an assessment on 20 September 2023 a certificate of 9 October 2023 was issued which determined that the psychological injury was not caused by the motor vehicle accident and accordingly ought to be considered a threshold injury. The claimant sought a review of this determination, which was opposed by the insurer. In a certificate dated
9 October 2023 the President’s delegate, Golnaz Mojtahedi, on 14 November 2023 certified there was a reasonable cause to suspect the medical assessment was incorrect in a material respect. This would seem to be based on a contention that the Medical Assessor failed to describe the relationship between the car accident and the assault which followed it, as to whether it was a single accident or two private incidents. Accordingly, the matter was referred to this Medical Panel.
The Panel met by a Teams conference meeting on 13 November 2024. The Panel determined that there was significant material which was before Medical Assessor Doron Samuell which was not before the Panel. Additionally, the Panel is of the view that it is appropriate that a re- examination take place and a further Panel meeting occur after an examination.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant was examined by Medical Assessor Verma and Medical Assessor Mason by Teams on 5 March 2025 at 2.00pm.
Personal details
Mr Hamdan is a 63-year-old man who lives with his wife in their own apartment in a southern Sydney suburb. He said he has not worked since 28 February 2023 and is in receipt of worker's compensation payments. He has a worker's compensation claim for bullying and harassment in the workplace between December 2022 and February 2023.
Psychosocial history
Mr Hamdan was born in Beirut Lebanon. His 86-year-old father is an accountant. His mother is in her 80s and was occupied with home duties. He is the second of six children consisting of three boys, a girl and then two more boys. The family moved to Kuwait City where his father worked and returned to Lebanon when he was 4 or 5. He grew up in Beirut during the Lebanese civil war. It seems his father was often away working in Kuwait.
He said the family was well off and he did not want for anything. He was treated well during childhood. He denied physical, emotional or sexual abuse during childhood but said he was shot at during the Civil War and can recall dodging shells as he moved about the city. He said he was afraid during that time but did not develop any psychological symptoms, adding it caused him to be tougher. However he did acknowledge that the sound of thunder can now result in memories of that shelling.
He completed his education at private schools and then attended the Lebanese American University which was administered by the University of the state of New York. He obtained a bachelor of computer science and left Lebanon at the age of 21 years. He then spent six months in Kuwait where he found work using his computer skills. He noted three of his siblings have computer degrees, another is a pharmacist and another a microbiologist.
He said the family still own property in Lebanon but in 1984 his father did not see a future there and the entire family moved to Australia. He said he initially got a computer science job with Lifesavers (the candy company), then Citibank and various software companies, including a stint with Treasury. He said he then commenced work with Tata Consulting Services (TCS) and had been with them for nearly 20 years. His role was in the sale of high end financial computer software to the banking sector and large corporations. He said he enjoyed this until 2022 when there was a change of management and he is currently in the process of a worker's compensation claim in regard to his retrenchment. He said his salary was upwards of $250,000.
Mr Hamdan married in 1989 and they had two sons. He said his relationship with his wife is strong but his recent health issues have resulted in some strains. The older son is an associate director with NAB and left home two years ago. The other has recently graduated in business law and continues to live at home with his parents.
Leisure activities prior to the accident consisted of travelling throughout the world. He said his role was as a global consultant with TCS and he has visited 52 different countries. He also enjoyed playing tennis and going on overseas holidays such as to Fiji with his family.
Mr Hamdan denied any previous motor accident or worker's compensation claims and said he had never been trouble with the law.
Medical history in the past consisted of hypertension. That was treated with an antihypertensive agent but since his recent health problems that has not been necessary. He also had type 2 diabetes which was treated with metformin 1000 mg twice daily; currently it requires only 500 mg daily. He also had hypercholesterolaemia which was treated with Crestor; he said that has also normalised. He said he weighed 95kg for many years but by diet and exercise manage to reduce his weight to 75kg. He has had long-term problems with renal calculi and at age 22 years was hospitalised for two months. He said since then he has had multiple episodes of renal colic and the blockages have largely been dealt with by lithotripsy.
