Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei
[2024] NSWPICMP 232
•16 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 232 |
| CLAIMANT: | Saeed Jafari Zaringhabaei |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 16 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 22 April 2019 when he was struck on his right side by the insured vehicle while crossing a road at Epping; claimant had elevated blood alcohol level; claims that injury caused mild TBI, as well as numerous soft tissue injuries; amsonia, hearing loss, anosmia; medical dispute as to whole person impairment (WPI) arising from head injury and soft tissue injuries; separate reviews in relation to threshold injuries, anosmia and hearing loss; Held – Review Panel assesses 0% WPI for head injury and soft tissue injuries; certificate of Medical Assessor Cameron revoked. |
| DETERMINATIONS MADE: | CERTIFICATE Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the MAI Act) 1. The Review Review Panel revokes the certificate dated 28 May 2023 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%: · head – mild traumatic brain injury; · lumbar spine – soft tissue injury; · cervical spine – soft tissue injury; · right knee – soft tissue injury, and · left elbow – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
Saeed Jafari Zaringhabaei (the claimant) was injured on 22 April 2019 when he was struck on his right side by the insured vehicle while crossing Midson Road at Epping (the accident). The claimant has little recollection of the accident. He was assessed by ambulance staff and lapsed into an unconscious state. He was taken to Royal North Shore Hospital where he was intubated in the Intensive Care Unit. His blood alcohol level was elevated. He had a reduced Glasgow Coma Score. He was discharged a week later.
The insurer indemnified 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 Motor Accident Injuries Act2017 (the MAI Act). The insurer wholly admitted liability for the claim.
There is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2 cl 2(a) of the MAI Act.
ASSESSMENT UNDER REVIEW
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of the review was conducted by Medical Assessor Ian Cameron on 23 May 2023. Medical Assessor Cameron certified on 28 May 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 4% and IS NOT GREATER THAN 10%:
- Head – mild traumatic brain injury
- Lumbar spine – soft tissue injury
- Cervical spine – soft tissue injury
- Right knee – soft tissue injury
- Left elbow – soft tissue injury
Medical Assessor Cameron found 4% whole person impairment for the mild traumatic brain injury. He made no adjustment for pre-existing/subsequent impairment, apportionment or treatment affects.
Medical Assessor Cameron found that the claimant sustained soft tissue musculoskeletal injuries, and an injury to his head, in the subject motor accident. Medical Assessor Cameron stated that the severity of the head injury was difficult to assess. He explained the traumatic brain injury is listed as mild because there were no brain imaging abnormalities. Also, because assessments of GCS and post-traumatic amnesia were compromised by the effects of alcohol ingestion and other treatment following the subject accident. Medical Assessor Cameron found there is no definite evidence that a specific injury to the left ulnar nerve at the elbow occurred in the subject accident.
THE REVIEWS
The insurer sought a review of Medical Assessor Cameron’s certificates on the basis that the assessments were incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects. The insurer also sought an extension of time in which to make the application as it was lodged outside the 28-day timeframe required under s 7.26(10)(a) of the MAI Act. The President’s delegate was satisfied that the application had been made in exceptional circumstances and that to refuse the application would work demonstrable and substantial injustice. Accordingly, the application for extension of time was granted.
The insurer submitted that the certificate is incorrect in a material respect and, accordingly, sought a review pursuant to s 7.26 of the MAI Act. In seeking a review, the insurer relied on the following submissions:
(a)Medical Assessor Cameron failed to comply with the Guidelines, when making his assessment of a traumatic brain injury, as he failed to take into account the results of available psychometric testing conducted by Dr Stewart, neuropsychologist, upon which the insurer specifically relied.
(b)Medical Assessor Cameron also had the report of Ms Moodley, clinical psychologist, who was qualified by the insurer. That report contained the results of six different psychometric tests administered by Ms Moodley who found that the results were inconsistent with genuine cognitive impairment.
(c)The insurer submitted that there was no evidence that Medical Assessor Cameron took into account the psychometric results that were available to him when assessing the claimant’s impairment to his mental status, emotional and behavioural functioning.
(d)In the context of the insurer and multiple experts having clearly put the claimant’s credit in issue, the insurer submitted that Medical Assessor Cameron was obliged to explain his path of reasoning in accepting the claimant’s self-reported symptoms and the result of a self-reporting test, which (the insurer submitted) Medical Assessor Cameron failed to do.
(e)The insurer took issue with Medical Assessor Cameron’s interpretation of the claimant’s scoring under the Rowland Universal Dementia Assessment Scale (RUDAS) test. Noting that the claimant’s score was 24/30, the insurer submitted that score is not determinative of any cognitive impairment, according to the scoring guides.
(f)Additionally, the insurer submitted that Medical Assessor Cameron did not provide reasons in relation to his assessment of the claimant’s “current status” and there is no reference in his reasons to the claimant’s daily social and interpersonal functioning.
Having put in issue whether the claimant sustained a significant head injury, the insurer submitted that, without evidence of a significant impact to the claimant’s head, and in the absence of evidence of cerebral insult or high velocity vehicle impact, the assessor could not proceed with an assessment of mental health status impairment or an emotional and behavioural impairment. The insurer submitted that Medical Assessor Cameron relevantly failed to explain his path of reasoning in accepting the claimant’s self-reported symptoms and failed to properly interpret the claimant’s scoring in the RUDAS test that was administered.
The insurer’s applications for review were opposed by the claimant. Detailed written submissions were provided. Briefly, the claimant submitted that Medical Assessor Cameron carried out his own assessment and considered all the evidence before him and provided adequate reasons for his decisions. The claimant submitted that there was no failure to provide reasons, no failure to take into account relevant considerations and no denial of procedural fairness to the insurer. There is no need to deal with the claimant’s submissions in further detail as they were not accepted.
