Insurance Australia Limited t/as NRMA Insurance v Zammit
[2025] NSWPICMP 44
•22 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Zammit [2025] NSWPICMP 44 |
CLAIMANT: | Steve Angelo Zammit |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Samson Roberts |
MEDICAL ASSESSOR: | Gerald Chew |
DATE OF DECISION: | 22 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI) dispute; claimant has a past history of spinal complaints following two prior motor vehicle accidents; claimant continued to experience neck pain, in the period leading up to the subject accident; insurer wholly admitted liability for the claim; Medical Assessor Suman found post-traumatic stress disorder (PTSD) and 17% WPI utilising the psychiatric impairment rating scale; Review Panel found Persistent Response to Trauma with PTSD-like symptoms and Persistent Depressive Disorder with Persistent Major Depressive Episode; Review Panel assesses 19% WPI with slightly higher rating for Adaptation; Held – certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 1. The Review Panel revokes the certificate issued on 13 November 2022 and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 19% and is greater than 10%: · persistent response to trauma with post-traumatic stress disorder like symptoms with accordance with the criteria stipulated in DSM 5 – TR, and · persistent depressive disorder with persistent major depressive episode. |
STATEMENT OF REASONS
INTRODUCTION
Steve Angelo Zammit (the claimant) has a past history of spinal complaints following two prior motor vehicle accidents in June and July 2016. In both accidents, his car was hit from behind. Although his thoracic and lower back pain largely has settled, the claimant continued to experience neck pain, in the period leading up to the subject accident. There were also occasional sensory symptoms in his right hand. He continued to work as a general manager of a power equipment company and was actively involved with a soccer club.
The subject motor accident occurred on 19 October 2018 at Tuggerah (the accident). The claimant was the unaccompanied seat-belted driver of a Hyundai Tuscon SUV on Wyong Road. His vehicle was struck from behind by the insured vehicle. The accident occurred at exactly at the same spot as the first accident in which he had been involved in 2016. The claimant believes the traffic was moving slowly whilst approaching a traffic light or around about.
The claimant recalls being thrown backwards and forwards in his seatbelt. He does not know the speed at which the insured vehicle was travelling. He recalls immediate pain in his left hip and the driver of the insured vehicle coming into his door. The claimant was able to exit the car. No airbags deployed. He does not believe he lost consciousness. Having exchanged details, the other driver left the scene, her car apparently having sustained little damage. As his own car was drivable, the claimant drove to a local general practitioner. The insurer wholly admitted liability for the claim.
As well as pain in his left hip, the claimant was aware of increased discomfort in his neck. His general practitioner prescribed medication and organised some investigations which revealed some damage in his lower back. The claimant self-funded physiotherapy which was then approved by the insurer for about six months.
NRMA (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer admitted liability for the claim.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2 s 2(a) of the MAI Act, the claimant was referred for assessment by Medical Assessor Aman Suman, who certified as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 17% and is greater than 10%:
· post-traumatic stress disorder as per DSM-5 diagnostic criteria.
Medical Assessor Suman made no apportionment for pre-existing or subsequent impairment and no adjustment for treatment effects.
Medical Assessor Suman agreed with Medical Assessor Allan that the claimant’s presentations/symptoms satisfied the criteria of post-traumatic stress disorder with depressed mood as per DSM-5 diagnostic criteria. He was satisfied that “it was a traumatic and serious accident, as per his personal experience.” The claimant’s perception of the accident, “I felt I was cursed”, made the trauma worse for him. That comment references the fact that the accident occurred at the exact same spot as a previous motor accident.
THE REVIEW
The insurer sought a review of Medical Assessor Suman’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects. The insurer brought the application within the time prescribed by s 7.26(10) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer submitted that Medical Assessor Suman erred in his assessment of whole person impairment (WPI) for the following reasons:
(a) the Medical Assessor failed to review and consider all of the medical evidence lodged by the parties with the medical dispute application, and this failure led to incorrect findings with regards to diagnosis, causation and the assessment of WPI;
(b) the Medical Assessor failed to identify a large number of inconsistencies and bring those inconsistencies to the claimant’s attention to allow him an opportunity to respond;
(c) the Medical Assessor accepted incorrect factual matters in making his determination with regards to diagnosis, causation and the assessment of WPI;
(d) the Medical Assessor failed to adequately address Criteria A of the DSM-5 Diagnostic Criteria for post-traumatic stress disorder;
(e) the Medical Assessor failed to address relevant material relating to the assessment of WPI in his path of reasoning, and
(f) the Medical Assessor failed to deduct the claimant’s pre-existing psychiatric impairment from the current impairment rating.
