Heisele-Brown v Insurance Australia Limited t/as NRMA on behalf of the Nominal Defendant
[2022] NSWPICMP 282
•11 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Heisele-Brown v Insurance Australia Limited t/as NRMA on behalf of the Nominal Defendant [2022] NSWPICMP 282 |
| CLAIMANT: | Teresita Heisele-Brown |
INSURER: | Insurance Australia Limited t/as NRMA on behalf of the Nominal Defendant |
| REVIEW PANEL: | Member Brett Williams Medical Assessor Michael Li Ying Hong Medical Assessor Wayne Mason |
| DATE OF DECISION: | 11 July 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Medical Review Panel; whether the psychological injury caused by the accident is a minor injury as defined in section 1.6 of the Motor Accident Injuries Act 2017 (MAI Act) and the Motor Accident Injuries Regulation 2017; where claimant’s case is that she suffered post-traumatic stress disorder; Medical Assessor (MA) diagnosed Adjustment Disorder with Mixed Disturbance of Mood, a minor injury; MA did not have the benefit of an interpreter or transcribed General Practitioner notes and the treating psychologists records; the insurer submitted that the MA’s findings were correct; Held - the claimant meets DSM-5 criteria for Persistent Depressive Disorder with Anxious Distress; the diagnosed psychological injury was not a minor injury for the purposes of the MAI Act; the MA’s certificate revoked and a new certificate issued. |
| DETERMINATIONS MADE: | Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 i) The Review Panel revokes the certificate dated 6 April 2021 and issues a new certificate determining that: The following injury was caused by the motor accident: Persistent Depressive Disorder with Anxious Distress The following injury is not a minor injury: Persistent Depressive Disorder with Anxious Distress |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
BACKGROUND
Teresita Heisele-Brown (the claimant) was involved in a motor vehicle accident on 2 March 2019. The claimant subsequently made a claim for statutory benefits on the Nominal Defendant. She claimed that she suffered both physical and psychological injuries as a result of the accident.
A dispute has arisen between the claimant and Insurance Australia Limited t/as NRMA Insurance (the insurer), on behalf of the Nominal Defendant, as to whether for the purposes of the Motor Accident Injuries Act 2017 (MAI Act) her psychological injury caused by the accident was a minor injury. The claimant’s case is that she suffers from post-traumatic stress disorder, a non-minor injury, as a result of the accident. The insurer’s position is that she does not meet the diagnostic criteria for post-traumatic stress disorder and that her psychological injury is a minor injury.
The dispute about whether the claimant’s accident caused psychological injury is a minor injury is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Samuell (the Medical Assessor). The Medical Assessor gave a certificate dated 6 April 2021 wherein he certified that the accident caused Adjustment Disorder with Mixed Disturbance of Mood is a minor injury for the purposes of the MAI Act (the medical assessment).
The review
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (the review). On 21 July 2021 the President’s Delegate determined that the medical assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel). It was determined that the Medical Assessor had not provided a clear path of reasoning as to how he arrived at a diagnosis of Adjustment Disorder with Mixed Disturbance of Mood.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[1] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
On 21 December 2021 the claimant and the insurer were directed by the Panel to provide bundles of all material relied on in relation to the review, including submissions.
On 8 February 2022 the Panel informed the parties that it considered a re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined on 11 April 2022. The claimant failed to attend the re-examination, which was rescheduled to take place on 27 June 2022. The Panel directed the claimant to lodge a transcribed copy of Dr Pukanic’s clinical notes. If the insurer disputed the accuracy of the transcription of Dr Pukanic’s clinical notes, it was directed to inform the Commission by 11 March 2022 and provide submissions in support. The Commission has not received notification from the insurer that it disputed the accuracy of the transcription.
The Panel also has a copy of Emily Kwok’s clinical notes, which were produced to the Commission in response to a direction for production served on her by the claimant.
