Hamka v CIC Allianz Insurance Limited

[2023] NSWPICMP 284

DETERMINATION OF REVIEW PANEL

CITATION:

Hamka v CIC Allianz Insurance Limited [2023] NSWPICMP 284

CLAIMANT:

Ali Hamka

INSURER:

Allianz Australia Insurance Ltd

REVIEW Panel

PRINCIPAL MEMBER:

John Harris

MEDICAL ASSESSOR:

Michael Hong

MEDICAL ASSESSOR:

Samuel Lim

DATE OF DECISION:

20 June 2023

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 11 June 2017 in a T-bone collision; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; psychological injury accepted based on serious impact, recorded onset of psychological symptoms, clinical examination, and review of materials; Panel did not accept neuropsychological opinion of exaggeration; difficulties observed on neuropsychological assessment referable to psychiatric symptoms, relatively low-level intelligence and poor command of English; deduction made for pre-accident functioning; Held – claimant assessed at 10% permanent impairment; original assessment revoked.

DETERMINATIONS MADE:  

Medical Assessment – Permanent Impairment

WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The assessment made by the review panel under s 63(4) is as follows:
The Review Panel revokes the certificate of Medical Assessor Jones dated 13 October 2021 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%.

REASONS

BACKGROUND

1. Mr Ali Hamka (the claimant) suffered injury in a motor accident on 11 June 2017 when the insured vehicle T-boned the claimant’s vehicle on the driver’s door (the motor accident).[1] Airbags were deployed.[2]

   [1] Claimant’s bundle, pp 155-156.

   [2] Claimant’s bundle, p 208.

2. Mr Hamka was involved in an earlier motor accident in 2007 (the previous motor accident).

3. Allianz Australia Insurance Ltd (the insurer) is liable for the driver of the motor vehicle for liability to pay to Mr Hamka any damages under the Motor Accidents Compensation 1999 (the MAC Act).

4. Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”.

5. The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[3]

   [3] See ss 57 and 58 of the MAC Act.

6. Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

7. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[4]

   [4] Clause 1.2 of the Guidelines.

8. Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.

9. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[5]. In Raina v CIC Allianz Insurance Ltd[6] Campbell J stated:

   “One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

   [5] See s 3B(2) of the CL Act.

   [6] [2021] NSWSC 13 (Raina) at [65].

CONDUCT OF THE REVIEW

1. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Jones dated 13 November 2021 who concluded that there was no ongoing active psychiatric disorder caused by the motor accident.[7]

   [7] Claimant’s bundle, p 123.

2. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[8]

   [8] Section 63(7) of the MAC Act.

3. The delegate of the President[9] referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[10]

   [9] Insurer’s bundle, p 17.

   [10] Section 63(2B) of the MAC Act.

4. Pursuant to s 63(3) of the MA Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission) .

5. 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 Merit Reviewer or a Medical Assessor.[11]

   [11] Section 41(2) of the PIC Act.

6. 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.[12]

   [12] Rule 128 of the PIC Rules.

7. The review is by way of new assessment of all matters with which the medical assessment is concerned.[13]

   [13] Section 63(3A) of the Act.

MEDICAL ASSESSMENT UNDER REVIEW

1. This review is from the assessment of Medical Assessor Jones dated 13 October 2021 who determined that Mr Hamka did not suffer from a psychological injury caused by the motor accident.[14] The assessment relates to assessments undertaken on 24 March 2020 and 14 October 2021. Medical Assessor Jones stated:[15]

   “Of most significance is Dr Alex Falcon’s neuropsychological report which is unequivocal in its findings of low effort, motivation and validity in his responses, extremely low scores on IQ and responses generally worse than those with severe traumatic brain injury (which Mr Hamka did not have). The overall finding was that Mr Hamka’s narrative and presentation could not be considered valid or reliable. This was not inconsistent with Mr Hamka’s presentation to me on both occasions.
   Also of significance is the late documented report of Jeffrey Baron-Levi, which opined that pre-existing factors were most relevant rather than the accident.
   …
   Particularly taking into account Mr Hamka’s neuropsychological assessment, which indicated lack of reliability and validity to his presentation, I am unable to diagnose a psychiatric disorder that persists and was caused by the motor accident. Given that a psychiatric diagnosis relies heavily on self-report, as does assessment of whole person impairment, I am unable to diagnose a psychiatric disorder caused by the motor vehicle accident or determine a level of whole person impairment.”

