Insurance Australia Limited t/as NRMA Insurance v Yacoub
[2022] NSWPICMP 234
•3 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Yacoub [2022] NSWPICMP 234 |
| CLAIMANT: | Ninos Yacoub |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL: | Member Susan McTegg Dr Matthew Jones Dr Michael Li Ying Hong |
| DATE OF DECISION: | 3 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Compensation Act 1999; medical review panel; psychological injury; adjustment disorder; substance use disorder; whole person impairment (WPI); permanent impairment; self-care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; adaption; dispute related to assessment of permanent impairment; initial complaints of neck and lower back pain; development of psychological symptoms; no remission of symptoms at any time after the accident; Held- diagnosis of adjustment disorder and substance use disorder; certificate of Medical Assessor Samuell who assessed a 26% WPI revoked; new certificate issued; assessment of 19% whole person impairment. |
| DETERMINATIONS MADE: | The Panel revokes the Certificate of Medical Assessor Samuell dated 6 August 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: · Adjustment Disorder; and · Substance Use Disorder. |
BACKGROUND
Mr Ninos Yacoub (Mr Yacoub/the claimant) suffered injury in a motor vehicle accident on 16 April 2016 (the accident). Mr Yacoub was driving a Toyota 86 facing a green traffic light when another vehicle made a right hand turn in front of him causing his vehicle to collide with the rear passenger door of the other vehicle. The airbags were deployed. Mr Yacoub remained in the middle of the intersection because he struggled to open the car door. There was no head injury or loss of consciousness. Mr Yacoub left the scene of the accident with his brother.
Mr Yacoub was 21 years of age at the time of the accident and is now 26 years of age.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Yacoub under the Motor Accident Compensation Act, 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Yacoub as a result of psychological injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to section 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Samuell. He issued a certificate dated 6 August 2021.
An application for review of the medical assessment of Assessor Samuell was lodged on behalf of the insurer on or about 30 September 2021.
On 18 November 2021 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission. The President’s Delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to section 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on 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.[3]
[3] Clause 1.2 of the Guidelines.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] 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.[6]
[6] Section 63(3A) of the MAC Act.
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel considered it appropriate for the assessment to review all matters with which the assessment of Assessor Samuell was concerned.
On 19 April 2022 Mr Yacoub was examined by Medical Assessor Hong and Medical Assessor Jones by video conference on behalf of the panel.
MEDICAL ASSESSMENT UNDER REVIEW
In his certificate dated 6 August 2021 Medical Assessor Samuell provided an assessment of 26% WPI.[7] He found an adjustment like disorder with prolonged duration was caused by the accident.
[7] AD1 (Insurer’s documents in portal) p 18.
Assessor Samuell found there was no condition predating the accident and the accident and its sequalae were of sufficient severity to cause the diagnosed condition.
Assessor Samuell provided the following assessment under the psychiatric impairment rating scale (the PIRS):
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
3
There was moderate decrease in self-care and personal hygiene. Mr Yacoub neglects his showering and brushing his teeth. He does no cooking or cleaning. He could not live independently by himself.
2.
Social and Recreational Activities
4
There is significant impairment in this category, he has neglected most activities that he previously pursued.
3.
Travel
3
He cannot travel by himself without a support person.
4.
Social Functioning
3
Previously established relationships are severely strained.
5.
Concentration, Persistence and Pace
3
He states that he is having difficulty watching a movie and cannot read books.
6.
Adaptation
5
He is totally unfit to work in any capacity due to the extent of his symptoms
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 10 February 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents.
In response to this direction the solicitor for the insurer filed a bundle of documents paginated from pages 1 to 88 and filed in the portal as AD1. The solicitor for Mr Yacoub filed a bundle of documents paginated from pages 1 to 341 and filed in the portal as AD3.
The certificate of Medical Assessor Wayne Mason dated 27 April 2018 filed in the portal as AD4 was also made visible to the Panel. Significantly, this certificate was referred to by Assessor Jager in his certificate dated 25 February 2019.
At the request of the panel the report of Dr Thomas Wilmot dated 16 April 2018 was filed in the portal as AD5.
Pre-accident records
Records provided by the insurer include records pertaining to a psychological injury sustained by Mr Yacoub when he was 12 years of age. On 26 April 2007 Mr Yacoub was involved in an accident with his two brothers and his mother (the 2007 accident). The accident occurred when an elderly man after stopping at a stop sign accelerated suddenly hitting the rear quarter of the car in which Mr Yacoub was a passenger. The force of the impact spun the car several times. Mr Yacoub was very shaken and tearful following the 2007 accident.
In a certificate dated 9 November 2007 Dr Karina Attia-Soliman diagnosed an adjustment disorder with anxious mood, nocturnal eneuresis and generalised anxiety disorder.[8]
[8] AD1 p 50.
Dr Guirguis, general practitioner provided a report dated 16 November 2007 addressed to CIC Allianz Insurance Limited, the insurer of the at fault vehicle involved in the 2007 accident.[9] He reported complaints of irritability and nervousness affecting him both at home and at school. His mother described Mr Yacoub at that time as withdrawn and sad. He was wetting his bed at night and demonstrated aggression towards his parents, brothers and friends. He recommended repeated counselling sessions as well as medication.