Statutory provisions
The term “minor injury’ is defined in s 1.6 of the MAI Act and includes a “minor psychological or psychiatric injury”. A minor psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(3).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further define minor psychological or psychiatric injury to include acute stress disorder and adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of minor psychological or psychiatric injury. These clauses provide:
“Minor psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a minor psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a minor injury.”
Assessment under review
The Medical Assessor gave a certificate dated 6 April 2021. He certified that the claimant suffered from Adjustment Disorder with Mixed Disturbance of Mood which was caused by the accident. He certified that this injury was a minor injury for the purposes of the MAI Act.
There was no translator present at the assessment.[2] The Medical Assessor’s reasons state that there were handwritten records that were not decipherable to him. It seems probable that the records referred to are those of Dr Pukanic, which have been transcribed and are before the Panel. The Medical Assessor recorded that the claimant had seen Ms Kwok, psychologist, but was unable to tell him when she saw Ms Kwok and the frequency of those consultations. He recorded that the claimant was scared to walk on the streets, had difficulty sleeping and experienced pain in her arm. He recorded that the claimant was “very difficult to examine” and had difficulty answering questions. Some questions were asked several times and went unanswered. Her cognitive functioning was suboptimal due to her concentration. There was no evidence of psychosis. The Medical Assessor considered that there was a paucity of documentation concerning the claimant’s mental health. He accepted that the accident was a traumatic event for the claimant. He did not identify any other stressors beyond the accident that could have caused a mental health condition. He diagnosed Adjustment Disorder with Mixed Disturbance of Mood. The relevant stressor was the accident. The diagnosed condition was a minor injury. In the Medical Assessor’s opinion there were insufficient symptoms of clinical significance to support a diagnosis of post-traumatic stress disorder.
[2] The Medical Assessor’s reasons record at [7] that the claimant was examined unaccompanied. No reference is made in the reasons to a translator being present.
Material before the Review Panel
As already recorded, the Panel requested, and were provided with, bundles of documents, including submissions, relied on by the parties. We have also been provided with a transcription of Dr Pukanic’s notes and Emily Kwok’s clinical records.
Ms Heisele-Brown’s statutory declaration
The claimant has provided a statutory declaration declared on 16 October 2019. The statutory declaration contains details of the accident, the claimant’s physical injuries and her treatment. The statutory declaration records that she has had “a very bad psychological reaction to the accident” and that she is “still fearful that the driver will come back and hurt [her] again”. It is recorded that she was too scared to return to living with her friend. She moved out and resides with a different friend. However, her new residence was still close enough to the accident site to make her very fearful when she leaves home. The statutory declaration records that when she saw Dr Pukanic for treatment in July 2019 she was in “a very bad way” emotionally.
Submissions
The claimant submits that:
(a) the Medical Assessor[3] erred in determining that she sustained an Adjustment Disorder with Mixed Disturbance of Mood as a result of the motor vehicle accident and that her injury was consequently a “minor injury” under the MAI Act;
(b) the Medical Assessor’s determination that she has an Adjustment Disorder is incorrect;
(c) her symptoms have persisted for more than six months from the date of her accident. Accordingly, she does not fit the criteria for an Adjustment Disorder. The Medical Assessor has made a demonstrable error and applied incorrect criteria in his assessment;
(d) she has avoided the area where the motor vehicle accident occurred by relocating where she lives, and
(e) the evidence supports a diagnosis of post-traumatic stress disorder within the diagnostic criteria contained in DSM-5.
[3] The submissions at [1] and [2] refer to Assessor Curtain [sic], who assessed a medical dispute in relation to the claimant’s physical injuries. The application for review relates to Medical Assessor Samuell’s certificate. The President’s Delegate referred Medical Assessor Samuell’s certificate to the Panel for review. Accordingly, the Panel has assumed that references to Assessor Curtain [sic] should be read as references to Assessor Samuell, who assessed her psychological injury, and not Assessor Curtin.
