Insurance Australia Limited t/as NRMA Insurance v Tayba
[2025] NSWPICMP 108
•20 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Tayba [2025] NSWPICMP 108 |
CLAIMANT: | Zein Tayba |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Gerald Chew |
DATE OF DECISION: | 20 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review panel; incident on 20 May 2019 involving chase by insured vehicle, collision, and being threatened with knife; review of certificate of Medical Assessor (MA) who certified 17% whole person impairment (WPI) in respect of post-traumatic stress disorder (PTSD) and major depressive disorder caused by the accident; claimant demonstrated psychotic symptoms; no complaint of psychological symptoms for 15 months post-accident; Held – as per Bell v Allianz Insurance Australia Ltd Review Panel not required to decide causation by reference to events which occurred on 20 May 2019 but to the events as a whole; psychotic symptoms common to severe major depressive disorders; difference in natural history of schizophrenia and major depressive disorder with psychotic features; medication quetiapine not only used to treat schizophrenia but also depression with psychotic features and as adjunct in treatment for PTSD; lack of contemporaneous complaint explained; accident causative of current psychiatric condition; Medical Assessment Certificate revoked; 19% whole person impairment assessed as a result of major depressive disorder and PTSD caused by the accident. |
DETERMINATIONS MADE: | 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Nagesh dated 24 August 2023 and issues a new certificate determining that the following injuries were caused by the accident and give rise to a whole person impairment of 19%: · major depressive disorder, and · post-traumatic stress disorder. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 20 May 2019 Mr Zein Tayba (the claimant) was involved in an interaction with the insured driver who subsequently chased the claimant’s vehicle before colliding with the rear side of the claimant’s car pushing it to the other side of the road before it came to rest on the footpath. The insured driver then threatened Mr Tayba with a knife before stealing his vehicle. For the purposes of this assessment the Review Panel refers to the entirety of these events as the accident.
Mr Tayba has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Tayba under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by
Mr Tayba as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Abhishek Nagesh. He issued a certificate dated
24 August 2023.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 26 August 2024 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 61 (insurer’s bundle). The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 162 (claimant’s bundle).
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
CERTIFICATE OF MEDICAL ASSESSOR NAGESH[3]
[3] Insurer’s bundle p 11.
The injury referred to Medical Assessor Nagesh for assessment was:
· post-traumatic stress disorder.
Mr Tayba reported at the time of the accident he was running a shisha shop business and working as a renderer.
Medical Assessor Nagesh reported Mr Tayba was taken to his general practitioner (GP) the following day where X-rays and scans were performed. He was diagnosed with soft tissue injuries and was treated with physiotherapy, hydrotherapy and pain relief.
He reported Mr Tayba started having nightmares and flashbacks. He stopped driving, became hypervigilant and anxious to sit in a car. He lost his job, his income, could not sleep and lost his appetite. He lost weight, lost interest including in caring for his kids. He rarely goes out, has lost interest in his hobbies and lost contact with the majority of his friends. His relationship with his wife is strained. He reported his symptoms included irritability, social withdrawal, diminished ability to concentrate, feelings of worthlessness and hopelessness, and worry something might happen to him or his children. He saw a psychologist for a year and was referred to a psychiatrist Dr Younan.
Medical Assessor Nagesh diagnosed post-traumatic stress disorder and major depressive disorder which developed in the context of the accident where Mr Tayba was held at knifepoint, he was chased, and his car was rear-ended. He assessed a whole person impairment (WPI) of 17%.
REVIEW PROCEDURE
The insurer has sought a review of the medical assessment of Medical Assessor Nagesh.
The application was lodged on 25 September 2023 within 28 days of the date on which the certificate of Medical Assessor Nagesh was made available to the parties.[4]
[4] Section 7.26(1)(b) of the MAI Act.
On 1 November 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]
[5] Section 7.26 of the MAI Act; Claimant’s bundle p 9.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 31 October 2024 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE PANEL
Statement of the claimant
The claimant provided a statement dated 27 July 2022.[7] The claimant is now 32 years of age and was 26 years of age at the date of the accident.
[7] Claimant’s bundle p 9.
At the time he made the statement he was married with children aged four and one. The claimant documented pain in his lower back and both knees since the accident. He states he has been unable to return to work in any capacity, either as a cement renderer or as a director of his business which required him to deliver Argileh to customers.
