Insurance Australia Limited t/as NRMA Insurance v Durudogan
[2023] NSWPICMP 396
•17 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Durudogan [2023] NSWPICMP 396 |
| CLAIMANT: | Mehmet Durudogan |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Gerard Chew |
| DATE OF DECISION: | 17 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of decision of Medical Assessor (MA) as to whether psychological injuries caused by the accident are threshold injuries for the purposes of section 3.28; review application lodged by insurer of determination of single MA that injuries of somatic symptom disorder and alcohol use disorder caused by the motor accident are not threshold injuries for the purposes of the Act; claimant injured in a motor accident on 26 July 2020 when he was riding a bicycle involved in a collision with a motor vehicle on a roundabout; claimant presented with significant psychological symptoms temporally related to the motor accident with no other stressors or potential causes; somatic symptom disorder and alcohol use disorder confirmed in accordance with DSM 5 criteria, caused by the motor accident and not threshold injuries; Held – original certificate affirmed. |
| DETERMINATIONS MADE: | Review Panel Assessment of Threshold Injury The Review Panel affirms the certificate of Medical Assessor Atsumi Fukui dated · somatic symptom disorder, and · alcohol use disorder. |
STATEMENT OF REASONS
BACKGROUND
Mr Mehmet Durudogan (the claimant) is a 29-year-old male who alleges injury as a result of a motor vehicle accident which occurred on 26 July 2020. He was riding a bicycle which was involved in a collision with a vehicle at a roundabout.
The claimant subsequently lodged an application for personal injury benefits with the insurer of the vehicle, Insurance Australia Ltd t/a NRMA (NRMA), on or about 3 September 2020. He alleges having suffered both physical and psychological injury as a result of the motor accident.
The issue relevant to the subject dispute between the parties is whether any psychological injury caused by the accident is a threshold injury for the purposes of the Motor Accident Injuries Act2017 (MAI Act).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26 weeks and an entitlement to claim common law damages is opened.
Liability for statutory benefits was initially accepted by the insurer. However, by way of notice dated 27 November 2020, the insurer denied liability for ongoing statutory benefits after
26 weeks on the basis that the claimant’s injury was a minor injury (now known as a “threshold injury”) for the purposes of s 3.28 of the MAI Act.An internal review decision of the insurer dated 29 January 2021 affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (Commission) to determine the dispute.
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 threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the claimant’s accident caused psychological injury is a threshold 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 Atsumi Fukui (Medical Assessor). The Medical Assessor issued a certificate dated 17 February 2022 wherein she certified that the claimant suffered a somatic symptom disorder as a result of the accident, and was NOT a minor injury (now known as threshold injury) for the purposes of the MAI Act.
The review
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 19 April 2022 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such, the review application was accepted and referred to a Review Panel (the Panel).
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 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.
Directions were issued to the parties, dated 28 March 2023, which required complete bundles of documents relied upon be uploaded to the Commission’s portal. A bundle was received by each party, in accordance with such directions.
The Panel conducted a Teams conference on 2 May 2023 and determined that a
re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined by Medical Assessor Gerald Chew and Medical Assessor Wayne Mason on
7 June 2023 via videolink (Microsoft Teams).In addition, the Panel requested the parties provide the following further documents:
(a) clinical notes of The Sydney Clinic;
(b) Medical Discharge Summary of The Sydney Clinic, and
(c) all treating clinical notes of any psychologist and/or psychiatrist who has treated the claimant.
In compliance with such request, the Panel has been provided with clinical notes and discharge summary of The Sydney Clinic and documents produced under direction of the PTSD Clinic.
Statutory provisions
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
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 threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold 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 threshold 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 threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold 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, Fifth Edition, Text Revision (DSM-5-TR), 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 threshold injury.”
Assessment under review
The Medical Assessor provided a certificate dated 17 February 2022. She certified that an injury resulting from the motor accident of somatic symptom disorder was not a minor injury (now known as a threshold injury) for the purposes of the MAI Act.
The Medical Assessor noted the claimant’s history as being consistent with reports to other health care providers, however the description of symptoms and incapacity were inconsistent with his clinical presentation. The Medical Assessor found him to present as well-kept, calm and no evidence of anxiety or agitation with description of symptoms being dramatic and exaggerated.
The claimant was found to have developed significant psychological symptoms post motor accident, characterised by anxiety and somatic complaints. The Medical Assessor accepted that the claimant had no psychiatric history and was functioning well as a student and Uber Eats delivery person prior to the accident. Accordingly, the psychological injury was found to be causally related to the motor accident.