The insurer submits that:
(a) whilst the claimant’s psychological symptoms have persisted for more than six months post-accident, this provision alone does not render the Medical Assessor’s diagnosis of Adjustment Disorder invalid;
(b) the Medical Assessor has diagnosed an Adjustment Disorder in accordance with DSM-5 given that the accident was accepted as a traumatic event resulting in psychological symptoms that do not however meet the diagnostic criteria for post-traumatic stress disorder;
(c) there is insufficient available evidence to indicate that the claimant has satisfied all or any of the criteria consistent with a diagnosis of post-traumatic stress disorder under DSM-5;
(d) in reading the Medical Assessor’s certificate in its entirety, noting his description of the claimant’s current symptoms, current functioning and mental status examination findings, the claimant’s symptoms and level of functioning do not meet the DSM-5 diagnostic criteria for post-traumatic stress disorder and is consistent with the Medical Assessor’s conclusion;
(e) the Medical Assessor has provided sufficient reasons to substantiate his determination and has adhered to his obligations in the assessment of minor injury as required by cl 5.6 of the Motor Accident Guidelines, and
(f) a diagnosis of post-traumatic stress disorder is not sustained on the evidence. The appropriate diagnosis is Adjustment Disorder, which is a minor injury: Clause 4(2)(b) Motor Accident Injuries Regulation 2017.
Re-examination
Medical Assessors Hong and Mason re-examined the claimant by MS teams on 27 June 2022. The claimant attended with the assistance of a Filipino interpreter, Ms Maria Meijer, NAATI CPN8FZ72S.
Psychosocial history and pre-accident history
The claimant is a 69-year-old woman who lives alone in a privately rented apartment in Liverpool. She said she sees her ex-husband from time to time but he does not live with her. She receives the aged pension and is helped out by her daughters.
She was born in the Philippines to a Spanish father and a Filipino mother. She said her father was a ship captain who died in 1957 of a smoking related illness. She was raised by her mother and grandparents. Her mother died at 84 years of age in 2011. She said there were five children in the family and two further stepchildren from her mother's second marriage. She denied any form of abuse throughout childhood.
She grew up in Cebu city and after completing school attended University for two years to study nursing. She left following the death of her father. She said she studied security work and then she was employed in marketing in the sale of household white goods.
She said she married in 1981. Her husband was an Australian citizen of German origin who worked as a baker and she came to Australia with him. She said she had two daughters who live in Blacktown and she had a son from a previous relationship who lives in Seven Hills. That marriage ended in 1998 and she said he died in 2016. She then remarried in the year 2000 and then separated in 2004 because her husband became sick with epilepsy. She said she cared for him through his illness and he came back for a while in 2007. She described a torrid relationship. They are currently separated but he visits her on two or three days per week, although not for the last two months.
The claimant’s work history consists of cleaning and house maid work at hotels. The claimant said she was at the Hyatt hotel for five years, worked at Cinemas in the city for four and a half years and was then employed at the Marriott hotel in the city for 14 years. She denied any history of problems with the law.
When asked about her medical history she complained of leg and back pain over many years. She said she suffers from high blood pressure and cholesterol as well as a lymphoma condition which is being monitored.
When asked about past psychiatric history she stated she had a problem with frequency of urine. In response to a further request she said she was worried about her husband. She denied any past history of psychological illness and said she did not take any psychiatric medication apart from Endep (amitriptyline). When directly questioned she acknowledged using both the antidepressant desvenlafaxine 100 mg and the anxiolytic diazepam up to 8 mg daily during the period 2011-2013 when she was struggling with a work related pain condition.
Current medications consist of a patch, but she was not sure of its purpose. She said she took rosuvastatin for cholesterol and amlodipine for blood pressure. She also used Panadol for pain. She took no psychotropic medication and denied the use of cigarettes, alcohol or recreational drugs and said she does not gamble.