Mr Tayba states since the accident he has been terrified to drive and is extremely anxious as a passenger. He describes a distancing from his children and a reluctance to leave the house. His sleep is disturbed by back pain, worries about his financial situation and he says he is woken almost nightly with nightmares. As a result, he is constantly tired, unmotivated and agitated.
Mr Tayba states he lives in a constant state of fear and is terrified to leave home in case he is attacked by the man who assaulted him. He described constant worries about the safety of his wife and children, anxiety and lack of concentration.
Medical evidence
The accident occurred on 20 May 2019. An ambulance did not attend the scene following the accident nor did the claimant attend hospital.
The claimant saw Dr Giurgius at Punchbowl Medical and Dental Centre on 30 May 2019 when he reported low back pain for one week. Stiffness and tenderness was noted, and he was referred for physiotherapy.[8]
[8] Insurer’s bundle p 27.
The claimant did not see his usual GP, Dr Tadros, following the accident until
13 September 2019 however that was for treatment of boils. There was no mention of the accident or alleged injuries.The claimant attended upon Dr Nabil Behary, GP, on 28 January 2020, 20 April 2020,
29 April 2020, 7 July 2020 and 13 July 2020. Those attendances were also in relation to skin problems.[9][9] Insurer’s bundle p 20.
The claimant saw Dr Tadros on 21 August 2020 at which time the doctor noted an ‘accident’ in 2019 as well as back pain but no details including any other alleged injuries.
On 26 August 2020 Dr Tadros reported a detailed history of the accident following which
Mr Tayba developed back pain and both knees.[10] He also reported a fear of driving and recorded “looks depressed”. On 3 September 2020 Dr Tadros reported the claimant was still very depressed and was to see a psychologist on Monday.[10] Claimant’s bundle p 54.
On 16 November 2020 Dr Tadros reported sleep was very poor and he was very anxious and depressed.
On 31 March 2022 Dr Tadros reported Mr Tayba complained of voices “telling him to do things”.[11]
[11] Claimant’s bundle p 64.
Dr Monir Younan, psychiatrist
Mr Tayba saw Dr Younan on 29 March 2021.[12] He reported Mr Tayba could not sleep well at night and continued to live in a state of fear. He was concerned the person who assaulted him would come and hurt him. He kept seeing the man in his sleep as a nightmare. He was worried about his son and was unable to drive. He could not concentrate and was nervous and angry. He reported he hit the television and other objects. Dr Younan diagnosed symptoms consistent with post-traumatic stress disorder.
[12] Claimant’s bundle p 82.
On 18 May 2021 Dr Younan reported Mr Tayba believed he was vulnerable to being attacked and was suffering from nightmares of persons threatening him.[13] He suffered from social anxiety and was unable to mix. He had lost weight, was smoking a lot and had started to drink alcohol. He continued to feel there was somebody inside himself talking to him. He had poor concentration and increased startle response. He suffered attacks of palpitations and continued to hear voices to which he reacted with fear. At times he sees things moving in front of him.
[13] Claimant’s bundle p 83.
On 29 June 2021 Dr Younan reported Mr Tayba could not sleep at night and continued to have visual hallucinations. Mr Tayba was experiencing frequent panic attacks triggered by images of those who assaulted him. [14] On 20 July 2021 Dr Younan reported nightmares and hypnopompic hallucinations. Mr Tayba was experiencing frequent panic attacks triggered by images of those who assaulted him.
[14] Claimant’s bundle p 85 and 86.
On 5 August 2021 Dr Younan made the following comment about causation of the claimant’s post-traumatic stress disorder:
“This view is that the insurance considered Mr Tayba’s PTSD as being caused by traumatic events happening outside the car! For example, seeing the man holding a knife and approaching him while swearing and shouting. This view is substantially wrong simply because the initial trauma happened when Mr Tayba was inside the car and being hit from behind repeatedly by another car. Understandably, in panic he had to turn left into a side street and even after doing that, the other car repeatedly rammed his car from behind. According to the history I obtained, I wrote “in a state of shock Mr Tayba got out of the car …”. Therefore, it is clear that Mr Tayba’s PTSD was caused by several traumatic incidents inside and outside the car.”[15]
[15] Claimant’s bundle p 87.
On 31 August 2021 Dr Younan reported Mr Tayba was even more stressed and depressed than previously.[16]
[16] Claimant’s bundle p 51.