The President’s delegate Sophie Jones issued a Determination of an Application for Review of a Medical Assessment on 18 August 2023 which extended the time for the making of a review application. It stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment, in relation to whole person impairment, was incorrect in a material respect. The basis of that decision was said to be that Medical Assessor Cameron failed to comply with the Motor Accident Guidelines in the assessment of the claimant’s head injury. The President’s delegate further notes that Medical Assessor Cameron made no mention of the results of psychometric testing in his certificate. The President’s delegate was satisfied there is reasonable cause to suspect that the Medical Assessor did not take those results into consideration, contrary to cl 6.165 of the Guidelines.
Accordingly, the review application was accepted and referred to the Review Panel, which is to assess the following injuries:
(a) brain injury – closed head injury/neurocognitive disorder;
(b) lumbar spine – L5/S1 intervertebral disc rupture, protrusion;
(c) cervical spine – soft tissue injury;
(d) right knee – soft tissue injury, and
(e) left elbow – left elbow injury/ulnar nerve injury.
The Review Panel is to assess causation, whether any of those injuries relevantly are threshold injuries for the purposes of the MAI Act and whole person impairment, arising from all injuries sustained by the claimant in the accident.
The Review Panel notes that the insurer’s submissions were predicated upon the impact being “low velocity” although there appears to be evidence that the vehicle at fault was travelling between 30 to 40 kilometres per hour at the point of impact. If that is the case, the Review Panel accepts that it is both factually and medically possible that the claimant suffered a closed head/traumatic brain injury. That position is supported by the insurer’s Dr O’Neil who found that “…… not enough evidence for the MVA to be classified has having caused only a ‘minor injury’”. That is a factor to which the Review Panel will give further consideration.
Noting that the insurer took issue only with the claimant’s alleged brain injury – closed head injury/neurocognitive disorder, the parties were asked to indicate if the deliberations of the Review Panel can be limited to that discrete injury, or whether all of the other listed injuries are to be re-assessed. The parties were informed that, in the absence of a specific request by either party that all of the injuries be assessed, the Review Panel may limit itself to consideration of the alleged brain injury – closed head injury/neurocognitive disorder. Neither party responded.
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, unless the parties otherwise agree, or the Review Panel otherwise decides.[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
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation 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 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 judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) Internal Review Certificate dated 6 April 2023 confirming the insurer’s view that all of the claimant’s physical and psychological injuries are threshold injuries within the meaning of the MAI Act and the Guidelines. The stated reasons summarise the parties’ medical material.
(b) Report dated 24 August 2020 by Dr Stephen Buckley, consultant physician in rehabilitation medicine, to the claimant’s solicitors.
Dr Buckley made the following diagnosis:
oL5/S1 intervertebral disc rupture and protrusion, with a non-verifiable radicular sign.
oCervical spine soft tissue injury.
oRight knee soft tissue injury.
oAssessable Traumatic Brain Injury.
The claimant informed Dr Buckley that his worse problem is his low back pain, and then his neck pain. The claimant also experiences pain in his right knee, right foot, left shoulder and arm. Dr Buckley records his findings upon examination of the claimant’s cervical spine, both shoulders and lumbar spine. He does not say if he used a goniometer. Dr Buckley reviewed the diagnostic images and scans. He states that imaging of the brain, cervical spine and left shoulder was unremarkable. As to the lumbosacral spine, Dr Buckley refers to a MRI scan performed on 7 May 2019 which showed intervertebral disc desiccation, with a small right intervertebral disc protrusion, possibly contacting but not compressing the right L5 (or S1) nerve root. In the left elbow, the ulnar nerve was mildly thickened but no evidence of boney, cartilage or muscular injury was demonstrated. MRI scan of the right knee revealed a medial ligament strain.
Dr Buckley concludes that the injuries to the cervical spine, right knee and Traumatic Brain injury are minor (now threshold) injuries. He also concludes that the lumbar intervertebral disc rapture protrusion, and with a non-verifiable radicular sign is not a minor (now threshold) injury. The Review Panel notes that Medical Assessor Cameron said that the MRI of the lumbar spine on 7 May 2019 was reported as showing L5/S1 degenerative disease. Dr Buckley makes no mention of that.
Dr Buckley observed that progress with the claimant’s physical injuries would depend upon his capacity to manage his psychological recovery.
(c) Further report dated 16 May 2022 by Dr Buckley to the claimant’s solicitors.
Dr Buckley repeats the diagnosis given in his initial report. Dr Buckley records that the claimant’s worse problem is now “pins and needles” in his right leg, which occasionally affects the left. His next worse problem is “pins and needles” in the left shoulder. He also complains of facial “pins and needles” on the right side. He has continuing low back pain as well as bladder and bowel incontinence. He complaints of memory and other cognitive impairments. Dr Buckley took a detailed description of the claimant’s problems with cognition and temper. The claimant was non-cooperative with the mental state examination. He collapsed to the ground upon commencement of the physical examination of his back. Dr Buckley could discern no reason for the claimant’s collapse. He was unable to explain to Dr Buckley what had happened. Dr Buckley could not proceed with the examination. He recommended a Forensic Neuropsychological assessment be obtained in order to assess impairment related to a traumatic brain injury. He assessed 5% whole person impairment for the claimant’s orthopaedic injuries.
(d) NSW ambulance report dated 22 April 2019.
This describes the claimant as being found lying prone on the road after being hit by a motor vehicle. The driver admitted to going approximately 30 to 40 kilometres per hour. The claimant had no obvious injuries and no active bleeding. Bystanders were used to assist with spinal precautions and to move the patient off the road.
(e) Report of MRI scan of lumbar spine performed on 6 April 2019 by Dr Craig Harris who states his conclusions as follows:
The intra lumbar discs are normal. The L5/S1 disc demonstrates dehydration, with posterior disc bulging more obvious to the right of midline, where there is a disc protrusion with annual tear…… partially displacing the right S1 nerve root within the lateral recess, and abutting the exiting right L5 nerve root without evidence of effacement or displacement. There is no facet joint arthropathy. Nerve roots are well positioned. The soft tissues have a normal appearance. L5/S1 degenerative disc disease with right paracentral disc protrusion and annular tear slightly displacing and partially effacing the right S1 nerve root, a potential sight of neural irritation. Less marked changes involving the exiting L5 nerve roots.