Recent medical history consisted of the diagnosis of stage II colon cancer in late 2024. This was initially treated with laparoscopic resection which successfully removed the cancer. He subsequently developed an infection and had until recently been in St George Private hospital for two or three months. He said he then required a full laparotomy and a colostomy which requires him to wear a bag. There were further complications because the drain did not work and he had to be operated on again. He said currently the stoma is too active and has caused diarrhoea which has resulted in a number of accidents. The surgery and infection also resulted in renal failure where his kidney function was reduced to 14% and he had to go back to hospital. He said currently he is functioning better. Prior to surgery his weight was between 75 and 78kg. This reduced to 59kg and since being home for a couple of weeks has increased to 63kg. In general terms Mr Hamdan’s physical condition is quite poor. He is cachexic in appearance. He has little physical energy and is only just beginning to regain some strength. He was frequently tearful as he explained these recent medical difficulties.
Mr Hamdan denied any previous psychological problems. He was questioned about an entry in the general practitioner (GP) record in April 2019 that he was unhappy and anxious because of work stress and was sleeping poorly. An adjustment disorder had been diagnosed and he had been commenced on melatonin at night. He said this was transient stress associated with work difficulties during COVID-19. He denied any family history of psychiatric illness.
Current medication consist of mirtazapine 30 mg, metformin 500 mg, pantoprazole 40 mg, tamsulosin 400 mcg, sodium bicarbonate 840 mg, magnesium and Palexia (tapentadol) 50 mg for postsurgical pain. Mr Hamdan said he also uses Panadeine Forte as needed for back and neck pain.
Mr Hamdan stopped using cigarettes three years earlier; consumption was between 25 and 30/day. With regard to alcohol he said he is currently not drinking. In the past did enjoy wine when he went out to dinner and he said he has an extensive cellar at home. He denied the use of recreational drugs, said he does not gamble and has one cup of coffee per day.
History of the motor vehicle accident and subsequent assault
Mr Hamdan said on Saturday, 23 April 2022 he was returning home on Ramsgate Road after shopping at Coles supermarket. He was stationary behind other cars at a set of traffic lights and was alone in the vehicle. He said the lights changed and he was about to start when he was rear ended by another vehicle. He was driving a VW Golf and was wearing a seatbelt. Airbags did not deploy and he did not hit his head or lose consciousness. He said he still had his foot on the brake and was not pushed into the car in front. He said it was a big bang and he was shocked.
He got out of the vehicle and was approached by the other driver who said to him he should have taken off. He said traffic was heavy and they amicably agreed to park around the corner in Chuter Avenue outside the school to exchange details. He said the other driver pulled up behind him.
When they got out of the vehicles he said the tone immediately changed and the man became abusive towards him. The man angrily said his car would not stop, he did not have any money, and his girlfriend had just left him. Mr Hamdan said the man then pushed him on the chest and knocked him to the ground. He then held him near his neck and ripped his T-shirt. He said the man behaved in a very aggressive way and was holding him down on the ground, attempting to choke him and hitting him. He was struggling for air while trying to escape. He observed people were passing by but no one stopped to offer assistance.
Mr Hamdan said he knew he was in danger and tried to get out of the situation by saying to the man he needed to get to his car to get his phone in order to phone the insurer.
When the man let him up he went to his car and immediately got in and locked the vehicle from the inside. He then drove to his wife's café where he called police and ambulance. The ambulance came and comforted him and did an ECG and blood pressure. He said his blood pressure was very high but he was not transported to hospital. He said the physical pain developed that night.
He said the man's car was still there and it was impounded by police. The man was eventually arrested and went to trial in Sutherland court. Mr Hamdan said he was too anxious to go to court and thankfully was not required to do so. He said the man had other offences and he believes he was convicted and spent time in prison because of the assault.
In describing these events he did not indicate distress associated with the rear end collision although he did indicate he was shocked. However when describing the events of the subsequent assault he described being fearful and needing to get out of the situation.
History of symptoms and treatment following the motor vehicle accident and assault
Mr Hamdan attended GP Dr Pang three days later. Physical injuries consisted of neck pain, shoulder pain, right arm weakness and right knee pain. Lower back pain limited his ability to drive. He said he was able to attend work for approximately two weeks immediately after the accident.
He then developed psychological symptoms initially consisting of anxiety, fear of driving, loss of confidence, sleep disturbance, nightmares and flashbacks. When asked to describe the flashbacks he said he was anxious about work and if he thought about the motor accident it brought back memories. He said he had dreams of monsters and sometimes dreams of being at work and having a horrible time. He said there were dreams of people taking things from him or spying on him. He also had dreams of snakes being all around him. Technically these are nightmares and not flashbacks.