On 16 September 2021 Dr Younan reported persistent ongoing fear and depression.[17] He was fearful of leaving home in case he would be attacked again, and he was fearful for the safety of his children. He was also fearful of driving. He prescribed Mirtazapine 30mg, Seroquel 300mg and Valium 5mg PRN.
[17] Claimant’s bundle p 50.
On 3 March 2022 Dr Younan reported Mr Tayba continued to be troubled by auditory hallucinations which caused him to be aggressive[18]. He was troubled by nightmares and was unable to concentrate. He prescribed Solian 200mg, Mirtazapine 30mg, and Seroquel 300mg. On 31 March 2022 Dr Younan reported Mr Tayba continued to be clinically depressed. In addition, he prescribed Diazepam 5mg.
[18] Claimant’s bundle p 80.
On 31 May 2022 Dr Younan reported Mr Tayba had not enjoyed his trip to Lebanon where he stayed for one month.[19] He continued to be troubled by the voices in his head which were telling him to do something bad. He was advised to discontinue Mirtazapine and start Anafranil 25mg.
[19] Claimant’s bundle p 93.
Dr Younan reviewed Mr Tayba on 5 September 2022. In relation to the lack of report for four months after the accident Dr Younan stated:
“Zein stated that during the four months after the accident he was preoccupied with giving evidence to the police and the courts. He showed me a statement given to the police straight after the accident and in this statement he reported many of his symptoms which indicated the traumatic anxiety.”[20]
[20] Claimant’s bundle p 21.
On 9 November 2023 Dr Younan reported Mr Tayba remained depressed, excessively worried and continued to suffer nightmares. [21] He increased the dose of Minipress to 2mg in addition to Seroquel and Clomipramine.
Medico-legal evidence
[21] Claimant’s bundle p 20.
Dr Andrew Keller, occupational physician
Dr Keller assessed the claimant at the request of the insurer and provided a report dated
14 June 2022.Dr Keller concluded the claimant may have sustained temporary soft tissue strains caused by the accident he considered they would have fully resolved and that the current disabilities where not explicable in terms of the mechanism of accident. He noted the presence of a possible psychological diagnosis.
Dr Richa Rastogi, psychiatrist
Dr Rastogi assessed the claimant and provided a report dated 22 July 2022.[22] Dr Rastogi reported the following symptomatology:
“He is unable to concentrate, and his motivation was poor. He has occasional flashbacks although reduced in intensity. He has nightmares daily living in constant fear of his safety and safety of his children. He does not drive at all and he hates being a passenger. He is always aroused and vigilant scanning around for his safety. He feels empty and numb and disconnected. He is disoriented and confused at times. He has internal derogatory voices with ego dystonic content and seeing things magnified around him. He reports thought echo with commanding voice to hit himself or hit people around him. This causes significant distress and he hits his head to get rid of voices. He is easily distracted and having blank responses. He is very irritable and has poor emotional regulation. He stopped meeting with friends and hates being a passenger. He gets tired easily and fatigued. He has decreased independence due to fear and anxiety around driving. He still dissociates and zones out and he has poor sleep patterns.”
[22] Claimant’s bundle p 36.
Dr Rastogi diagnosed persistent post-traumatic stress disorder with anxiety. She also noted he reported psychotic symptoms and queried a diagnosis of psychotic disorder, or quasi psychotic symptoms associated with post-traumatic stress disorder. She commented:
“The auditory hallucinations are internalised and there is no other hallucination or thought disorder. It is also likely that Tramal can cause interactions with antipsychotics and can contribute to quasi psychotic symptoms.”
Dr Rastogi concluded the psychiatric diagnosis was directly attributed to the accident noting there was no pre-existing condition. She assessed a 17% WPI.
Dr Graham Vickery, psychiatrist
Dr Vickery assessed the claimant at the request of the insurer a provided a report dated
18 August 2022.[23] He reported the following current symptoms:Mr Tayba reported having “severe fear and I don’t like to go out and I have the house locked up and I look through the curtains to see if anyone is coming to the house and I can’t stand anyone to sit beside me and I don’t want people to visit me and I will kick them out.”
Mr Tayba has not been driving and “I am sweating and trembling and my heart is beating fast if I am sitting in the driver’s seat and if I am a passenger I am yelling out.”
Mr Tayba reported that “for the past three months I have voices in my head telling me to hit my wife or my children and it happened recently when I was at the doctors and I became angry as he was asking too many questions and taking too long and the voices told me to turn the table up on him and to hit him and they tell me to hit myself and I do and to wet my pants and I do.”