In relation to the right knee, Dr Harris says there is a medial meniscus posterior horn linear intrasubstance signal, reflecting either a small intrasubstance tear/contusion or meniscal degenerative change. There is no discrete tear cleft that extends through the surface of the meniscus, no meniscal plat. Partially discoid lateral meniscus, without concerning features.
(f) Report of cervical spine MRI performed on 9 April 2019 by Dr Brian Lam.
Conclusion: mild disc degeneration C3/C4 and C4/C5. No annular tear or focal disc protrusion is demonstrated. No acute boney injury.
(g) Report by Dr Paul Teychenne, neurologist, to Dr Angela Lam (treating general practitioner (GP)).
Dr Teychenne describes headache around the occipital parietal region over the top of the head. He notes a sharp pain from the right occiput extending through the brain into the centre of the right eye. He notes goosebumps down the left paravertebral region from the cervical spine to the lumbar spine. He notes persistent dizziness and muscle cramps under the lateral right and left sole. Dr Teychenne conducted a physical examination and concludes that the claimant has clinical evidence of an incomplete cervical cord lesion. Dr Teychenne stated that he would do future Electromyogram (EMG) muscle sampling to assess spinal cord and peripheral nerve function. He reviewed the MRI scans of the spinal cord.
(h) Clinical records of Royal North Shore Hospital.
There are letters from Dr Anil Nair, spinal surgeon, to Dr Lam. Dr Nair treated the claimant for pain in the cervical and lumbar spine radiating to both the upper and lower extremities. Dr Nair says that a repeat MRI scan showed foraminal narrowing in the sub axial cervical spine and mild disc desiccation in the lumbar spine. Dr Nair thought that the claimant ultimately will benefit from referral to a pain specialist.
(i) There are various reports from Dr Teychenne to Dr Lam which predate his report previously described. There is a subsequent report dated 20 September 2019 from Dr Teychenne to Dr Lam which concludes that the claimant has clinical evidence of an incomplete cervical cord lesion which is the primary cause of his overall picture.
(j) There are various reports of MRI scans of the cervical, thoracic and lumbosacral spine, all of which appear to show degenerative changes.
(k) There are records of Alcohol Withdrawal Scale tests performed on the claimant at Royal North Shore Hospital during his period of admission from 22 to 29 April 2019 following the accident.
Assessment Documents (R10) states as follows:
“Bystanders reported to ambulance crew he was fully conscious before they arrived but on their arrival, the patient was GCS 6/15. No obvious injuries identified pre-hospital. GCS 6/15 with no visible head injury. Observations within normal limits apart from GCS. No visible or palpable wall chest injury. No obvious clinical signs of bleeding in the chest, abdomen, pelvis or long bones. No visible or palpable head injury. Afebrile.”
(l) There are some 700 pages of clinical records from various treatment providers. Despite being directed to do so, neither party specified the entries that are said to be relevant to the matters in issue.
The insurer relied upon the following material:
· Insurer’s submissions (Review Application – threshold injury) dated 12 September 2023 and 1 May 2023.
· Report dated 24 March 2022 by Dr Jeanette Stewart, clinical neuropsychologist, to the insurer’s lawyers.
· Under the heading BACKGROUND, Dr Stewart notes that witnesses reported the claimant was initially conscious at the accident scene for several minutes before the ambulance and police arrived. He then reportedly lost consciousness. His GCS was recorded at 6/15. His breath smelled of alcohol. His GCS scores remained at 6/15 on three consecutive readings. He was conveyed to the Royal North Shore Hospital.
· Dr Stewart says that the NSW police records indicate that the claimant was walking onto the shoulder of a road and stopped. He allegedly looked at the vehicle and the walked straight into the vehicle’s path. The police report stated that the claimant did not have any visible injuries but was semi-conscious at the scene before being conveyed to hospital. The police record further stated that:
“The claimant’s Blood Alcohol Content is recorded at 0.153 in the Police Report. Toxicology testing at the RNSH recorded an alcohol concentration of 43 mmol/L or 0.20% (sample taken at 18:30, 1 hour after the accident), suggesting a high level of intoxication.”
· The police report is not in evidence before the Review Panel.
Dr Stewart refers to Royal North Shore Hospital records and says that:
“Mr Zaringhabaei told staff that he was drunk immediately prior to the accident and that he had gone to buy cigarettes. He said he was amnesic to the events that followed.”
It is not a matter of dispute that the claimant was intoxicated, at the time of the accident. Dr Stewart notes that the clinical records considered the possibility of a toxidrome as he had reduced GCS with no head injury. Intensive Care Unit (ICU) records stated that the claimant denied any substance used except for alcohol. He was discharged from the ICU on 24 April 2019 when his GCS was 15/15 (normal) and remained so across his admission.
Assessment of post-traumatic amnesia (PTA) commenced by the occupational therapist on 26 April 2019 with an initial score of 7/7 and subsequent scores reading 11/12, 11/12 and 10/12. The Operation Theatre stated that due to the PTA scores, the claimant was not recommended for discharge. Dr Stewart notes that the claimant complained about his treatment and threatened legal action against his treating team. The claimant was discharged from Royal North Shore Hospital on 29 April 2019. Records indicate this was because there were no significant acute injuries needing treatment and because he wanted to be discharged.
Dr Stewart notes that a cerebral CT scan reported no evidence of acute intracranial haemorrhage, extra-axial collection, acute transcortical infarct or mass effect. There were no injuries involving the cervical spine, abdomen, pelvis or chest, although a very small pericardial effusion was reported. Dr Stewart refers to a cerebral MRI scan dated 6 May 2019, the clinical indications being head injury, Malondialdehyde (MDA), reduced sensation in bilateral C6/C7. There were no significant intracranial abnormalities identified. The anteroinferior aspect of the brain was significantly obscured due to metallic artefact. A repeat cerebral MRI scan was conducted on 23 July 2019. Clinical indication was listed as “? Cranial nerve injury ?”, extra extraocular muscle palsy. Diplopia on left and right gaze and bilateral down gaze. There was no intracranial or infraorbital structural lesion identified.