[9] AD1 p 52.
Dr Neville Whan, 20 August 2008
Mr Yacoub was assessed by Dr Neville Whan at the request of CIC Allianz Insurance Limited. He provided a report dated 20 August 2008.[10]
[10] AD1 p 41.
Dr Whan reported Mr Yacoub had some dreams in the period following the 2007 accident although he had no recollection of night-time incidents.
Dr Whan concluded even if there were some dreams of the 2007 accident, some flashbacks and a degree of anxiety in the immediate period after the accident, such symptoms were not sufficient for a diagnosis of post-traumatic stress disorder, or even an adjustment disorder. Dr Whan was satisfied Mr Yacoub had a reaction to the accident that was within the normal range and no time did he display evidence of a recognised psychiatric disorder.
Dr Jeff Bertucen, 28 August 2009
Mr Yacoub saw Dr Bertucen, psychiatrist at the request of his solicitor on 24 August 2009.[11]
[11] AD1 p 28.
Dr Bertucen reported Mr Yacoub developed nightmares of the 2007 accident, sleepwalking and frequent daytime recollections of the accident. Dr Bertucen reported Mr Yacoub saw Karina Attia-Soliman, general practitioner and psychotherapist for a period of 12 months at one or two-month intervals. He reported Mr Yacoub was struggling at school, had impaired concentration and memory and was demotivated regarding self-care.
Dr Bertucen diagnosed chronic post-traumatic stress disorder arising out of the 2007 accident and assessed a WPI of 15%.
Medical Assessor Marilyn Moore, 13 September 2010
Medical Assessor Moore assessed Mr Yacoub in respect of psychological injury sustained in the 2007 accident.[12] She assessed an 8% WPI in respect of a marked chronic post-traumatic stress disorder.
Post-accident records
[12] AD1 p 56.
Mr Yacoub consulted Dr Geoffrey McGrath of Pitt Street Merrylands Medical and Dental Centre on 16 April 2016 when he reported he had been the driver of a vehicle involved in an accident that evening.[13] He reported pain in the left shin and lower back. Dr McGrath recorded:
“Walked in without any obvious distress
superficial abrasion medial side of mid tibia with some redness around edges. Mild General redness around anterior knee. Exam NAD. Some muscle tightness around mid T10-12”.
[13] AD3 p 168.
Mr Yacoub saw Dr Emil Guirguis on 21 April 2016 complaining of neck and lower back pain since the accident. Mr Yacoub consulted Dr Guirguis again on 3 May 2016, 5 May 2016, 1 June 2016, 21 June 2016 in respect of neck or lower back pain.
On 2 March 2017 Dr Guirguis reported the presenting symptoms were “severe stress, family problems, a lot of tension, cannot concentrate, can’t sleep at night, very worried about the future, lack of energy, low self-esteem”. He diagnosed an adjustment disorder and depressed mood.[14]
[14] AD3 p 87.
On 9 September 2017 Dr Guirguis provided a report to Brydens Lawyers.[15] After commenting on the physical injuries he stated Mr Yacoub started to be sad and withdrawn after he noticed a decline in his ability and performance. He became nervous, irritable and started to panic. His sleep was disturbed by pain and anxiety and his relationship with family and friends started to suffer. A report in similar terms was also provided to Turner Freeman Lawyers dated 16 September 2017.[16]
[15] AD3 p 108.
[16] AD3 p 113.
Thereafter, Mr Yacoub continued to consult Dr Guirguis complaining variously of neck, right knee or lower back symptoms or psychological symptoms.
In a Centrelink form dated 26 February 2018 Dr Emil Guirguis provided a diagnosis of morbid depression with grave social phobia and certified Mr Yacoub unfit for work until 16 July 2019.[17]
[17] AD3 p 54.
By 14 March 2018 Dr Guirguis described Mr Yacoub as demonstrating a severely depressed mood, with no eye contact, and unable to express his thoughts.[18]
[18] AD3 P 91.
On 29 August 2018 Esther Tang, psychologist noted Mr Yacoub had attended four sessions under a Mental Health Treatment plan but failed to attend further after a request was made for her records.[19]
[19] AD3 p 120.
On 27 May 2019 Mr Yacoub consulted Dr B Teoh, psychiatrist.[20] He diagnosed an adjustment disorder with depressed mood and commenced a trial of Mirtazapine 30mg nocte. On 16 July 2019 Dr Teoh reported an adverse reaction to the Mirtazapine and recommended referral to a psychologist.
[20] AD3 p 119.
On 25 September 2019 he referred Mr Yacoub to Dr Samir Benjamin, psychiatrist.
On 17 September 2019 Dr Emil Guirguis completed a treatment plan.[21] The presenting problem was described as “severe stress, family problems, a lot of tension, cannot concentrate, can’t sleep at night, very worried about the future, lack of energy, low self-esteem”. He recommended he start counselling.
[21] AD3 p 48.