SUBMISSIONS

[14] Claimant’s bundle, p 23. We suspect that the date 13 October 2021 should be 13 November 2021.

[15] Claimant’s bundle, p 31.

Insurer’s submissions dated 13 December 2022

1. These submissions were filed in response to the claimant’s submissions seeking a review of the Medical Assessment. The insurer submitted that the Medical Assessor found the claimant unreliable based on his clinical examination and the evidence before him including the joint neuropsychological report. It otherwise emphasised the opinion of Dr Levi.[16]

Claimant’s submissions dated 7 December 2021[17]

[16] Insurer’s bundle, p 3.

[17] Claimant’s bundle, p 9.

1. The claimant’s submissions seeking a review of the previous certificate raised matters going to a denial of procedural fairness. It is unnecessary to summarise these matters because this is a new assessment and all documents lodged by the parties within the respective bundles are before the Panel.

2. The claimant submitted that he did not have the opportunity of filing evidence in response to the opinion provided by Dr Levi.

EVIDENCE

Pre-existing conditions

1. A claim form for the earlier motor accident dated 21 November 2007 alleged injuries including depression and post-traumatic stress disorder.[18]

   [18] Insurer’s bundle, p 68.

2. A medical certificiate dated 1 June 2008 included a diagnosis of post-traumatic stress disorder caused by the motor accident.[19]

   [19] Insurer’s bundle, p 93.

3. In a report dated 20 October 2008, Ms Sleeman, psychologist, diagnosed the claimant as suffering from post-traumatic stress disorder and anxiety caused by the motor accident.[20]

   [20] Insurer’s bundle, p 98.

4. Dr Alex Apler, psychiatrist noted in 2009 that the claimant had special needs before the motor accident. The doctor opined that the claimant did not develop post-traumatic stress disorder, has no other psychiatric disorder and enjoyed spending time with his friends and cousins at school.[21]

   [21] Insurer’s bundle, p 111.

5. In a further report dated 25 February 2011,[22] Dr Apler noted a series of issues with behaviour and learning at school since 2002. At age 11 the claimant’s reading ability was that of a seven-year-old. Dr Apler opined:

   “Ali Hamka had significant developmental problems before the accident. He had severe expressive language delay and word finding difficulties, and he was falling behind with his learning, despite considerable classroom support. There were concerns about his behaviour at home and also at school, with him breaking rules and being aggressive towards other students. These problems were chronic, leading to concerns about his ability to cope in the secondary school environment.”

   [22] Insurer’s bundle, p 115.

6. The doctor reiterated his opinion that the claimant did not suffer a psychological condition and note that he enjoyed doing “burnouts” in a car after the earlier motor vehicle accident.

7. The clinical notes of the general practitioner do not refer to psychological issues from 2011 up to the date of the motor accident.[23]

   [23] Insurer’s bundle, pp 690-697.

Contemporaneous medical evidence

1. The ambulance report[24] noted the claimant was trapped in his vehicle with left leg pain. The claimant thought he may have hit head with a possibility of “LOC”. Glasgow Coma Scores (GCS) on repeat testing were all 15/15.

   [24] Claimant’s bundle, p 201.

2. The hospital notes refer to loss of consciousness of “unclear duration” with complaints of cervical spine tenderness, pain in left knee and reduced sensation in left leg. Scanning of the cervical spine, pelvis and brain revealed no abnormalities.

3. The hospital discharge summary on 13 June 2017 described the claimant’s symptoms as “resolving during admission” and clinically stable at the time of discharge.[25]

   [25] Claimant’s bundle, p 208.

4. Dr Makarie, general practitioner on 15 June 2017 noted posttraumatic stress depression and referred the claimant to Dr Younan.[26] The clinical note referred to left leg pain, neck and back pain and depression.[27]

   [26] Claimant’s bundle, p 186.

   [27] Claimant’s bundle, p 224.

5. A certificate dated 27 June 2017 referred to a soft tissue injury of the neck, back, left leg and “post traumatic, stress anxiety and panic attack”.[28]

   [28] Claimant’s bundle, p 160.

6. Dr Monir Younan, psychiatrist provided a report dated 27 June 2017.[29] The doctor noted that the claimant appeared “anxious and depressed” and was suffering from an acute stress disorder. The doctor prescribed Diazepam.

   [29] Claimant’s bundle, p 187.