Dr Stewart refers to a repeat cerebral CT scan performed on 3 October 2019 because of right-sided facial swelling. The report stated that image cerebral hemisphere had normal density and clear grey/white matter differentiation.
Dr Stewart records that the claimant was discharged from Ryde Hospital emergency department on 25 July 2021 following an assault. The claimant was punched several times by an unknown assailant. He reportedly fell to the ground but did not lose consciousness. His GCS was 15/15. A CT facial bones revealed a minimally displaced nasal bone fracture. He was discharged home with GP follow up.
Dr Stewart notes that the claimant made an application for total and permanent disablement (TPD) benefits in December 2019 through his superannuation fund. He had follow up consultations with various specialists including a cardiologist, an audiologist (diagnosed with mild sensorineural loss in the right ear), a colorectal surgeon, a urologist, a spinal surgeon and a neurologist, in addition to mental health professionals.
Dr Stewart then summarises the medico-legal reports and DRS certificates which is not necessary to repeat.
Dr Stewart details her clinical interview with the claimant. Dr Stewart notes that, at the start of the interview, the claimant appeared to be shaking all over his body. However, this was not observed for the rest of the session. The claimant initially was reluctant to discuss his memory of the accident. After some prompting, he said that he was crossing the road in order to purchase cigarettes. He admitted to having consumed alcohol but denied being intoxicated. He recalled looking out for traffic and commenced walking across the road when “everything then went blank”. He said he had no memory of the events that followed until he woke up in hospital a day or two later. He did not elaborate further on his recall of the events of the day. However, he did provide details of his alcohol consumption on the day, prior to the accident. Dr Stewart then details the claimant’s reported symptoms, reported medical history and reported personal history, which it is not necessary to repeat.
· Under the heading Neuropsychological Assessment, Dr Stewart firstly concedes that assessments of English Second Language (ESL) is challenging. However, Dr Stewart says that, even so, the claimant’s performance on neuropsychological assessment was very concerning and highly suggestive of a lack of genuine effort. His score on the Addenbrooke’s Cognitive Examination III was abnormally low even in patients with traumatic brain injury or dementia.
· Under the heading Discussion, Dr Stewart says as follows:
“According to injury parameters, Mr Zaringhabaei may have suffered a traumatic brain injury as a result of the accident. However, there was no evidence of loss of consciousness immediately after the accident, with bystander reports stating that he was conscious and talking for at least 10 minutes prior to the arrival of emergency services. His GCS deteriorated, but in the absence of any demonstrable damage to his brain as per radiological imaging (CT, MRI). Likewise, his blood alcohol content was very high, suggesting intoxication likely to have impacted on his GCS scores. His scores on testing for PTA were initially within normal limits. He obtained some slightly reduced scores on subsequent measurements which is again unusual but may have been influenced by opiate analgesia. In any case, there was no evidence of behavioural features, which would be expected in cases where post-traumatic amnesia is present.”
Mr Zaringhabaei was discharged home without supervision. He stated that he would travel to Melbourne and then to Tasmania. This suggests that he was able to make plans, organise himself and carry out tasks independently.
I am of the opinion that there is insufficient clinical evidence to suggest that he suffered a traumatic brain injury. He may have suffered a mild traumatic brain injury after which any symptoms (e.g. headache, dizziness, etc) would be expected to fully recover within a three to six month period. His reports of persisting and worsening symptoms are therefore inconsistent with the profile expected following a mild traumatic brain injury.
· On formal assessment, the results obtained are essentially invalid reflecting improbable effort, and likely, deliberate under performance. Likewise, his performance on psychological measures of validity is also extremely concerning and, as noted above, not consistent with what he observed in patients with genuine psychopathology or cognitive disturbance.
Dr Stewart concluded by stating she could not provide a diagnosis and apportionment of any disability between injuries caused by the accident and any other conditions/circumstances due to measure of performance inability.
· Report dated 27 September 2019 by Ms Vanitha Moodley, consultant psychologist, to the insurer.
Ms Moodley records that, on inviting Mr Zaringhabaei into the assessment room, he mobilised with the use of one Canadian crutch on his right arm, his laptop on his left shoulder and he walked with a limp in a straight and upright manner. Observation of his walking revealed no evidence of pervasive agitation or gross motor slowing suggestive of serious and disabling mental illness. In spite of over demonstration of pain, his participation through the assessment was unremarkable. He maintained satisfactory eye contact. He demonstrated a range of motion appropriate with the content of the interview. Although he reported memory and concentration difficulties, it did not appear consistent with his recollections, before, during or after the subject accident. Additionally, no evidence of cognitive decline was observed over the four hours that he spent participating in the assessment. He was assessed to be oriented in time, place and person. There was no evidence of psychosis.
Ms Moodley administered a battery of tests. His results were suspect across the range of tests. Ms Moodley says that there were inconsistencies which the claimant was unable to explain. Ms Moodley says that the claimant was not suffering from a post-traumatic stress disorder caused by the motor accident. His symptoms described in the interview were minimal and did not reach the threshold of clinical significance. He withheld information about his childhood lest it result in a possible pre-existing diagnosis of post-traumatic stress disorder. It appears that Ms Moodley also thought that the claimant was not suffering from an accident related minor psychological or psychiatric injury, that is not a recognised psychiatric illness.
· Report dated 15 October 2019 by Dr Andrew Keller, occupational physician, to the insurer.
Dr Keller was provided with a complete suite of medical records, reports of diagnostic scans and medico-legal reports. It is not clear if had the actual diagnostic scans to which he refers. Under the heading Causation, Dr Keller notes the ambulance report noted no damage to the insured vehicle and that the police report on the same day states there was a small dent on the car bonnet. Dr Keller notes the hospital assessment initially found the claimant to have no detectible injuries before his neurological alertness deteriorated, without explanation, requiring intubation and observation for some days.