Mr Tayba reported “I do what the voices tell me but I haven’t hit anyone but I have hit myself many times and I tell my wife to keep the children away from me as I don’t want to hit them.” Mr Tayba reported “I see a small thing or some object and if I keep looking it will expand and it becomes very big and I will get a pain in the head and start crying and I will go and lie in bed with the blanket over me so it will go away but then it will come back again later on.”
[23] Insurer’s bundle p 36.
Dr Vickery reported Mr Tayba is managed on antipsychotic medication Quetiapine 300mg nocte and Solian 200mg mane, a NASA antidepressant Mirtazapine 30mg nocte, a tricyclic antidepressant Anafranil 20mg mane and Valium 5mg 1 bd. He reported he had been under the care of psychiatrist Dr Younan for 18 months.
Mr Tayba reported he did not go out on his own and he had no feelings for his wife, children or extended family. He had reduced memory and concentration. Mr Tayba had not worked since the accident.
Dr Vickery reported Mr Tayba’s behaviour and mood were often agitated, and it was difficult for him to recount a coherent history.
Dr Vickery reviewed the clinical records and stated the first recorded psychological problems were recorded by Dr Tadros on 26 August 2020. He concluded the onset of trauma related symptoms was not consistent with the onset of post-traumatic stress disorder.
Dr Vickery diagnosed other specified schizophrenia spectrum and other psychotic disorder (DSM5 298.8) with persistent auditory and visual hallucinations. He did not consider the diagnosed condition to be caused by the accident. He considered the prognosis for recovery to be guarded.
Medical Assessment Certificates
Certificate of Medical Assessor Farhan Shahzad
Medical Assessor Shahzad issued a certificate dated 10 July 2023.[24]
[24] Insurer’s bundle p 50.
He certified the following injuries caused by the accident have resolved and do not give rise to a permanent impairment:
· cervical spine – injury to his neck with post traumatic stiffness with dysmetria and trapezial muscle spasm on the left;
· knee – contusion to both knees with post traumatic stiffness of the left knee with retropatellar rub, and
· lumbar spine – low back strain injury with post-traumatic lumbar stiffness with erector spinae muscle spasm, most marked on the left with radicular complaint with left greater than right, sciatica.
Medical Assessor Shahzad reported Mr Tayba was inconsistent in his presentation at the assessment. He reported he could get on and off the examination couch and sit in a deep chair but could not demonstrate movements during the objective examination. He also noted a lack of findings on clinical evaluation, the delay in presentation to his treating doctor and the lack of active treatment. He stated when questioned Mr Tayba seemed focussed on his mental health.
He concluded Mr Tayba likely had temporary soft tissue injury which had resolved in less than three months.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 25 September 2023 in support of the application for review.[25]
[25] Insurer’s bundle p 1.
The insurer disputes the findings of Medical Assessor Nagesh as to diagnosis and causation noting the following:
· the claimant did not mention the accident including psychological problems to any treating health practitioner for 15 months post-accident notwithstanding regular contact with GP’s during that period;
· symptoms reported by the claimant to Dr Younan, including auditory and visual hallucinations involving instructions of violence, would be consistent with unrelated psychological conditions, and
· the claimant informed Dr Behary on 14 August 2020 of a motor accident nine months earlier (circa December 2019, some seven months after the accident) prior to reporting the subject accident or alleged psychological problems.
Medical Assessor Nagesh failed to acknowledge the significant psychotic symptoms reported to Dr Younan, as follows:
(a) 18 May 2021 – the claimant told the doctor of a feeling that there was somebody ‘inside himself talking to him’ and he would hear voices;
(b) 29 June 2021 - the doctor recorded visual hallucinations and a ‘strange feeling’ which was likely a dissociative symptom;
(c) 25 July 2021 – the claimant described feeling like somebody wanted to choke him multiple times per day;
(d) 2 March 2022 – on that occasion, there were ongoing auditory hallucinations which caused the claimant to become aggressive;
(e) 30 May 2022 – the claimant continued to hear voices in his head, and
(f) 8 August 2022 – the claimant told the doctor the voices ordered him to do things including to urinate before reaching the toilet.
The insurer notes the claimant had been prescribed various anti-psychotic and anti-depressant medications which are usually used to treat schizophrenia and bipolar disorder.