7. In July 2017 hydrotherapy at St George Hospital was recommended and undertaken due to severe pain levels.[30]

   [30] Insurer’s bundle, p 382, p 395.

8. In a further report dated 8 August 2017[31] Dr Younan opined that the claimant was less depressed though anxiety was still present.

   [31] Claimant’s bundle, p 190.

9. In January 2018 Dr Younan noted that the claimant was “more depressed than previously” and increased dosages of Avanza and Efexor.

10. A hospital admission in November 2019 noted an expression of suicidal thoughts and recent suicide attempt by drowning.[32]

    [32] Insurer’s bundle, p 253.

11. The claimant then spent three weeks in jail and placed in home detention after his release shortly before Christmas.[33] The stressors reported at that time was the home detention and the effects of the motor accident. Both were described by the claimant as causing a loss of independence.

[33] Insurer’s bundle, p 616.

Treating evidence

1. Mr Abdul Saad, psychologist, treated the claimant in mid-2018. The clinical notes refer to the motor accident and various ongoing problems including difficulty sleeping, anger and reduced interest in socialising.[34]

   [34] Insurer’s bundle, pp 645-650.

2. Dr Monir Younan, psychiatrist provided a report dated 25 February 2021[35] following a recent review. The doctor noted that the claimant continued to suffer symptoms of depression and post-traumatic stress disorder as a result of the motor accident. The dose of Efexor was increased to 75 mg.

   [35] Claimant’s bundle, p 77.

Qualified evidence

1. Dr Christopher Canaris, psychiatrist, was qualified by the claimant and provided a report dated 2 November 2017.[36] The doctor opined that the claimant presented with a major depressive disorder with prominent posttraumatic anxiety. The claimant had a degree of constitutional vulnerability which may relate to the previous motor accident.

   [36] Claimant’s bundle, p 168.

2. Dr Canaris provided a further report dated 13 January 2018 which addressed materials concerning the earlier motor accident.[37] He opined that in 2011 the claimant had a significant disturbance in emotions and behaviour “which could be conceptualised as either depression, posttraumatic stress disorder or both” related to the earlier motor accident and other stresses such as bullying and longstanding learning disorders. The doctor opined that these disabilities had largely resolved by the time of the motor accident.

   [37] Claimant’s bundle, p 173.

3. Dr Canaris provided a further report dated 14 November 2019 following a further assessment.[38] The doctor opined that the claimant presented with chronic and severe depressive illness with significant posttraumatic anxiety caused by the motor accident. The doctor noted that there was “evidence of significant premorbid vulnerability though … no psychiatric illness or impairment at the time of the accident”. Permanent impairment was assessed at 24%.

   [38] Claimant’s bundle, p 161.

4. Dr Alex Falcon, neuropsychologist, was jointly qualified by the parties and provided a report dated 11 May 2020.[39] Based on a series of tests, Dr Falcon opined that there was suboptimal performance by the claimant in terms of his true actual level of cognitive functioning.

   [39] Insurer’s bundle, p 22.

5. Dr Falcon opined, based on the medical records, that the claimant did not sustain “even a possible mild TBI as a result of the accident” and the findings on examination were so low that they could not be viewed as “reliable and validity reflective of his actual true cognitive abilities”.[40]

   [40] Insurer’s bundle, p 31.

6. Dr Baron Levi, psychologist, was qualified by the insurer and provided a report dated 18 July 2021.[41] The doctor did not examine the claimant and provided an analysis of the various medical reports.

   [41] Insurer’s bundle, p 37.

7. The doctor, referring to the report of Dr Falcon, opined that the claimant was “exaggerating his symptoms” and otherwise referred to his learning difficulties. Dr Levi opined:[42]

   “In my opinion, the evidence suggested that Mr Hamka’s poor decision making, dangerous and impulsive behaviour and failure to consider the consequence of his actions when he was attending school was a direct result of his significant language/learning deficit and comorbid executive function impairment.”

   [42] Insurer’s bundle, p 48.

8. Dr Jonathan Phillips, psychiatrist was qualified by the claimant and provided a report dated 3 November 2021.[43] Dr Phillips noted that the claimant had a relatively low level of intelligence, relatively poor command of the English language and was rather inarticulate who cannot think in an abstract manner.

   [43] Claimant’s bundle, p 33.

