Iqbal v QBE Insurance (Australia) Limited
[2024] NSWPICMP 406
•24 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Iqbal v QBE Insurance (Australia) Limited [2024] NSWPICMP 406 |
| CLAIMANT: | Muhammad Iqbal |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Samson Roberts |
| DATE OF DECISION: | 24 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was involved in a motor accident on 19 November 2020 when his vehicle collided with a kangaroo; vehicle left the road and collided with rocks nearby; claimant sustained physical injuries and subsequently developed a psychiatric/psychological injury; dispute about whether the psychiatric/ psychological injury is a threshold injury; no pre-existing psychological condition; Medical Assessor at first instance found that there was no psychiatric/ psychological injury caused by the motor accident; Medical Review Panel re-examined the claimant and found that there was a psychiatric injury (persistent depressive disorder) caused by the motor accident; Held – original assessment revoked; finding that the claimant’s presentation fulfilled criteria for persistent depressive disorder which is a not a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury. The Review Panel: 1. Revokes the certificate of Medical Assessor Doron Samuell dated 6 October 2022. 2. Certifies that the psychiatric injury - Persistent depressive disorder, caused by the motor accident is NOT a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Muhammad Iqbal, was involved in a motor accident on 19 November 2020 when his vehicle collided with a kangaroo. As a result of the collision, his vehicle left the road and collided with rocks nearby.
As a result of the accident, the claimant claimed that he sustained injuries to his right arm, right ankle, neck and both shoulders. He claimed that he sustained concussion and memory loss. He claimed that he subsequently developed a psychological and psychiatric injury.
The insurer accepted liability to pay the claimant statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
[2] Section 4.4 of the MAI Act.
On 8 June 2021, the insurer issued a decision that the psychological injury caused by the accident was a “minor injury”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and the term “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The issue in dispute in this matter is therefore whether the claimant’s psychological or psychiatric injury, resulting from the accident was a threshold injury for the purposes of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor,[3] and pursuant to s 7.26 of the MAI Act, on review, by a review panel.
[3] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Doron Samuell who issued a Medical Assessment Certificate dated 6 October 2022.[4]
[4] Claimant's bundle, p 19.
In his certificate, the Medical Assessor referred to the report of psychologist, Dr John McMahon dated 5 August 2021, and stated the following:
“I note, in particular the test of memory malingering where the claimant performed alarmingly poorly, below the probability of chance. On the Rey test of memory malingering, the claimant similarly performed poorly.”[5]
[5] Page 29 of the joint bundle.
The Medical Assessor concluded that a diagnosis could not be made in view of the symptom validity testing presented by Dr McMahon. He noted that the evidence supplied by the treating general practitioner (GP) and treating psychiatrist was “not of sufficient quality to support a diagnosis.”[6]
THE REVIEW APPLICATION
[6] Page 30 of the joint bundle.
On 13 October 2022, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[7]
[7] Section 7.26(5) of the MAI Act
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Michael Hong, Medical Assessor Samson Roberts and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act, the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[10] Section 7.26(6) of the MAI Act.
A threshold injury is defined in s 1.6(1) of the MAI Act:[11]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[11] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the MAI Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that “acute stress disorder” and “adjustment disorder” have the same meanings as in DSM-5.[12]
The Motor Accident Guidelines
[12] DSM-5 is the document entitled Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Causation of injury
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13]
[13] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
MATERIAL BEFORE THE PANEL
[14] [2021] NSWSC 13 (Raina) at [65].
The claimant submitted a paginated and indexed bundle of evidence (537 pages) pursuant to the Panel’s directions.
On 12 December 2023, the insurer informed the Panel that all the documents upon which it relied were contained within the claimant’s bundle of evidence and provided a separate index to those documents.
The Panel has considered all of the documents relied on by the parties.
SUBMISSIONS
The claimant’s submissions
The claimant made submissions to the President seeking leave to review the medical assessment. These were dated 13 October 2022. The claimant did not make any further submissions directly to the Panel.