The insurer submitted that Medical Assessor Suman’s assessment was incorrect in a material respect.
In relation to the finding of post-traumatic stress disorder, the insurer noted that Criteria A of the DSM-5 Diagnostic Criteria for post-traumatic stress disorder provides that an individual must have exposure to actual or threatened death, serious injury, or sexual violence in one or more ways, one off which is directly experiencing the traumatic event. The insurer submitted that the Medical Assessor did not adequately address whether the accident resulted in the claimant being exposed to actual or threatened death or serious injury. The insurer further submitted that the documentary evidence regarding the severity of the collision could not possibly result in a finding that the claimant was exposed to actual or threatened death or serious injury. The insurer concluded that the Medical Assessor’s alleged failure to adequately address Criteria A of DSM-5 Diagnostic Criteria for post-traumatic stress disorder led to a material error.
The insurer’s application for review was opposed by the claimant. The claimant disputed each and all of the bases advanced by the insurer in support of its review application. The claimant submitted that the medical evidence confirmed the claimant’s psychological symptoms, arising from the previous motor accident in 2016, had fully resolved. The claimant submitted that Medical Assessor Suman correctly interpreted and addressed Criteria A of the Diagnostic Criteria for post-traumatic stress disorder and made his diagnosis by relying on his clinical judgment and experience. The claimant noted that the conclusions of Medical Assessor Suman and Medical Assessor Allan were similar. The claimant maintained that the diagnosis of post-traumatic stress disorder was correct as was the calculation of WPI. The claimant concluded that the Certificate does not contain any demonstrable error in that the assessment was not based on incorrect criteria.
President’s delegate Tami O’Carroll issued a Determination of an Application for Review of a Medical Assessment on 2 February 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. Accordingly, the review application was accepted and was referred to the Panel.
The President’s delegate noted there was particular controversy regarding whether the claimant satisfied Criteria A of the DSM-4 Diagnostic Criteria for post-traumatic stress disorder. The President’s delegate quotes the following passage from the Certificate:
“…was involved in a road traffic accident in October 2018. It was a traumatic and serious accident, as per his personal experience.” The claimant’s perception of the accident, “I felt I was cursed”, made the trauma worse for him.
The President’s delegate then stated as follows:
“It is not apparent from the above, or the Certificate read as a whole, how the assessor formed the opinion that the accident resulted in the claimant being exposed to actual or threatened death or serious injury.”
For that reason, the President’s delegate was satisfied there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The Panel considered that it would be assisted by the provision of the following additional material:
(a) clinical records of Dr Ben Teoh, consultant psychiatrist, from 2013 onwards;
(b) clinical records of the current treating psychiatrist, Dr Sean Yenson, since
May 2022 to date;(c) clinical records of the treating psychologist, Julio Urquia and Kate Huynh, to the extent not already provided;
(d) clinical records of all treating general practitioners, since 2016 to date, to the extent not already provided;
(e) any MAS Certificate(s) relating to any injuries or psychiatric/psychological conditions arising from the 2016 motor accident, and
(f) any clinical records relating to psychological/psychiatric treatment provided to the claimant following the 2016 motor accidents, apart from the Psychological Management Plan prepared by Dr Dung Vu, noting that the claimant says that he suffered from anxiety, stress and adjustment disorder, following those accidents.
Most of that material was provided.
OTHER ASSESSMENTS
Medical Assessor Ian Meakin certified that the claimant suffered injuries in the motor accident on 5 July 2016 which gave rise to 5% WPI for the cervical spine.
Medical Assessor James Bodel certified on 3 January 2020 that the claimant suffered soft tissue injuries to his neck, both shoulders, back and both legs in the accident. Medical Assessor Bodel also found that the claimant sustained progression of his C5/C6 discal injury which is non-minor for the purposes of the Act.
