Insurance Australia Limited t/as NRMA Insurance v Kader
[2023] NSWPICMP 139
•27 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Kader [2023] NSWPICMP 139 |
| CLAIMANT: | Shalow Ibrahim Kader |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Matthew Jones |
| DATE OF DECISION: | 27 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; claimant injured in rear end collision and developed psychological symptoms on a background of some life stressors; claimant assessed by Medical Assessor Samuell and found to have a non-minor injury; specific phobia; insurer challenged decision; Held – claimant re-examined by medical members of the Panel and satisfied the criteria for a specific phobia related to travelling in a car or driving which is a recognisable psychiatric injury in DSM-5 and an injury which is not a minor injury; no matter of principle; certificate of Medical Assessor Samuell affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Samuel dated 28 September 2021. 2. Certifies that the psychiatric injury sustained by Ms Kader on 31 December 2019 is not a minor injury for the purposes of the Act |
STATEMENT OF REASONS
INTRODUCTION
Shalow Kader was involved in an accident on New Year’s Eve, 31 December 2019.
Ms Kader was the driver of her own car stopped at traffic lights when a vehicle behind her failed to stop, colliding with the rear end of Ms Kader’s vehicle (at speed) and forcing it into the vehicle in front.[1]
[1] The application for personal injury benefits (claim form) is dated 6 January 2020 and is document A3 at page 46 of the claimant’s bundle.
Ms Kader made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that rear-ended hers.
NRMA accepted it was the relevant insurer and commenced paying Ms Kader her statutory benefits however on 15 April 2020 NRMA wrote to the claimant advising her that her statutory benefits would cease 26 weeks after the accident because in NRMA’s view Ms Kader’s only injuries sustained in the accident were minor injuries[2].
[2] The insurer’s first liability notice dated 4 February 2020 is found at page 23 of the insurer’s bundle and the second liability notice is at page 25 of the insurer’s bundle.
The claimant sought an internal review of that decision which affirmed the original decision[3] and the claimant, through her lawyer then lodged an application for medical assessment with the Personal Injury Commission (the Commission).
[3] The internal review decision is at page 87 of the insurer’s bundle.
On 28 September 2021, Medical Assessor Samuell determined that the claimant sustained a Specific Phobia which he found was not a minor injury. The insurer was disappointed with that result and has now lodged an application for review with the Commission.
On 18 February 2022 the President’s delegate determined that there was reasonable cause to suspect an obvious error in the decision and on 21 July 2022 this Panel was convened.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Kader’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘minor’ injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) ‘whether the injury caused by the motor accident is a minor injury for the purposes of the Act’.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(3) of the MAI Act defines a minor psychiatric injury as follows:
“A minor psychological or psychiatric injury is (subject to this section) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6(4) 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 MAI Regulation) provides as follows:
“(2) Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act—
(a) acute stress disorder,
(b) adjustment disorder.
(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013.”
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Ms Kader’s claim the Guidelines provide:
“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, 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 minor injury.”
Minor injury at any time after the accident
In the cases of David v Allianz Australia Insurance Ltd[4] (regarding physical injuries) and Lynch v AAI Limited t/as AAMI[5] (regarding a psychiatric injury) found that whether the claimant has a minor or non-minor injury on the day of any re-examination by the Panel is only one part of the assessment. The two cases found that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “minor injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered or in remission) at the time the Panel undertakes its assessment. The panel in David gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-minor injury even though the claimant may have recovered from it.
[4] 2021 NSWPICMP 227.
[5] 2022 NSWPICMP 6.
It is therefore important for this Panel to not only assess the claimant’s current presentation and mental state but to also review the documentation to see whether at any time since the accident the claimant has had a non-minor injury.
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell examined the claimant on 21 November 2021 and issued his decision on 28 November 2021. He was asked to assess “psychiatric condition – anxiety and post-traumatic stress disorder”.
Medical Assessor Samuel took the following history from the claimant:
(a) she was 28 and a full time third year pharmacy student;
(b) she had anxiety associated with her studies and her mental health was impacted by her parent’s divorce and her mother’s depression;
(c) the claimant was married, seven months pregnant and her migraines, neck and back pain had been aggravated by the pregnancy;
(d) the claimant spoke of her parent’s breakup and her university degree (commenced in Darwin then on the Gold Coast and now in Sydney);
(e) she gives a history of the accident consistent with other histories and said the airbags did not deploy and she moved her car after first being unable to do so;
(f) the claimant says she had numbness in her right leg and both arms and felt shoulder and neck pain “bad whiplash”;
(g) she and her sister were taken to hospital by ambulance but were discharged later in the day, and
(h) she has had physiotherapy, counselling and has seen a general practitioner (GP) and chiropractor.