The Medical Assessor diagnosed the claimant as suffering a somatic symptom disorder, based on the history and presentation at the examination. It was found that the claimant did not meet a diagnosis of post-traumatic stress disorder as the accident was minor and he did not suffer any significant injuries. There was also an absence of intrusion symptoms.
In addition, it was found that the claimant did not meet the diagnosis of panic disorder. Although the claimant experienced panic attacks, they were found to be due to his high level of somatic anxiety rather than a separate diagnosis of panic disorder.
In respect of the submission relating to lack of procedural fairness, the insurer refers to the Medical Assessor’s comments as to consistency, contained on page five of her reasons. The insurer points to cl 6.41 of the Guidelines. Such clause provides as follows:
“Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
The insurer submits that the Medical Assessor failed to address the inconsistencies mentioned to the claimant. Further, the Medical Assessor failed to indicate if the reported symptoms were taken into consideration when making the determination/diagnosis given the inconsistency and exaggerated presentation.
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.
Submissions
The insurer relies on written submissions dated 7 March 2022. The insurer broadly makes two criticisms of the Medical Assessor’s determination:
(a) a failure to provide sufficient reasoning for the diagnosis of somatic symptoms disorder, as per the Diagnostic & Statistical Manual of Mental Disorders (DSM-5) fifth edition, and
(b) lack of procedural fairness and failure to address the inconsistency noted as per cl 6.41 of the Guidelines.
The insurer refers to the case of AAI Limited v Fitzpatrick [2015] NSWSC 1108, in submitting that a Medical Assessor is obliged to provide reasons to support the determination. Whilst they need not be elaborate, they do need to demonstrate the path of reasoning.
The insurer submits that the claimant’s inability to continue with study and work, is not due to the subject motor accident, but rather due to financial issues and availability of work/employment. It is further submitted that medical evidence (report of David Pollock dated 11 March 2021) confirms the claimant returned to study following the accident and was independent in his activities of daily living and transport.
The insurer also points to the Medical Assessor’s finding at page four of the reasons that the claimant had no impairment to activities of daily living.
The insurer submits that the evidence suggests the claimant fails to meet all three criteria for the diagnosis of somatic symptom disorder in accordance with the DSM-5.
The claimant relies on written submissions in reply (undated) included in the claimant’s bundle of documents. The submissions set out the various observations noted by the Medical Assessor as to the claimant’s psychological symptoms. In doing so, the claimant submits that the DSM-5 criteria for the diagnosis of somatic symptom disorder is met.
In respect of the insurer’s submission that the Medical Assessor failed to address inconsistencies with the claimant, the claimant’s submissions note that the diagnosis of somatic symptom disorder necessarily requires impairment involving “excessive thoughts, feeling or behaviours”. Similarly, the diagnosis requires “disproportionate and persistent thoughts about the seriousness of one’s symptoms and persistently high level of anxiety”. It is therefore submitted that the recorded presentation of the claimant is consistent with the diagnosis made by the Medical Assessor.
NSW Police Report
The crash summary details in the police report confirm a collision between the claimant who was riding a bicycle, and a Toyota utility vehicle at a roundabout in Mascot on 26 July 2020. The claimant is noted to have been knocked to the ground and had complained of pain.
Clinical file of Myhealth Rockdale Pty Ltd
The claimant first consulted at this practice approximately three weeks prior to the occurrence of the motor accident. He complained of epigastric pain at the time.
He attended three days after the accident on 29 July 2020 and reported the accident, complaining of ongoing symptoms in the left knee. The next day pain in the neck and back were also noted.
By 27 August 2020 it was noted that the pain from the motor accident had resolved. However, a clinical entry of 14 September 2020 noted the presence of ongoing anxiety especially “with cars”. It was noted that it was affecting his ability to go to school and work.
The clinical file documents regular consultations with ongoing complaints relating to psychological symptoms, mainly ongoing anxiety. Also noted that the claimant had suffered several pain attacks and “went to ED many times”. On 28 September 2020 it was recorded the claimant also suffered from occasional left knee pain.
The last recorded consultation in the file provided is 8 October 2020.
Dr Shin provided a number of certificates of capacity that include a diagnosis of “PTSD, anxiety”.
Report of Dr Selwyn Smith to Dr Sivaratnam dated 9 July 2021
The report notes the claimant complaining of significant pain throughout his body since the accident “despite no significant physical injuries occurring”.
The claimant reported heightened levels of anxiety to the point of panic and he experienced what he described as fears of having a heart attack. He was noted to have taken to consuming approximately half a bottle of scotch every three days as a way of coping. The claimant was noted to have contemplated thoughts of self-harm.