Dr Keller says that investigations involving multiple MRI scans have shown no pathology in the brain, only age-related spondylosis in the neck, and an L5/L1 annular disc tear effacing the right S1 nerve root which, Dr Keller observes, is not uncommon in the claimant’s age group and appears to be degenerative in nature. Dr Keller goes on to say as follows:
“With careful consideration of the history of the accident and the reports of Police and ambulance, it is not clear to me whether Mr Zaringhabaei suffered any injuries as a result of this accident. I also note that his deteriorated consciousness in the hospital was unexplained and they appear not to have followed up his clinical management since this time as would be expected if a traumatic brain injury was confirmed…… I have a strong suspicion that Mr Zaringhabaei has some form of somatoform or functional condition that is affecting his symptoms and presentation……. I would strongly recommend an independent neurology opinion as to whether there is any objective evidence for neurological complaints affecting the brain or spinal cord. I would also recommend an independent psychiatric opinion.”
· Under the heading Diagnosis, Dr Keller says that he cannot make a diagnosis of any physical injuries attributable to the subject accident from the available evidence. He found the claimant’s physical presentation to be inconsistent with the assessment and not consistent with the usual patterns of physical injuries with regard to neck or back injuries. He found that the claimant’s condition had not stabilised and had not reached maximum medical improvement.
· Report dated 27 November 2019 by Dr John O’Neill, neurologist, to the insurer.
Under the heading Causation and Diagnosis, Dr O’Neill says as follows:
“On face value, it would appear that Mr Zaringhabaei suffered a significant closed head injury in the motor accident. The GCS was 6 at the scene requiring intubation on arrival at RNSH….. GCS was 15 by 24 April 2019. Mr Zaringhabaei was not completely out of post-traumatic amnesia on formal testing done up to the third day after the accident. Having made these points, there was no clinical evidence of a closed head injury and CT and MRI brain scans were completely normal. Mr Zaringhabaei did have an elevated blood alcohol level on arrival at RNSH….. The nerve conduction studies by Dr Teychenne would, in my view, be unreliable. Nevertheless, they have certainly excluded an obvious left ulnar neuropathy which had been the suggestion by Dr Herald for at least some of the sensory symptoms in the left arm. Psychological testing suggested malingering as the most likely cause of reported cognitive deficits. Today, I found no clear abnormalities on neurological examination…… I completely disagree with the diagnosis by Dr Teychenne. In my view, there is not enough evidence for the motor vehicle accident to be classified as having caused only ‘minor injury’ but having made that point, I certainly can find no evidence of any serious injury to the Nervous System as a consequence of the accident…… and the obvious psychosomatic overlay makes it almost impossible to make a meaningful assessment of complaints such as neck and low back pain. I believe there is a major psychosomatic component to his presentation and there may well be outright malingering.”
· Under the heading Treatment, Dr O’Neill says there have been no sensible explanations for continuing symptoms by treating specialists……. because no clear condition has been identified and because the obvious psychosomatic component to his presentation has not been recognised or discussed with the patient.
Dr O’Neill concluded that the claimant can make a full recovery with appropriate rehabilitation and assurance that he has no serious physical injury arising from the accident.
· Report dated 16 November 2022 by Dr O’Neill to the insurer’s lawyers.
In his refresher report, Dr O'Neill references the certificate and Reasons dated 20 March 2020 by Medical Assessor Ian Cameron. He also references Dr Stewart’s report previously summarised. Dr O’Neill opines that the neuropsychological assessment by Dr Stewart is in keeping with the psychological assessment by Ms Moodley. He agrees with Medical Assessor Cameron that the musculoskeletal injuries sustained in the accident were soft tissue injuries and could be regarded as “minor injuries” under the MAI Act.
· Certificate and Reasons issued on 5 April 2020 by Medical Assessor Ian Cameron.
Medical Assessor Cameron was to determine a treatment dispute. Under the heading Causation and Reasons, Medical Assessor Cameron says as follows:
“Mr Zaringhabaei sustained soft tissue musculoskeletal injuries in the accident. He also sustained an injury to his head but its severity is difficult to assess. He has multiple somatic complaints. He has had extensive investigations which have not shown significant abnormalities. Specifically, imaging of the whole spinal cord and brain has not shown evidence of injury. On examination, I could find no definite evidence of neurological abnormality…… I strongly disagree with the opinion of Dr Teychenne. I cannot understand how he can make a diagnosis of incomplete spinal cord injury in the absence of convincing neurological abnormalities on examination, as well as imaging of all spinal regions, that shows no evidence of a spinal cord abnormality.”
Medical Assessor Cameron found that no treatment and care is reasonable and necessary in the circumstances.
· Report dated 21 March 2022 by Dr Clive Chappel, ear, nose and ear surgeon, to the insurer’s lawyers.
Dr Chappel states that the claimant presented consistently. He says that the claimant’s chronic rhinitis is unrelated to the accident but that the complete loss of smell does appear to relate to injury suffered in the accident. Bruxism (clenching of the jaw) is the most likely source of the tinnitus that is very slightly pre-disposed by the very mild hearing loos evidence on audiometry. Reduction of the bruxism would likely resolve the tinnitus. Dr O’Neill assess 2% whole person impairment before binormal hearing loss (5%) and 5% whole person impairment for complete loss of smell.
· Supplementary report dated 9 August 2022 by Dr Chappel to the insurer’s lawyers.
The insurer requested Dr Chappell to review his findings on Causation. He referenced reports by Dr O’Neill, Dr Teychenne and Dr Stewart, as well as the history provided to the Lam. Dr Chappel concludes that the anosmia may be unrelated to the subject accident and could have been sustained in the assault that took place in July 2021. Dr Chappel notes that significant head trauma is reported in the Ryde Hospital record and that the claimant made no mention of the assault. Dr Chappel finds that, on the balance of probability, it seems more likely that the anosmia has resulted from the assault that took place more than two years after the subject accident.