Mr Hamdan was referred to clinical psychologist Mr Sam Borenstein. He said he has seen him every two or three weeks since the motor accident and this is ongoing. The only report from Mr Borenstein was in September 2022 following two consultations which confirmed the symptoms listed above. He also noted he was socially isolated and withdrawn. In August 2022 Dr Pang prescribed mirtazapine 15 mg which is a low dose in terms of treatment of depression but is often a useful aid to sleep.
For a while he was unable to drive because of fear. He said when he did attempt to drive his legs would start shaking and he would begin sweating. He explained it was necessary for him to drive to the Hunter Valley and Newcastle in his work. He was not able to do this because of fear of driving. He said he was off work for eight months because of driving anxiety. His GP listed him unfit for work until 3 October 2022. He was then certified fit to attend three hours/day on three days/week.
Injuries or conditions since the motor vehicle accident and assault
When he returned to work in December 2022 he was bullied by his new boss. He said he was given a list of unreasonable expectations in that he was required to make $20 million worth of sales. He said he knew this was difficult to achieve if he was unable to travel and only able to work part-time. He continued to work in January 2023 but stopped work on
28 February 2023 because of events with his employer and bullying and harassment by his manager. He said this came about because of a change of management during his absence. He said he was very depressed because he had wanted to remain in employment. However it was unacceptable to the company that he could not drive long distances and could not work full-time. He discussed it with his psychologist Mr Borenstein and initiated a worker's compensation claim. He said he has been assessed by an independent psychiatrist but the claim has yet to settle. Mr Hamdan agreed that these events also caused anxiety and depression.
I also note the medical history of the diagnosis of colon cancer and the complicated treatment process which has resulted in significant physical impairment and distress.
Mental state examination
Mr Hamdan is a 63-year-old right-hand-dominant man who was located alone in a room in his home. His wife was present elsewhere in the home. He was identified from his photograph on his NSW driver license. He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 2.00pm and concluded at 3.35pm.
He was very frail and cachexic in appearance and appeared to be older than his stated age. He indicated he had recently undergone laparoscopic surgery for colon cancer which had been complicated by a subsequent infection requiring repair via laparotomy and the establishment of a colostomy. He had lost between 15 and 20kg. He was significantly depressed in appearance and was frequently tearful throughout the interview as he described his recent medical difficulties which required months in hospital. While he acknowledged depression he denied contemplating suicide and said he looks forward to making a physical recovery.
He described ongoing driving anxiety which at times gives rise to panic attacks. He also described nightmares during which he is being attacked by monsters or snakes. He noted his driving anxiety resulted in the loss of his job which subsequently resulted in further depression. Some of the nightmares he described were related to the bullying and harassment in the workplace.
He described significant loss of confidence and self-esteem. He described himself as "old" and as a "dinosaur”. He was angry about how he had been treated at work. He said he was made to feel useless and a big account was taken from him and given to someone else.
Mr Hamdan was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current symptoms
Mr Hamdan's presentation was dominated by his physical problems, weakness and weight loss.
From a psychiatric point of view he described an ongoing fear associated with driving. He said he has restless nights which may be partly due to his recent hospitalisation. He experiences panic attacks during the night because of shortness of breath and because of this he sleeps on a couch downstairs so he will not disturb his wife. He said he is always getting up and frequently has to change the stoma bag.
He noted he is depressed for many reasons. He said he is not working, he is stuck at home, and he is struggling to recover from his physical problems. He said he uses an Uber to travel to St George Private Hospital for ongoing treatment. Prior to his physical problems he was able to drive for five minutes alone in the local area.
When asked if he can enjoy anything he said he is able to enjoy being with his family because it gives him some hope that he will be able to get better. He said he would like to be able to go to the café with his wife to have coffee. The last time he attempted to walk any distance he fell and hurt himself. He estimated he could walk for approximately 10 - 15 minutes.
Current and proposed treatment
Mr Hamdan said he plans to continue consulting psychologist Mr Borenstein every two or three weeks and taking medication prescribed by Dr Pang. He said he had made attempts to obtain psychiatric treatment. He was offered an appointment by psychiatrist Dr Ereve during his surgical treatment in hospital and has not been able to commence consultations.
