Hamdan v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 213
•27 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Hamdan v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 213 |
CLAIMANT: | Rolla Hamdan |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Surabhi Verma |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 27 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury; alleged injury of post-traumatic stress disorder (PTSD) and/or specific phobia of driving; rear end collision; air bags not deployed; ongoing anxiety; difficulty in driving; low mood; no evidence of manic, psychotic, or perceptual abnormalities; associated panic attacks; long history of anxiety associated with driving going back to 1997; specific driving phobia; criteria not established for post-traumatic stress disorder; Held – MAC revoked. |
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 revokes the certificate of Medical Assessor Doron Samuel dated · exacerbation of pre-existing specific driving phobia, is a non-threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Rolla Hamdan (the claimant) is a 51-year-old man who was injured in a motor vehicle accident which occurred on 19 February 2022. The claimant alleges he suffered physical injuries to his neck, back, shoulders, left hip, left knee and left hand.
The claimant sought a concession from the insurer that his injuries ought to be considered non-threshold injuries. The insurer declined to make this concession. On 26 July 2022 the claimant sought an internal review of this determination and, following a review, the insurer confirmed its decision that they considered the physical and psychological injuries sustained by the claimant to be threshold injuries.
Thereafter the claimant sought an assessment of threshold injury and, in a Certificate dated 28 April 2023 Medical Assessor Rosenthal, in respect to his physical injuries determined that the injuries he suffered are threshold injuries for the purposes of the Motor Accident injuries Act 2017 (MAI Act).
The claimant was assessed by Medical Assessor Doron Samuel on 29 August 2023 who, in a Certificate dated 13 September 2023, determined that the alleged injury of post-traumatic stress disorder and/or specific phobia of driving was not an injury arising out of the motor vehicle accident and accordingly was a threshold injury.
The claimant sought a review of this decision and in a Certificate dated 13 September 2023 the President’s delegate Tajan Baba certified that she was satisfied there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The matter was then referred to this Medical Panel.
A direction was made to the parties to upload the documents lodged with the original application and these documents are now before the Panel.
The Panel convened on 2 October 2024 and noted the material and determined that there was a requirement to examine the claimant. Following the examination the Panel will reconvene to further consider the matter.
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 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 re-examined via Teams on 21 February 2025 at 1.00pm. The claimant attended the appointment unaccompanied.
History
Psychosocial history and pre-accident history
Ms Hamdan was born in Sydney. She grew up with her four siblings and is the eldest. Her parents immigrated from Lebanon in 1972. She denied witnessing any traumatic incidents or adverse events. She denied having any academic difficulties in school. She met her husband in high school and married at the age of 16. She has two children aged 35 and 30, one a lawyer and the other a banker. Her eldest son is married, and she says that she “prays that she has grandchildren soon.” She reported that she used to work before the accident and managed a café owned by her husband. She said she worked in the café full-time, from 7.00 am to 3.00 pm. She has not returned to work since then.
Ms Hamdan reported that before the motor vehicle accident, she believed working was her strength and that she had the power to overcome any obstacle in her life. I then asked her if she had experienced any previous mental health issues, to which she replied that in 2014, when she owned the café, the landlord shut it down, and they lost money. She remembers “feeling depressed” at that time and stated that she was not prescribed any medications. I highlighted the contemporaneous records I had, to which she said, “I don't remember being on antidepressants before the accident.” She mentioned that she saw a psychologist once but did not return, as the psychologist herself had a breakdown during the interview.
Ms Hamdan then started feeling even more anxious about speaking to any other psychologist. In fact, a week later, she received a phone call from the psychologist's practice, apologizing for her behaviour.
I again highlighted that the document received also mentioned that in 2016, she experienced difficulty driving and did not want to go out. Ms Hamdan agreed that she had experienced panic attacks, specifically at stop signs, and she had anxiety. She used to avoid driving in certain areas before the accident and experienced hyperventilation and panic attacks. However, she stated that her mental health had improved by the time of the accident. She denied having any specific symptoms at that time. She also narrated other personal stressors, including her son undergoing bullying at school and hearing about another accident around the corner involving two children.