Medical Assessor Martin Allan certified on 28 November 2019 that the claimant suffered post-traumatic stress disorder caused by the motor accident which is not a minor injury for the purposes of the Act. Medical Assessor Allan stated as follows:
“The claimant described experiencing significant shock in the context of the accident in October 2018 and developed a high level of concern in that instant that he was going to be severely injured. On balance, in my opinion, the claimant could have believed that that time that he was likely to suffer from serious injury. Overall, I do believe the clinical picture is consistent therefore with him meeting Criteria A for Post-Traumatic Stress Disorder and therefore having a non-minor condition in post-traumatic stress disorder developed as a result of the 2018 accident.”
Medical Assessor Allan found that the claimant’s post-traumatic stress disorder had not resolved.
Medical Assessor Alan Home certified on 18 September 2022 that the accident caused soft tissue injuries to the claimant’s cervical, thoracic and lumbar spine, causing 0% WPI. Medical Assessor Home also certified that injuries to the claimant’s left hand and left leg were not caused by the motor accident.
None of the certificates by Medical Assessors Allan, Bodel and Home are the subject of the present review.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological 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 factored could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factored did caused or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
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.
In Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956[5], his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This require, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2)a review of all relevant records available at the assessment;
(3)a comprehensive description of the injured person’s current symptoms;
(4)a careful and thorough physical examination;
(5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Claimant’s written submissions dated 14 January 2023 in response to insurer’s review application (previously summarised).
(b) Report dated 5 June 2020 by Dr Ben Teoh, consultant psychiatrist, to the claimant’s lawyers.
Dr Teoh opined that the claimant’s presentation was consistent with a diagnosis of generalised anxiety disorder (DSM-5 Diagnostic Criteria). As to the disabilities and impairments, Dr Teoh stated as follows:
“He reported significant anxiety symptoms with hypervigilance and agitation. He has avoidant behaviour and has intrusive memories of the accident. He has not been able to do activities that he used to enjoy, including coaching soccer. He has managed to return to work, but he has been worrying about his future and physical condition.”
Dr Teoh stated that the claimant’s psychiatric condition is caused by the motor accident, which resulted in psychological trauma and physical injury, with pain and disability. Dr Teoh states that the claimant did not report a pre-existing psychiatric condition. He had a motor vehicle accident in 2016 which caused physical injury.
Dr Teoh says that the subject accident resulted in chronic post-traumatic stress disorder which caused a need for treatment. Dr Teoh opined that the claimant’s condition had stabilised and assessed 15% WPI. He made no adjustment for pre-existing or subsequent impairments nor treatment effects.
(c) Letter dated 9 May 2022 from Dr Sean Yenson, consultant psychiatrist, to the claimant’s treating general practitioner. Dr Yenson reported as follows:
“I have seen Steve Zammit for the first time today. He previously saw Dr Selwyn Smith for a number of years.
I can confirm that Steve suffers from post-traumatic stress disorder, major depression and chronic pain disorder.
His only multiple medications including Endep and Valdoxan as well as Ativan.
He should continue to see his current clinicians including his psychologist, Gulio Urquia.
Please let me know if you require any additional information.”
(d) Report dated 24 February 2021 by Dr Selwyn Smith, consultant psychiatrist, to
Dr Tom Lieng:Dr Smith notes that the claimant had been involved in three accidents that occurred on 17 June 2016, 5 July 2016 and 19 October 2018. Dr Smith states as follows:
“Steve has experienced physical symptomatologies arising from the disc lesion he has developed. He has experienced a persistent and chronic pain with marked restrictions on his movement. He has also experienced sleep impairments because of chronic pain. He has continued to ruminate about the accident and has developed a marked degree of fear of further harm befalling himself. He is apprehensive when in a vehicle. He experiences dissociative flashback episodes. His mood has been depressed, sad and unhappy. His concentration has also been reduced.”
Dr Smith does not specify what is “the accident” to which he refers. Dr Smith refers to a report by Dr Martin Allan, dated 28 November 2019, with which he concurs. Dr Smith opines that the claimant does demonstrate diagnostic criteria for a post-traumatic stress disorder.