The claimant told Medical Assessor Samuell that she is less confident, thinks about the accident and has disturbed sleep.
She reported her husband was anxious about the pandemic and their baby and she was anxious because of her mother. Medical Assessor Samuell noted “she complains of some concentration difficulty as she is ‘easily distracted about family issues’. She says that is affecting her studies and she is falling behind”.
The claimant says she takes no medication but saw a psychologist six or seven times but her life got busy and she got married.
Medical Assessor Samuell remarked that the claimant was pleasant co-operative and authentic and she was not exaggerating or minimising her difficulties. He noted she was a full-time student who had ceased part-time work because she could not work and was unvaccinated. She reported a good relationship with her husband and that her pregnancy was planned. She was anxious as her mother and two of her sisters had been hospitalised with COVID-19. She did not have a car but drove if necessary and reported flashbacks when at traffic lights.
He reviewed the documents noting the certificates of capacity referred to “phobia/anxiety” and that her GP noted anxiety with driving and diagnosed a post-traumatic stress disorder without diagnostic reasoning.
Medical Assessor Samuel diagnosed anxiety on a background of previous mental health issues caused by the accident. He was of the view her symptoms did not justify a diagnosis of post-traumatic stress disorder but did satisfy a diagnosis of “Specific Phobia” which is partial remission. He said such an injury is not a minor injury.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer notes the claimant’s pre-accident history and post-accident anxiety related to matters other than the accident.
The insurer refers to the DSM-5 criteria for Specific Phobia as follows:
(a) marked fear or anxiety about a specific object or situation;
(b) the Phobic object or situation almost always provokes fear or anxiety;
(c) the object or situation is actively avoided or endured with intense fear or anxiety;
(d) the fear and anxiety is out of proportion;
(e) the fear anxiety or avoidance lasts longer than six months and is persistent;
(f) the fear anxiety or avoidance causes significant distress or impairment, and
(g) the disturbance is not better explained by another mental disorder.
The insurer submits that the Medical Assessor’s reasons do not demonstrate that (c), (d) and (f) are satisfied.
Claimant’s submissions
The claimant notes that Medical Assessor Samuell’s diagnosis was of a Specific Phobia in partial remission which is defined in DSM-5 as “the full criteria for the disorder were previously met but currently only some of the symptoms or signs of the disorder remain”. The claimant also points to the role of clinical judgment (at page 19) of DSM-5 which says that diagnosis is not about checking off a list of symptoms but requires an evaluation of the severity and good/bad tone of the criteria.
Criteria C is satisfied by intense fear or anxiety (not intense anxiety) and that there is evidence in the certificate of capacity as to the claimant’s anxiety regarding driving.
Criteria D is satisfied because the object provoking the anxiety was driving, psychological intervention was required to get her back to driving and overcome anxiety which is not something that the general public requires therefore her anxiety is out of proportion.
Criteria F is satisfied because the claimant required treatment which means it must have been clinically significant anxiety.
Procedural matters
The Panel met to discuss the review proceedings on 9 November 2011. On
11 November the Panel reported to the parties as follows:
“[4] The Panel notes the claimant was diagnosed with a Specific Phobia which, according to DSM-5 has six criteria. The Panel notes the insurer takes issue with three of the six criteria but does not appear to take issue with the fact that the claimant has had an emotional or mental health response to the accident.
[5] The Panel bring to the attention of the parties the decision of Lynch v AAI Limited t/as AAMI 2022 NSWPICMP 6. In that matter, the Medical Panel was considering the issue of an injury in partial remission at the time of assessment.
[6] At [68-69] the Panel concluded that Ms Lynch suffered from a Specific Phobia of Driving which is a non-minor injury and a major depressive disorder now in remission, but which was diagnosed in 2020. This was also non-minor. The Panel said at [72]:
‘That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed’
[7] The Panel is therefore of the view it has to look at how the claimant is now but also look back to see whether, at any time since the date of the accident, any psychiatric injury sustained by the claimant could be categorised as non-minor.”