RE-EXAMINATION
The report of Medical Assessor Sophia Lahz is as follows:
“Medical Examination of Mr Saeed Zaringhabaei 6/1/24 PIC Suites by Dr Sophia Lahz
Mr Zaringhabaei arrived a few minutes early having taken a taxi from the airport. He had travelled from Melbourne where he said, he had visited friends. He is presently living on a friend’s rural property (farm) in a separate dwelling approximately 20 minutes south of Hobart. He went to Tasmania around the time of the pandemic
2-3 years ago now. At the time of the subject 2019 motor accident, he had still been living in Epping and employed in formwork. He said that he had been regularly engaging in social activities such as camping, walking to the beach, BBQ’s and jet skiing. He had completed his chores and meal preparation.
He walked slowly into the consulting room carrying a single forearm crutch in the right hand.
A Farsi interpreter ( Mr Bagher Ghazavi CPN 2ZQ850) was present throughout the history and examination although Mr Zaringhabaei only rarely sought his assistance, having a satisfactory command of receptive and spoken English.
He stated his age as 34 or else 35. He was born in Iran and has lived in Australia since either 2011 or else 2012. His parents and siblings still live in Iran and he has no family here.
Mr Zaringhabaei is planning to travel to Iran later this year for “treatment” of the injuries from the subject accident. He is dissatisfied with the treatment (and associated costs) so far received in Australia. He said that he has seen many doctors, so many he has “given up” because they “don’t trust one another”, and every time, he sees a new doctor, a fresh batch of expensive scans is arranged (for which he must pay) and he is also given 2-3 new painkillers. He explained that he simply wants to know the diagnosis for what is causing him to suffer from very severe spinal pain associated with paraesthesia, numbness and cramping of the upper and lower extremities. He said that he has found talking to his lawyer more useful than seeing another doctor.
There have been nerve conduction studies although again, he could not provide any details as to the findings.
Mr Zaringhabaei has not worked in any capacity since the motor accident. When I asked him the reason, he asked if this were a “trick question”. I replied no, that it was a legitimate enquiry to which he then outlined myriad symptoms and problems since the motor accident inclusive of pain-related sleep disturbance, “pins and needles” of the left-sided upper and lower limbs (as well as face), “stabbing and hot knife” sensations in the upper back/lower neck, low back pain just above the hips, right ear pain, lower limb cramps, noise sensitivity and painful shoulders L>R. He reported that the widespread pain had originally been “sharp” although with time, the symptoms had given way to a constant dull ache which “drove him crazy” especially at night when trying to fall asleep. He described himself whilst in bed as a “BBQ chicken constantly turning over” to get more comfortable. In addition, he referred to dizziness, reduced balance, daily nose bleeds (he mainly sees dried blood) and multiple falls.
He said there had been a “bump” in his nose on which surgery had been planned. However, just beforehand, the bump became smaller so surgery was cancelled and the bump then went away.
He acknowledged that there had been alcohol present in his bloodstream when the accident occurred. However, he said that even so, he was not drunk. He had been accustomed to going out after work with workmates for drinking. He suggested that all of the blame for the accident had unfairly been placed on him due to presence of alcohol.
Mr Zaringhabaei confirmed his involvement in the subject 2019 motor accident when he had been a pedestrian hit by a car. His last memory was of seeing a “blue Japanese car coming” and the next of waking up in hospital, he thought, a few days later. On specific enquiry, he said he had no memory of the actual motor accident/impact nor of any of the events taking place at the scene. I put to him that he had been observed speaking with others at the scene before losing consciousness although he said he did not remember this.
He said too that he recalled nothing about being in the hospital. He said he did not know he had been ventilated and had spent two days in ICU.
He said he had a few scans although he had no idea of the findings. He also did not recall presence of any bruising over his body.
He stated that he went home to Epping from hospital after a few days although he did not recall the duration of the hospital admission.
After the accident, there was widespread pain affecting the head, neck, shoulders L>R, lower back and legs as well as numbness/”pins and needles” affecting the L>R upper and lower limbs. He referred as well to an intermittent sharp pain in the centre of the left palm.
He saw a GP who arranged scans, though again he knew little about the specific findings. He kept seeing doctors about the neck, lower back and right knee and in turn the doctors would arrange more scans. He had to self-fund all of his scans because he said the insurer would not pay for anything. He consulted specialists for the spine and right knee. He vaguely remembered receiving a spinal steroid injection although he said the benefits were short-lived. For the right knee, he said that a scan reportedly showed a meniscal tear for which surgery was advised although he has not undergone any surgery due to cost. He mentioned too being informed of “lumbar disc problems”, “nerve damage”, absence of smell (unable to detect gas odour), dizziness and hearing loss with right-sided tinnitus.
Towards the end of the interview, lower abdominal pain, urinary urgency and incontinence were mentioned “from the time of the accident”. Faecal incontinence reportedly can also occur although only in the context of diarrhoea.
After the accident, Mr Zaringhabaei received approximately three months of physiotherapy during which multiple painful body parts were treated.
He said he also attended psychological treatment sessions although he disliked these because he dislikes speaking about his past.
I asked him about the neuropsychological assessment with Dr Alexandra Walker in which he had returned an invalid performance (due to lack of effort) although he said he had seen so many doctors that he did not remember this.
I enquired too about the assault taking place in 2021. He was reluctant to provide any details about this, except to say that he went to hospital very briefly, they did not find anything “wrong” and he was very soon released. He said that the absence of smell and taste definitely started from the 2019 motor accident, as opposed from the assault. He denied any loss of consciousness due to the assault and stated that the only injury occurring was a cut on his lip.
The main ongoing problem preventing normal day-to-day function and return to work is chronic pain of multiple body parts.
He complains of an episodic headache associated with a feeling as though the “brain is moving”. There are sharp needle like sensations at the back of his eyes spreading to the “back of his brain”. He also reported “pins and needles” in the right side of his head.
He complains of dull pain at the back of his neck on both sides, resistant to painkillers. The pain spreads behind the left shoulder, to the trapezius and down the left arm. There are generalised “pins and needles” affecting the left arm and all fingers although these are worst in the middle, ring and little fingers.
He complains of bilateral low back pain spreading to the left leg where he also experiences numbness/”pins and needles” reaching to the side of the foot.