Current functioning
Self-care and personal hygiene: Mr Hamdan said he showers every second day and changes his clothing when he does so. He also shaves every second day. If there is an accident with the colostomy bag it is necessary for him to clean up more frequently. He has not fully regained his appetite but is eating more and has put on a little bit of weight.
Social and recreational activities: Mr Hamdan said he sees only family members consisting of his parents and children. His elderly parents visit every two or three weeks. He said he does not see other friends. The last time he attempted to go out to a café his colostomy bag leaked. He is looking forward to a time when he has better control and can go out without fear.
Travel: Mr Hamdan said he was able to drive for five minutes alone prior to going to hospital. He is able to drive to see Dr Pang. He is not able to drive to the city. He was able to use public transport before he stopped work. He said crowds make him anxious. He hopes to be able to travel by air again.
Social functioning: Mr Hammond and described a good relationship with his wife but he said it is quite demanding for her. He gets along well with his parents and children. He has disconnected from friends.
Concentration, persistence and pace: Mr Hamdan said he has lost interest in television but does put it on to have company. He said he is able to watch short series. He is not interested in reading but he does follow the news.
Adaptation: Mr Hamdan is unable to work because of fear of driving. He is unable to help around the house because of his current weakened state.
Consistency of presentation
Mr Hamdan’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis made.
Documentation review
Medical Assessor Doron Samuell provided a certificate dated 9 October 2023 in which he concluded the injuries referred were not caused by the motor accident. He was not satisfied the accident was capable of causing post-traumatic stress disorder and was not convinced that diagnosis by the treating GP was appropriately made. He did not describe details of the altercation between the claimant and the other driver but noted the assault could possibly have given rise to post-traumatic stress disorder. He noted reports from treating GP Dr Pang and treating psychologist Mr Sam Borenstein.
The President's delegate issued a decision dated 14 November 2023 which indicated Medical Assessor Samuell had not adequately distinguished between the subject motor accident and the assault in regard to causation of injury.
Report of Dr Tony Antoun dated 3 May 2023. He provided the following description of the accident:
"Mr Hamdan recalls when he began to take off, the car rear ended with force.
Mr Hamdan recalls the driver exited the car and was extremely aggressive & threatening. Mr Hamdan was then wrestled to the ground, and was choked, while he struggled trying to defend himself. Mr Hamdan became very emotional while describing the event. He recalls struggling for air while attempting to defending himself. The aggressor then took off from the scene only to be later apprehended by police.
Mr Hamdan recalls getting into his car and driving off to his wife’s café, then calling the police and describing the assault. An ambulance was called to assess him due to his neck pain, right arm & shoulder pain from the aggressive nature of the assault."
Symptoms were noted in the cervical spine, pain around shoulder blades, weakness and stress from limited right arm function, lower back pain and stiffness, and driving phobia. He noted the subject motor accident was complicated by an aggressive assault.
The Application for Personal Injury Benefits is dated 6 July 2022. The accident occurred at
2.00pm on 23 April 2022 at the corner of Ramsgate Road and Chuter Avenue Ramsgate Beach. He was stationary at red lights and when the light changed to green, he was about to move when he was rear ended. He stated when he tried to exchange details he was assaulted. He listed injuries to his neck, both shoulders especially right, low back, upper back, right knee, shock and anxiety. He noted occasional pre-existing C3/C5 neck, lower back and shoulder problems. Medical issues consisted of diabetes, hypertension and hypercholesterolaemia. Employment was listed as a café owner and IT sales with Tata Consultancy Services (TCS).
The Panel noted that the first complaint of a psychological injury of anxiety, and attributed to the motor vehicle accident was in April 2022. General Practitioner, Dr Peter Pang of the Family Medical Practice Ramsgate Beach provided a report dated 4 December 2022. First consultation was on 26 April 2022 following the subject motor accident. He noted the other driver physically hit the patient and pushed him to the ground and then left the scene. He described post-traumatic stress disorder symptoms consisting of anxiety, nightmares, flashbacks, fear of recurrence of motor vehicle accident, fear and avoidance of driving and social avoidance. He stated “PTSD symptoms caused entirely from the MCA. Shoulder and neck pain were partially an aggravation of previous conditions. Treatment consisted of paracetamol, Nurofen and Panadeine Forte. He had not returned to work because his employer could not offer modified duties. He was referred to psychologist Mr Sam Borenstein and neurosurgeon Dr S Kohan.