(e) Report dated 9 March 2022 by Ms Julio Urquia, psychologist.
Ms Urquia states that the claimant has been attending psychology sessions with her since March 2021. She then records a Brief History, a summary of the claimant’s presentation and recommendations for further treatment. Ms Urquia states that the claimant presents with symptoms consistent to that of post-traumatic stress disorder and major depressive disorder. Ms Urquia opines that an additional fortnight of treatment at a minimum would be helpful. Ms Urquia makes no reference to the pre-accident history.
(f) Report dated 5 June 2020 by Dr Ben Teoh, consultant psychiatrist, to Allianz Compensation and Litigation Lawyers (see summary below).
(g) Impairment assessment dated 5 June 2020 by Dr Ben Teoh (see summary below).
(h) Clinical notes from Complete Allied Health Care.
(i) Clinical notes from Dr Kate Huynh, psychologist.
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s reply submissions dated 15 October 2024 (previously summarised).
(b) Application for Personal Injury Benefits dated 29 August 2023.
(c) Certificate of Capacity dated 29 August 2023.
(d) Consultation notes of Dr Avni Garg dated 2 November 2023.
(e) Referral of Dr Peter Lam dated 30 April 2024.
(f) Letter from Allianz dated 22 September 2023 re liability for payment of benefits up to 52 weeks.
(g) Return to work and recovery assessment report dated 3 November 2023.
(h) Vocational Assessment Report dated 7 February 2024.
(i) Labour Market Analysis Report dated 11 March 2024.
(j) Allianz CTP monthly progress report dated 20 March 2024.
(k) Clinical records of Lane Cove General Practice variously dated.
(l) Hospital records of Royal North Shore Hospital variously dated.
(m) Email correspondence between Greenlight and Allianz Insurance variously dated.
(n) Clinical records of Sarif Physiotherapy variously dated.
(o) Updated clinical notes from Dr Sean Yenson as at 17 April 2024.
(p) Updated clinical records of Elizabeth Drive Medical Centre as at
27 September 2024.Most of the insurer’s material was not relevant to the Review Panel’s consideration.
The Review Panel notes that neither party relied upon the report by Dr Martin Allan to which Dr Selwyn Smith refers.
EXAMINATION REPORT
The report of Medical Assessor Samson Roberts is as follows:
“Psychosocial history and pre-accident history
Mr Zammit is a 57-year-old man. He and his current partner have been in a relationship for nine years. He was previously married for 20 years and has a daughter, Katherine, and a son, Thomas, both in their mid to late 20s. He has no grandchildren. He maintains regular contact with his children.
Mr Zammit lives on the Central Coast with his partner. He could not recall when he last worked. He explained that he worked subsequent to the motor vehicle accident undertaking reduced hours during COVID. He worked part time and estimated that he may have done so for a year after the motor accident but he worked from home in the context of COVID restrictions. His partner runs a business. Mr Zammit stated that he has had no income for over a year. He was compelled to sell his home in the context of financial constraint.
Mr Zammit was born in England in 1967. He is the eldest of four brothers. His mother was of English background and his father was of Maltese background and migrated to England in his teens. His father is deceased. Mr Zammit spoke positively of his relationship with his three brothers. He maintains contact with them, albeit to a limited degree.
Mr Zammit was 1 year of age when the family moved to Australia. After his birth, they moved to Malta briefly. He spoke positively of his relationship with his parents. His father was a hard worker and a strict disciplinarian. Mr Zammit stated that he was a physical disciplinarian. Mr Zammit had a Catholic upbringing although his mother was Church of England, only becoming Catholic later in life. He grew up in the Western suburbs of Sydney. He attended Auburn West Primary School and Benedict Senior College. He remained at Benedict Senior College even after the family relocated to Toongabbie. He performed well academically. He had friends and he participated in sport. He completed Year 12 and then went on to study Accounting. He worked in accounts and then his sales manager offered him a role in customer service. He was later promoted to the position of sales representative. He worked in sales and marketing roles before achieving management positions. He has worked for several employers but has only had brief periods of unemployment between positions.