Ms Hamdan reported that before the motor vehicle accident, she was a “power woman” who opened another café, sold the business, and felt empowered. She also had an active social life, worked at the café seven days a week, and enjoyed interacting with customers and friends. Ms Hamdan denied having any family history of mental health issues. It was highlighted that there is a family history of mental health issues, to which she said she saw her mother crying but was not sure if she had depression. She denied consuming alcohol, using any illicit drugs, smoking cigarettes, and having any criminal convictions or incarcerations.
History of the motor accident
Ms Hamdan was involved in the subject motor vehicle accident on 19 February 2022. She stated that she was going to pick up supplies and was in the front passenger seat. She mentioned that they were at a stop sign when they were rear-ended by another vehicle. She was able to extricate herself from the car and remembered seeing the driver had P-plates. The airbags did not deploy. She then inquired about the other driver's welfare, and they drove back home. The police and ambulance had not arrived. She remarked, “we did not need an ambulance at that... time”.
History of symptoms and treatment following the motor accident
Ms Hamdan reported that she did not go to the café the next day because she did not feel up to it. She remembers feeling sore all over. She then saw her doctor on Monday, and a few days later, she began experiencing pain in her shoulder, neck, and knees. She was prescribed pain relief medications. She stated that she was always the first to open the café, but she was unable to work there due to the ongoing pain. She reported that she used to be able to lift up to 10kg, but after the accident, she would be “lucky to carry her bags without feeling pain.” Ms Hamdan also mentioned that she started having difficulty driving. She did not want to drive and felt anxious in the car, fearing another accident. She reported withdrawing and not wanting to socialise with others. However, she noted that she was able to sit in the car and had driven by herself to see the doctor, although she admitted to experiencing sweating during this.
The panel highlighted that she was able to drive for up to five minutes soon after the motor vehicle accident, which she confirmed. Ms Hamdan reported experiencing “depression”, stating she did not want to get out of bed and questioned the point of doing so. She faced sleep disturbances and needed time to get out of bed. She attributed her sleep issues to “sleep apnoea, overthinking, and pain”. She gradually gained about 10kg over the next three years, which she related to lack of physical activity, depression, and not caring about the quality of her food.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Hamdan reported that her father was hospitalised for about six months due to open-heart surgery and suffered from multiple physical comorbidities. She expressed that she was worried about losing him, which “put her into deeper depression.” She used to visit him regularly and had to cope with her pain, her “mom's pain”, and witnessing him in pain. Despite the challenges, she was able to support her father during this time. Ms Hamdan denied being involved in any other motor accident or sustaining any injuries since the initial incident.
Current symptoms
Ms Hamdan reported that she currently feels tired and lacks energy. She stated that she usually takes her medication in the afternoon, which makes her feel sleepy and creates a need to rest. The panel then inquired whether there was any specific reason she continued taking the medications if they were ineffective, to which she replied, “I am too scared to stop them as they numb me.” The psychology sessions, however, have effectively encouraged her to engage in activities, and the psychologist understands her predicament. Ms Hamdan experiences numbness and reported that the “pain is impacting her ability to exercise and be outdoors.” She added that she tries to exercise whenever possible, particularly when she is not in pain. Additionally, she experiences avoidance and does not want to return to the area where the accident occurred. She often questions why things happened to her and feels tearful at times. She reported that her mood is typically depressed. Her attention and concentration “are not very sharp,” as she takes longer to register things. She mentioned finding it difficult to follow what is happening on TV. She does not read books, often starting and then giving up, and experiences dizziness before stopping. Ms Hamdan reported that she misplaces items like her phone due to distractions. She gave an example of opening the fridge and not remembering what she intended to take out. She also experiences anxiety “about everything, especially if she has to leave her house,” stating that she feels “anxious about her whole life.” She denied consuming alcohol, using drugs, smoking cigarettes, or engaging in gambling.