Clinical psychologist Mr Sam Borenstein provided a report to the GP dated
22 September 2022 following two consultations. He noted the claimant was assaulted and had his shirt ripped. The matter would go to court in October 2022 when the claimant was required to give evidence as a witness. He noted anxiety, inability to return to work, inability to drive a car, nightmares, flashbacks and fears of recurrence of the accident. He is socially isolated and withdrawn. Treatment focused on management of anxiety and encouragement to return to work. No formal diagnosis was provided.
Clinical records of GP Dr Peter Pang:
“18/12/2006 first handwritten record. Prostatic hyperplasia is an issue. There was cystoscopic removal of a ureteric stent on 5 December 2016.
30/07/2015 first typewritten record.
12/04/2019 unhappy and anxious because of work stress, sleep disturbance at times; adjustment disorder with anxiety diagnosed. Melatonin 2 mg at night.
07/09/2020 medications Crestor 5 mg, Diabex XR 1000 mg twice daily, Januvia 25 mg daily, Micardis + 40 mg / 12.5 mg daily, Viagra 100 mg daily as needed.
26/04/2022 hit from behind, other car uninsured, other driver aggressive and physically assaulted patient, pushed into the ground and hit him, police called, ambulance attended.
03/05/2022 GP suggested contact with SIRA and State Victims Compensation
10/05/2022 anxiety, worry about driving, loss of confidence, flashbacks, sleep disturbance but no definite nightmares.
16/05/2022 no reference to MVA.
26/05/2022 no reference to MVA.
20/06/2022 physical complaints only
05/07/2022 physical complaints only.
26/7/2022 nightmares most nights, flashbacks regarding accident, fearful of driving by himself
25/08/2022 mirtazapine 15 mg.Certificate of capacity by Dr Peter Pang is dated 14 November 2022. Multiple joint pains after MVA plus PTSD. Work capacity was 3 hours on 3 days/week.
Certificate of capacity dated 31 October 2022 indicated driving capacity of 30 minutes.
AAMI conducted an internal review on 20 October 2022 which confirmed the minor injury decision. There had been no diagnosis received from psychologist Mr Sam Borenstein.
Insurer’s extra documentation received 13 January 2025.
Certificate of capacity by Dr Peter Pang dated 5 July 2022 noted neck and left shoulder pain after MVA plus assault plus PTSD. He was referred for physiotherapy. May need psychologist review.
Certificate of capacity by Dr Peter Pang dated 21 May 2022 listed PTSD following MVA/assault resulting in neck and shoulder pain. Referred to psychologist Mr Sam Borenstein.
Certificate of capacity by Dr Peter Pang dated 25 August 2022 listed persistent neck and shoulder pain plus PTSD. There was no capacity for work until 27 September 2022 as advised by psychologist.
Certificate of capacity by Dr Peter Pang dated 27 September 2022 listed neck and shoulder pain plus PTSD and no capacity for work until 3 October 2022.
Certificate of capacity by Dr Peter Pang dated 17 October 2022 listed some capacity for work on 3 hours for 3 days/week.
Certificate of capacity by Dr Peter Pang dated 31/10/2022 indicated multiple joint pains plus PTSD with capacity for work for 3 hours 3 days/week.
Certificate of capacity by Dr Peter Pang dated 14 November 2022 remains the same.
Treating neurosurgeon Dr Saeed Kohan provided a report dated 30 August 2022. He noted an 8-month history of neck pain and bilateral shoulder pain which predated the assault which exacerbated his symptoms. He thought the symptoms were multifactorial but suspected C5/6 facet joint degeneration and ordered a SPECT scan.
Certificate of capacity dated 25 March 2023 indicated no current capacity for any work until 25 April 2023 due to new psychological injury sustained while trying to return to work.
Certificate of capacity dated 26 May 2023 indicated no capacity for any form of work.
Certificate of capacity dated 27 June 2023 indicated no current capacity for work.
Certificate of capacity dated 27 July 2023 indicated no current capacity for work.”