The Panel invited the parties to provide final submissions by 21 December 2022 and advised the parties of the particulars for the re-examination of the claimant. Neither party provided any further submissions.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form completed by the claimant on 6 January 2020 documents a “bad whiplash” causing pain to her central back, neck, both her shoulders and all of her right arm and right leg as well as muscle pain over both shoulders. Unsurprisingly to the Panel due to its proximity to the date of the accident there is no mention of any psychological or psychiatric injury in the claim form.
The initial certificate of capacity signed by Dr Morian attached to the claim form dated 13 January 2020 provides a diagnosis of “neck and upper back / lower back – phobia / anxiety”. The management plan was for referral to a psychologist and psychological review. A further certificate of capacity dated 6 May 2020 completed by Dr Manevski refers to a whiplash injury only.
There were allied health request forms for physiotherapy dated 28 January,
12 February and 20 March 2020.
Treating medical records and reports
Records from the Rickard Road Medical Centre record an entry on 3 January 2020. The claimant was a new patient and advised she had been involved in a car accident and that she was hit from behind by a vehicle travelling at 70 – 80kmph and that her car was badly damaged. The claimant was complaining of neck and upper back pain and pain in and both shoulders.
On 16 January 2020 the claimant was still complaining of neck and upper back pain and post-traumatic anxiety with driving and required psychological review. The claimant was referred to Ms Rita Azzi, psychologist.
The allied health request from Ms Azzi is dated 18 February 2020. Her diagnosis was of an “exacerbation of anxiety with panic attacks post MVA” and that the claimant’s symptoms were:
“Anxiety, lethargy, low motivation, anxious and depressed ideations, difficulty sleeping, feelings of helpless ness and hopeless ness due to physical restrictions and chronic pain. Fear whilst driving, reported high anxiety when driving, avoiding driving due to fear, hypervigilant when in the car.”
In answer to a question on the form of pre-existing factors there is a history of family problems and university stress which was managed and under control. Ms Azzi says Ms Kader was passing university exams but said that her anxiety was exacerbated, and she needed to take medication.
There are no reports from any of the claimant’s treatment practitioners and there are no medico-legal reports.
The Panel is aware the claimant’s physical injuries are the subject of a separate assessment but that the claimant has not yet been examined.
RE-EXAMINATION FINDINGS
Ms Kader was re-examined by Medical Assessors Jones and Chew on
18 January 2023 by video-conference link. The quality of communication was sufficient to undertake the assessment.
Introduction
Ms Kader is a 29 year old woman living in South Western Sydney, with her husband. She has recently completed her pharmacy studies and will soon commence her internship with her current boss as her preceptor.
Ms Kader reported she is currently working as a pharmacy assistant and this workplace is five minutes away from home. Her hours have increased lately, and she is now working four days per week. Before this she was working one or two shifts per week.
With respect to her academic performance, Ms Kader reported that in her final year she scored “enough to pass”. She told us that she had wanted to give up and she had to repeat a year because of anxiety and stress about driving and because she was not sleeping well. She worked very hard to complete her degree and said it was not easy and she found it very challenging.
Ms Kader’s husband is currently working and has a new job as a manager at a large furniture and homeware store.
With respect to family members, Ms Kader reported her mother moved to Seven Hills and she no longer sees her as much because she does not like to drive there. She used to walk with her mother every day. Her father lives at Roselands and works six days a week and she may see him every two to three weeks.
With respect to siblings, her brothers are married and busy with their families. She has one sister who lives with her mother and one sister who lives with her father.
Ms Kader reported that she experienced a stillbirth on 5 November 2021, after the assessment by Medical Assessor Samuell. She reported that this was “not good, not helping”. She also reported that she is pregnant again and is due to deliver the baby in April. She is seeing an obstetrician and gynaecologist who tells her that everything is going well with the baby.
Ms Kader reported that she was not enjoying the pregnancy from a mental perspective and said it was due to “just everything”. She reported she is not sleeping and has nightmares, and she feels very anxious driving and travelling as a passenger.
With respect to treatment, Ms Kader is seeing a psychologist, Dr Faiza, in Bankstown. These have been phone consultations and they are roughly every month or so, but sometimes more frequently. She started seeing her some time last year and her presenting problem was “the same thing since the incident”. Ms Kader reported also seeing a psychologist through Royal Prince Alfred Hospital as part of her antenatal clinic.
