Insurance Australia Limited t/as NRMA Insurance v Alawieh
[2023] NSWPICMP 63
•28 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Alawieh [2023] NSWPICMP 63 |
| CLAIMANT: | Hassan Alawieh |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Alexey Sidorov |
| DATE OF DECISION: | 28 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant suffered injury in a rear end collision on 30 November 2018; the dispute related to the assessment of permanent impairment under of psychological injury and whether the injury was a minor injury; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Held – claimant assessed at 7% permanent impairment in respect of the psychological injury; original assessment revoked in part and confirmed on finding of non-minor injury. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury The Review Panel confirms the certificate dated 20 August 2021. 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 Panel revokes the certificate dated 20 August 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment not greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Mr Hassan Alawieh (the claimant) suffered injury on 30 November 2018 when the insured vehicle ran into the rear of the claimant’s stationary vehicle pushing that vehicle into the car in front. The claimant was a passenger sitting in the front seat and his head impacted into the dashboard during the course of the motor accident.[1] Various histories record that the seatbelt was defective.
[1] Insurer’s bundle, p 23.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Alawieh any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute are whether Mr Alawieh’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act” and whether Mr Alawieh’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. These constitute medical disputes within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Mason and dated 20 August 2021. The Medical Assessor held that the injury was not a minor injury and assessed the degree of permanent impairment at 17%. The details of that assessment are set out later in these reasons.
THE REVIEW
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.[4]
[4] Section 7.26(10) of the MAI Act.
The President 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.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI 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 (Commission).
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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.
Section 1.6 provides that regulations may be made to 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 defines minor injury to include an acute stress disorder and an adjustment disorder.
Part 5 of the Guidelines are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 9 of the Guidelines 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 diagnosis of psychological 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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9] However, whilst chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[10] apply. This is because part 6 is specified as applying only to the assessment of permanent impairment.[11]
ASSESSMENT UNDER REVIEW
[9] See section 3B(2) of the Civil Liability Act 2002.
[10] See clauses 6.5 - 6.7 of the Guidelines.
[11] See clause 6.3 of the Guidelines.
Medical Assessor Mason provided a medical assessment dated 20 August 2021. He determined that the psychological diagnosis was major depressive disorder with anxious distress and that the permanent impairment of the injuries sustained in the motor accident was greater than 10%. The Medical Assessor found that the claimant suffered a persistent depressive disorder with anxious distress.
The Panel forwarded a direction dated 20 October 2022 to the parties in the following terms:
“The Panel refers to the absence of review submission by the insurer concerning the finding by the original Medical Assessor that the psychological diagnosis was a non-minor injury.
The insurer is to advise, by close of business, 27 October 2022, whether that finding is accepted.”The Panel did not receive a response to this direction.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Curtin concluded that Mr Alawieh sustained a dental injury in the motor accident, but the treatment plan recommended by Dr Lau was not reasonable and necessary.[12]
[12] Insurer’s bundle, p 570.
Medical Assessor Cameron issued a Medical Assessment dated 22 December 2021.[13] The Medical Assessor concluded that the claimant suffered injuries to the right shoulder, left inguinal hernia, mouth (injury to upper left central incisor), cervical and lumbar spine in the motor accident. The Medical Assessor assessed permanent impairment at 6%.
MATERIAL BEFORE THE REVIEW PANEL
[13] Insurer’s bundle, p 613.
The insurer provided an extensive bundle of documents supplemented by a short bundle from the claimant.
Contemporaneous records
The ambulance report noted the motor accident when the claimant’s “mouth impacted the glovebox” complaining of neck, spinal, abdominal and mouth pain. The neck pain included pain extending to the right lateral side and lower lumbar central back pain.[14]
[14] Insurer’s bundle, p 18.
The claimant attended the emergency department of Royal Prince Alfred Hospital complaining of spinal tenderness. No acute intracranial or cervical spine fractures were noted.[15]
[15] Insurer’s bundle, p 23.
Claim form
The claim form dated 5 December 2018[16] described the motor accident with injuries to the neck, head, lower back and face.
[16] Insurer’s bundle, p 7.
General practitioner
The claimant attended his general practitioner (GP) on 7 December 2018.[17] A certificate of capacity dated 7 December 2018 referred to injuries caused by the motor accident as “While lash, grade 2. Trauma to face + nose bleed + dental + back pain ? disc prolapse”.[18]
[17] Insurer’s bundle, p 102.
[18] Insurer’s bundle, p 13.