A handwritten note dated 20 August 2020 under the heading Psychoresponse reports Mr Yacoub had been taking 20mg of Escitalopram for two months and he had recently stopped smoking marijuana. On 28 November 2020 it was noted the claimant’s sleep, mood and appetite had been poor.[22] He was described as feeling anxious and nervous when out of his home which was his comfort zone. The subsequent update (the date is unclear) reports a relapse in December when he felt isolated again and had stopped talking to people. The claimant was having suicidal thoughts although he had been looking for work. [23]
[22] AD 3 p 146.
[23] AD3 p 147.
On 27 July 2021 Dr Guirguis referred Mr Yacoub to Dr F Absalan, psychiatrist.[24] He provided the following reason for the referral:
“Severe stress, poor memory, can't concentrate, can't sleep at night, very worried about the future, lack of energy, low self-esteem. Needs your kind input in his management”.
Medico-legal reports
Mr Gerard Glancey, psychologist, 15 February 2018
[24] AD3 p 305.
Mr Yacoub was reviewed by Mr Glancey at the request of his solicitor on 8 February 2018.[25]
[25] AD3 p 322.
He reported at the time of the accident Mr Yacoub lived at home with his parents and two younger brothers. He worked as a security guard for 45 to 50 hours per week and was servicing a number of debts together with a car loan. He enjoyed a busy social life with a large group of friends. He attended clubs and hotels and enjoyed his first overseas vacation to Thailand in June 2016.
Mr Glancey described a decline in Mr Yacoub’s emotional disturbance over time. He reportedly became anxious, worried and depressed. He had gradually withdrawn from social contact with former friends. He became reclusive within the family unit and spent much time alone in his room where he watched television or played computer games online. He described dark thoughts associated with depression and increasing irritability. He felt tired all the time and frequently slept during the day. He had gained significant weight.
Mr Yacoub reported following the accident he could not return to security work due to his back pain. He subsequently undertook data entry work for three or four months. He said it caused an exacerbation of lower back pain, a stiff neck and numbness in his thighs. He resigned the employment.
Mr Yacoub also described anxiety associated with somatic symptoms such as sweaty hands, rapid heartbeat and difficulty breathing. He reported he was diligent in showering and his mother prepared his meals and washed his clothes.
Mr Glancey diagnosed a major depressive disorder together with adjustment disorder with anxiety. He recommended urgent psychiatric/psychological treatment. He assessed a 15% WPI.
Dr Sikander N Khan, consultant surgeon, 3 April 2018
Dr Khan assessed Mr Yacoub at the request of his solicitor.[26] Whilst he was focused on the physical injuries sustained in the accident, he also concluded Mr Yacoub had developed psychological sequelae and had become anxious and depressed.
[26] AD3, p 334.
Certificate of Medical Assessor Mason
Medical Assessor Mason assessed Mr Yacoub on 20 April 2018 and issued a certificate dated 27 April 2018.
Assessor Mason addressed Mr Yacoub’s pre-accident functioning as follows:
“I was satisfied that Mr Yacoub was not psychiatrically ill prior to the subject motor accident. He was working between 40 and 70 hours per week as a private security officer. He told me he had obtained promotion shortly prior to the motor accident. He said he was meticulous about his self-care and personal hygiene; he wore a uniform at work and always made sure he was well presented. He was socially active with a large group of friends. His ability to travel using all forms of transport was unimpaired. His social functioning was intact; he got along well with family members and friends. Concentration, persistence and pace was unimpaired as evidenced by his ability to work. Adaptation was also unimpaired in that he was working full time and contributing to the household”.
Assessor Mason concluded Mr Yacoub was significantly under treated and expressed the following opinion as to causation:
“As a consequence of the accident and not being able to work he was unable to service his significant debts, the major one being $70,000 owing on a car. Eventually the car was repossessed. Mr Yacoub basically retreated to his bedroom and really has not emerged over the last two years apart from keeping a commitment to go on a holiday with friends to Thailand one month after the accident, and to work for two or three months at data entry for 20 hours per week.
He developed significant anxiety symptoms, including panic attacks, which have rendered him virtually agoraphobic. In addition, he has become depressed and has had recurrent suicidal ideation. While he is depressed, I do not believe he meets the DSM-5 criteria for a diagnosis of Major Depressive Disorder. I believe the nature of his depression is far more reactive in nature and is largely due to shame and loss of face due to his physical and economic impairments. I am satisfied his psychiatric conditions are substantially due to the subject motor accident”.
Assessor Mason concluded Mr Yacoub had not reached maximum medical improvement and declined to undertake an assessment of permanent impairment. He concluded the claimant was suffering from the following injuries caused by the accident:
· adjustment disorder with depressed mood;
· panic disorder, and
· agoraphobia.
Whilst Assessor Mason noted the past history of depression and anxiety following the 2007 accident, he concluded Mr Yacoub had made a satisfactory recovery and did not suffer from a psychiatric condition at the time of the accident.
Certificate of Medical Assessor Jager
Medical Assessor Jager assessed Mr Yacoub on 22 February 2019 and issued a certificate dated 25 February 2019.[27]
[27] AD3 p 150.