At the right knee, there is pain in the popliteal fossa associated (he said) with swelling due to presence of fluid. The calf can become painful, he said when the “fluid from the knee released”. Most of the time, there is anteromedial knee pain.
He reported pain-related difficulties with walking, sleeping, sitting and lying down, having to regularly change position for sake of comfort. He explained that he recently consulted a doctor from his own country in Melbourne who gave him additional painkillers. He thinks that his general condition is worsening.
Mr Zaringhabaei complains of poor memory and lack of motivation. He might want to complete activities although his body too readily “shuts down” and he has then to postpone. He said that he is prone to escalating levels of stress if he must complete a task. When stressed, he starts shaking and sweating, becoming immobilised and unable to do anything. There have been times when he has forgotten the names of close family members such as his brother. He said that when anxious, he feels as though he cannot breathe and his chest feels as though it will “pop out”. As noted above, he has been unable to engage with psychological treatment because he dislikes speaking of the past.
Mr Zaringhabaei denied depression, feeling angry about ongoing symptoms, the lack of “good” treatment received and the absence of any diagnosis. He is trying to organise a return to his own country for at least three months in order to receive appropriate treatment. However, if he can wait for long enough to become an Australian citizen, he would be able to remain in Iran for longer. He is currently in the process of working all of this out. He highlighted that he is presently upset about a legal assessment that was postponed from November 2023 until March 2024 (specific date unknown) and that this will further delay his plans for travelling home to Iran.
At one stage during the interview, Mr Zaringhabaei became tearful, stating that all of his family are in Iran and he is tired of doing things “alone”. He has only a few close friends here in Australia and most of them are married, with children and busy working. Nowadays, he mostly speaks on the phone with them. He said that since the motor accident, he is intolerant of noise and sometimes shouts at his friends’ children if he is visiting them. Therefore, these days, he prefers staying at home than going out to friends’ houses.
Mr Zaringhabaei is presently living on his own in (as noted) a second dwelling located on a friend’s property near Hobart. He said however that he does not have complete much housework and that his friend often completes tasks for him, even meal preparation before adding that he “is not the eating kind of person.” He reported that he dislikes his friend’s food which he finds too oily. He reported he was earlier prescribed medication causing weight gain of 20 kg so he weighed more than 90 kg. However, since cessation of that medication, he has again lost weight, now tipping the scales around 70 kg.
Mr Zaringhabaei said that he is not paying any rent and has no financial problems because his friend is helping him. He is not receiving any Centrelink benefits and he also denied receiving any financial support from his family in Iran. He explained that he has helped this friend in the past and he is now simply returning the favour. Mr Zaringhabaei hopes in the future that he can again reciprocate. He said that his friend is actually pleased that he still lives on the property because he can keep an eye on things when the owners are away.
Mr Zaringhabaei reported that he has also been selling possessions such as “tools” whilst progressively downsizing his car to manage financially.
When I asked about washing up, he said he used disposable plates so there was none.
When I asked about laundry, he said his friend regularly turned up and took clothing to the laundry on his behalf.
He denied any present hobbies, having ceased his former active lifestyle due to the injuries from the motor accident.
Mr Zaringhabaei spends the day at home with the TV on “just talking by itself”. It was difficult to glean from him how he actually spends his day.
He said that he is not the same person as before the accident. He is no longer active and cannot complete 100 push-ups daily as he used to do. He is not cooking and cleaning, basically doing “nothing” he explained.
He reported forgetfulness affecting online shopping with necessary items not being purchased.
Mr Zaringhabaei drives but only rarely because he is mostly at home.
He was unsure of his medications except to say he takes Lyrica 100 mg twice daily (75/25 bd) and 2-3 times per week and he takes Mirtazepine 30 mg at night to help shut down his mind and promote sleep. For some reason, he finds Mirtazepine more effective if he takes it 2-3 times weekly as opposed daily. His other medication includes (he thought) Feldene (?) and Ativan. He is responsible for the administration of his own medication.
Mr Zaringhabaei reported that he does not smoke and no longer consumes alcohol.
On examination, I found Mr Zaringhabaei a slender man with whom it was difficult to obtain rapport. He alternated between being jovial and smiling, versus guarded and suspicious.
I asked him to make his best efforts with all requested movements during the physical examination.
Height was 173 cm and weight 70 kg.
He walked slowly whilst leaning on a crutch carried in the right hand.
I did not assess walking on heels and walking on tiptoe due to safety risks.
I administered the (Montreal Cognitive Assessment) in which he scored 19/30 with deficits in memory, calculation/concentration, word generation and abstraction. Of note, he was fully oriented to time, place and person and had no difficulty with clockface drawing, cube drawing or else the trail making test.
The abovementioned (low) score (even taking into account his NESB) is in my opinion, incompatible with his presently reported (complex) activities inclusive of travelling unaccompanied from Hobart to Melbourne and thence to Sydney via plane/taxi/uber, and also arranging his return to Iran whilst navigating an Australian citizenship application.
Neck movements were markedly reduced (to just 10% normal range) in all directions associated with complaints of dizziness and pain. The requested movements were performed in a jerky, hesitant fashion.
There was no muscle guarding or else spasm at the neck and no asymmetry of neck movement. There was poorly localised tenderness at the skull base and base of the neck.
There was no measurable wasting of the forearms (25 cm) 5 cm below the elbow crease nor of the arms 10 cm above the elbow crease (28 cm). Upper limb reflexes were difficult to elicit but symmetrical. There was no wasting of the small muscles of the hands.
Compared with normal sensation at the forehead, there was generalised reduction of sensation over the left upper limb, most marked in the middle, ring and little fingers.
Right upper limb sensation was normal.
Upper limb power was difficult to assess due to more proximal pain about the neck and shoulders. There was generalised “giving way” associated with pain complaints.
Upper limb neural tension tests were bilaterally negative.
There were no upper limb non-verifiable radicular symptoms because “pins and needles” in all left-sided fingertips are not in the distribution of a single dermatome.