Specialist treating records
Ms Rita Azzi, psychologist, initially treated the claimant on 28 May 2019.[19] Her initial assessment included symptoms consistent with post-traumatic stress disorder with features of major anxiety disorder.
[19] Insurer’s bundle, p 249.
Dr Ashraf Phillips, psychiatrist, treated the claimant and provided a series of reports.[20] The doctor initially diagnosed an adjustment disorder with depressed mood and anxiety. He felt that Mr Alawieh did not have post-traumatic stress disorder but did have some anxiety/post-traumatic stress disorder symptoms.
[20] Insurer’s bundle, p 460.
In subsequent reports Dr Phillips diagnosed an adjustment disorder with depressed mood and anxiety contributed to by pain.[21]
[21] Insurer’s bundle, p 468.
Qualified opinions
Dr Andrew McIntosh provided a report dated 21 March 2019. Based on the photographs of the vehicles and the absence of airbag deployment, Dr McIntosh concluded that the initial impact speed was between 10 and 20km per hour.
Dr McIntosh opined that the motor accident could not have caused the various injuries. He also opined, based on the history that the head impacted into the dashboard, that the claimant was not wearing a seatbelt or did not sustain oro-facial/dental injuries.
We note that Dr McIntosh did not consider the claimant’s history that the seatbelt did not operate as intended.
Dr McIntosh also opined that neck injury could have been caused by the head impact into the dashboard.[22] He concluded that the hernia could not have been injured in the motor accident.
[22] Insurer’s bundle, p 564.
Dr Robert Gertler, psychiatrist, provided a report dated 8 July 2020.[23] The doctor diagnosed an adjustment disorder caused by chronic physical complaints due to the motor accident, his isolation in Sydney and inability to return to his family in the United States (USA).
[23] Insurer’s bundle, p 490.
Dr Vickery, psychiatrist, provided a report dated 28 January 2021.[24] The doctor opined:
“It is my opinion there is no diagnosable DSM5 psychiatric disorder or injury due to the motor vehicle accident and there are no psychiatric disabilities directly due to the motor vehicle accident.”
[24] Insurer’s bundle, p 473.
SUBMISSIONS
Claimant’s submissions dated 7 September 2020[25]
[25] Claimant’s bundle, p 7.
The claimant referred to the opinion expressed by Dr Gertler dated 8 July 2020 diagnosing an adjustment disorder with depressed mood and assessing impairment at 19%. Reference was also made to the opinion expressed by Dr Phillips who provided a series of reports concluding that there was an adjustment disorder with depressed mood and anxiety.
Claimant’s submissions dated 30 June 2021[26]
[26] Claimant’s bundle, p 1.
Theses submissions were filed in relation to a treatment dispute. That dispute is not before the Panel. It was submitted that the need for treatment was based on the Allied Health Recovery Request dated 12 April 2021 and is consistent with the opinion of
Dr Phillips in a report 16 December 2020 which noted ongoing psychological assistance was “very useful”.
Insurer’s submission dated 10 September 2021[27]
[27] Insurer’s bundle, p 621.
These submissions were made seeking a review of the Medical Assessment.
The insurer submitted with respect to the assessment of travel that the Medical Assessor failed to consider that the claimant does not have a driver’s licence and cannot drive on the opposite side of the road.
With respect to social functioning the insurer submitted that claimant is stuck in Australia due to COVID-19 and continues to have a normal relationship with his family overseas as distance allows.
With respect to adaption the insurer submitted that the Medical Assessor considered irrelevant considerations (inability to keep house tidy) and had no regard to the obvious impact of COVID-19 and this causing the travel business to be placed on “hold”.
With respect to social and recreational activities the insurer submitted that the Medical Assessor failed to consider what activities the claimant did prior to the accident in Australia and disregarded how COVID-19 and the Public Health Orders have impacted upon the claimant as opposed to the psychological injury.
RE-EXAMINATION
Mr Alawieh was examined by both Medical Assessors of the Panel. The joint examination report is as follows:
“Who attended the assessment
Video assessment. Mr Alawieh was at home. The assessment was completed with audio and video. His audio quality was limited at times, and after a while, the Panel changed to audio only and this improved the audio quality.
Dr Hong and Dr Sidorov were in their Sydney offices.
Mr Alawieh started the assessment by wanting to read from his notes. He spoke about the process of claiming insurance and having various medical assessments, about his income before the subject accident, and about the IRS (his tax in America). He spoke about difficulties having COVID vaccines during the pandemic. He worried about Astra Zeneca vaccines and was later able to obtain Pfizer vaccine from Medicare, even though he is not a permanent resident and he is thankful.