Medical Assessor Nagesh failed to consider that the symptoms recorded by Dr Younan and the medications prescribed would be consistent with a diagnosis of schizophrenia spectrum and other psychotic disorder.
The claimant did not report any psychological symptoms until after the subsequent accident which occurred seven months after the subject accident.
The insurer also submitted that Medical Assessor Nagesh failed to consider the certificate of Medical Assessor Shahzad who:
· opined the claimant exhibited a lack of effort on examination and displayed significant inconsistency between subjective and objective presentation;
· determined the claimant’s alleged physical injuries had resolved and there was no WPI from a physical perspective, and
· reported the claimant’s current medications were those prescribed by Dr Younan which would ordinarily be utilised to treat schizophrenia and obsessive-compulsive disorder.
Claimant’s submissions
The claimant provided submissions dated 10 October 2023 in response to the application for review.[26]
[26] Claimant’s bundle p 1.
The claimant relies on a letter from Dr Younan to Dr Tadros dated 6 September 2022 where Dr Younan states that in the first four months after the accident Mr Tayba was preoccupied with giving evidence to the police and the courts.
The claimant also notes that Dr Tadros consistently recorded a diagnosis of anxiety and depression on the certificates of incapacity.
The claimant also notes that under DSM-5 there may be a delay of months or even years before criteria for a diagnosis of post-traumatic stress disorder are met.
The claimant submits it is clear Medical Assessor Nagesh reviewed the report of Dr Younan and the report of Dr Vickery and notes he was not required to provide elaborate reasoning as to why he rejected Dr Vickery’s diagnosis.
Further, the claimant submits the certificate of Medical Assessor Shahzad is not relevant to the determination of the claimant’s level of psychological impairment, although it is submitted the certificate of Medical Assessor Shahzad was considered by Medical Assessor Nagesh.
MEDICAL EXAMINATION
Mr Tayba was assessed by Medical Assessor Chew and Medical Assessor Baker on
5 February 2025.The assessment was undertaken using audiovisual technology through MS Teams. The quality of the connection was satisfactory. The claimant was unaccompanied at home. The assessment was assisted by an Arabic interpreter. Mr Tayba spoke in Arabic and the entire interview was via the interpreter but for a couple of English words.
Psychosocial history and pre-accident history
Mr Tayba is a 33 year old man who lives in Earlwood with his wife. He has two sons, a 3.5 year old who attends daycare and a 6.5 year old who attends primary school.
Ms Tayba is not working and has not worked since the accident. Prior to the accident he worked as a cement renderer both self-employed and for others. He also ran his own business, a tobacco shop, with employees under his management.
His wife works full-time as a hairdresser.
Mr Tayba was born and grew up in Tripoli, Lebanon. His wife was born in Australia, and they married in Lebanon. He came to Australia on a spousal visa initially. His parents and siblings, three brothers and a sister live in Lebanon. His father was a panel beater. He was raised in the Muslim faith but does not view himself as particularly religious. Mr Tayba completed high school in Lebanon and studied accounting for one year before working in “import/ export” in Lebanon. He also participated in National Service in Lebanon. He said that he had no issues. He thought that he had had psychological testing prior to service with no issues.
In January 2025 his parents arrived in Australia to help him. They have been here for one month. They plan to stay for six months which is the length of their visa.
History of the accident
The accident occurred on 20 May 2019. Mr Tayba he was unaccompanied driving a Toyota in Chester Hill. He was unable to describe his Toyota. He said that someone driving behind him was yelling and “making noises” and he thought that they wanted to pass so he pulled over so they could pass. He said the man parked in front of him, got out of the vehicle with a knife and came towards his window. Mr Tayba said he was scared and drove off. The other vehicle then started chasing him through side streets. He said that the other vehicle hit the rear of his vehicle causing him to hit two other cars before going up onto the footpath.
Mr Tayba said the driver then got out of his vehicle and came towards him with a knife before taking his keys and cigarettes. Mr Tayba said the driver then returned with a number of men and they took his vehicle. Mr Tayba said he attempted to hold on to his vehicle, but he fell over as the men drove his vehicle away.Mr Tayba said the incident was witnessed and bystanders called the police. He said the police attended and took his statement. He called his friend who took him home. Mr Tayba said his wife was in Lebanon at the time with their son.
History of symptoms and treatment following the accident
Mr Tayba said the period after the accident was extremely stressful for many months. The police kept calling him and he had to provide numerous statements and appear in criminal court. The police caught the other driver who he believes was sentenced to five to seven years in jail. He said this occurred during COVID-19 which caused additional stress and logistical problems.