Assessor Jager provided the following assessment under the Permanent Impairment Rating Scale (PIRS):
| Category | Class | Reason for Decision | |
| 1. | Self-care and Personal Hygiene | 2 | He mainly stays in his room dressed in only underpants, singlet and socks but showers daily. His mother shaves his head, and he shaves his beard. He cuts his own nails. I note Assessor Mason’s description of his self-care which was much the same as how the claimant described his current level of self care and that Assessor Mason determined that his impairment was mild. His impairment remains mild and is not moderate because, even though he receives regular support, it is my clinical assessment that he could live independently without such support but elects not to. He prefers to stay in his room but does wear fresh underclothes and sock and attends to his own shaving and nail cutting. His functional ability in self-care is therefore mildly impaired rather than moderately impaired. |
| 2. | Social and Recreational Activities | 3 | He spends 90% of his time in his room. He ceased interacting on social media last year except for rare occasions. He did this because he is “trying to stop using technology to better myself”. He sees his brother’s group of friends and joins then occasionally for things such as a birthday celebration recently. He used to go out most nights before the accident. |
| 3. | Travel | 2 | He can drive but allows others to drive him around instead of going independently. |
| 4. | Social Functioning | 2 | He gets on well with his mother and brothers and his father and has retained one friend but lost contact with all his workmates. |
| 5. | Concentration, Persistence and Pace | 2 | He has trouble concentrating and has to rewind movies when watching them and can read for no more than a page at a time. At interview, he was alert and attended well to the interview. Such attention to the interview and to his ability to focus on YouTube indicated his concentration is less than moderately impaired. |
| 6. | Adaptation | 2 | He was able to function OK on his data entry job because he was able to have five- and ten-minute breaks as required. His work capacity is limited by his physical that than emotional symptoms. His overall ability to work is limited to half time and part of his impairment is due to physical limitations. The component therefore attributable to his psychiatric state is mild. |
He found the following injuries caused by the accident gave rise to a permanent impairment which was not greater than 10%:
· Major Depressive Disorder with Anxiety, and
· Somatic Symptoms Disorder.
The matter was thereafter referred for further assessment on the basis of a deterioration of the injuries previously assessed and on the basis of additional relevant information. It was this application which resulted in the assessment by Medical Assessor Samuell the subject of this dispute.
Dr Trevor N Lotz, 21 August 2020
Mr Yacoub was assessed by Dr Lotz by telehealth.[28] Mr Yacoub reported he received psychiatric assistance but recovered fully from the earlier accident.
[28] AD3 p 25.
Dr Lotz reported before the accident he was outgoing, social, fun loving and “game for anything” whereas he was now a burden or an inconvenience.
Dr Lotz reported Mr Yacoub lost his employment as a casual security guard with ASIM when he was not cleared fit for full duties due to his residual physical injuries from the accident. He undertook casual data entry work with Medlab Pathology from March 2017 to June 2017. He has not worked since. Mr Yacoub stated he could not return to employment because he had lost confidence and was anxious amongst people including co-workers.
Dr Lotz reported Mr Yacoub no longer engaged in his previous hobbies or activities, his mood was labile ranging from sad and tearful to irritable and intolerant. He described a reclusive lifestyle, tending to stay in his own room.
Dr Lotz noted Mr Yacoub “was struggling with cognitive features, social anxiety, irritability and a sense of worthless and helplessness leading to some suicidal ideation”. Mr Yacoub was seeing his psychologist and taking Escitalopram prescribed by his general practitioner.
Dr Lotz diagnosed an adjustment disorder and assessed a 17% WPI. He provided the following PIRS ratings:
| Category | Class | Reason for Decision | |
| 1. | Self-care and Personal Hygiene | 2 | Relies on his family to cook, shop and do the housework but no deterioration in self-care and personal hygiene. |
| 2. | Social and Recreational Activities | 3 | Avoids all social interactions, stays at home, feels uncomfortable in public places. |
| 3. | Travel | 2 | Has noted some anxiety on crowded roads but generally can manage independently. |
| 4. | Social Functioning | 3 | Is irritable, intolerant often snapping at members of his family. |
| 5. | Concentration, Persistence and Pace | 3 | Has to write things down, due to his forgetfulness, is unable to concentrate on computer gaming or at work. |
| 6. | Adaptation | 3 | Would be restricted in considering employment. |
Dr Lotz did not consider there was any pre-existing impairment.
Dr Thomas Wilmot, 16 April 2018
Dr Wilmot assessed Mr Yacoub at the request of the insurer and provided a report dated 16 April 2018.[29] He diagnosed a somatic symptom disorder. He stated:
“He is also unable to articulate his feelings. Mr Yacoub articulates his discomfort, by way of articulating his physical pain. In my opinion, Mr Yacoub suffers from alexithymia. In alexithymia, the experience of pain is not understood as that of psychic pain; it is experienced as that of physical pain”.
[29] AD5 page reference?
Dr Wilmot concluded Mr Yacoub required the development of a psychological state of mind where he wanted to pursue an exploration of his own mind. However, he felt an ineffective treatment would result in a poor prognosis and that Mr Yacoub was likely to develop an opioid addiction without much benefit. On the other hand, he felt appropriate psychotherapeutic help could turn Mr Yacoub’s future around.