9. Dr Phillips opined that the claimant’s memory difficulties represent existing cognitive dysfunction prior to the earlier motor accident. The claimant otherwise suffered emotional trauma from this motor accident particularly because he had probably already suffered emotional trauma in the earlier motor accident. Dr Phillips opined that the motor accident caused post-traumatic stress disorder in partial remission with ongoing cognitive symptoms unrelated to the motor accident. Symptom reduction had been achieved through medication.

10. Dr Phillips assessed the level of impairment at 24% due to “psychological and cognitive problems working in tandem”.[44]

    [44] Claimant’s bundle, p 52.

11. In a further report dated 8 November 2021[45] Dr Phillips referred to Dr Levi’s opinion noting that it was “weakened” because there was no clinical assessment and was undertaken on the papers. Dr Phillips agreed with Dr Levi that the claimant had long-standing cognitive difficulties linked to poor executive performance and possibly anti-social behaviour. He disagreed with Dr Levi and opined that there as almost certainly psychological impact due to the motor accident in circumstances where the claimant was rendered more vulnerable by the earlier accident.

    [45] Claimant’s bundle, p 53.

12. Dr Phillips provided a further report commenting on Medical Assessor Jones’ assessment. The doctor noted the difficulty differentiating between the pre-existing cognitive problems and the effects caused by “either of the motor vehicle accidents”. The doctor referred to the lack of emphasis on the trauma-induced psychological symptoms which began after the motor accident and expressed disagreement with the opinion.

13. Mr Sam Albassit, psychologist, was qualified by the claimant and provided a report to the Local Court relating to criminal charges including reckless driver and resisting police.[46] The history referred to the earlier motor accident which was described as “almost the same” as the motor accident.

    [46] Claimant’s bundle, p 68.

14. Mr Albassit diagnosed Mr Hamka with post-traumatic stress disorder of three years duration which correlated with the offending behaviour.

15. Dr Machart, orthopaedic surgeon provided a report dated 23 January 2018.[47] The doctor opined that the claimant had suffered soft tissue injuries to the neck, back and left leg caused by the motor accident. In a further report dated 23 October 2019, Dr Machart noted that the claimant “showed evidence of significant psychological sequel to the accident” and did not have the expertise to assess on account of the emotional and psychological aspects.

    [47] Claimant’s bundle, p 175.

16. Dr Andrew Keller, physician, was qualified by the insurer and provided a report dated 12 April 2022.[48] The doctor opined that there was no evidence of lasting physical injuries attributable to the motor accident and full recovery should have occurred over a few months.

    [48] Insurer’s bundle, p 53.

Claim form

1. The claimant completed a claim form dated 29 June 2017 when he referred to the motor accident when the insured did not stop at an intersection crashing into his vehicle and “pushing it into a street pole and trapping me in the vehicle”.[49] The claimant stated that he suffered various injuries including “PTSD, anxiety, panic attacks”.

   [49] Claimant’s bundle, p 156.