Mr Zammit did not report any previous difficulties in his relationships. He was 23 years of age and his wife was 20 years of age when they married. Their parents had been close friends. Over time, Mr Zammit and his wife grew apart. His wife engaged in “very hurtful behaviour”. Their children were 15 and 18 years of age when they separated.
In terms of medical conditions unrelated to the motor accident, Mr Zammit underwent a cholecystectomy and a vasectomy. He has suffered a couple of fractures. He was bitten by a dog, requiring sutures. He was previously diagnosed with viral pericarditis and he suffered glandular fever in his early 20s. Otherwise he has been generally healthy. He led an active lifestyle and played sport.
Mr Zammit is a non-smoker. He estimated that he drinks no more than a glass of wine per week and he has never been a regular drinker. He did not report ever having used illicit drugs.
1.History of the motor accident
Mr Zammit recalled that the accident of 19 October 2018 occurred at the same location and in the same circumstances as the first accident described above, namely that of 17 June 2016. The driver of the vehicle that collided with the rear of Mr Zammit’s car was on crutches and possibly using a mobile phone. Mr Zammit recalled a “massive bang” and he recalled that he was “shunted and thrown forward”. He recalled getting out of the car and vomiting but otherwise acknowledged a poor memory of events.
Mr Zammit stated that he attended a nearby medical centre. He referred to the photographs of the vehicle contained in the documents provided to the Panel and stated that they do not adequately reflect the nature of the damage, explaining that there was a gash in the metal on the rear of the vehicle and the real tailgate of the SUV that he was driving could not be opened. He stated that there was no warning of an impending accident and he reiterated the noise of the impact.
Mr Zammit stated that following the accident he did not continue on to see his customer as intended. He could not recall what the clinicians at the medical centre did for him but he remembered that on return to Sydney, he pursued further medical treatment.
2.History of symptoms and treatment following the motor accident
Mr Zammit recalled that following the third accident, the subject accident, he became terrified of driving. He felt “cursed”. Dr Liang referred him to a psychologist and physiotherapist at Canley Vale, namely at the same centre that he attended previously. He continues to attend psychological therapy at the centre. His first therapist and his second therapist both left. He is now under the care of Julio Urquia whom he continues to see fortnightly. He also came under the care of a psychiatrist. He initially saw Dr Selwyn Smith but has since come under the care of Dr Sean Yenson whom he continues to see every four to six weeks.
Mr Zammit recalled suffering a sore neck, sore back, sore left shoulder and pins and needles in the fingers of his left hand. He continues to experience neck and shoulder pain and he still sees a massage therapist.
Mr Zammit recalled that he felt terrible from an emotional perspective after the accident. He suffered insomnia and he developed nightmares of car accidents. He experienced flashbacks, reliving loud bangs and reliving motor vehicle accidents in his dreams. During the day he felt very unsettled. With respect to driving, he lost his confidence. He came to wish that he did not have to drive. He became very withdrawn. He recalled that he was not enjoying life. He would simply go through the motions of his obligations but felt moody, tired and lacked motivation. He became introverted.
Mr Zammit recalled that Dr Smith referred him to St John of God Hospital for an assessment and he participated in an outpatient course but the restrictions associated with COVID prevented him from proceeding.
3.Current symptoms
Mr Zammit explained that if he has to drive, “it’s a whole plan for me”. For example, Dr Yenson makes him drive to appointments and Mr Zammit therefore plans his appointments outside peak hour. He also plans to take breaks when he makes trips by car and he plans ahead so he can take Ativan to manage his anxiety when driving. He also counts while driving in order to measure the difference between his vehicle and others. He undertakes to ensure that there is an adequate distance between his car and the car in front and he monitors the distance between his vehicle and any car behind. If he is required to travel on a freeway, he avoids driving with any car alongside him. He seeks to distract himself from the anxiety of travelling in traffic by listening to podcasts and, after any trip by car, he feels exhausted.
Mr Zammit acknowledged that he generally feels impatient, irritable, fatigued, unmotivated, worthless, hopeless and numb. He prefers quiet. He does not like crowds or noise. He enjoys time spent with his dog. He explained that his partner, Linda, hoped owning a dog would help him. He spoke positively of the effect of having a dog.