Dr Thomas Wilmot, 29 June 2020
Mr Yacoub was re-assessed by Dr Wilmot.[30] Dr Wilmot provided the following background statement:
“When I saw Mr Yacoub in April 2018, in my summary I’d stated that this obese young man who had gained 20 kilograms in the two years since the accident had an incapacity to report the narrative of his accident…...The consequence of his incapacity, pain and unavailability to work has made Mr Yacoub feel extremely ashamed in relation to his own family and the community around him. At the time Mr Yacoub indicated suicidal ideation and confined himself mostly to his room”.
[30] AD3 p 39.
Dr Wilmot reported Mr Yacoub was 30 kilograms lighter than before and looked well. However, he was anxious and tearful and reluctant to talk about his personal feelings and what had happened since the earlier appointment. Dr Wilmot formed the view if the interview was to proceed, he needed to be careful how far he pressed Mr Yacoub about his psychological state. However, he learnt that Mr Yacoub felt his greatest psychological benefit was to smoke marijuana.
Dr Wilmot stated he agreed with Dr Mason that Mr Yacoub did not have any psychiatric illness prior to the accident. He stated Mr Yacoub presented with a significant personality that was dominated by shame. He diagnosed anxiety and depression.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 12 October 2021 in support of the application for review. The submissions, in the main, address the decision required to be made by the Delegate of the President and not the substantive dispute. The insurer argued Assessor Samuell failed to provide reasons for his decision in choosing one class of impairment over another and failed to obtain a history of the claimant’s pre-accident lifestyle to assess the extent of any change following the accident.
The insurer also provided submissions dated 9 December 2020 in response to the application for further assessment. These submissions address the claimant’s assertion that the reports of Dr Wilmot dated 16 April 2018 and 29 June 2020 and the report of Dr Lotz dated 21 August 2020 constitute additional relevant information which was capable of materially affecting the outcome of the assessment. The insurer argued those reports merely represented an alternative opinion to that expressed by Medical Assessor Jager and did not suggest a deterioration of the claimant’s psychiatric injuries.
Claimant’s submissions
The claimant provided submissions dated 27 October 2021 in response to the application for review.[31] Whilst those submissions address the question required to be determined by the Delegate of the President as gatekeeper a number of observations are relevant to the substantive dispute.
[31] AD3 p 1.
The claimant submits that the Guidelines are illustrative only and what is to be assessed is the claimant’s functioning and capacity to function.
In relation to self-care and personal hygiene the claimant submits even if the claimant’s parents cooked for him before the accident, it is irrelevant because the assessment is a measure of whether he has the capacity to do those things now. Even if his mother continues to do the cooking and cleaning, the claimant submits the relevant question is whether he now has the capacity to do so.
The claimant also relies upon the opinion of Dr Wilmot. In his report dated 29 June 2020 he reported the claimant said he had lost a lot of weight by starving himself. The claimant also notes Dr Wilmot stated:
“In my opinion, Mr Yacoub suffers from experience of being a burden to everybody and is very critical of himself for the burden he places on others. The experience of low self-worth continues to contribute to the experience of suicidal thoughts. His capacity to undertake activities is influenced by this low self-esteem and self-accusation”.
In relation to social and recreational activities the claimant notes Assessor Samuell reported he was functioning normally before the accident. Assessor Samuell reported the claimant had felt anxious two days before his assessment when he turned down a request by his friend, notably his last friend, for a walk.
The claimant also relies upon the comment of Dr Wilmot who stated:
“.... the persistence of the experience of shame in Mr Yacoub’s case accounts for much Mr Yacoub’s social withdrawal. Mr Yacoub’s limitation regarding shame will require much psych emotional work that would make the prognosis very poor”.
In respect of travel the claimant argues that whilst he conceded he could drive for up to 30 minutes if he has no choice, he also reported he rarely drives unless he absolutely has to. The claimant reiterates that the criteria set out in Table 13 of the PIRS scale are illustrative only.
In respect of social functioning the claimant submits it is not appropriate to determine the impairment by some ambiguous criteria about the number of times the claimant argues with his friends or family. The claimant submits the report of Dr Wilmot highlights the difficulties the claimant would have in forming relationships by reference to the difficulty the claimant has experienced in forming a trusting relationship with any therapist on account of his underlying “paranoid state”.
In assessing concentration, persistence and pace the claimant submits it is sufficient for an assessor to be satisfied that a claimant was functioning normally before the accident as a baseline for comparison with his current functioning. The claimant submits there is a wealth of evidence as to the claimant’s impairment as a result of the accident.
In assessing adaption, the claimant submits someone who can barely leave his own bedroom does not have the capacity to work at all. The claimant notes in addressing the question of the claimant’s capacity to work in the future Dr Wilmot stated:
“In the years since this accident, Mr Yacoub has had difficulty approaching effective treatment from his psychologist and psychotherapist. He has been unable to begin to talk about those things that matter because they elicit fear and panic within him.”
The claimant also relies upon submissions dated 30 September 2020 in support of the application for a further medical assessment based on a deterioration of the claimant’s functioning and additional material said to have a material effect on the outcome of the assessment. The claimant outlined the evidence said to demonstrate a deterioration in his condition.
It was noted that Dr Lotz found a limited capacity for work due to cognitive difficulties and social avoidance Assessor Jager had found the claimant’s work capacity was limited more by his physical symptoms.