Mr Tayba said it was only after many months and prompting by a police prosecutor he had been speaking to that he realised he should seek help for his mental health. He spoke to his GP. He said he had a depressed and stressed mood every day, poor sleep, poor energy, anhedonia, and nightmares of images relating to the accident a few times a week. He said he often experienced fear and anxiety. He said he doesn’t like leaving the house. He isn’t able to drive and does not like being a passenger. Mr Tayba described feelings of worthlessness and is hopeless about his future. He does not have any active suicidal ideation or plan.
Mr Tayba started drinking alcohol after the accident however ceased drinking nine months prior to this assessment.
He does not use cannabis or recreational drugs.
He smokes around 60 cigarettes a day, prior to the accident he smoked around 10.
Mr Tayba has had treatment with a psychologist and treatment with Dr Younan, psychiatrist.
He said overall, his condition had not improved much at all even with treatment. Mr Tayba said maybe his nightmares were a little less frequent, but he was unable to otherwise identify other benefits of treatment.
Details of any relevant injuries or conditions sustained since the accident
Mr Tayba was asked specifically about any subsequent motor accident. He denied any other accidents. He was taken to the entry of Dr Behary on 14 August 2020 when he reported a motor accident “9 months earlier.” The claimant said he recalled telling the doctor about the subject accident and the doctor must have got the timeframe confused. The claimant confirmed that the accident was the only accident in which he was involved.
Current symptoms
Mr Tayba said he struggled with ongoing pain in his back which radiated down both legs to the feet, worse on the left. He also reported neck and shoulder pain.
He had depressed mood daily. Mr Tayba said he stayed up most of the night unable to sleep then spent time during the day alone sitting in the room. He said his mind was always thinking. He said the ruminations were negative and often related back to the accident. There were other themes such as being a bad husband and bad father. Mr Tayba said he does also get voices occasionally. The voices are unfamiliar and there is one main voice. He said that generally the voice was negative in its themes and content. He said that sometimes it was difficult to make the content of the voice. At other times there could be several voices with depressive themes.
Mr Tayba has ongoing nightmares related to the accident. He avoids driving since the accident. He is anxious and fearful.
Current and proposed treatment
Mr Tayba has seen his new psychiatrist on one occasion and has a follow up appointment booked for after the assessment. He said he intended to attend the appointment, His current medications include tramadol 100mg daily, diazepam 5-10mg daily, clomipramine 125mg daily, quetiapine 300mg daily and prazosin 2mg daily.
He maintains regular contact with his GP.
CLINICAL EXAMINATION
Mental state examination
Mr Tayba reported his mood as depressed. His affect was reactive – he was appropriately tearful at times, and he did not display affective blunting. There was no abnormal psychomotor activity. There was no evidence of psychotic symptoms at the time of the assessment.
There were none of the following mental state symptoms associated with severe psychosis at the time of the assessment; there was no formal thought disorder, no delusions and no hallucinations. Mr Tayba reported feelings of hopelessness and worthlessness but no active suicidal ideation. He was oriented to time, place and person. Mr Tayba did not report suicidal thoughts or plans. His judgement appeared normal, and he was insightful into his condition.
Current functioning
Mr Tayba reported that he is less motivated in relation to self-care.
Since the accident his wife has done all the cooking, cleaning and housework.
Mr Tayba has been able to travel back to Lebanon accompanied by his wife. He said that Lebanon is familiar to him and did not cause additional stress.
Mr Tayba reports there is tension with his wife as she has had to do much more work and look after him. He said that he “doesn’t feel like a man” as he is unable to provide.
Mr Tayba said he is more withdrawn from his family in Lebanon although he still speaks most weeks.
He said that he has no friends now and has also withdrawn from his wife’s family.
His concentration, persistence and pace been disrupted by his depressive ruminations. He now has an inability to perform complex tasks such as reading in Arabic.
He has demonstrated an inability to adapt to his new life circumstances due to his ongoing symptoms because of the accident, including his inability to work
DIAGNOSIS
Mr Tayba has a major depressive disorder with psychotic features. He describes a depressed mood daily for most of the day, anhedonia, insomnia, lack of energy, feelings of worthlessness, and poor concentration. This causes him distress and impairment in function. These symptoms are not attributable to the physiological effects of a substance or another medical condition. There has never been a manic or hypomanic episode.