These submissions may be summarised as follows:
(a) the Medical Assessor’s reasons do not set out a path of reasoning to come to the conclusion that the psychological injury was not caused by the accident.
(b) There was no proper review of the reports of the treating psychiatrist, Dr Khan and the treating GP Dr Lim. The Medical Assessor merely stated that the “quality of the evidence subsequently provided by the treating GP and psychiatrist was not of sufficient quality to support a diagnosis”.
(c) The Medical Assessor recorded an incorrect history of another car colliding with the claimant’s car. The applicant has given a consistent history that he swerved to miss a kangaroo, ran off the road and collided with large rocks on the side of the road.
(d) The Medical Assessor has noted a number of symptoms consistent with a psychological injury, yet he has declined to make any finding regarding those symptoms and simply states a finding as to “minor injury” is not required.
(e) The Medical Assessor appears to have made his decision based on the findings of psychologist, Dr John McMahon without providing any reasons why. A medical assessor is required to come to an independent finding taking into account all of the evidence.
Insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a) the motor accident was very minor in nature. The claimant was not attended to by ambulance personnel and was not taken to hospital. The police report noted that the accident was a “minor traffic crash” and the airbags were not deployed in the claimant’s vehicle. The photographs of the claimant’s vehicle depict minor panel damage on the passenger side.
(b) The application for personal injury benefits (completed eight weeks after the accident) did not report any psychological symptoms arising from the accident. The first recorded complaint of any psychological symptoms relating to the accident was on 5 February 2021 when the claimant attended his GP.
(c) Little weight should be given to the report of psychiatrist, Dr Khan as he did not provide any information as to how the full diagnostic criteria for a diagnosis of post-traumatic disorder were met.
(d) It was open to the Medical Assessor, after conducting a clinical examination of the claimant, evaluating the evidence before him and using his medical experience and knowledge to come to his own finding that there was no identifiable diagnosis.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence relating to the injury being assessed may be conveniently summarised as follows.
The claimant’s application for personal injury benefits
In his application for personal injury benefits dated 28 January 2021, the claimant described the circumstances of the accident as follows:
“Travelling East from Bylong about 80kms ph when a kangaroo came from my right without warning and collided with my car, causing my car to leave the road & collide with rocks”.[15]
[15] Page 89 of joint bundle.
The claimant described his injuries in the following terms:
“Right Arm, Right Ankle, Neck & both Shoulders, R.Hip, Concussion, memory loss.”[16]
The claimant’s statement
[16] Page 89 of joint bundle.
In a signed statement dated 21 June 2021, the claimant described the circumstances of the accident as follows:
“…
5) I had been driving for about 30 to 40 minutes prior to the accident [sic] happened on an isolate rural road and there was virtually no traffic during the journey in either direction. There was [sic] other vehicles in the vicinity when the accident happened. There was a hilly area and there was [sic] no houses in the immediate vicinity.
6) I was travelling around a left hand curve on the road at between 60 to 70kms per hour. I had slowed down considerably because I saw on the gravel verge and on the sealed road some rocks which appeared to have come down from a landslide.
7) I had just completed driving around the kerb, the roadside on the left was still hilly, but on the right side there was a fence off the verge with trees scrub [sic] in a paddock.
8) The Kangaroo apparently came from my right and I saw something out of the corner of my eye which was on the road and then it jumped towards my car and collided with the driver side of the car about the middle of the two doors. I then instinctively swerved to my left in an attempt to avoid a collision with the Kangaroo. I was partly successful in that the Kangaroo did minimal damage to the drivers [sic] side of the car and it hopped away apparently uninjured.
9) When is served [sic] left I ended up on the gravel verge and there was a large rock on the verge which collided with the passenger side of my car as shown in the photographs.
10) The road in this spot is very narrow, the car was drivable so I drive [sic] another about 200 metres where I could get off the road and inspect the damage.