Assessor Jager reported the claimant was alert and attended well to the interview whilst Dr Lotz reported the claimant appeared restless and ill at ease throughout the interview and his mood was dysthymic.
Assessor Jager considered the claimant got on well with his family members whilst Dr Lotz considered the claimant was intolerable, irritable and often snapped at family members.
The treating records of Dr Guirguis show the claimant was put on a trial of Mirtazapine, indicating the severity of his symptoms. The claimant increasingly reported stress/anxiety and depression on consultation with his general practitioner.
The claimant had commenced self medicating with marijuana during 2020.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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.
MEDICAL ASSESSMENT
History
Psychosocial history and pre-accident history
In terms of developmental history, Mr Yacoub was born in Australia and grew up with his parents and his two brothers. There was no childhood trauma. There was a history of truancy and expulsion from school. After Year 11, he went to TAFE.
Mr Yacoub had two car accidents in his life. The first accident in 2007 also involved his mother and two brothers. He developed nightmares and nocturia/enuresis for a time, although these resolved many years before the accident. He said he does not believe that the 2007 accident affected him anymore; whilst he felt traumatised at the time the impact was short lived. He still remembers the accident well. He did not recall having had any specific psychological treatment, and he has subsequently recovered.
He had symptoms of irritable bowel syndrome which he reported was never formally diagnosed.
In terms of his psychological functioning, he ate and showered regularly, and presented himself well at work where he wore uniforms. He had regular social and recreational activities with his friends and estimated having more than five to 10 friends. He went to parties regularly and attended family events. He was independent in unfamiliar environment and able to drive everywhere. He described having good relationships with his friends and family and had no difficulties forming friendships. He was starting to date immediately before the accident.
In terms of employment history, Mr Yacoub had worked at ASIM doing security work for around two years at the time of the accident.
History of the accident
On 16 April 2016, Mr Yacoub was driving on his own. He was going straight when a female driver did a right-hand turn causing a front-end collision with his car. His airbags were deployed. The ambulance came, although he did not go to hospital. His car was subsequently repaired, at a cost of about $20,000.
After the accident, Mr Yacoub recalled trying to get out of his car, but his legs were in pain. He could not open the door. There was smoke from the airbag, and he could not breathe. He did not remember worrying about major injuries or death, saying there was too much adrenaline.
After the accident, Mr Yacoub reported ongoing neck and back problems. He stated the pain is there most of the time. He has never had physiotherapy because he was told physiotherapy would make the pain worse. He reported the pain tends to affect his sleep and can radiate down both legs. He has not had surgical treatment.
He remembered he did data entry work, but after two shifts the pain became significantly worse because he had to sit for five hours.
In terms of Mr Yacoub's current physical tolerance, he said he can do things, but the more he does the more he will “pay a price” later. He thinks he can walk about half an hour every day without causing a major aggravation of his pain. He does not know how much he can lift. Mr Yacoub can sit for 15 minutes before the back pain becomes significant. When standing, he said he suffers back pain almost immediately.
History of symptoms and treatment following the accident
Mr Yacoub described the onset of anxiety and depressive symptoms after the accident.
He reported he started using substances initially to help with his anxiety, but over time he realised it was making his anxiety worse and he found it hard to control himself.
He reported having tried cannabis initially in 2018, and that cannabis has become a more significant problem over time. He found it hard to estimate his substance use but said he has become addicted to cannabis. In recent months he has smoked cannabis every day, typically three to four cones.
He reported drinking alcohol excessively and this might be a few shots of whiskey every second day, often mixed with cannabis, he said to “keep the buzz high”. He said he finds it hard to go out unless he feels a bit high and under the influence of a substance.
He does not abuse benzodiazepines or other substances.
He said he was abusing Endone, an opioid, for a while. He had surgery to remove gynecomastia in December 2021 and was prescribed Endone. He started going to different doctors to get Endone, even though he knew he should not. In the last four months he has stopped using Endone, because he recognised, he was addicted to it.
In the context of substance use, Mr Yacoub described a number of unusual experiences, for example, hearing the doorbell ring for a few hours when it did not ring. He said he has had a few manic episodes, and by this he meant he would start laughing and crying and not sleep for two days. This had not happened before the accident.
Details of any relevant injuries or conditions sustained since the accident
Mr Yacoub has not had further car accidents or sustained other psychological injuries.
In 2017 Dr Guirguis recorded “stress, family problems”. Mr Yacoub reported he started clashing with his family after the accident when he could not work and could not financially support them. He said that is not the main issue; there are no other issues in the family. He said he has ongoing clashes with his family because he gets angry easily.
Current symptoms
Mr Yacoub does not feel good about himself. He said he was almost 30 years old, and “not in my youth”, and he feels “beaten by his mental health every day”. He has suicidal thoughts, feels depressed and sad, and said “this is not a life.”
In the last five years, Mr Yacoub said he has not improved overall. He reported anxiety attacks occur at random, especially when he is out or when he is near crowds.
Mr Yacoub described variable appetite and significant weight changes in short periods of time.
He reported sleep problems and waking up with a “choking” sensation or panic attacks, thinking he was going to die. He has random nightmares.