RE-EXAMINATION

1. Mr Hamka was examined by the Medical Assessors on 5 June 2023. The examination report is as follows:

   “Who attended the assessment
   Video assessment. Mr Hamka was at home and accompanied by his sister Enaye, who was present as a support person during the assessment. Dr Lim and Dr Hong were in their Sydney offices.
   History
   Psychosocial history and pre-accident history
   Mr Hamka was born in Australia and grew up with his parents, being the youngest of seven siblings.
   He does not have epilepsy, cardiac, thyroid or liver disease.
   Mr Hamka had trouble remembering his early life before the first accident in 2007. He said he was not in trouble at school before 2007. In 2007, he was 12, and he and his mother had a car accident. The Panel prompted him with history from his file, and he remembered that he suffered from depression, anxiety and nightmares and distressing memories related to that accident. He thought that he was going to die and worried that his mother would die from the accident. He did not take any psychiatric medication and does not remember who he has seen, such as a psychiatrist or psychologist. The Panel discussed Dr Apler, however he stated he had no memory of this. The Panel discussed Dr Baron and Dr Falcon’s assessments.
   He confirmed that he was bullied at school after 2007, and did not believe that he reacted with aggression. He said that academically, he deteriorated after 2007 because he could not focus very well. He nevertheless completed his high school education. He does not know his ATAR. The Panel asked about speech or language impairment, and he did not remember any problems with his language development or word-finding difficulties or having speech pathology treatment.
   He said he then went to TAFE and started a Certificate IV in business studies and later completed a business diploma (the Panel noted no other evidence of this in his file). He started an IT course but did not finish it.
   Before the subject accident, Mr Hamka said that he was outgoing, socialized with a lot of friends and cousins and they went out to the cinema, and to restaurants to have dinner, they went shopping and played games at the arcades. He went to the gym regularly and was into bodybuilding. He said he was very active. He was doing a barbering apprenticeship, which involved one day of study and four days of work, and did it for 6 months before the accident. Mr Hamka said there was no real reading material, and the learning was all visual, meaning that he would learn by copying what the barber was doing. The Panel noted that other reports in his file indicated that he discontinued the apprenticeship are 6 months before the subject accident. He had a P-plate driver’s licence and reported that there were no traffic offences before the subject accident, and he had never lost his licence previously. He had a girlfriend of one year, and they did not live together.
   History of the motor accident
   The subject accident happened on 11 June 2017. Mr Hamka was driving on his own and was on the way home. He said that suddenly there was a car that came and
   T-boned his car from the side and his car then struck a pole. He said he hit his head and lost consciousness. There were two vehicles involved and he was trapped in his car. The police and the ambulance came and had to cut him out. He remembered he woke up and he could hear the siren and the police were there. He was put on a stretcher by the paramedics and taken to St George Hospital and stayed for maybe three to five days. He remembered the police came and spoke to him at the hospital and told him he was lucky to be alive. Mr Hamka remembered he had a severe headache, and pain in the legs and back and he was very anxious and upset. He thought he was ‘about to lose my life’ and he would die from the impact. His airbag was deployed during the accident and his car was later written off by the insurer.
   He also said that the subject accident was very similar to the accident of 2007 and both occurred on the same street. He stated that the main difference is that in the first accident, he was only 12 years old and his mother was driving, while in the second accident, he was the driver.

   History of symptoms and treatment following the motor accident
   Mr Hamka recalled thinking that he was going to die or be seriously injured and gradually developed the full syndrome of Posttraumatic stress disorder.
   After the second accident, he said he ‘does not care’ and he wants to kill himself. He said he has problems communicating with people. He cannot sleep. He suffered from depression, anxiety and flashbacks. He does not feel that treatment has offered any benefit because nothing helps and he has not felt better over time.
   He said that after the accident he still drove, but ‘I don’t care’ when driving, implying that he developed a tendency towards reckless driving. He also started using cannabis and excessive alcohol. He lost his driver's licence but continued driving without a licence, and he was caught by the police and was incarcerated for about two weeks, with a two-year loss of licence in November 2019. He said his substance use subsequently ceased. He said at that point, he wanted to kill himself as he could not cope with the ‘constant thinking’ and intrusive thoughts.
   He said there was another incident which took place more than a year ago, when he was driving, and the police pulled him over. The police were concerned about his mental health and took him to St George Hospital for a psychiatric assessment. He spent one night at the hospital and there were no charges from the police. The hospital released him and gave him a list of psychologists. He saw a clinician in Brighton-Le-Sands only for one session. Aside from this, there had been no other hospital admissions for psychological treatment.
   Details of any relevant injuries or conditions sustained since the motor accident

Mr Hamka has not sustained other psychological injuries.

Current symptoms
Mr Hamka said his memory and concentration deteriorated after the subject accident, although on specific enquiry regarding his capacity before and after the 2017 accident, he could not provide any specific example of things that required concentration that he could no longer do. The panel noted that he had never been one to read books or magazines, and he does not spend time on social media.
He reported having a depressed and variable mood.
He reported an inability to enjoy things he would normally enjoy.
He described having reduced concentration and memory overall.
He has intermittent suicidal ideation, and self-harmed by hitting himself (including on the day of the assessment). He said he attempted suicide 6 months ag; he said he went to the beach to drown himself and someone came and stopped him. There was no specific trigger and he stated he felt he has ‘no life’ and did not want to live.
He reported having sleep problems, with middle insomnia and only sleeps 4-5 hours. He has nightmares related to the accident, 1-2 times per week.
He has flashbacks and described being angry and over-reacts.
Sometimes he worries for his safety and that he could be attacked.
He has panic attack-like symptoms.
He would yell when angry and finds it difficult to calm himself. He would also throw things when frustrated.
He avoids social situations due to his anxieties and avoids people generally.
He lost more than 10kg after the subject accident, and reported he is less than 80kg now, and probably lost 2-3kg in 2023. He said this was due to stress and not eating, as he has no appetite.
Current and proposed treatment

Mr Hamka is currently taking:

·        Mirtazapine 2 tablets at night

·        Venlafaxine 2 tablets in the morning

·        Panadol as needed for pain

He consulted Abdul Saad, psychologist and Dr Monir Younan, psychiatrist, both for several years and the last sessions were more than 1 year ago. He said he cannot afford treatment after the insurer ceased their funding for these treatments. He had 1 session with a psychologist after his hospital admission at St George Hospital.