The claimant was noted to have been consulting a psychologist who had diagnosed
post- traumatic stress disorder and panic attacks and was utilising Lexapro 40mg and Somac 40mg.Dr Selwyn Smith noted that the claimant reported being in good health prior to the accident with no previous psychiatric or psychological symptoms of significance.
Dr Selwyn Smith did not consider the claimant reaching the diagnosis of post-traumatic stress disorder or a major depressive disorder. The doctor noted the claimant was working 10 hours a week as a cleaner and engaging in running and enjoying recreational activity despite claims of persistent and severe pain.
The doctor did not consider he could assist the claimant and stated “secondary gain factors could not be categorically excluded, particularly in light of his claim that his physical symptomatologies are worsening with time”.
Report of psychiatrist, Dr Gopi Ilawala dated 19 April 2023
In a short email report the doctor stated the claimant suffered from severe anxiety as part of his post-traumatic stress disorder and remained anxious though slowing getting better. It was stated the claimant would benefit from a six day extension of his stay which would give the doctor the opportunity to optimise medication plan. It was stated that otherwise the claimant would relapse into drinking alcohol as a coping mechanism for anxiety.
PTSD Clinic documents produced under direction
A proportion of the file includes handwritten notes that are largely illegible.
The file includes several emails from the claimant. As an example on 14 October 2022 the claimant wrote to the clinic that he was living a normal life in a foreign country when it was turned upside down because of an accident. He stated that no matter how hard he tries, the anxiety disorder prevents him from participating in life.
A report of Saime Dilek, consultant psychologist, confirmed the claimant had been attending treatment with the Australian Trauma Research Institute for motor accident related injuries. The report states that the claimant is suffering post-traumatic stress disorder and is unable to work. The report is undated.
A report of psychologist, David Pollak of the clinic dated 26 March 2021 is included. The report states the claimant has received ongoing treatment (a total of 16 sessions at the time) for accident related injuries through referral from the claimant’s general practitioner (GP),
Dr Shin.Mr Pollak states the claimant initially was diagnosed with adjustment disorder with symptoms of anxiety, however he had since developed post-traumatic stress disorder. He was noted to have eventually left his job. Appetite loss and significant weight reduction along with ongoing insomnia is noted. Also reported are the physical symptoms and the claimant self-isolating and avoiding people. The report states the claimant has been prescribed psychiatric medications and has used alcohol while on same.
The claimant was noted to have limited support given he formerly resided in Turkey and has limited English skills. Mr Pollack states the accident has had a significant detrimental impact on the claimant’s English lesson attendance. The report asks for the reader to consider such matters when looking into the attendance of the claimant at the English language course.
An Allied Health Recovery request from the clinic dated 2 May 2023 included the following summary:
“The patient is currently an inpatient at the Sydney Clinic and is much appreciative of the approval of funding for the admission. He reports that other than trialling various medications and attending some group programs, he says that he has now become addicted to prescription drugs. He is emotionally labile and reports difficulty with sleep with ruminations about his future. He reports experiencing ongoing headaches, inability to focus and concentrate. He reports fear about becoming [sic] homeless and this makes him feel hoplessness [sic], despair and helplessness regarding his future. Reports suicidal ideation and is frequently agitated.”
Report of PTSD Clinic dated 12 May 2022 addressed to the insurer
Following the issuance of the certificate and reasons of the Medical Assessor the insurer requested a report from the clinic.
The report notes that the clinic did not disagree with the Medical Assessor’s findings. It was noted that the claimant had repeatedly expressed suicidal ideation and was self medicating with alcohol and was experiencing severe anxiety and panic attacks causing admission to the ED several times.
It was confirmed that there was no change in diagnosis of post-traumatic stress disorder and anxiety with suicidality. It was stated that prognosis was promising with the inpatient detox program to assist. It was stated that the clinic did not consider the claimant’s symptoms to be somatic in nature as it would not account for his suicidality.
Several Allied Health Recovery Requests of the State Insurance Regulatory Authority are included in the material that have been filled out by the PTSD Clinic. A request dated
5 November 2021 included a diagnosis of adjustment disorder with symptoms of anxiety, depression and post-traumatic stress disorder.
The Sydney Clinic
The claimant was admitted to the clinic on 3 April 2023 and discharged on 5 May 2023 according to the Nursing Discharge Summary. He was noted to be admitted under the mood disorder inpatient program and was compliant with all aspects of care. The Mental Health medical discharge summary notes he was also admitted for alcohol detoxification. He was commenced on medication: Pristiq for anxiety, Naltrexone for alcohol cravings and Phenergan for sleep.