Diagnosis and Reasons
Mr Hamdan presents with a partially resolved specific phobia of driving in that he is fearful of driving but is able to drive alone in the local area.
He meets DSM-5-TR criteria for specific phobia of driving as follows:
Criterion A. He described marked fear in regard to driving.
Criterion B. The thought of driving almost always provokes immediate fear and anxiety.
Criterion C. Driving is actively avoided or endured with intense fear.
Criterion D. The fear is out of proportion to the actual danger.
Criterion E. The fear has lasted more than 6 months.
Criterion F. The fear has caused significant social and occupational impairment.
Criterion G. The fear is not better explained by another mental disorder.
Mr Hamdan does not meet DSM-5-TR criteria for post-traumatic stress disorder because the subject motor accident was not a life-threatening event (Criterion A). Although he describes some symptoms consistent with post-traumatic stress disorder it is the view of the panel that these symptoms arose because of the assault and not the subject motor accident. The panel is not in agreement with the diagnosis made by his GP.
The Panel notes the subsequent work injury which is subject to a worker's compensation claim. This has significantly added to his level of distress, anxiety and depression. His recent physical problems with colon cancer are an added stressor.
Causation and Reasons
Mr Hamdan was involved in the subject motor accident motor accident on 23 April 2022. He was apparently rear ended with some force which resulted in physical injuries as described by GP Dr Pang and injury management consultant Dr Antoun. He was able to self-extricate and hold a discussion with the other driver. The other driver did say to him that he should have moved off, but Mr Hamdan indicated this was a reasonable discussion. They agreed to drive around a nearby corner to exchange details. At this point Mr Hamdan did not indicate any psychological distress and he was not fearful of what might ensue.
When they moved around the corner Mr Hamdan noted the tone of the other driver immediately changed. The man angrily said his car would not stop, he did not have any money, and his girlfriend had just left him. He then assaulted Mr Hamdan, pushed him to the ground, hit and choked him. Mr Hamdan was in fear of his life and used a ploy to escape from the man’s clutches.
Although the events were connected, it seems clear that there were two separate instances. There was a rear end motor accident following which the participants behaved in a reasonable manner. Subsequently, and separately to the motor accident, Mr Hamdan was assaulted by the other driver some minutes later.
The material does not support a contention by the claimant that his current driving phobia is occasioned by his vehicle being struck by the insured’s vehicle.
In providing the history Mr Hamdan noted his current fear while driving is of being rear-ended again. He reiterated that he is not afraid of being assaulted again. In his opinion the cause of his fear of driving is the rear end motor accident and not the assault.
That said, noting that no complaints were made of a driving phobia, arising from the motor vehicle accident in the immediate post-accident period. The Panel was not satisfied that the claimant had, despite his assertions, had established that the cause of his driving phobia was a rear end collision rather than the quite shocking events that followed. That is, the assault being pushed to the ground, being choked and being confronted by a man who was clearly highly agitated, violent and causing the claimant to have grave concerns for his ongoing well being.
From a psychiatric point of view it is not unusual for the fear associated with one event (the assault) to become associated with anther event (the rear end motor accident). This is not unlike Pavlovian learning or conditioning theory.
The Panel is not satisfied that the documentation, history of the motor vehicle accident or mental state examination bears out the claimant’s contention that the source of any partially specific driving phobia was the relatively minor motor vehicle accident and not the more serious assault which followed it. It is the opinion of the panel that the assault gave rise to the psychological condition partially resolved specific driving phobia and not the rear end motor accident.
The partially resolved specific phobia of driving was not caused by the subject motor accident.
Summary of injuries referred by the parties
The following injuries WERE NOT caused by the motor accident:
· post-traumatic stress disorder, and
· partially resolved specific driving phobia.
Threshold injury
Section 1.6(1) of the Act states that:
“For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6(3) of the Act sates:
“A Threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Part 1 cl 4 (2) of the Regulation states:
“2) Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of the Act
a) acute stress disorder
b) adjustment disorder
3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)”
No psychiatric injury has been diagnosed as a consequence of the motor accident. It is not necessary to determine if any injury was a threshold injury.
The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.
CONCLUSION – THRESHOLD INJURY
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
· post-traumatic stress disorder, and
· partially resolved specific driving phobia
A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act.
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