Huang v AAI Limited t/as AAMI
[2024] NSWPICMP 801
•27 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Huang v AAI Limited t/as AAMI [2024] NSWPICMP 801 |
| CLAIMANT: | Yi Sang Huang |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Doron Samuell |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 27 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of Medical Assessor (MA) Fukui’s assessment of 0% whole person impairment (WPI); Panel determined to hear and determine this Review with the Review in the related proceedings; Panel adopted evidence review, the re-examination finding, and the findings as to causation and diagnosis in the related proceedings; while the claimant did not currently have an entitlement to any damages, the Panel proceeded to assess WPI in the event that situation changed; consideration of the psychiatric impairment rating scale set out in the Motor Accident Guidelines and the six categories of function; Held – claimant’s WPI assessed at 5%; certificate of MA Fukui revoked; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certification by Medical Assessor Fukui dated 27 May 2024. 2. Certifies that the degree of Yi Sang Huang’s permanent impairment resulting from the injury caused by the motor accident is 5% WPI which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Background to the Review
Yi Sang Huang was involved in a motor accident on 18 February 2020.
Mr Huang says he injured his neck, back and shoulders in the accident and developed a psychiatric or psychological condition as a result of the accident. Mr Huang made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) against AAMI, the third-party insurer of the vehicle that Mr Huang says caused his accident. In due course, Mr Huang also made a claim for damages (lump sum compensation) against AAMI.
Three medical disputes have arisen in connection with the claims and Mr Huang referred those disputes to the Personal Injury Commission (the Commission) for assessment in two separate proceedings as follows:
(a) proceedings numbered M104085/93 commenced on 20 April 2021 concerning:
(i)a dispute about whether the claimant’s injuries were or were not threshold injuries for the purposes of the Act;
(ii)a dispute about whether a number of different treatments and consultations were reasonable and necessary and related to the accident, and
(b) proceedings numbered M22233/23-01-01 commenced on 18 December 2023 involving a dispute about the degree of the claimant’s whole person impairment (WPI) resulting from the injuries caused by the accident.
Medical Assessor Fukui determined on 27 May 2024 that the claimant sustained an adjustment disorder with mixed anxiety and depressed mood which she assessed at 0% WPI.
The claimant lodged an application with the Commission seeking a review of Medical Assessor Fukui’s decision. On 8 August 2024, a delegate of the President determined there was reasonable cause to suspect a material in the assessment and allowed the Review. On that day the delegate convened the same Panel to conduct the Review of Medical Assessor Fukui’s decision.
The other Review proceedings
Medical Assessor Canaris determined on 3 July 2023 that the claimant had a non-threshold psychological injury and that all the disputed psychological treatment was related to the accident and reasonable and necessary in the circumstances.
The insurer lodged an application with the Commission seeking a review of Medical Assessor Canaris’ decisions. On 5 September 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 29 May 2024 the delegate convened the Panel to conduct the Review of Medical Assessor Canaris’ decision.
A separate certificate and reasons have been issued in respect of that Review.
Other assessments
Medical Assessor Kenna determined threshold injury and treatment disputes in relation to the claimant’s physical injuries in a certificate dated 10 April 2022. He found all of the claimant’s physical injuries to be soft tissue and therefore threshold injuries. He found some of the treatment was related to the accident and reasonable and necessary but other treatment (including a C5/C6 discectomy and fusion) not related and not reasonable and necessary. The claimant lodged an application for review in respect of that decision which was, on
14 August 2022, refused.
On 14 May 2024, Medical Assessor Home determined the claimant’s WPI arising out of his physical injuries. He certified the claimant’s neck, lower back and right shoulder injuries resulted in a 9% WPI. On 15 June 2024 Medical Assessor Curtin determined there was no skin or scarring injury caused by the accident and therefore no impairment to be assessed. The Panel understands no application for review has been lodged in respect of either of these two assessment decisions.