History
Psychosocial history and pre-accident history
Mr Alawieh does not have a past psychiatric history.
He was not exposed to developmental trauma and he is not aware of a family history of mental illness.
He has hypertension and high cholesterol. He does not have cardiac or liver disease.
He does not have drug or alcohol problems.
History of the motor accidentMr Alawieh came to Australia from the USA in 2018 and about two months after he arrived, he was in a car accident on 13 November 2018.
He reported that he met a friend at a Lebanese event just a few days prior, and that friend was driving and he was a front passenger. They stopped due to the traffic. He recalled there were a lot of cars, and his car was the last one in the line, and suddenly, he was rear-ended, and his car was pushed forwards and collided with the car in front. There were three cars involved in the collision. He said that his seatbelt did not lock, and his head went forwards and he was struck in the face, and suffered damage to his dental bridge. There were airbags in the car, but they did not deploy. The ambulance came and then he was taken to RPA Hospital and observed for the day. Even though the car was drivable, it was written off later by the insurer.
Mr Alawieh recalled he had immediate pain in his face and abdomen, and later he was diagnosed as having an abdominal hernia. He had hernia surgery in
March 2019, and this was the only operation since the accident. He said after the surgery, he was told he has two other hernias, his belly button has popped out and he has a right hernia as well. He said he kept thinking that if the hernia burst now, it would poison him, and he would die from it.History of symptoms and treatment following the motor accident
Mr Alawieh reported having anxiety immediately after the accident and started having nightmares. He feels that his anxiety and depression are getting worse over time and explained this is because he has chronic sleep problems after the subject accident.
He also said he talks to himself and asks himself "why am I in this situation?". He has not developed psychotic symptoms.
Mr Alawieh wants to go back to the USA to be near his family, however, he has never been back and explained that his lawyer has told him that he has to stay in the place where the accident happened. If he goes back to the USA, his American medical insurance will not cover any surgical treatment that he is going to need. Mr Alawieh said he still needs to have treatment for the dental bridge and the two hernias. He also said that the insurance company took photographs of his passport and then told him, if he goes back to the USA, even briefly, his claim related to the accident would be "void" and therefore, he has not left Australia even though he wants to. The Panel noted to him, that this was an unusual restriction.
He reported that before the subject accident, he was very successful and very active. He enjoyed hunting in Texas, fishing with his friends, he could walk for hours, and he said he was a very responsible person and had a high-level job, however, now it has completely changed. He is not active at all. He said he can walk for maybe 15 minutes before his leg becomes painful or the hernias becomes painful.
He gained weight after the subject accident and said he asked for dietician treatment approval, but this was declined by the insurer too. He spoke about problems eating because of the dental bridge problem. He cannot eat chicken or turkey, even during Christmas and Thanksgiving, because these foods are too hard to chew. He has to eat noodles and steamed vegetables that are soft.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Alawieh has been stressed due to COVID pandemic and being away from his family.
He remained preoccupied with insurance matters and said that everything his surgeon suggested, the insurer had declined and disputed, and he has to go to the PIC to resolve the disagreement with the insurer. He reported ongoing anxiety and frustration related to having all the requests for treatment declined by the insurer.
Mr Alawieh talks to his family every second day and said that the relationship with his family is very good, and they do not argue at all. His daughter graduated from her pharmacy study and is in practice now. Another daughter is in dental practice. His son is about to graduate as an engineer. He said there are no stressors in his personal life at all.Current symptoms
Mr Alawieh described chronically low moods and reduced enjoyment and motivation.
He reported having major problems with his memory and concentration.
He has low self-esteem since the accident.
He reported having sleep problems. He has nightmares and wakes up sweaty from feeling anxious, and said he felt like he was pushed or falling when sleeping.
He has been frustrated and reported he avoids people.
Current and proposed treatment
Mr Alawieh is currently taking:
· Mirtazapine 15 mg
· Panadol
· Nurofen
· Anti-hypertensive medication
· Cholesterol medication
He consulted Rita Azzi, psychologist and Dr Ashraff Philips, psychiatrist. The last time he had treatment was around 2 years ago as he does not have further treatment approval.
Clinical Examination
Mental State examination
Mr Alawieh was at home and alone during the assessment.
Mr Alawieh had short greying hair and a moustache. He showed the Panel his passport. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity.