He reported having depressed variable mood and reduced enjoyment following the accident.
He reported having problems with his memory and concentration.
He has low self-esteem.
He has panic attacks. He avoids social situations due to his anxieties.
He has been irritable.
He has suicidal thoughts, and has attempted suicide numerous times, including two weeks ago. He was angry and took an overdose.
Sometimes Mr Yacoub has the urge to hurt people at random and not anyone specifically. This did not happen before the accident.
Mr Yacoub denied being physically aggressive to, or having harmed, anyone.
Current and proposed treatment
He recalled he has seen many psychologists and psychiatrists and taken lots of pills. He could not recall the names.
During 2020, he was taking Abilify 5mg, Nortriptyline 25mg, and Escitalopram 20mg. He then consulted a psychiatrist Dr Nishant Wankhede at the Hills Clinic, who asked him to stop all psychiatric medications and told him that he suffered borderline personality disorder and he should attend a Dialectical Behavioural Therapy program at the clinic. Mr Yacoub did not relate well to Dr Wankhede and did not return for further treatment.
The last time Mr Yacoub saw a psychologist was Amanda (he was unable to recall her full name) in Merrylands for about 10 sessions in 2021.
He is not having psychological/psychiatric treatment currently.
Mr Yacoub has never had a psychiatric admission.
He said he does not intend to follow through with psychiatric treatment or Dialectical Behavioural Therapy, have addiction management, or restart previous psychotropic medications.
Clinical examination
Mental state examination
Mr Yacoub was assessed by video link by Assessor Hong who was in his Sydney rooms. Assessor Jones was also present by audio link from his Sydney rooms. Mr Yacoub was alone, although his parents and brothers were also at home during the assessment.
Mr Yacoub had a shaved head and a full beard. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He smiled and laughed briefly, and at times he was almost crying. He spoke spontaneously and was not thought disordered. He remained focussed during the assessment and was not distracted and did not perseverate.
Current functioning
Mr Yacoub is a 27-year-old living with his parents, two brothers, and two uncles.
He said he would drive on his own when under the influence of a substance, even though he knows he should not. He can drive for maybe 30 minutes, and he can drive on highways, but he prefers not to because of his anxiety, and because it is too noisy on the highway. He does not use public transportation.
At the time of the accident, Mr Yacoub said he had just started to date a girl, but that relation did not continue. He then dated another person briefly and that relationship also failed. In the last two years he has been in the same relationship, but they have separated maybe 10 times already, although they are recently back together again.
He tends to see his partner two or three times a week although his family does not know about his partner. They get together to talk, sometimes they go out to eat or go to the movies together, for example, to the drive-in cinema in Blacktown. He said his partner is very understanding, but sometimes he breaks up with his partner as he feels he is too much of a burden.
Mr Yacoub has been on an aeroplane twice when he went to Melbourne and Queensland with his partner. He felt a lot of anxiety when he was flying and at the airport, as there were too many people there. He forced himself to go as he was worried that his partner would leave him if he did not go.
Before the accident, Mr Yacoub recalled he had a lot of friends with whom he went out frequently including to parties. He no longer keeps in contact with any friends, except for one person. In the last six months he has only had contact with that one friend maybe two or three times when his friend has visited him at home to talk.
He said he has a poor relationship with his family, with his cousins and aunties. He avoids going to family functions. The last time he went to a function was a wedding, either in 2020 or 2021.
Mr Yacoub said he has become lazy with his self-care. He goes three or four days without showering or brushing his teeth. His brother checks on him and shaves his head and tells him when he smells. Before Mr Yacoub goes out to see his partner, he makes sure he showers and brushes his teeth.
He reported he started having problems with his weight after the accident. His weight fluctuates a lot. He can put on 20kg within two months, and a similar pattern has been occurring in the last few years. He was 92kg in early March 2022 and he is now 103kg. He said he wakes up at 5 o’clock in the morning and eats, and may eat all day, but some days he skips meals as he has no appetite. He mostly eats food already available at home. Sometimes, he orders take-away food and he said he eats a lot of chips.
He does not do housework. He has never been one to cook. He tends to do shopping online, such as buying shower gel and shoes. His mother pays his phone bill.
His psychologist asked him to read books, so he bought a book but did not start to read it.
He was playing a lot of computer games, but this has reduced. Recently, he has played one game each week, which takes about 40 minutes. He plays Counter-Strike online, either by himself or with one friend.
In the daytime he sleeps, or spends all of his time on the phone, browsing or watching TikTok. He avoids going downstairs where the rest of family are or going out with the family.
In terms of employment since the accident, Mr Yacoub reported he undertook data entry work briefly in about 2017 or 2018 for Medlab Pathology. He has not worked since. He is in receipt of the JobSeeker Payment.
In the past few years, he has completed a few courses online. There were no certificates from these studies.
Comments on consistency
There was no inconsistency identified.
PANEL DECISION
Diagnosis
The panel determined Mr Yacoub has developed an adjustment disorder and substance use disorder.
Mr Yacoub's psychological symptoms have fluctuated over time, and he described problems with different substances over time. As his overall psychiatric functioning has been static for more than 12 months, the Panel considered maximum medical improvement to have been reached and his WPI is assessable.