History of the motor accident
When asked to describe the motor accident the claimant said, "a car hit me". She said she was crossing the street and was hit on her right hand side by the passenger side of the vehicle. She said the driver had made a sudden U-turn from a parked position. She said the car hit her on the right hip and she dropped to the road and it affected both legs. She said he stopped, peeped his head out of the window and said, "you Asian" and then drove off. She said she walked slowly to the railway station to use the bathroom where she noticed her legs were bleeding. She then took a cab from the railway station to Liverpool Hospital. She said the driver of the vehicle was of Middle Eastern appearance and she was afraid he would return and hit her again.
History of symptoms and treatment following the motor accident
The claimant said she was treated in Liverpool Hospital for two days and then she caught a cab home where she stayed for three weeks. She said her handbag and shoes were damaged. She was able to walk only very slowly and used a lot of paracetamol to deal with the pain.
Psychological symptoms consisted of being afraid to be alone. The claimant said she was frightened when she heard the noise of a car or a car going really fast. She described being distressed and frequently tearful. She said she was very scared the driver would come back and harm her and she was not able to sleep. She said her moods were very variable and she could easily get upset. She said she was crying often and was easily angered.
The claimant said at one point she became so upset she considered suicide. She said this happened because her husband told her she should get back to work. She described being afraid to go out on the street because the man might return. She said she tried to report the matter to the police when they came to see her in hospital but she had not recorded the correct number plate of the vehicle. She said her life had been changed by the accident and she was less able to go out to see her friends because of her phobia. She said she had to change accommodation because of her fear.
When asked about treatment she said she saw her general practitioner, Dr Pukanic, and he referred her to psychologist Emily Kwok. She said she found the counselling sessions helpful but they did not significantly reduce her anxiety or depression. She implied that the sessions ended because of Covid and she has not had any treatment since then. She was not treated with antidepressant medication.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant denied that there had been any relevant injuries or conditions sustained since the motor accident.
Her treatment record indicated her husband had harassed her for money after the accident and he has a gambling problem. She reported he exhibited similar behaviour before the accident and again after the accident. He subsequently found a job and does not ask her for money anymore. There is no new psychological injury identified.
Current symptoms
The claimant said she continues to be depressed and is frequently in tears. She continues to have difficulty with her sleep, getting only three or four hours a night. She remains unhappy and is not able to enjoy life or go out with her friends as she did in the past. She is not currently suicidal.
Current and proposed treatment
There is no current or proposed psychological or psychiatric treatment. The claimant said she has been trying to make an appointment with a psychologist, Emily Kwok, but has not been successful. She said her general practitioner has retired.
Mental State examination
The claimant is a right-hand dominant woman whose appearance is younger than her stated age. She was identified from her Medicare card number. She was interviewed via Microsoft Teams with a good internet connection. The interview commenced at 4.00pm and concluded at 5.00pm. She was located alone in an office provided by her lawyers. An interpreter was used throughout the interview, although the claimant was capable of understanding questions put to her in English.
The claimant was difficult to interview. She presented in a disinhibited and disorganised fashion. She rarely answered a question directly. The interpreter also noted difficulty getting her to remain on point. She was depressed in appearance and was frequently in tears. She denied current suicidality. She described anxiety in relation to cars and traffic. She described fear the driver of the car would return to hurt her. Her affective expression was excessive and at times was incongruent with the material being described. However, she was capable of a full range of affective expression.
The claimant was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current functioning
The claimant described having the capacity to manage her own life with the assistance of her children.
Comments on consistency
There were a number of inconsistencies noted throughout the interview. The claimant denied any past psychiatric history until this was directly put to her and was then acknowledged. She consistently attributed all psychological difficulties to the motor accident and downplayed pre-existing problems. It proved quite difficult to get her to remain focused on the purpose of the interview because of her tendency to go off on side-tracks and provide irrelevant information. This tendency had was noted in the documentation by her treating psychologist. Medical Assessor Samuell also noted similar behaviour in his assessment. The Panel does not believe she was being deliberately misleading, and concluded this was a feature of her psychological injury.