Ms Kader reported that seeing Dr Faiza was helpful. She said she has not been prescribed medication and she has negative experiences of seeing family members on medication. She utilises alternative measures to control her mood and anxiety including walking and swimming. She was also running before she was pregnant. She reported she stopped these activities for a couple of months and lost interest in her hobbies. She does not know why that is but said, “nothing is helping [her] anxiety”.
Ms Kader reported she saw a previous psychologist, Rita, but has not seen her for a while. She says she saw her both before and after the accident.
Ms Kader’s report of the accident
The date of accident was confirmed as 31 December 2019. Ms Kader reported she was driving along the Hume Highway in Yagoona and she noticed a car behind her which was swerving left and right. She looked at the driver who “had his head down texting”. Ms Kader stopped at a red light, every other car stopped and a couple of seconds later she looked in her rear-view mirror and saw the other driver who “hit [her] very hard at 60kmph”. Ms Kader was driving, and her sister was passenger, and an ambulance was called to treat them both. Ms Kader was taken to Bankstown Hospital and was there for approximately one day.
Symptoms following the motor vehicle accident
After the accident Ms Kader reported she thought she had whiplash and saw a chiropractor. She also had problems with her lower back. She said a few days and weeks after the accident her pain became worse. She has been seeing the chiropractor for one to two years. She stopped going, because after her lawyer had previously told her to go and get treatment and she would be reimbursed but she was not.
Ms Kader reported currently her back is “really painful” and she has bad lower back pain. She also has problems with her neck and shoulder. She said that these problems have been “from then to now”.
Ms Kader has undergone no surgery or had any injections related to her physical injuries. She stopped seeing her chiropractor and she is seeing no one for treatment at the moment.
The Panel asked Ms Kader specifically about any mental health symptoms resulting from the motor vehicle accident and she reported that she had difficulties sleeping and that the accident would play in her head, and she would not sleep for hours. She had nightmares and flashbacks regarding the incident, and she also experiences sleep paralysis every one to two months.
Ms Kader also reported that her “diet went bad” and that before the accident she used to eat more healthy food. She reported she has now developed diabetes as part of her pregnancy. She reported she has “stopped everything”, including exercise and swimming, and she reported she requires “someone to motivate [her] to do things”. She reported that she is not eating as much as she did before. She just eats “for the baby” and she does not think about herself anymore.
With respect to driving, Ms Kader reported she “barely go[es] on the road”. She said she only travels to work. There are things she used to do that involved driving she no longer does, and she reported that she was fortunate that her degree had changed to online.
Ms Kader can travel as a passenger when her husband is driving and the same scenario always causes her anxiety, which is only when cars are behind her, when the car is slowing or when she is at a red light. She said she is not affected by cars speeding past her. She reported she was fearful about her symptoms because “it’s been years”. She lamented that she thought she was getting worse. She said the same thing always happens, her hands get sweaty and she is always feeling anxious. She reported that her anxiety is about driving. She reported she does not experience panic attacks but does drive down alternative routes because she finds the cars in her area are always driving fast. She is considering moving to a quieter area.
Psychiatric history
Ms Kader reported that she had “a bit of stress at university”. She said this was mainly study and overload. She saw Rita a psychologist, who helped her focus on her studies and family issues. She said part of her problem was that she was the eldest daughter in the family.
Ms Kader has not taken any psychiatric medications, had psychiatric admissions or seen a psychiatrist prior to the accident.
Medical history
Ms Kader reported that she is currently taking insulin at night and also that her diabetes is diet-controlled. Other than this, she has had no other major medical diagnoses or surgeries. She has taken no regular medications.
Drug and alcohol and forensic history
Ms Kader denied any history of problems with drugs or alcohol. She had no criminal history, no history of work-related injuries and no history of previous motor vehicle accidents of significance, nor any involvement in any other compensation or litigation processes.