Mr Zammit reported diminished appetite and weight loss. His sleep remains poor but has improved somewhat since taking Endep. He continues to experience frequent suicidal thoughts but spoke of the protective effect of his faith and the protective effect of the impact that his suicide would have on others. He has discussed his suicidal thoughts with Linda.
Mr Zammit stated that he is readily upset by correspondence about the motor accident and he remains very depressed.
Mr Zammit acknowledged that the second of the three accidents was objectively worse than either the first or the third despite which, after the third accident “something broke” emotionally. He reiterated that he felt cursed as a result of being involved in a further accident in exactly the same circumstances as the first accident. He added that he cannot go anywhere near the location of the subject accident.
4.Current and proposed treatment
Mr Zammit is on Dytrex (duloxetine) 60mg at night. He is on Endep (amitriptyline) 25mg at night. He is also prescribed Ativan of which he takes two 3mg as required. He stated that he took a couple of Ativan prior to the assessment of 13 November 2024 and he may use it if he is required to drive or if he is affected by nightmares. He also takes Mobic, Panadol, Nurofen, Nexium or Mylanta.
Mr Zammit stated that there has been no change to his medication for about a year. He recalled that he was previously on Valdoxan (agomelatine) but became concerned about the prospect of “liver issues” and in this context he requested a change of medication. The Endep was previously prescribed at a higher dose but it made him feel like a “zombie”.
Mr Zammit was asked about reference to having seen Dr Teoh for psychiatric treatment in 2013. He explained that he was going through a lot of marital issues at the time. His ex-wife had engaged in a massive argument with his father and Mr Zammit found himself caught between his wife and his father. His wife was pressuring him to choose between the two. His ex-wife suggested that he talk to his general practitioner who recommended that he see Dr Teoh. Mr Zammit recalled seeing him on two occasions. He recalled speaking to Dr Teoh about issues with his father and about his childhood. After he separated from his wife, his relationship with his father improved. He was not prescribed medication at that time and he was never so compromised as to undermine his ability to maintain his senior role at work. He remained sociable.
Mr Zammit could not recall precisely when he separated from his wife. He recalled that their separation was initially amicable but deteriorated. She was having an affair with his best friend. He did not recall any other periods of mental health input other than the brief period in 2013.
Mr Zammit was asked regarding the two motor vehicle accidents which predate the subject accident.
Mr Zammit was involved in an accident on 17 June 2016. He was driving to the Central Coast to see a customer. On exiting the freeway, an older woman ran into the back of his vehicle. At the time, Mr Zammit was driving slowly. He recalled hitting his head and blacking out for a short period. He acknowledged that he cannot remember the details of the accident. He recalled that his current partner was his girlfriend at the time. He recalled that the car in which the other driver was travelling was a vehicle borrowed from the mechanic who was servicing her car. The mechanic attended the scene and taped Mr Zammit’s rear bumper so that he could drive to his girlfriend’s home.
Mr Zammit could not recall the nature of the medical care received following this accident but stated his belief that he did require some medical care and he was prescribed medication. He did not recall undergoing any radiological assessment. He could not recall whether the accident affected is mental health but he kept working and he “carried on as normal”.
Mr Zammit recalled that the motor accident of 5 July 2016 occurred at Bella Vista. He had left a business meeting. He acknowledged a poor memory of the events and stated that he was reliant on notes pertaining to this accident. He stated that four or five cars were involved. His car was hit from behind and pushed into the vehicle in front. He was stationary at the time of the impact. His car was written off. He acknowledged that this accident was more serious than the first accident. He did not attend hospital. He was taken from the scene by a tow truck driver to the car yard from where his brother picked him up and took him home. He recalled waking the next morning in pain. He underwent x‑rays. He only took one day off work. He saw a physiotherapist and he attended his general practitioner. He stated that he did not require any procedures, injections or surgical intervention.
Mr Zammit recalled that following the second motor vehicle accident, his general practitioner, Dr Liang, suggested that he see a psychologist in Canley Vale. He continued driving and coaching sport. He participated in physiotherapy at the same health centre at which he was seeing the psychologist. He stated that he totally recovered from the effects of the accident. He could not recall the number of psychology sessions in which he participated or over what time. He thought that he attended on a weekly or fortnightly basis and he recalled completing questionnaires during the visits. He did not reduce his work hours following this accident nor did he change his role with respect to soccer coaching.