She experiences “hot flashes, stiffness, soreness, and lack of sleep.” On a typical day, she wakes up at varying times, sometimes around 11.00am, and switches on the TV. She mentioned also scrolling through her phone and viewing posts from her friends. She described moving from one couch to another. Occasionally, she does the dishes, and friends visit, or they go grocery shopping. She does not attend any places of worship, even before the motor vehicle accident.
Injuries or conditions since the motor accident
These were denied. Ms Hamdan later acknowledged that the death of two young children near her home caused significant distress. She said she could hear the crash.
Current and proposed treatment
Ms Hamdan continues to see psychologist, Mr Sam Borenstein every fortnight. He is working on her mental health to encourage her to do more activities, get into the car, etc. She has not seen a psychiatrist . She is currently on tablet Cipramil 20 mg prescribed by her general practitioner (GP) Dr Pang. She is also on Crestor 5 mg, pain relief medications Voltaren and Panadeine Forte. She said that she has not seen any pain management specialist as “her doctor has not sent her.”
Clinical examination
Mental state examination
The panel interviewed Ms Hamdan via video. She presented as a 50-year-old female of Lebanese background and looked her stated age. She was smartly dressed in a T-shirt and a jacket, brushed her hair, and wore a hairband.
The interview was difficult at times as she equivocated about her answers. At times during the assessment, she contradicted the information she had previously given. She was quite verbose and over inclusive and had to be interrupted to redirect her to the question asked. Although the interview continued for a long time, Ms Hamdan still reported being “rushed.”
She reported her mood to be sad and low. Her affect was reactive and quite dramatic which was congruent to her narrative. She reported ongoing anxiety, difficulty in driving, low mood and lack of interest in activities. There was no evidence of any manic, psychotic or any perceptual abnormalities. She had insight into her condition and her judgement was intact.
Current functioning
Self-care: Ms Hamdan reported experiencing significant pain, and she has now started putting pressure on the right side of her body, which has led her to avoid household chores. She attributed her inability to manage these tasks to feeling depressed and lacking strength. She gets up at 11.00am and spends the day at home alone in pyjamas. She moves from the couch to the bed throughout the day. She said she does not shower regularly and has gained 10kg.
Social & Recreational Activities: She used to enjoy training, running, physical activities, and bushwalking. While working on strengthening her muscles, her pain worsens when she trains harder. She also used to invite people over and socialise, but now she finds going out to be an effort. She indicated that she does not like to dwell on her pain and, therefore, does not want anyone to visit her. For example, she noted that she has not seen her parents for a long time. I pointed out that she had just mentioned visiting her father every day in the hospital for about six months, to which she replied that she now avoids them. However, she stated that her son and daughter-in-law visit her 2-3 times a week and have been very supportive. She also noted that a friend visits.
Travel: Ms Hamdan mentioned that she was able to take Uber regularly to visit her father in the hospital. She can also go to supermarkets and grocery stores. At one point, she stated that she was not able to drive and had only driven on two occasions. However, at other times, she admitted that she could drive but only for up to five minutes on her own. It was extremely difficult to discern which information was accurate. She reported that she has not gone on any vacations or holidays and cannot use public transport.
Social Functioning: She reported that she no longer goes out for walks with her husband like before, as she dislikes walking and exercising because it exacerbates her pain. She said the relationship with her husband was intact. Her husband has been very supportive and knows when to step back and give her space. She mentioned that he does his own thing but encourages her to follow her routine. She was able to organise her son's wedding after the motor vehicle accident and participate in it. When asked if she socialises with her extended family, she said, “she does not see her cousins,” but later gave examples of forgetting their names when she encounters them.
Concentration, Persistence and pace: She said she is able to watch television during the day and scroll through social media but does not post any items herself.
Adaptation: She said she was unable to continue running the café because she could not deal with the social environment and was not able to cope with the ordering of supplies and management of the staff. The café was sold in November 2022. She said she is also unable to do any household work and relies on a cleaner and help from a friend who visits each week.