Mental state examination
Ms Kader was a female wearing a light-brown head scarf over a black head covering and over a black top. She wore no obvious make-up but there were no signs of neglect. She was polite, co-operative and attentive and displayed no abnormal movements. Her speech was normal and there was no evidence of formal thought disorder or delusional thought processes. She denied any thoughts of self-harm or thoughts of harm to others. When asked about her mood, she reported she was, in general, always depressed and down and anxious. She previously used to love sleeping but now she fears and dreads the night. Her affect was reactive, congruent and appropriate and she was somewhat restricted in her emotions. She came across as a genuine historian. She denied any perceptual abnormalities consistent with psychosis. Her cognition, insight and judgement appeared intact in the context of the interview. Rapport was good and Ms Kader spoke openly and freely.
Recent symptoms
Ms Kader reported that her sleep is disturbed, and she worries about this. Her appetite is down and her weight prior to pregnancy was 59kg, she then lost 4kg, and then gained it back. She is now around 63-64kg with a six and a half month pregnancy. Her height is 155cm.
When asked about her energy levels, she said she was usually sitting on the couch or lying down and on a workday, during the day, she feels exhausted, dizzy and lethargic but she works on during the day. After work, she finds herself very tired and exhausted.
CONSIDERATION OF THE ISSUES
Does the claimant have a Specific Phobia?
Medical Assessor Samuell diagnosed the claimant in accordance with DSM-5 as having a Specific Phobia which he says is not a minor injury.
Ms Kader reported a narrative, and presented at assessment, as consistent with having an anxiety disorder, namely a Specific Phobia related to travelling in a car or driving. Although there are some post-traumatic symptoms and effect on her mood, the Medical Assessors consider in their clinical judgment that the best fit diagnosis is a Specific Phobia, as per DSM-5 based on the totality of the evidence and the re-examination findings but summarised below:
DSM-5 criteria
Relevant evidence from the claimant
Category A - marked fear or anxiety about a specific object or situation (travelling in a car or driving).
The claimant reported fear of driving and avoids driving where possible. She says she now only drives the short distance to work.
Category B - the phobic object or situation (travelling in a car or driving) almost always provokes fear or anxiety.
The claimant reported always feeling anxious when travelling with her husband or driving.
Category C - the object or situation (travelling in a car or driving) is actively avoided or endured with intense fear or anxiety.
The claimant reported driving alternate routes to avoid traffic and reports fear and anxiety as a passenger when stopped at traffic lights and there are vehicles behind her.
Category D - the fear and anxiety is out of proportion.
While the accident occurred at speed, the claimant does not appear to have been seriously physically injured. The claimant is, in the Medical Assessor’s view, experiencing a reaction that is out of proportion to normal or how many people would react in a similar situation.
Category E - the fear anxiety or avoidance lasts longer than six months and is persistent.
The claimant was injured in December 2019, over three years ago. She reports symptoms that have been persistent since her accident.
Category F - the fear, anxiety or avoidance causes significant distress or impairment.
While the claimant’s fear, anxiety and avoidance does not appear to have impaired greatly on her activities of daily living the claimant does report they are causing her significant distress particularly the duration of the symptoms.
Category G - the disturbance is not better explained by another mental disorder.
While she has some post-traumatic stress disorder symptoms, the Panel is of the view that a Specific Phobia of driving and travelling in a car is more appropriate.
Ms Kader is currently seeing two psychologists, one for her antenatal progress and her regular psychologist at a frequency of around monthly. She is not taking any psychotropic medications. She is in her third trimester. She naturally has some anxiety in relation to the impending birth in the light of her previous experience however the Medical Assessors were able to distinguish quite clearly the phobic symptoms relating to travel and driving.
Ms Kader has returned to reasonable functioning in a number of areas, including continuing to work, increase in her work commitments, completing her university studies and commencing her pharmacy internship. She also maintains her family relationships and her roles as mother, wife and family member. There is no deficit with respect to self-care. With respect to driving, Ms Kader is limited to short, familiar routes and finds herself nervous whenever in a car, for example as a passenger when her husband is driving.
FINDINGS
Ms Kader has a Specific Phobia of travelling in a car and driving. This is a psychiatric illness recognised in DSM-5. The claimant therefore falls outside the definition of minor injury in s 1.6(3) of the MAI Act.
A Specific Phobia is not an acute stress disorder or an adjustment disorder. The claimant is not therefore deemed to have a “minor injury” by operation of cl 4 of the MAI Regulation.
The Panel is therefore satisfied that the claimant has a psychiatric injury which is not a minor injury.
As the Panel has come to the same outcome as Medical Assessor Samuell, the Panel will confirm the Medical Assessor’s certificate.
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