It was put to Mr Zammit that Dr Zhou’s notes of 8 August 2016 reflect severe anxiety when driving and restricted employment in additional to social withdrawal. Mr Zammit recalled that these restrictions were lifted. He recalled being “guarded” about driving but he did not stop driving or reduce work, coaching or training. He did not recall becoming socially withdrawn other than as a result of physical issues.
Mr Zammit continues to see Dr Sean Yenson, psychiatrist, every four to six weeks. He sees Mr Julio Urquia every two weeks.
As stated above, Mr Zammit sees a massage therapist.
Mr Zammit explained that Dr Liang reviews him monthly. If however he needs to see a doctor for matters unrelated to the motor accident, he attends a medical centre opposite Wyong Hospital.
When asked further regarding the treatment provided to him, Mr Zammit confirmed that despite the apparent severity of his symptoms, it has never been suggested that he should be hospitalised psychiatrically, nor that he should consider transcranial magnetic stimulation (TMS) or electroconvulsive therapy (ECT).
CLINICAL EXAMINATION
5.Mental state examination
As stated above, the assessment was undertaken using audiovisual technology. The quality of the connection was satisfactory. Mr Zammit presented as an adequately groomed man with a full beard. His posture was somewhat rigid throughout the interview. He wore a T-shirt. He exhibited a flat affect and described a pervasively depressed mood. He expressed anxiety, in particular in relation to driving. His account reflected intrusion symptoms relating to motor vehicle accidents. He described his avoidance of driving and his hypervigilance when doing so. He did not report psychotic phenomena.
6.Current functioning
As stated above, Mr Zammit has been in his current relationship for nine years. He spoke positively of his relationship with Linda and of the support provided by her. He acknowledged that his condition has affected her. He reported having lost friends. He spoke of having previously been involved in soccer at a high level. He was technical director of a premier league club and he had a high level licence but he no longer participates in such activities. Although he maintains contact with his children, his account supported the impression that the quality of his relationships has diminished.
Mr Zammit stated that Linda undertakes most of the household tasks. He may go to the local shopping centre with her and occasionally drives to the shops on his own. His lack of motivation to undertake household tasks and his physical limitations undermine his participation despite which he tries to motivate himself to do things. He acknowledged that he has not been showering daily. He tends to forget. He also could not be bothered and Linda encourages him in this area. He struggles to get out of bed and may stay in his pyjamas.
When asked how he spends his days, Mr Zammit replied that he watches television. He aims to go outside daily. The rear garden of the premises in which he and Linda live opens onto a reserve. He takes the dog with him and he sits near a lake in the reserve. He may listen to podcasts and audio books. He listens to the Bible or to autobiographical material, documentaries or crime podcasts. He participates in meditation every day. He rarely has visitors. Linda’s son visits sometimes. Mr Zammit has rare contact with his family living in Sydney.
As stated above, Dr Yenson insists that Mr Zammit drives to appointments and Mr Zammit takes Ativan in order to be able to do so. He does some walking but this varies and depends on how he feels. He goes out most days. He acknowledged having gained weight since the motor accident and, over recent months, he has lost about 20 kilograms. He was not intending to lose weight. Previously, he was comfort eating but recently he has lost his appetite.
Determinations
7.Diagnosis and reasons
Mr Zammit described the advent of prominent trauma symptoms subsequent to the subject motor accident. Specifically, he reported intrusion symptoms, namely nightmares and flashbacks of motor vehicle accidents. He described avoidance behaviour in relation to travel by car and he described hypervigilance. The Panel noted however that the 2018 motor accident was objectively minor. The vehicle sustained modest damage and was drivable. Mr Zammit did not sustain serious physical injuries. On this basis, the Panel found that Criterion A of the diagnostic criteria for Posttraumatic Stress Disorder was not met. However, the Panel determined that Mr Zammit has suffered a significant psychiatric injury. The most appropriate diagnostic formulation was considered to be Persistent Response to Trauma with PTSD-like Symptoms in accordance with the criteria stipulated in DSM-5-TR. Namely, Mr Zammit has experienced symptoms in response to a traumatic event that fall short of the diagnostic threshold for Posttraumatic Stress Disorder and the symptoms have persisted for longer than six months.