Comments of consistency
Ms Hamdan's narrative was not internally inconsistent. She equivocated in her responses. Notable inconsistencies include the following:
(a) Ms Hamdan initially denied being on any antidepressants, but when pressed, she said she did not remember taking any before the accident. She was not forthcoming about her symptoms related to anxiety about driving and experiencing associated panic attacks prior to the subject motor accident.
(b) Ms Hamdan reported that she drove on only two occasions after the accident. However, documents indicate that she was able to drive short distances for up to five minutes after the accident and that she managed to see the doctor independently.
(c) Additionally, Ms Hamdan stated that she experiences anxiety even when getting into a car. Yet, she admitted to taking an Uber and visiting her father daily for about six months while he was in the hospital.
(d) Ms Hamdan claimed she had not seen her parents for a long time and had been socially withdrawing. However, she previously mentioned supporting her parents when her father was in the hospital.
(e) Finally, Ms Hamdan indicated that she does not see her cousins or extended family members, but later provided an example, saying she does not remember her cousins' names when she sees them. When I pointed this out, she explained, “it was just an example.”
Review of documentation
Summary of relevant documentation
(a) IME by Dr Peter Conrad, dated 12 October 2022. In which the report mentions that she may be able to work 12 to 15 hours per week, light duties in a position where she is able to stand or sit and will not lift anything more than 5kg in weight not to do repetitive lifting or bending or overhead work with the left arm.
(b) I have noted the impairment assessment by Dr Conrad, equating to 17%.
(c) Visit dated 21 January 2021 by Dr Peter mentions “has issue with increased stress due to work stress, feeling unhappy at times. Patient wants to try antidepressant, to try Cipramil.”
(d) Visit dated 6 May 21, mentions “patient did not take Cipramil.”
(e) Visit dated 29 June 2021, mentions “recently on Citalopram, tiredness, sweatiness, helping with mood, slight anxiety, depression, feels calmer. Suggested to increase to Citalopram, 20mg daily. Discussion regarding marriage/relationship.”
(f) Visit dated 23 November 2021, mentions “increased tiredness/;lethargy increased myalgia, mood better with Citalopram.”
(g) Visit dated 26 November 2021. No difference to tiredness.
(h) Visit dated 22 February 2022, mentions “issues with tiredness, lethargy, felt weak. However, there is no mention of any other depressive or anxiety symptoms.”
(i) Visit dated 1 March 2022, mentions “tiredness, still lower back pain, stabbing pain at times, yeast virus, minor sleep disturbances.”
(j) Visit dated 11 April 2022, mentions “issues with anxiety, has stopped driving, still anxious as passenger, worrying about going through locations of a motor vehicle accident.” I have noted other notes, including dated 20 June 2022 where it mentions “patient unable to do cleaning at home due to pain, minimal exercise including walking due to knee pain, spoke to psychologist, pain improving.”
(k) Visit dated 4 July 2022, was not able to return to work because of pain.
(l) Handwritten notes dated 15 February 2016 mentions “panic attack related to driving in car, DASS-21 was calculated to be 42, mentions the stresses as working in the cafe and worrying about staffing, running the business.”
(m) Visit dated 15 December 2014 mentions “anxiety when driving, when stopping at traffic light, hyperventilating and dizziness, light-headedness, panic attack, precipitated factor not clear, avoids traffic light.”
(n) Letter by Sam Borenstein dated 14 February 2022.
(o) Letter by Debora Martin Smith, Clinical Psychologist, dated 12 February 2015. The letter mentions “she experiences panic attack specifically at stop sign or at red light and she started to avoid driving in certain areas and driving through back streets in narrow spaces.” It also noted a past history of panic attacks in 1997 when she saw a psychologist.
(p) Note by Mr Sam Borenstein, starting from 14 June 2022, 9 August 2022,
16 September 2022 and 29 September 2022.(q) Certificate by Medical Assessor Thomas Rosenthal, dated 28 April 2023, which mentions the injuries sustained in left knee, lumbar spine, left hip, bilateral shoulders and cervical spine are threshold injuries for the purposes of the Act. The report also noted inconsistencies in terms of lack of effort and range of motion in all parts of body.