LEGISLATIVE FRAMEWORK
General
Mr Huang’s claim was made under the MAI Act and his entitlement to benefits and compensation are governed by the provisions of that Act.
Mr Huang has made two claims arising out of his accident, a claim for statutory benefits under Part 3 of the MAI Act and a claim for damages under Part 4. The degree of his WPI is relevant to his damages claim.
Damages claim
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss. A claimant cannot recover damages if the claimant’s only injuries are threshold injuries.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Impairment Assessment
Impairment is assessed in accordance with the Motor Accident Guidelines version 9.2 (the Guidelines) which include a chapter entitled “Mental and behavioural disorders.” The assessment is to be undertaken in accordance with the psychiatric impairment rating scale (PIRS) and the AMA4 Guides are to be used as “background or reference only”[3].
[3] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD)[4].
[4] Clause 6.213 of the Guidelines.
The PIRS provides[5] for the consideration of any psychiatric condition present before the accident in question:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[5] Clause 6.218 of the Guidelines.
The PIRS provides in clause 6.219 for six areas of function:
(a) self-care and personal hygiene;
(b) social and recreational activities;
(c) travel;
(d) social functioning (relationships);
(e) concentration persistence and pace, and
(f) adaptation.
The PIRS then provides at 6.220 for five classes of impairment with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment,[6] that is treatment such as medication being taken to treat the psychiatric condition.
[6] See clauses 6.222 – 6.223 of the guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage[7].
[7] See clauses 6.225 – 6.228 and table 17.
Dispute Resolution
Schedule 2(2)(a) of the MAI Act declares as a medical assessment matter:
“ the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”
Division 7.5 of the MAI Act provides for the assessment of declared medical assessment matters by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Fukui’s, further medical assessments and the review of medical assessments by this Panel[8].
[8] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Fukui examined the claimant on 10 May 2024 and issued a certificate dated 27 May 2024. She was asked to assess the WPI resulting from the injuries caused by the accident. She records being assisted by a Cantonese interpreter during the assessment.
The claimant gave the Medical Assessor a history of 10 years employment as a taxi driver before the accident and that six weeks before the accident he commenced as a ride share driver and since the accident he has been working as a causal residential cleaner 15 hours a week.
Medical Assessor Fukui noted previous diabetes and thyroid illnesses. The claimant conceded family problems before the accident but said he had never had a previous mental health condition.
Mr Huang confirmed three previous motor accidents all of which were rear-end collisions from which he said he sustained only minor injuries.
The claimant said in the current accident (18 February 2020) he was hit from behind by a “huge” impact and he felt like he may have been killed. He was wearing his seatbelt and airbags were not deployed. He experienced immediate physical pain in this neck, right shoulder and lower back. He drove home.
He went to Ryde Hospital the next day then was sent to Royal North Shore Hospital for a scan and was given a neck collar and told he had a “disc injury with nerve compression.” He has trialled many things and has decided against surgery.
He blames his inability to do things around the house as affecting his relationship with his wife and that this led to the breakdown of his marriage 10 months after the accident.
He described chronic pain and concern about finances.
Medical Assessor Fukui had a history that a year before the accident, Mr Huang’s GP prescribed anti-depressants. She has a history that his GP has now referred him to Dr So who he sees monthly and that he sees a psychologist every fortnight.
The Medical Assessor said:
“The most significant factor which has contributed to the decline in his mental state is the marital separation which occurred 10 months after the subject motor accident. Mr Huang clearly stated that he was not depressed prior to the separation.”
He said his alcohol use started after his wife left him.
Medical Assessor Fukui thought the clamant was exaggerating the impact of the collision. She noted he gave a clear history of his symptoms not inconsistent with the documents.
Medical Assessor Fukui reviewed the notes of the claimant’s treating GP in relation to the claimant’s pre-accident depressive episode and considered his presentation at that time “was more likely an adjustment disorder with depressed mood” based a Kessler Psychological Distress Scale (KS) score of 26.