The claimant has post-traumatic stress disorder in the context of exposure to a serious accident that carried a threat of serious injury. He has recurrent distressing dreams related to the traumatic event. He avoids driving and many other activities to avoid distressing thoughts or feelings closely associated with the traumatic events. He has persistent negative beliefs about himself, a persistent negative emotional state, markedly diminished interest and participation in significant activities, feelings of estrangement from others and a persistent inability to experience positive emotions. He has problems with concentration and sleep disturbance. The disturbance has been present for a number of years and causes clinically significant distress and impairment. The disturbance is not attributable to the physiological effects of a substance or another medical condition.
Mr Tayba does not have schizophrenia or another psychotic disorder. The psychotic symptoms, the voices to which he referred, appear in the context of the major depression. They are mood congruent. He has affective preservation. There is no evidence of symptoms or any decline in function prior to the accident which is a common prodromal feature in people suffering from schizophrenia
The presence of psychotic symptoms are common in severe major depressive disorders. The natural history of the two conditions schizophrenia and major depressive disorder with psychotic features are different. The onset for schizophrenia is typically early for males. The usual date of onset is between late teens and early adulthood. The date of onset for major depressive disorder with psychotic features in men is as adults aged about 30 years. The key difference between the conditions lies in the relationship between mood and psychotic symptoms.
In schizophrenia, psychosis is a core feature and occurs independently of mood episodes.
In chronic major depression with psychotic features, psychosis is secondary to severe depression and only occurs during depressive episodes. From careful re-examination of the claimant and review of the medical evidence the presence of a depressed mood occurs before the onset of the psychotic features. The nature of the depressive psychotic features is in keeping with negative and derogatory content and themes. In such a clinical setting the use of tricyclic antidepressant medication with an antipsychotic is evidenced-based treatment.
The Panel finds the following psychotic examples relied upon by the insurer best fits the diagnosis of major depressive disorder and post-traumatic stress disorder:
(a) 18 May 2021 – the claimant told the doctor of a feeling that there was somebody ‘inside himself talking to him’ and he would hear voices.
These symptoms are consistent with a psychotic feature in the context of major depressive disorder. This type of clinical presentation is clinically common in people who are experiencing auditory hallucinations for the first time. It is commonly understood as the individual attempting to separate his own thoughts from the psychotic experience.
(b) 29 June 2021 - the doctor recorded visual hallucinations and a ‘strange feeling’ which was likely a dissociative symptom.
These symptoms are consistent with dissociative symptoms of DSM-5-TR F43.10 post-traumatic stress disorder. Dissociative symptoms are recognised as part of the diagnostic criteria in the form of a specifier on page 303 of DSM-5-TR. The description provided in the medical records best fits the definition for specifier 2 - derealization.
(c) 25 July 2021 – the claimant described feeling like somebody wanted to choke him multiple times per day.
“The Panel notes that the claimant reported symptoms of anxiety and panic. Choking is a common symptom in panic as specified in DSM-5-TR page 242 under panic attack specifier 5 - feelings of choking. Dr Younan reported,” Mr Tayba was experiencing frequent panic attacks triggered by images of those who assaulted him.”
(d) 2 March 2022 – on that occasion, there were ongoing auditory hallucinations which caused the claimant to become aggressive.
These symptoms are consistent with a psychotic feature in the context of major depressive disorder. The absence or presence of aggression by itself does not place the claimant in any specific diagnostic group as it is a consequence of mental illness as a whole.
(e) 30 May 2022 – the claimant continued to hear voices in his head.
These symptoms are consistent with a psychotic feature in the context of major depressive disorder. The hearing of auditory hallucinations as described is a common clinical presentation.
(f) 8 August 2022 – the claimant told the doctor the voices ordered him to do things including to urinate before reaching the toilet.
These symptoms are consistent with a psychotic feature in the context of Major Depressive Disorder.
The insurer also submitted that the claimant’s medications prescribed by Dr Younan would ordinarily be utilised to treat schizophrenia and obsessive-compulsive disorder.
Whilst Quetiapine is used to treat schizophrenia it is also commonly used to treat depression with psychotic features and as an adjunct for treatment of post-traumatic stress disorder.