His stay was extended so as to help with mood stabilisation and apparent issues with accommodation.
Prince of Wales Hospital clinical file
The claimant was transported to the ED of the hospital following the accident. He denied headstrike, loss of consciousness, headache and neck pain. He had a tender left quadricep, left knee and mild tenderness of the left wrist. X-ray of the left knee and femur were reported as normal. He was discharged with a plan to take analgesics and re-present if worsening symptoms.
Prince of Wales Hospital Emergency Department Discharge Referral dated 26 November 2021
The referral notes the claimant had a panic attack after drinking a bottle of whiskey. The claimant reported frequent panic attacks characterised by anxiety and shortness of breath and chest tightness. The claimant stated the panic attack causing the admission was worse than usual so had called an ambulance.
The claimant was reported to initially present as very intoxicated but alert, orientated, polite and compliant in the morning. It was stated that he was unlikely to benefit from a mental health assessment in the emergency department given he was then sober and feeling better.
Prince of Wales Hospital Emergency Department Discharge Referral dated 25 March 2023
The claimant presented via ambulance intoxicated, with suicidal ideation. He was cleared for discharge by the mental health team with a plan, including seeking out support with various organisations and follow up with GP.
Benchmark Case Closure Report dated 13 May 2021
The claimant was noted to be continuing to study English up to five days a week, four hours a day at the commencement of the rehabilitation. He was also noted to be performing work up to 15 hours per week, feeling financially forced to do so. He reported heightened psychological symptoms when riding his bicycle.
However, at closure of the rehabilitation, the claimant’s capacity had been downgraded to ‘no capacity for employment’ due to reported symptoms of anxiety and fear related to road cycling. He was continuing with his English studies with Kaplan, however there were frequent days off, with a threat that his visa be cancelled due to poor attendance.
The report states that the claimant was independent with his self care and activities of daily living.
Medical Assessment Certificate and Reasons of Medical Assessor Truskett dated
20 November 2021
The Medical Assessor certified soft tissue injuries to the claimant’s chest, left leg, neck and back as being “minor” injuries (now known as threshold injuries) for the purposes of the MAI Act. Soft tissue injuries to the left and right hips were found to be not caused by the motor accident.
Medical Assessment Certificate and Reasons of Medical Assessor Grainge dated
6 December 2021
A chest respiratory injury caused by the motor accident was certified as being a threshold injury.
RE-EXAMINATION
Mr Durudogan was interviewed utilising the MS-Teams platform, organised by the Commission. The interviewing Panel consisted of Dr Wayne Mason and Dr Gerald Chew. The quality of communication was sufficient to undertake the assessment.
He provided identification in the form of his Turkish Passport.
He was interviewed with the assistance of Turkish Interpreter Jursit Erdogan CPN6DQ26V.
He was located in his solicitor’s office in Parramatta in a private meeting room unaccompanied.
Psychosocial history and pre-accident history
Ms Durudogan is a 29-year-old man who currently lives in the Central Coast. He has lived there since his discharge from The Sydney Clinic where he was admitted from 3 April 2023 to 5 May 2023. He reported that he was staying with an “elderly lady” who was a “friend of a friend”.
He reported that he was not currently working and spent most of his time in his room at home.
He reported that prior to his admission into the Sydney Clinic he was living in Mascot. He reported that he had been drinking alcohol heavily and the main purpose of the admission was to detoxify from alcohol. He reported however that he had subsequently relapsed on alcohol significantly.
He reported that he now drinks approximately 375ml of whiskey a day. He generally woke up at 1pm and started drinking at 3pm. He said that he had not drunk any alcohol prior to the interview today.
He reported that prior to his admission to The Sydney Clinic he had also been using cocaine approximately once a month, half a gram. He said that this was for pain.
He has never used intravenous drugs.
There is no significant family history of psychiatric illness.
There is no past psychiatric history.
There is no prior significant medical history.
Prior to the accident he drank alcohol once a month and did not use any illicit drugs.
He migrated from Turkey around three and a half years ago. He is currently on a student visa. He was studying project management but stopped around 8-9 months ago as he was unable to manage.
He is supporting himself currently by insurance payments and some minor family support.
He is from Ankara, Turkey. His parents and two brothers remain in Turkey. His father is retired having worked in an aeroplane factory. His mother is a homemaker. One brother works in a tyre factory, the other in customer service at a University.
He reported a good childhood and denied any exposure to any abuse or conflict.
He reported that he finished tertiary education and qualified as an engineer.