Summary of relevant documentation
Medical Assessor Samuell issued a certificate dated 6 April 2021 in which he diagnosed Adjustment Disorder with Mixed Disturbance of Mood, and found that the diagnosed condition was a minor injury for the purposes of the MAI Act. He noted that the claimant was a pedestrian on a footpath when struck by a vehicle making a U-turn. There was no loss of consciousness and she took a taxi to Liverpool Hospital where she stayed for two days. She was treated by psychologist, Emily Kwok, because she was too scared to walk on the street. Symptoms consisted of fear of walking on the street, sleep difficulty, arm pain, bad dreams and a sense of injustice. Symptoms at the time of his assessment consisted of sleep difficulty, appetite disturbance and mood fluctuations with no suicidality. Treatment consisted of amitriptyline 10mg to help with sleep. The claimant was tearful on mental state examination and was difficult to interview. Affect was labelled as reactive. There was impaired concentration. Assessor Samuell concluded there were insufficient symptoms to diagnose post-traumatic stress disorder and determined that the claimant suffered from an Adjustment Disorder with Mixed Disturbance of Mood caused by the accident.
Emergency Department case history notes of Liverpool Hospital record that the claimant had been involved in a pedestrian versus car motor accident at 50kph. She was hit on the right side suffering an injury to her right knee, then landed on the road on her left side. There was no head strike or loss of consciousness, no neck pain and she walked to the hospital from the site of the accident. Radiology, including a CT of the brain, was to the effect that no abnormality was demonstrated. Medications were listed as amlodipine 10mg, rosuvastatin 20mg, lamivudine 100mg and Ventolin as needed. Medical history consisted of thyroid nodules, a background of diffuse large B-cell lymphoma treated with chemotherapy, in remission, and two Caesarean section deliveries.
The transcription of Dr Pukanic’s notes includes the following:
18/08/2011 - neck and low back pain while pushing a trolley as housemaid in Marriott hotel on 7 May 2007;
09/09/2011 - fall on neck and back, whole body bone scan;
07/10/2011 - depression, desvenlafaxine 100mg;
14/10/2011 - having counselling;
04/11/2011 - anxiety and depression, desvenlafaxine 100mg, diazepam 8mg;
03/12/2012 - pain and depressed, unfit for work;
07/03/2013 - severe pain, major depression, totally unfit for work, severe insomnia, amitriptyline 25mg at night;
20/05/2013 - depression referred to Dr Q Tjepluun;
15/07/2019 - MVA at 6 AM on 2/3/2019 while walking on the road; physical symptoms only;
22/07/2019 - physical symptoms persisting, and
1/10/2019 - physical symptoms persisting; no reference to mental symptoms.
The clinical records of treating psychologist Emily Kwok of the South Western Sydney Area Counselling Service have been considered. There were nine attendances between 20 November 2019 and 1 April 2021. The initial referral by Dr Abdul Mannan was to psychologist Dr Chai Nge in Cabramatta West for treatment of stress and anxiety. The attached GP mental health care plan indicated conditions of anxiety and depression. The initial session was devoted to the motor accident. The claimant stated she was scared and she nearly died. The notes record that she did not want to go out for two weeks but now does go out and tries to exercise and can walk by herself. She is afraid to go back to her girlfriend's place and afraid she will see the car or the man that hit her. On 18 December 2019 she remained cautious of Lebanese men and had fears she was being watched. On 29 January 2020 she had taken a train to Cronulla beach and had lunch with friends. She was distressed by an argument with her daughter for feeling she did not care enough. On 20 February 2020 she was preoccupied with medical problems. On 16 April 2020 she was writing a book and getting along better with her daughter. On 12 June 2020 she was careful while crossing roads, avoidant of certain areas and more assertive with friends. She stated she had dropped the legal matter because it was too stressful. On 27 January 2021 she was having difficulties with her separated husband due to his gambling and money matters. On 19 February 2021 she reported her ex-husband was doing better. She noted he tried to kill himself three years ago when she asked him not to get her fake flowers on Valentine's Day. The notes state: “Afraid to end the relationship. What if he kills himself? What if he kicks me?”. On 1 April 2021 Ms Kwok noted the claimant was very scattered in her thinking. There was no crisis or current concern apart from distress that she may be hurt again by her husband.