Clinical Examination

Mental State examination
Mr Hamka was assessed by video. He had a crewcut hairstyle and a full beard, and there was no evidence of malnutrition. He said he had recently punched himself and was bleeding from his nose. He wore a black tee shirt. Mr Hamka engaged well with the assessment process. He was agitated at the beginning of the assessment, and as the assessment proceeded, he calmed down. The assessment took more than 1 hour and he remained attentive the entire time.
He presented as emotionally fragile and cried at times. He was moderately restricted in his range of affect and mood reactivity. He spoke spontaneously but there was a mild latency at times. He was not thought disordered and the provided history was easy to follow. He provided a clear history but there was some potential unreliability in the timeframe of events that he provided. He maintained a normal speed and pace. He displayed a limited vocabulary.
At the end of the assessment, the Panel asked Mr Hamka for additional information that he thought may be relevant and he had nothing to add.
Current functioning
Mr Ali Hamka is 27 years old. He is living with his parents and two of his sisters. He is single and has no dependents.
His relationship with his girlfriend ended after the accident in 2017. He said he left her because he was not the same person anymore and he has not had a partner since.
He reported that physically, he has not become much better over time. He still suffers cramps and twitches affecting his back and neck, and often his legs. The physical symptoms are exacerbated intermittently, depending on what he does. He said he can walk for about half an hour and had not tried running after the subject accident. He reported that he cannot lift more than 5kg now, because of the pressure on his back and legs. His arms are not affected by the subject accident.
He has been irritable and will often yell at his family. He said that he would throw random things that were near him, such as a water bottle, sometimes at his sisters. He also scratched and pushed them to the point that they suffered bruises.
Mr Hamka used to play PlayStation games but he gave away his PlayStation a few years ago. He said he tends to watch television, watch the news and whatever is on TV. He watched a movie, Mission Impossible, recently.
He does not talk to any friends or cousins, or attend any family functions, such as weddings. As a family, they eat at home and have only eaten out once, on Mother's Day this year.
Mr Hamka said he gets up in the morning, he does not do anything and will often go back to bed and lie down for hours during the day.
He said in the past he would do some cleaning up and mopping, he would do gardening, water the plants, and make food, but he does not do any of these activities now.
When he is hungry, he asks his mother to cook or he eats whatever is in the fridge. He goes to the local shops. He reported that driving is usually limited to about 10 minutes and he drives to the local shops or for medical appointments. He goes to the shops maybe once or twice a week. He prefers to go out with people but he can also go out on his own. He takes walks, maybe half an hour, and does not do other exercises.
Mr Hamka has not worked or returned to study after the subject accident.
Comments of consistency

Mr Hamka’s presentation was consistent with the history he provided during the assessment. There were some minor inconsistencies in the information he provided, and that contained in the supporting documents. The Panel noted various inconsistencies between the information he provided and that in his file. The panel were of the view that this was a reflection of his cognitive difficulties relatable to his psychiatric diagnosis.

Determination

Diagnosis and reasons
Mr Hamka has difficulties remembering his early life and the overall evidence is that he developed posttraumatic stress disorder after the 2007 accident. He had treatment for a couple of years and over time, his psychiatric injury had improved, and he was no longer having treatment. The overall evidence suggested that he recovered his pre-morbid functioning, and he could function well within his natural limits, with a low baseline intelligence and limited language abilities.
After the 2017 accident, he developed a new episode of PTSD. He has had several years of treatment, but he has not improved to a significant degree and his condition has now stabilised. His psychological symptoms have not remitted. There was evidence of a drug and alcohol problem after the 2017 accident, but he reports that he has since ceased substance use. He had no substance use disorder before 2017.
His psychological symptoms have fulfilled all of the DSM-5 diagnostic criteria for PTSD. The subject incident is consistent with a criterion A stressor, as he was in a serious accident with a loss of consciousness, he was trapped and had to be cut out by the rescue team. He has developed flashbacks and nightmares, persistent avoidance of situations and anxiety when exposed to reminders of the subject MVA, persistent negative cognitions and low moods including negative beliefs, fear and loss of positive emotions. He has physiological hyper-arousal with disturbed sleep, concentration, general over-reactiveness and aggression. His symptoms have persisted for longer than 4 weeks and are associated with functional impairment. Finally, the Panel did not identify another medical or psychiatric condition that better explains his trauma symptoms.
Causation and reasons
The panel were of the view that he had recovered from the previous Posttraumatic stress disorder. After the subject accident, he developed psychological symptoms consistent with a new episode of PTSD, and there were no other contributing factors identified. The Panel concluded that his current psychological injury was caused by the subject accident.
Degree of permanent impairment Psychiatric Impairment Rating Scale