While she accepts the claimant presented with a clinical picture of Major Depressive Disorder and Adjustment Disorder and Somatic Symptom Disorder she notes:
“However, it has been 4 years since the subject motor accident and the history Mr Huang provided indicates that he developed significant depressive symptoms only after his marital separation. I questioned Mr Huang carefully about his depressive symptoms following the subject motor accident and he clearly stated that he was not depressed prior to the marital separation and that he was “back to near normal” in terms of his mental state. He clarified that whilst he was still suffering physical symptoms and not functioning well from a chronic pain perspective he was managing well.”
She therefore diagnosed an Adjustment Disorder with mixed anxiety and depressed mood and that there was “no evidence for a significant permanent impairment.” Any current impairment she said related to his marital separation and decline.
She assessed his current WPI at 17% which she said was not caused by the accident. She assessed his impairment at the time of his separation at 4% and that his current permanent impairment is 0% which she explained as deducting 17% from 4%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions argue that Medical Assessor Fukui failed to provide adequate reasons and denied the claimant procedural fairness.
The claimant says at [1.3] that the Medical Assessor found the claimant has a psychological injury related to his marriage separation and not the motor accident but says at [1.4] that all the available documentation indicates the psychological injury is related to the accident.
The claimant says at [1.5] that as the claimant was to be assessed for post-traumatic stress disorder and persistent depressive disorder that the Medical Assessor should have provided more details reasons. The claimant also says at [1.6] that he separated from his wife because of the psychological injury caused by the accident. He did not separate before the accident [1.7], was not intending to separate before the accident [1.8] and only separated from her after the accident [1.9].
The claimant says the Medical Assessor should not have relied on what he told her because he has “poor concentration and focus and memory” and she should have considered the evidence [1.13] including the Allied Health Recovery Request (AHRR) of 11 June 2020 [1.14]. He says the Medical Assessor should not have relied on his poor memory and looked to find the exact date of the marital separation.
The claimant also considers it relevant that the insurer had denied psychological treatment to the claimant from 21 May 2020 until after Medical Assessor Canaris determined the claimant had a non-threshold injury on 3 July 2023 [1.17]. He says this lack of treatment may have caused his deterioration and marital separation [1.18].
The claimant relies on Dr Hong’ report. Dr Hong had found the claimant’s psychological injury was related to the accident and resulted in the ending of his marriage [1.19]. The insurer notes that Dr Whetton for the insurer also found a psychological injury related to the accident and that as a result Mr Huang’s marriage has ceased [1.20].
Finally, the claimant relies on Medical Assessor Canaris’ certificate which has a history of his wife leaving him five or six months after the accident.
The claimant also argues at [3.2] the Medical Assessor failed to ask the claimant whether he thought his psychological condition arose purely as a result of the accident and says at [3.4] that, under cl 6.41 of the Guidelines he should have been put on notice and asked to comment. The claimant says this is a breach of procedural fairness.
Insurer’s submissions
The insurer says the Medical Assessor has not erred. The insurer concedes at [3.4] that the majority (but not all) of the medico-legal evidence established a causative link between the accident and the current psychological symptomatology. The insurer however says that the Medical Assessor was not required to provide more detailed reasons because she came to a different diagnosis.
The insurer says there has been no breach of procedural fairness because Medical Assessor Fukui obtained the information about the onset of the claimant’s depression and his marital separation from the claimant himself.
Procedural matters
The Panel had been allocated the Review of Medical Assessor Canaris’ decisions at an earlier point in time and had issued directions to the parties.
On 9 August 2024, after receiving the delegate’s decision relating to Medical Assessor Fukui’s assessment, the Panel issued directions to the parties. The Panel advised we would determine the two Review proceedings together. Directions were made requesting a single consolidated bundle of documents relating to both Reviews from each party.
On 26 August 2024 the Panel met to discuss the two proceedings and determined that a re-examination was required, and he claimant was advised of the arrangements.