In reference to the DSM-5 diagnostic criteria for an adjustment disorder:
Criterion A: Mr Yacoub developed emotional and behavioural symptoms in response to identifiable stressors, occurring within 3 months of the onset of the stressor. These symptoms include anxiety and depressive symptoms, panic attacks and irritability.
Criterion B: His psychological symptoms are clinically significant, as evidenced by significant impairment in his social and occupational functioning.
Criterion C: This is not merely an exacerbation of an underlying condition and does not meet criterion for another disorder.
Criterion D: Mr Yacoub's symptoms do not represent normal bereavement reaction
Criterion E: Once the stressor and its consequence is terminated, his symptoms are expected to resolve within 6 months. His psychological symptoms have not resolved after 6 months, as his physical injuries and chronic pain arising from the accident perpetrate his psychological distress.
In reference to DSM-5 diagnostic criteria for substance use disorder (alcohol and cannabis), Mr Yacoub confirmed:
· Taking substances in larger amounts for longer than intended and in ways that are not medically recommended.
· Spending a lot of time getting, using, or recovering from the use of substances.
· Not managing to function because of substance use.
· Continuing to use a substance, even when it causes problems/concerns in his relationships.
· Continuing to use, even though Mr Yacoub knows there has been physiological, cognitive and social problems that could be caused or made worse by substance use.
· Driving under the influence of a substance, even though he knows this places him at risk on the road.
In terms of other DSM-5 diagnoses:
· He does not have pervasive depressed mood or a significant loss of enjoyment in almost all activities, as seen in major depressive disorder.
· He does not have post-traumatic stress disorder, as he did not experience the type of emotion (e.g. fear and horror) seen in criterion A events. He also has not developed persistent mood symptoms.
· He has somatic symptoms of anxiety, however the Panel has not diagnosed a somatic symptom disorder with predominate pain as his somatic symptoms are now masked by his substance use and cannot be isolated as a separate condition.
Causation and reasons
The Panel carefully reviewed the documentation regarding the following injuries which were referred to Assessor Samuell.
· psychiatric condition - Psychological injury -anxiety, depression, somatic symptom disorder, adjustment disorder, major depressive disorder.
The Panel noted Mr Yacoub's medical file, the independent medical examination reports and the history he provided during the assessment.
Mr Yacoub had a past psychiatric injury which had resolved, and he described having good functioning in all areas of his life before the accident. He was not having treatment and did not have abnormal anxiety and depressive symptoms before the accident.
His current anxiety and depressive symptoms developed shortly after the accident. There has been no remission at any time after the accident. He then developed a substance use disorder as a result of his anxiety and depressive symptoms.
The Panel has considered possible contributing factors, and there are no other factors identified. There have been no major life events, such as a death in the family, subsequent car accidents or major health issues after the accident. Therefore, the accident is a major causal factor contributing to his current psychological injury.
Degree of permanent impairment – PIRS
Current PIRS
| Psychiatric diagnoses | 1. Adjustment disorder | 2. Substance use disorder |
| 3. | 4. | |
| Psychiatric treatment description | Antidepressant medications Psychiatrists Psychologists No current treatment | |
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene (current)
2
Mr Yacoub reported neglecting his self-care. He said he does not shower regularly but would shower before going out with his partner. He has an irregular eating pattern; at times he skips meals and at other times eats all day. His weight has fluctuated significantly over time. He can make online purchases and order takeaway food.
He is capable of independent living without regular support.
2. Social and Recreational Activities
3
He used to have an active social life and went out with his friends regularly.
He stopped attending family events and social gatherings and does not attend parties.
He can tolerate one-on-one social contact, including his partner and one other friend, but separately.
3. Travel
2
Mr Yacoub is anxious and tends to avoid crowded places.
He is independent in travel around the familiar local area.
4. Social Functioning
3
Mr Yacoub's relationship with his partner is strained and they have separated 10 times. He had another failed relationship after the accident.
He is anxious and socially avoidant, and no longer has contact with some of his friends.
He is able to maintain one long-term friendship.
The relationship with his general family is strained and he avoids activities with them. He starts arguments and is irritable.
5. Concentration, Persistence and Pace
2
Mr Yacoub described impaired concentration and memory. He completed short courses online. He plays online games, usually 40 minutes each game.
6. Adaptation
5
Mr Yacoub could not return to security work as there were no light duties. He attempted data entry for 1 month and could not continue in that role.
He has no work capacity as he is too anxious, he is often under the influence of substances, and he has intermittent thoughts of harming others.
List classes in ascending order: 222 335
Median Class Value: 3
Aggregate Score: 17
% Whole Person Impairment: 19 %
*%WPI = Percentage Whole Person Impairment
Pre-existing/subsequent impairment
Mr Yacoub has not sustained a subsequent injury.
Mr Yacoub had no pre-existing impairment.
Apportionment
There is insufficient evidence for any adjustment for pre-existing or subsequent impairment.
Effects of treatment
Mr Yacoub has not gained significant improvement in his symptoms or psychological functioning with treatment and is not currently having treatment.
Member Susan McTegg on behalf of the Review Panel
Personal Injury Commission
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