Category	Class	Reason for Decision
1.   Self Care and Personal Hygiene	2	Mr Hamka has been neglecting his self-care. He said he lost weight due to stress, and that he has not regain his lost weight at the time of this assessment. He tends to rely on premade meals and showers every second day without prompting. He is capable of independent living.
2.   Social and Recreational Activities	3	He used to have an active social life and went out with his friends regularly. He played sports with his cousin and friends, and went to the cinema and arcade – these activities have ceased. He does not engage in social and recreational activities now, and does not regularly attend family functions, such as birthday parties or weddings.
3.   Travel	2	Mr Hamka is anxious and can go out on his own and drive on his own. He drives erratically and does not pay attention on the road. He reported at least one occasion when the police took him to St George Hospital for a psychiatric evaluation after he was stopped for driving erratically.
4.   Social Functioning	3	Mr Hamka left his girlfriend as he felt he is not the same person. He described significant irritability and physically acting out, causing injuries to his sisters. He is anxious and socially avoidant, and ceased contact with all of his friends and extended family, including all his cousins. The relationship with his immediate family is strained due to arguments and domestic violence.
5.   Concentration, Persistence and Pace	2	Mr Hamka reported having reduced concentration. He does not engage in intellectually demanding tasks day-to-day. The Panel discussed with him, that during the assessment, his concentration was reasonable. He explained he tried hard to focus, and the Panel accepted his account that he had to expend some effort. The Panel took the view that he could maintain focus on intellectually demanding tasks, such as the assessment, for more than 30 minutes but with mild concentration deficits.
6. Adaptation	3	While he has not worked since the subject accident, the panel were of the view that his capacity relating to his reported injuries would be consistent with him being able to manage lower-stress roles, such as labouring work, at around 20 hours per week.
List classes in ascending order: 222 333
Median Class Value: 3
Aggregate Score: 15
% Whole Person Impairment: 15 %

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment

Category	Class	Reason for Decision
Self-care & Personal Hygiene (before the accident)	1	Mr Hamka had no impairment before the subject accident. He ate and showered regularly and was into body-building.
Social & Recreational Activities	1	No impairment before the subject accident. He engaged in social and recreational activities with his friends, such as going to the cinema, arcades and restaurants.
Travel	1	No impairment before the subject accident. He was on a P-plate and did not have previous driving charges.
Social Function	2	He said he had good relationships with his girlfriend, friends and family. However, evidence from other reports also show a pattern of behavioural disturbance since childhood, at home and at school, impacting his relationships.
Concentration, Persistence & Pace	2	The Panel noted Dr Falcon and Dr Baron’s assessments and additional information indicating that he had concentration problems at school. He said he had improved after school. However there remained a pattern of poor concentration and persistence, as he would start and not finish TAFE courses.
Adaptation	3	He said he had no problem with his Barber apprenticeship before the subject accident, however Dr Canaris and Dr Endrey-Walder both noted he ceased it in late 2016, more than 6 months before the subject accident. He was not working at the time of the subject accident, and he was looking for traffic control work. There was a history of being unable to maintain consistent employment, and across the year, he would have worked less than 20 hours per week inconsistently.