REVIEW OF THE EVIDENCE
The insurer provided a consolidated bundle of about 340 pages. The claimant’s bundle comprises 428. The Panel has considered the submissions lodged by the claimant in relation to the WPI assessment.
The Panel adopts the summary of the evidence in the decision issued in the related Review Panel proceedings as well as the summary of the other medical assessment decisions including the summary of Medical Assessor Canaris’ assessment.
RE-EXAMINATION FINDINGS
The Panel adopts the re-examination findings documented by Medical Assessors Baker and Samuell in the decision issued in the related Review Panel proceedings.
CONSIDERATION OF THE ISSUES
General matters
The Panel adopts the following findings from the related Review Panel proceedings relevant to the matters in dispute in the current Review proceedings as follows:
(a) the claimant satisfies the criteria for, and is diagnosed with an Adjustment Disorder with mixed disturbance of emotions and conduct, and
(b) the above Disorder was caused by the motor accident.
The Panel has found in the related Review proceedings that the claimant has a threshold psychological or psychiatric injury and Medical Assessor Kenna has determined the claimant has threshold physical injuries. The claimant therefore does not currently have an entitlement to recover damages under the MAI Act. However, in the event that in the future the claimant establishes he has a non-threshold injury, the Panel considers it appropriate to consider and determine the issue of WPI.
Impairment assessment
In accordance with cl 6.129 of the Guidelines the Medical Assessors have undertaken an assessment of each of the six areas of function.
Self-care and personal hygiene
The claimant reported that he was living alone in his own apartment. He reported that he was able to attend to his self-care and personal hygiene independently. He spent most of his time living without any outside assistance. He would care for his own showering which he attended after each day of work. He was purchasing his own food without assistance. He was washing and cleaning his apartment on a needs bases which was less than what was provided from him when he was not living alone. The claimant was wearing old clothes that he would have worn to work. He said the white coloured stains on his clothing were from toothpaste. His clothing was otherwise not soiled with old food stains, dirt or grime. The claimant was asked why he chose to wear these clothes to the re-examination but the claimant did not give an answer.
The Medical Assessors in their clinical judgment have assessed the claimant’s self-care and personal hygiene as class 1, that is “no deficit, or minor deficit attributable to normal variation in the general population.”
Social and recreational activities
The claimant reported he was provided access to visit and play with his children who lived with their mother. He said he enjoyed visiting his children. The claimant reported he would participate in festivals with his children, and he would give his children money as was the family custom during Chinese New Year celebrations. The claimant reported he would also celebrate his children’s birthdays, and he would buy them gifts or give them money as was the family custom.
He said he would receive visitors from China and had received about five visitors since the beginning of 2023. The visitors would include his mother and extended family members. The visitors would remain at his apartment for about three weeks each time before returning to China.
The Panel assessed the claimant’s social and recreational activities as class 1 that is “no deficit, or minor deficit attributable to normal variation in the general population.”
Travel
The claimant said he had stopped driving as a professional driver transporting paying customers. He said he still drove his private car and has driven his car since the accident. He said he could drive his car to medical appointments and to and from family events. He said he usually was able to drive within the city and did not need to travel more than about 30 minutes from his home to meet his needs. The claimant said he did not need to drive to work as his employer would pick hm up and take him to the day’s work site.
The Panel assessed the claimant’s travel as class 1 being “no deficit, or minor deficit attributable to normal variation in the general population.”
Social Functioning
The claimant reported that prior to the motor accident he would have verbal arguments with his wife. He reported that whilst the couple would argue, the claimant was not expecting to be divorced, separated or estranged from his wife. The claimant said that his disturbance of mixed emotions and conduct had resulted in him leaving the house where his wife and children lived. He said he would have anger, and he would be angry towards his wife. He said that she had returned to live with her parents prior to this assessment.