The Panel considered the potential influence of the prior motor vehicle accidents. Having regard for Mr Zammit’s account and the information contained within the documents, and taking into consideration his level of functioning prior to the subject motor accident, it was apparent that any psychiatric effect arising from the 2016 motor accidents had remitted well prior to the 2018 accident.
In addition to the trauma symptoms, Mr Zammit gave an account of prominent depressive symptoms including a pervasively low mood, disturbance of appetite, disturbance of sleep, anhedonia and suicidal ideation. The nature and severity of these symptoms was such that the Panel made an additional diagnosis of Persistent Depressive Disorder with Persistent Major Depressive Episode.
Based on the available information, the diagnoses made above arose as an effect of the subject motor accident. No other circumstances were identified as having contributed to the causation of the diagnosed conditions.
Psychiatric diagnoses
1. Persistent Response to Trauma with PTSD-like Symptoms
2. Persistent Depressive Disorder with Persistent Major Depressive Episode.
3.
4.
Psychiatric treatment description
Duloxetine 60mg daily, Endep 25mg at night, Ativan as required.
Category
Class
Reason for Decision
1. Self-care and Personal Hygiene
3
Mr Zammit described the extent to which he is reliant on his partner, Linda, to manage the household. His account reflected negligible input into household tasks. He described neglect with respect to personal care for which he requires considerable encouragement from Linda. His account at interview and his presentation overall was considered to indicate Mr Zammit’s inability to manage independently in the absence of the support provided by his partner. On this basis, the Panel concluded that he is moderately impaired.
2. Social and Recreational Activities
3
Mr Zammit does not engage in any recreational activities other than taking his dog out. He typically takes his dog into the reserve onto which his rear gate opens. The Panel considered that this effectively represents an extension of his backyard and therefore did not consider that this represents an independent outing for recreational purposes. He did not report any social participation and even his contact with family is diminished. The Panel considered that the impairment described by Mr Zammit reflected moderate impairment.
3. Travel
2
Mr Zammit is able to drive to the local shops on his own. He also travels to see a psychiatrist on his own. By his account he does so with significant trepidation and would prefer not to drive if he could avoid it. The familiarity of the routes and the extent of his anxiety supports the conclusion that he is mildly impaired.
4. Social Functioning
2
Mr Zammit reported having lost friends. He has less frequent contact with family than was previously the case. His relationship with Linda is intact. The Panel considered that Mr Zammit is mildly impaired.
5. Concentration, Persistence and Pace
2
Mr Zammit listens to audio books. He cannot however concentrate sufficiently to read. He does not pursue activities that demand persistence and pace but he was able to participate effectively in a one and a half hour interview. Overall, his impairment was considered to be mild.
6. Adaptation
5
The nature and severity of Mr Zammit’s symptomatology is such that the Panel concluded that he is unemployable.
List classes in ascending order: 2, 2, 2, 3, 3, 5
Median Class Value: 3
Aggregate Score: 17
% Whole Person Impairment: 19%
*%WPI = Percentage Whole Person Impairment
Pre-existing/subsequent impairment
Mr Zammit acknowledged some symptoms as a result of the second motor vehicle accident and the Panel accepted that he developed an Adjustment Disorder as an effect of the motor accident of 5 July 2016. Consistent with the natural course of an Adjustment Disorder, it is apparent that the symptoms that developed at that time remitted prior to the 2018 motor accident.
Effects of Treatment
Although Mr Zammit remains on treatment, his account did not reflect improvement in his condition, not did he ascribe any change in impairment to the treatment. The Panel found that there was no treatment effect.”
Medical Assessor Gerald Chew concurs with Medical Assessor Roberts’ findings.
FINDINGS
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment. They have explained why they have come to a different conclusion to that of Medical Assessor Suman as recorded in the psychiatric impairment rating scale (PIRS). The rating of the Review Panel on the Adaptation category is a slightly higher than Medical Assessor Suman’s assessment.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
CONCLUSION
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor Suman on 13 November 2022 should be revoked. The new Certificate appears at the commencement of these reasons.
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