Mr Alawieh spoke with an accent and was anxious to talk. His pronunciation was affected by his dental problems. He sometimes spoke beyond the point and gave long answers generally. He spoke spontaneously and readily. He had a disorganized narrative.
Current functioningMr Hassan Alawieh is 68. He is living on his own in an apartment in Australia, and his wife and three adult children are in the USA.
Mr Alawieh cooks for himself but said that sometimes he will forget what he is doing. He had locked himself out of his apartment, because he forgot the key. He spends most of his time at home.
He said he tries to meet some neighbours, sometimes they have coffee together, but everybody is busy as they have a job. He also tried to make friends in the shops. He has attended the Lebanese association but the people there were in construction and have a “different mentality”. They want to talk about politics and he stated that is not his cup of tea and he finds it hard to relate to them.
He said he has no close friends in Australia, only neighbours, and he has no family in Australia.
He does not have a car. He has not driven in Australia before the accident and after the accident, he tried to drive and said that because cars travel on different side of the road, he found it very scary and stopped driving.
Mr Alawieh goes out on his own and catches a train to Sydney CBD, to buy things or to eat.
The Panel discussed with Mr Alawieh, about socialising and having recreational activities with people. He said that he used to be a good communicator and a “people person”, but now he finds it hard to talk at a similar level, and because of his dental problem, he cannot pronounce words properly and is embarrassed by how he talks sometimes.
Mr Alawieh has regular meals. He has breakfast and dinner but usually avoids lunch, and said he wants to better manage his weight by skipping lunch. He showers every day and has a shower chair, as he finds it hard to bend down. He does his laundry.
The Panel asked Mr Alawieh whether he reads books and he said he has no books in Australia. He reads online. Sometimes, he will wake up in the middle of the night and read. He said he is not in the mood to read for long and he can manage about 15 minutes. His concentration has declined. He also spoke about his muscles aching when he reads. He listens to the news and checks emails online. He looks up the medicine he is taking.
Mr Alawieh said he cannot tolerate any dust and wants to keep his home tidy but he cannot do it due to pain and so he pays a cleaner to come every three or four days.
Employment history:
He has a law degree although he never practised law. He was in the air force and later joined Air France. He worked for Qatar Airway and retired in 2018. He worked in Lebanon and then Kuwait, and when Saddam Hussein invaded Kuwait, he went to America. He said that when he first went to America, he had no relatives or friends, and he gradually established himself and became successful.
He came to Australia, he said, because he wanted to start a business related to honeymoon packages for Americans and wanted to do a portfolio in Australia. Once he arrived, his suitcase, computer and all the notes he made were stolen. He reported the theft to the police and this was before the accident. He said he replaced the suitcase but not the computer, and he has not done any work after he lost his computer.
He has no income in Australia and said that he gets a pension from America and has some savings.
Comments of consistency
The most unusual aspect of the history is Mr Alawieh's firm belief he cannot return to the USA after COVID-19 restrictions have been lifted, and that leaving Australia would void his MVA claim. Although we mention this at this part of the examination findings, we accept that this is not an inconsistency.
Determinations
Diagnosis and reasons
Mr Alawieh developed chronic anxiety and depressive symptoms, which are consistent with a Persistent depressive disorder.
In terms of DSM-5 diagnostic criteria, Mr Alawieh's depressive symptoms commenced shortly after the subject accident and have been present for more than 2two years now. In addition to depressed mood, he has insomnia, chronic low self-esteem, poor concentration and he has never been without depressive symptoms for more than two months at a time. There has never been a manic episode and the symptoms are not consistent with cyclothymic disorder. His symptoms are not better explained by schizophrenia or other psychotic disorders. His psychological symptoms are not attributable to the physiological effects of a substance or another medical condition. Mr Alawieh's symptoms cause clinically significant distress or impairment in social and occupational areas of functioning. His symptoms do not fulfil the DSM-5 criteria for Major depressive disorder as his symptoms are not pervasive and not at the severity of MDD.
This is a non-minor injury as it is not an Acute stress disorder or an Adjustment disorder.
Causation and reasons
Mr Alawieh does not have a past psychiatric history. His anxiety and depressive symptoms developed shortly after the subject accident. His psychological symptoms have persisted since the subject MVA.