On enquiry the claimant said he was not living with his wife during November 2023 (contrary to what Dr So reported). The claimant attributed the permanent separation from his wife to his angry conduct and mixed emotions of anxiety and sadness because of the motor accident.
The Panel found that the motor accident had made a more than negligible contribution to the unsettled marital relationship that the claimant did experience prior to the motor accident. Whilst the motor accident may not have been the main contribution to the unsettled relationship, the motor accident was the reason identified by Mr Huang as to why the claimant left and why he remained separated from his wife at the time of this assessment. On the basis of this history, the Panel assessed the claimant as having a class 3 moderate impairment for this area of function.
Concentration persistence and pace
The claimant was able to concentrate and persist with the long re-assessment of 90 minutes. The Panel notes the claimant’s pre-accident complaints to medical practitioners of a loss of concentration and memory issues.
While the claimant did have recurrent outbursts of anger during the assessment he was able to settle his conduct and emotions repeatedly during the assessment. He was able to report participating and engage in the planning of his daily schedule. He could take advice provided by his employer that he was required to work the following day and act upon it. He was able to manage his own home finances. He did not report having difficulty receiving directions or performing complex tasks shifting from one duty to another at work without error.
The claimant was able to read however he would restrict his use of text in preference to voice whilst prompting his smart mobile phone device or whilst searching for new and necessary information. He said he did not do this before the accident. For these reasons the Panel assessed the claimant as having a class 2 mild impairment for this function.
Adaptation
The claimant reported having to adapt to a new lifestyle since the motor accident as a result of his physical and subsequent psychological symptoms. Before the motor accident he was an independent self-employed commercial driver. After the motor accident the claimant had ceased this work and commenced work as a commercial construction site cleaner. He said he can work two to three days each week. He would usually work 15 hours each week. For these reasons the Panel assessed the claimant as having a class 3 mild impairment for this table of function.
Class 3 impairment is defined as a moderate impairment where the claimant cannot because of his psychological injuries work at all in same position as previously. The claimant says he is performing less than 20 hours per week in a different position, which requires less skill or is qualitatively different and less stressful.
Impairment calculation
The class allocations for the six areas of function are as follows – 1, 1, 1, 2, 3, and 3 with a median score of 2 and an aggregate score of 11. Using Table 6.17 from the Guidelines this converts to a 5% WPI.
While the Panel is of the view the claimant had some psychological symptoms of anxiety and depression before the accident in the context of arguments with his wife, his father’s motor accident and the change from owning his own taxi to driving a rented vehicle, the Panel is not of the view that these symptoms amount to a recognisable psychiatric illness that was causing a pre-existing permanent impairment. There is also no evidence of any subsequent impairment. The Panel therefore makes no adjustment of the WPI percentage for any pre-existing or subsequent condition.
The claimant had treatment in the first year of the accident but appears to have had no treatment in 2022 or for the first half of 2023. The claimant was referred to Dr So in October 2023 and after adjusting the claimant’s medication Dr Lam records an improvement in his physical symptoms (pain levels) and an improvement in his sleep. The claimant confirmed this history at the re-examination, that is that the treatment addressed his pain and pain related sleep issues.
The Medical Assessors consider the effect of treatment should be assessed as zero. An assessment of zero is defined in cl 6.223 of the Guidelines as, “0% WPI (no or negligible treatment effect)”. The Medical Assessors consider that the removal of medical treatment (including medication and consultations with Dr So) is unlikely to alter the claimant’s psychiatric or psychological injury or the degree of any resulting impairment. If the revised medical and treatment from Dr So was having any effect on the claimant’s psychological injury then the Panel would have felt a 1% adjustment appropriate.
CONCLUSION
The Panel has assessed the claimant’s WPI at 5% which is of course not greater than 10%.
While the Panel has come to the same overall outcome as Medical Assessor Fukui (WPI not greater than 10%), the Panel has come to a different conclusion as to the degree of Mr Huang’s WPI and therefore considers Medical Assessor Fukui’s certificate must be revoked.
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