List classes in ascending order:

1 1 1 2 2 3

Median Class Value:  Aggregate Score:

2 10

Whole Person Impairment:

5

Apportionment
Pre-MVA WPI =5%
Effects of Treatment
0%
Mr Hamka's treatment has had negligible effects in symptomatic relief and in functional improvement.
Final WPI = 15-5 = 10%
File review:
Dr Christopher Canaris, IME psychiatrist assessed Mr Hamka and reported on 14 November 2017, with a WPI of 24%. Dr Jonathan Phillips provided 4 reports and a WPI on 8 November 2022 and incorrectly calculated his WPI as 24%, and the correct WPI should be 17% based on his ratings.
In terms of self-care and personal hygiene, Dr Canaris rated a 3, but his explanation seemed more consistent with a 2, which is what the Panel has rated. The Panel noted that he is capable of managing his self-care without assistance or prompting, albeit with a level of neglect and engages in some self-harm behaviour.
In terms of travel, Dr Canaris rated a 2 and noted Mr Hamka no longer drives and does not have a car, and he has a licence, but is not comfortable being around people and is not comfortable with public transportation. Dr Phillips rated a 1 and noted no significant impairment. The Panel rated a 2 and noted that he was capable of driving on his own and being out on his own. However, he avoids crowded places, and his driving was erratic; the police took him to the hospital for a psychiatric assessment based on his behaviour on public roads.
In terms of concentration, persistence and pace, Dr Phillips and Dr Canaris both rated 3. Dr Phillips wrote he has longstanding cognitive difficulties and limited intelligence, however, does not explain what impairment, if any, he has developed from the subject accident. Dr Phillips did not assess his pre-existing CPP impairment. Dr Canaris wrote he was a keen reader and now, he has difficulties following TV shows. The Panel took a history that he was not a keen reader and has limited pre-MVA intelligence, and also noted he could follow movies now. The Panel found him less impaired and rated 2.

In terms of adaptation, Dr Canaris rated a 5 and explained Mr Hamka has not done work or study after the subject accident. Dr Phillips rated a 4 and judged he would be unable to work on an ongoing basis. The Panel noted that Mr Hamka has not performed work or study and this is partly due to his psychological symptoms and partly because of his physical disabilities. From a psychiatric perspective, the Panel concluded that he could perform lower-stress jobs and he can engage in some life roles and rated a 3.”

FINDINGS

1. The review is a new assessment of all matters with which the medical assessment is concerned.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[50] and Insurance Australia Ltd v Marsh.[51]

   [50] [2021] NSWCA 287 at [40], [41] and [45].

   [51] [2022] NSWCA 31 at [11], [21] and [64].

3. The Panel adopts the extensive joint examination findings of the Medical Assessors and adds the following reasons.

4. The Panel accepts that the claimant suffered a psychological injury caused by the motor accident. We have relied upon the evidence showing a serious impact, recorded onset of psychological symptoms following the accident, the clinical examination by the Medical Assessors and a review of the materials. We otherwise refer to our observations set out below concerning our review of the neuropsychological testing.

5. The Panel noted Dr Baron’s neuropsychological assessment and Dr Falcon’s assessment concerning concentration problems at school. Dr Falcon’s opinion was that Mr Hamka’s performance on cognitive testing suggested symptom exaggeration due to his performance being inconsistent with individuals who had suffered a severe traumatic brain injury (TBI).

6. The Medical Assessors in their clinical findings did not identify Mr Henniker as having sustained a TBI and considered that his performance set out in that assessment was relatable to the psychiatric injuries identified during the recent medical assessment. In view of the difficulties observed by Dr Falcon, and those observed by the Medical Assessors during the recent medical assessment, the Panel relied on the information provided in the supporting documentation in relation to his pre-accident functioning, particularly the contemporaneous documentation of earlier functioning difficulties affecting Mr Henniker prior to the subject motor accident, in instances where the information provided by Mr Hamka was incomplete or lacking in detail. That information was considered when the pre-motor accident and current impairment were assessed.

7. The Panel, aware of the issue raised by the insurer, does not consider the claimant unreliable although we have closely considered the contemporaneous documentation in finding injury and the assessment of current and pre-accident impairment.  In that respect we agree with Dr Phillip’s opinion of matters affecting the claimant’s ability to articulate and respond to questioning which also explains our opinion which is contrary to the opinion that the claimant is an unreliable historian.[52]  

   [52] See at [48].

8. We note the subsequent criminal charges and incarceration. We could not identify any psychological condition or impact on the PIRS categories relating to that conduct and its consequences. Accordingly, we have made no deduction due to those events.

Pre-existing impairment

1. For the reasons articulated by the Medical Assessors we have made a deduction for pre-existing condition of the psychological condition. We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[53] concerning the issue of onus.

   [53] [2022] NSWPICMP 66 at [118]-[120].

2. We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.

CONCLUSION

1. The certificate issued by Medical Assessor Jones dated 13 October 2021 is revoked. A replacement certificate is attached at the commencement of these Reasons.