The Panel noted concurrent life stressors, including the COVID-19 pandemic and being separated from his family. Having analysed the pathogenesis history and trajectory, nature of MVA, and the onset of symptoms, the Panel determined the subject MVA is a causal factor of his current psychological injury, and has more than a negligible contribution.Psychiatric Impairment Rating Scale
Category Class Reason for Decision 1. Self Care and Personal Hygiene 1 Mr Alawieh eats regularly and is attentive to his diet. He showers daily and uses the laundromat as he cannot hang clothes inside his apartment. He is fully independent. He gained weight after the subject accident and his weight is stable now.
There is no deficit or minor deficit, attributable to the normal variation in the general population.2. Social and Recreational Activities 3 He tried to engage in activities with people, including the Lebanese association but could not relate to people, and does not engage in social and recreational activities now. 3. Travel
2 Mr Alawieh is independent in travel. He cannot drive after the subject accident in Australia, as he found it too “scary” to drive as he is used to drive on the opposite side of the road. 4. Social Functioning
2 Mr Alawieh's relationship with his family in Australia is very good and they never argue. He tried to make friends in Australia, but does not have close friends. 5. Concentration, Persistence and Pace 3 Mr Alawieh described having poor concentration.
He presented as disorganized.6. Adaptation
2 Mr Alawieh has not worked or proceeded with his business as he lost his notes and the computer for his business. He has maintained his pre-MVA functioning and roles, but has a mild impairment and reduced efficiency as a result of his anxiety and depressive symptoms. He continues engage in these roles full-time. List classes in ascending order: 122 233 Median Class Value: 2 Aggregate Score: 13 % Whole Person Impairment: 7 % Psychiatric Impairment Rating Scale
Pre-existing/subsequent impairmentMr Alawieh has not sustained a subsequent injury.
He has no past psychiatric history.Apportionment
Nil.
Effects of Treatment
0%
Mr Alawieh's treatment has had negligible effects in symptomatic relief and in functional improvement.
Final WPI = 7%”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[28] The Panel adopts the examination findings of the Medical Assessors and adds the following brief reasons.
[28] Section 7.26(6) of the Act.
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[29] and Insurance Australia Ltd v Marsh.[30]
[29] [2021] NSWCA 287 at [40], [41] and [45].
[30] [2022] NSWCA 31 at [11], [21], [64].
The insurer referred to the bundle of documents filed in the matter and noted they were “relevant and would assist the Review Panel in relation to this determination”.[31] Later it asserted that:
“[T]he material contained in the bundle will assist the Panel to undertake that assessment and identifies the issues between the parties as to diagnosis and impairment.”
[31] Insurer’s bundle, p 628.
These submissions do not refer to relevant documents within a substantial bundle and do not identify the issues or how any unspecified documents assist the Panel in determining the medical dispute. The practice that has developed generally of filing extensive documents without adequate submissions does not assist the Panel in undertaking its task.
Dr Gertler in a report dated 8 July 2020, had provided a whole person impairment (WPI) and it contained a calculation error. The median should be 2 and not 3, and the correct WPI was 9% and not 19%. In terms of self-care, the Panel found Mr Alawieh less impaired. He did not appear dishevelled and was eating regular meals and having a soft diet and trying to manage his weight by not having lunch. He showers every day without prompting and there was negligible impairment, consistent with 1.
In terms of adaptation, Dr Gertler rated 5 and advised that Mr Alawieh is unfit for any work due to his low mood, education, social withdrawal and difficulty with concentration and memory. The Panel rated it 2 and noted that Mr Alawieh has not done any business once his computer was stolen and he did not replace his computer and his notes were lost from theft. He finds it embarrassing to be talking to people because partly he could not pronounce words due to his dental problems. He has tried to engage in the local Lebanese community but finds it hard to relate to them due to having a different mentality. Overall, he has adapted to his circumstance with mild impairment and has been fully independent and self-directed, and can function in housekeeping, managing personal finances and personal responsibility.
The assessment provided by the Panel differs from that provided by the Medical Assessor and Dr Gertler. We have considered their opinions but are required to form our own and provide an assessment at the time of the examination. We also note that the previous opinions are now of some antiquity and the differences are at least partly explicable on that basis.
For the reasons provided based on the clinical examination of the Medical Assessors, we accept that there is a diagnosable psychiatric condition and we do not accept
Dr Vickery’s opinion.We finally note that the claimant is of the firm understanding that he cannot leave Australia because these proceedings will then be “void”. The Panel does not agree with that legal proposition. We request his legal practitioners to bring this portion of our reasons to his attention.
CONCLUSION
The certificate which assessed permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
The certificate determining that the psychological injury was not a minor injury is confirmed.
0
2
0