He said that he wanted to learn English in Australia as well as obtain a Master’s degree.
He reported that he is currently not in a relationship and has no dependent children. He reported that he previously had a girlfriend in Australia, well prior to the subject accident and had two girlfriends previously in Turkey.
History of the motor vehicle accident
He reported on 26 July 2020 he was riding his electric bicycle to pick up food as an Uber Eats rider. It was raining and as he was turning off a roundabout he was hit from behind. He fell on the side of the road on the right side of the body and his bike went left remaining on the road. He said that the man from the car who hit him tried to move him from the road to get past however two other people who were around came and tried to stop the man. The scene was attended by police and ambulance. He said that he felt faint at the time and had difficulty breathing. He was taken to the emergency department. He said that the police interviewed him there which he found distressing. He was examined and had an MRI and discharged the same day. He said that he was in pain and struggled to walk for a month.
Symptoms and treatment following the motor vehicle accident
He reported significant chest pains, neck pains, body aches, and facial pressure. He said that he had had difficulty swallowing. He reported that he had significant abdominal pain and weight loss. He had been investigated with endoscopy and CT scanning with no physical causes found. He said that he experienced panic attacks with chest pains and palpitations. He has attended ED with these attacks and been physically investigated and cleared.
He said that his drinking increased after the accident. He said that if he is not drunk he is unable to sleep.
He admitted to parasuicidal behaviour on two occasions - cutting his wrists and taking 10 antidepressants. He admitted at the times he had been drunk and distressed.
Current symptoms and treatment
He reported ongoing low mood.
He reported ongoing pain in multiple areas of the body.
He reported weekly chest pains which he regarded as “panic attacks”.
He reported weekly suicidal ideation.
He said that he is unable to go into a car.
He is able to travel by train and public transport.
He reported persistent worries about his pains and his condition.
He reported that he was currently taking the antidepressant desvenlafaxine 100mg. This had been switched from escitalopram at The Sydney Clinic. He reported that he also took Phenergan 25mg “for sleeping”. He also reported that he took quetiapine 50mg “when he had suicidal thoughts” which was around once a week.
He said that he stopped the naltrexone when he left The Sydney Clinic as it made him feel sick when drinking alcohol.
He reported that he continued to consult his GP in Rockdale. He saw his psychologist at PTSD Clinic weekly via telehealth or face to face.
Mental state examination
He had an appearance consistent with his ethnic origin and age. He was wearing casual clothing and had reasonable grooming. There was no abnormal psychomotor activity. His speech was of normal rate, rhythm, volume and prosody and there was no evidence of formal thought disorder or delusional thought processes. He reported his mood as anxious and worried but did not appear anxious or depressed. His affect was reactive displaying ability to change his emotional state congruent with content. He denied any perceptual disturbance. He was oriented to time, place and person and cognition appeared grossly intact. He was able to concentrate for the duration of the interview which was over an hour.
Consistency
His presentation today was internally consistent with history and examination. His presentation today was consistent with previously documented symptoms.
Diagnosis and reasons
Mr Durudogan suffers from somatic symptom disorder.
He meets DSM-5 criteria as follows: He presents with multiple somatic symptoms including frequent chest pains that are distressing and result in significant disruption of his daily life. He has a persistently high level of anxiety about his health and symptoms and has spent excessive time worrying about them. He has had numerous physical investigations. This has persisted for more than six months.
Mr Durudogan has an alcohol use disorder. He meets DSM-5 criteria as follows: He consumes larger amounts of alcohol over a longer period than intended. He has unsuccessfully tried to cut down including an inpatient admission. He drinks for most of the day, almost every day. This alcohol use has impacted on his social, occupational and recreational function.
Somatic symptom disorder is not a minor injury or threshold injury.
The panel was not able to diagnose post-traumatic stress disorder or panic disorder according to DSM-5 criteria because all symptoms are somatically based apart from alcohol use disorder.
Causation
Mr Durudogan’s presentation with significant psychological symptoms is temporally related to the subject accident. There are no other identified stressors or potential causes. His somatic symptom disorder is therefore caused by the subject accident.
In the context of his pain and psychological distress constituting somatic symptom disorder from the subject accident, he has developed an alcohol use disorder which is therefore also caused by the subject accident.
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[2] and Insurance Australia Ltd v Marsh.[3]
[2] [2021] NSWCA 287 at [40], [41] and [45].
[3] [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.
The Panel finds that the claimant suffers somatic symptom disorder and alcohol use disorder a result of the accident and that this condition is not a threshold injury for the purposes of the MAI Act.
0
3
0