(r) Police report dated 5 May 2022, which mentions that the motor accident was a minor traffic crash. I have also noted the photos from the motor vehicle accident site which indicate minor damage to the front of the Honda and the rear of the BMW.
Determinations
Diagnosis and reasons
Ms Hamdan is a 51- year- old woman who currently lives with her husband. She has a history of significant anxiety and panic attacks, particularly related to driving, dating back to 1997. Additionally, she experienced depression after losing her café in 2014. Other interpersonal factors contributed to her situation, including her son being bullied at school. At that time, she was treated with antidepressants and reported complete improvement while on the medication. She stated that she had no symptoms at the time of the accident.
On 19 February 2022, while in the front passenger seat, Ms Hamdan’s vehicle was rear-ended in a motor vehicle accident. Subsequently, she reported experiencing both physical and psychological injuries. Significant pain due to the accident has affected her ability to work, as noted in her GP' s records, which indicated that she could not return to work because of the ongoing pain.
During the assessment, she mentioned experiencing avoidance, low mood, anxiety while driving, lack of attention and concentration, and significant pain and emotional numbness, all of which have affected her daily functioning. Notably, she has been able to use Uber, sit in a car, and drive to nearby areas for about 5 to 10 minutes. She reported ongoing anxiety while driving or as a passenger in a motor vehicle and occasional panic attacks.
However, she has not participated in recreational activities such as training, running, or other physical pursuits due to her persistent pain. She does socialise occasionally with friends, either at home or while grocery shopping. Ms Hamdan maintains a positive relationship with her family members, including her husband and sons. She was incredibly supportive when her father was hospitalised for approximately six months.
Unfortunately, she did not return to work, and they had to sell the café. It has been noted that she is restricted due to ongoing pain yet can engage in light duties, as indicated in one of the IMEs. While her presentation is consistent with adjustment disorder with anxiety, it is not possible to exclude an exacerbation of a pre-existing specific driving phobia with panic attacks.
The panel note a long history of anxiety associated with driving dating back to 1997. In 2016, her treating psychologist noted she was confined to drive only in quiet back streets and stated, "We are still struggling around the issue of anxiety and driving. Rolla never goes out on her own but at the same time feels trapped at home”. In November 2021, three months before the subject motor accident, she was still receiving treatment with the antidepressant citalopram. The panel diagnose the exacerbation of a pre-existing specific driving phobia.
Th diagnosis is based on the presence of DSM-V-TR criteria of specific driving phobia,
Ms Hamdan meets DSM-5-TR criteria for specific driving phobia as follows:Criterion A. She described marked fear of driving.
Criterion B. Driving always provokes immediate fear or anxiety.
Criterion C. Driving is actively avoided or endured with intense anxiety.
Criterion D. The anxiety is out of proportion to the actual danger.
Criterion E. The anxiety has lasted for more than 6 months.
Criterion F. The anxiety has caused impairment in occupational and social functioning.
Criterion G. The condition is not better explained by another mental disorderThe panel considered the diagnosis of post-traumatic stress disorder.
The nature of the motor vehicle accident itself does not satisfy Criterion A which is exposure to actual or threatened death, serious injury or sexual violence. The motor vehicle accident was presumed to be of minor nature as mentioned in the New South Wales Police Report. Even the photographs that were submitted do not point towards a major traffic crash. The panel note that Ms Hamdan reported symptoms of fear of driving, flashbacks and heightened anxiety but considered these symptoms were more consistent with a specific driving phobia.
Causation and reason
Ms Hamdan's current presentation is consistent with the diagnosis of exacerbation of pre-existing specific driving phobia which is a non-threshold injury.
Threshold injury
Section 1.6-(1)-(b) of the Act states:
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following –
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness. Diagnosis of exacerbation of pre-existing is specific driving phobia consistent with a non- threshold injury according to the above section, section 1.6.”
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
For these reasons the Panel concludes that the claimant’s psychological injury of exacerbation of pre-existing specific driving phobia is a non-threshold injury.
0
0
0