There was a full active range of elbow, wrist and hand movement, with encouragement.
At the shoulders, he reported that symptoms from the painful neck prevented demonstration of more than 50 degrees of left shoulder abduction/flexion, 130 degrees right shoulder abduction/flexion, 30 degrees of left shoulder extension (50 degrees of right shoulder extension), 30 degrees of left shoulder adduction (50 degrees of right shoulder adduction), 50 degrees of left shoulder internal rotation (80 degrees of right shoulder internal rotation), 60 degrees of left shoulder external rotation (80 of right shoulder external rotation).
There was no wasting about the shoulder girdles and impingement tests were bilaterally negative.
Mr Zaringhabaei indicated widespread tenderness about the left trapezius and left shoulder girdle although I observed that he was able to reach behind with both arms as far as the mid lumbar spine.
He was reluctant to move the lumbar spine due to pain. Flexion and extension were just 1/3 normal range and lateral flexion to ¼ normal range to either side. There was no muscle spasm or else guarding at the lumbar spine.
There were no lower limb non-verifiable radicular complaints because the reported distribution of paraesthesia in the left lower limb was not that of a specific dermatome.
There was generalised reduction of sensation at the left lower limb, again which is not a non-verifiable radicular complaint because it is not in the distribution of a specific/single dermatome.
Knee and ankle jerks were present and symmetrical.
As with the upper limbs, strength testing at the lower limbs was compounded by pain complaint/behaviour, associated with generalised “giving way” in both legs whilst he complained of lower back pain.
There was no measurable wasting of the thighs (41 cm) 10 cm above the patella and there was no measurable wasting of the calves at maximal mid girths (33 cm).
Mr Zaringhabaei could sit on the side of the couch with each leg fully extended in turn, so that lower limb neural tension tests (reverse SLR) were bilaterally negative.
Conclusions
Clinical examination findings lend no support to presence of either lumbar or cervical radiculopathy or for that matter spinal cord injury. There was a completely normal neurological examination aside from subjective reports of altered sensation in a non-anatomical pattern for both upper and lower limbs.
Based on altered GCS (Glasgow Coma Scale) and PTA (post-traumatic amnesia) parameters, there was very possibly a traumatic brain injury incurred in the subject accident although even if such occurred, it was of no greater than mild severity, based on the rapidity of Mr Zaringhabaei neurological recovery in hospital and other factors cited immediately below.
Ambulance and hospital records indicate no overt bruising to the head/upper body.
There was no evidence of a significant impact to the head although the motor accident did involve an impact at speed (paragraph 6.164 page 113 SIRA PIG).
Far more likely his presentation at the time of the accident with relatively sudden onset and then offset of altered conscious state was due to the diagnosis of toxidrome from alcohol intoxication, which was suggested as a likely cause during the hospital admission. Alcohol level was measured at 0.15 and at another stage 0.2, which is four times the legal limit for driving.
Alcohol toxicity symptoms may include:·Confusion
·Vomiting
·Seizures
·Slow, irregular breathing
·Skin that looks blue, grey or pale
·Low body temperature
·Trouble staying conscious or awake
Unfortunately, PTA testing was confounded by the presence of alcohol and therefore it cannot be confidently stated based on the results of hospital testing that PTA duration exceeded 24 hours. Mr Zaringhabaei was discharged home and not referred to any brain injury service. The hospital records at discharge specifically state that there were no signs of head injury.
In further support of absence of serious traumatic brain injury, is the normality of the MRI brain scan.
At the very most, Mr Zaringhabaei incurred a mild traumatic brain injury with no permanent WPI. The natural history of mild traumatic brain injury is well established for recovery/resolution, usually within three months of injury.
The Panel then considered allocation of permanent WPI for the mild traumatic brain injury sustained in the accident.
Unfortunately, Mr Zaringhabaei returned an invalid performance on Dr Alexandra Walker’s neuropsychological assessment. Therefore, no conclusions about his cognition can be drawn from that assessment, given that he performed worse on tasks that would normally be correctly completed by (even) persons with severe dementia.
If there are persistent problems such as reduced cognition (thinking and memory difficulties), dizziness, and headaches, these are attributable to non-TBI factors such as chronic pain, sleep disturbance, medication and psychological disturbance. It is also well established that persons exposed to trauma may complain of cognitive difficulties in the absence of any traumatic brain injury being incurred. The constellation of symptoms associated with the so-called “post concussive syndrome” cannot be taken to confirm/diagnose the occurrence of a traumatic brain injury.
I note the depressed score which I obtained from Mr Zaringhabaei on the MOCA although as stated above, a result of 19/30 is not consistent with the complex activities he reports to do presently such as organising Australian citizenship, arranging an international trip, attending multiple appointments and living independently without receiving assistance from others due to cognitive disabilities. He manages his own life inclusive of financial and personal matters. (I note he is receiving considerable help from his friend for physical disabilities.)
Due to the (possible) mild traumatic brain injury sustained in the subject motor accident, CDR (Clinical Dementia Rating) score is 0 for each of the categories memory, orientation, judgment and problem solving, community affairs, home and hobbies and personal care (Table 6.9 page 115 SIRA Permanent Impairment Guidelines).
On the CDR he is fully oriented and fully capable of personal care. Based on the history I obtained, I do not consider he is any difficulties with judgment and problem solving.
Although there are difficulties reported on history in the above areas (memory, community affairs, and home and hobbies), these are not due to any mild traumatic brain injury from the motor accident. On the contrary, these difficulties are related to the claimant’s psychological state, presence of multiple physical complaints, mostly chronic pain, insomnia and prescription medication. Therefore, CDR score is 0 equating with 0% WPI due to any mild TBI caused by the motor accident.”
FINDINGS
The following injuries caused by the motor accident give rise to a permanent impairment of 0% AND IS NOT GREATER THAN 10%:
· head – mild traumatic brain injury;
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· left elbow – soft tissue injury, and
· right knee – soft tissue injury,
CONCLUSIONS
For these reasons, the Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 28 May 2023 and issues the new certificate that appears at the beginning of these reasons.
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