Clomipramine is commonly used to treat obsessive-compulsive disorder although the use of this medication in current clinical practice is restricted to when other treatments such as Fluvoxamine with cognitive behavioural therapy have not resulted in remission of obsessive-compulsive disorder symptoms. Clomipramine is an evidence-based tricyclic antidepressant originally used to treat major depressive disorder where there are prominent depressive ruminations that have obsessive and compulsive features. The literature for the use of clomipramine as an antidepressant is well established in the psychiatric literature for many years.
CAUSATION
In Bell v Allianz Insurance Australia Ltd Basten AJ considered an incident involving the use of a motor vehicle followed by threatening behaviour.[27] The court considered it was not part of a Medical Assessor’s function to determine the scope of the accident stating at [12]:
“That it was not part of the medical assessor’s function to determine the scope of a motor accident, where that issue was controversial, was explained by the Court of Appeal in AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales),(“AAI Ltd”). McColl JA stating:
‘If, however, in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events and leave it to the court to determine whether or not the events constitute a ‘motor accident’.” [28]
[27] Bell v Allianz Insurance Ltd [2022] NSWSC 1108.
[28] AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368.
Having regard to the decision in Bell the Panel is not required to decide the question of causation by reference to the events which occurred on 20 May 2019 but to the events as a whole.
The insurer has raised the lack of contemporaneous complaint made by Mr Tabya following the accident noting there was no recorded complaint of psychological symptoms for 15 months post-accident notwithstanding regular contact with GP’s during that period.
In Norrington v QBE Insurance (Australia) Ltd[29] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[29] Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[30] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[30] [2016] NSWCA 229, McGiffen.
Mr Tabya at the re-examination was directly asked about the delay between the accident and his report to his treating medical practitioner. He provided the following explanation. On the day of the accident Mr Tabya’s wife was in Lebanon. Mr Tabya sought initial help from a friend. He said he was confused as what to do after the accident. He said he became focused on the court case and was required to give evidence in the case. He said it was not until he was required to provide a victim’s impact report, that the author of the report advised him to seek medical help, as he was concerned that Mr Tabya was mentally ill. Mr Tabya accepted the advice and consulted his GP which resulted in treatment.
Mr Tabya was involved in a frightening accident which was sudden, unexpected and dangerous. It was capable of giving rise to symptoms of psychological distress which reach the threshold of a diagnosable psychiatric condition. The Panel regards the motor accident as causative of Mr Tabya’s current psychiatric condition.
WHOLE PERSON IMPAIRMENT
The Panel assessed WPI as follow:
| Psychiatric diagnoses | 1. Major Depressive Disorder with psychotic features | 2. Post Traumatic Stress Disorder |
| 3. | 4. | |
| Psychiatric treatment description | Psychological therapy, psychiatrist medication | |
| Category | Class | Reason for Decision |
| 1. Self-care and Personal Hygiene | 3 | The claimant is unable to live independently and is reliant on his wife because of his depressive symptoms including lack of energy and motivation. His parents have also come from Lebanon to assist. |
| 2. Social and Recreational Activities | 3 | The claimant rarely attends social events. He is unable to attend without his wife. He finds social events anxiety provoking and lacks energy and motivation. |
| 3. Travel | 2 | The claimant is able to travel in familiar areas. The claimant no longer drives. He finds driving anxiety provoking. He remains uncomfortable even travelling with his wife and people he knows although this is more tolerable. |
| 4. Social Functioning | 2 | He reports that he has lost friends and is more distant from family. He is less motivated to engage and finds social engagement anxiety provoking. There is an increase in tension with his wife. |
| 5.Concentration, Persistence and Pace | 3 | He subjectively reported poor concentration. He is unable to follow complex instructions. His concentration is affected by his negative ruminations and voices. |
| 6. Adaptation | 4 | He has been unable to return to work, He would only be able to work minimal hours with reduced pace and erratic attendance with very basic tasks. |
| List classes in ascending order: 2, 2, 2, 3, 3, 4 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 17 | ||
| % Whole Person Impairment: 19 | ||
Effects of treatment
Although the claimant remains on some treatment, his account did not reflect significant improvement in his condition nor did he ascribe any significant change in impairment to the treatment. The Panel found that there was no treatment effect.
Pre-existing impairment
There is no evidence of any pre-existing condition with might have given rise to a pre-existing impairment.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Nagesh dated 24 August 2023 and issues a new certificate determining that the following injuries were caused by the accident and give rise to a WPI of 19%:
· major depressive disorder, and
· post-traumatic stress disorder.
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