In summary, the claimant was involved in a frightening pedestrian versus motor vehicle accident in which she was knocked to the ground suffering physical injuries. She developed a fear of further assault and of further motor accidents. She became depressed and sought psychological counselling. This picture is complicated by pre-existing and ongoing difficulties in her marital relationship.
Diagnosis and reasons
The claimant presented in a disorganised, depressed and distressed state at interview. She gave a history of depression, distress and anxiety which had continued since the motor accident. She described depressed mood most of the day almost every day since the accident. She experienced insomnia, low self-esteem, poor concentration and a sense of hopelessness. She described suicidal ideation. She was never manic, hypomanic or psychotic and she denied substance use. There were anxiety symptoms in relation to motor vehicles and Middle Eastern men. The claimant meets DSM-5 criteria for Persistent Depressive Disorder with Anxious Distress.
Her psychological condition was considered to be more severe than an Adjustment Disorder and it has continued well beyond the time period when an Adjustment Disorder could have reasonably been expected to resolve.
Causation and reasons
The claimant was involved in a frightening pedestrian versus motor vehicle accident in which she was knocked to the ground suffering physical injuries. She became fearful of further motor accidents and Middle Eastern men. Her depressive and anxiety symptoms have persisted.
The Panel considered her marital difficulties and noted they were present prior to the motor accident and have continued in the same fluctuating manner since the accident. They were not regarded as the cause of her current condition.
The Panel considered the motor accident was medically capable of causing the current condition. Having evaluated the potential contributing factors, the circumstances of the accident and stress unrelated to the accident, the Panel concluded the accident is a major causal factor and has more than a negligible contribution to her current psychological injury.
Findings
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[4] and Insurance Australia Ltd v Marsh.[5]
[4] [2021] NSWCA 287 at [40], [41] and [45].
[5] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination and specific findings pertaining to diagnosis.
In contrast with the Medical Assessor, the Medical Assessors on the Panel had the benefit of an interpreter when the claimant was assessed on 27 June 2022. Further, the Panel had a transcription of Dr Pukanic’s clinical notes and a copy Emily Kwok’s clinical notes.
As previously recorded, the claimant’s psychological condition was considered to be more severe than an Adjustment Disorder and has continued well beyond the time period when an adjustment disorder could have reasonably been expected to resolve.
The Panel considered that the claimant did not meet DSM-5 criterion A for Acute Stress Disorder or post-traumatic stress disorder because she did not report feeling her life was in danger. She walked to the railway station after the accident and attended hospital only when she realised her legs were bleeding. She does not meet DSM-5 criterion C for an Adjustment Disorder because her condition meets criteria for another mental disorder, namely Persistent Depressive Disorder with Anxious Distress as described below.
The claimant meets DSM-5 criteria for Persistent Depressive Disorder with Anxious Distress as follows:
A. Depressed mood most of the day for more days than not over the last two years.
B. She experienced insomnia, low self-esteem, poor concentration and a sense of hopelessness. She described suicidal ideation.
C. The above symptoms were never absent for more than two months at a time.
D. Criteria for Depressive Disorder may have been present during this time.
E. She has not been manic, hypomanic or cyclothymic during this time.
F. She does not present with schizophrenia, schizoaffective disorder or delusional disorder.
G. Her symptoms are not attributable to the effects of a substance or other medical condition.
H. The symptoms cause clinically significant distress and impairment.
The Panel finds that the claimant suffers Persistent Depressive Disorder with Anxious Distress as a result of the accident and that this condition is not a minor injury for the purposes of the MAI Act.
Member: Brett Williams
Medical Assessor: Dr Michael Li Ying Hong
Medical Assessor: Dr Wayne Mason
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