11) I was shocked at this collision and very frightened as I thought I would be seriously injured when there was a loud bang when the car hit the rock on the side of the road.
…”[17]
[17] Page 409 of joint bundle.
In terms of his symptoms after the accident after the accident that are relevant to this assessment, the claimant stated the following:
“…
19) I also was still getting severe headaches. I was not sleeping properly and I was having nightmares and flashbacks about the accident. I was becoming forgetful as well. I had this feeling all the time of something or someone was always coming at me from my right hand side. This constantly reminded me of the accident.
20) I was feeling worthless as I was not able to work as I had done before in order to support my family. I started to get angry and upset with my family at little things.
21) My behaviour to my immediate family and also to my brother became worse, so much so that my brothers who used to visit regularly have refused to come and visit me.
22) At present I cannot continue with my occupation as a protection officer due to my psychological condition. The employers will not employ me as I could be a danger to other employees.
22) I got so bad that I was thinking of suicide. I rang lifeline a couple of times who helped me and urged me to see my GP who was initially Dr Tariq Mahmoud at the Halekulani Medical Centre at Budgewoi which I eventually did. Dr Mahmoud was busy and it was taking too long to get appointments so changed to Dr Lim at Parramatta. I continued with Dr Lim until 31 May 2021.
23) I saw a psychologist at the request of Dr Lim and then he referred me to Dr Khan a psychiatrist.
24) I am taking an anti-depressant medication sertraline prescribed by my GP Dr Tariq Mahmoud who I have gone back to consult with as surgery is closer to my home.
24) I do not believe my psychological injury has improved and Dr Mahmoud has organised a referral with a psychologist at the Brisbane Waters Private Hospital at Woy Woy…I do not yet have an appointment and as I have not yet been paid any compensation I am unable to afford the appointment.
…”[18]
[18] Page 410-411 of joint bundle.
In an initial assessment report by Dr Lim dated 5 February 2021, the following diagnosis was recorded:
“? Head trauma, Cervical spine strain, R) shoulder strain, R) elbow strain, Lumbar spine strain, R) knee strain, PTSD symptoms (PCL-5 69)”.[19]
Dr Lim recorded the following symptoms:
“Headaches, neck pain travelling down R) shoulder, R) elbow pain, weakness in R) hand, pins and needles in R) hand, lower back pain travelling down bilateral legs, R>L, pins and needles in R) foot, R) knee pain, flashbacks, nightmares, depressed, low mood, low energy, trouble sleeping, memory issues.”[20]
Guildford Road Medical Centre
[19] Page 96 of joint bundle.
[20] Page 96 of joint bundle.
An allied health recovery request form issued by psychologist Yulia Vystavkina on 9 February 2021 recorded a diagnosis of “Post-Traumatic Stress Disorder – PCL 5 = 69/80”[21]
[21] Page 83 of joint bundle.
On presentation, Ms Vystavkina recorded observations/reported symptoms of low mood, impaired memory and concentration, anxious and depressive cognitions, rumination and sleep disturbance.[22]
[22] Page 84 of joint bundle.
Ms Vystavkina recommended eight sessions of therapy including CBT – (Controlled breathing therapy?).[23]
[23] Page 84 of joint bundle.
Several certificates of fitness issued by GP, Dr Eric Lim on 5 and 19 February 2021, 19 March 2021, 9 April 2021, 3 and 31 May 2021 recorded a diagnosis of “PTSD symptoms (PCL-5:69)”.[24]
[24] Pages 137-157 of joint bundle.
Dr Abdul W Khan
The claimant was treated by psychiatrist, Dr Khan. In a report dated 21 April 2021, Dr Khan recorded that the claimant reported the accident occurred when he was coming back from work when a kangaroo started crossing the road from the right side of his car and that he swerved left to try and avoid the kangaroo but the kangaroo jumped and the right side of his car.[25]
[25] Page 110 of joint bundle.
Dr Khan noted that as a result of the accident the claimant experienced deterioration in his mental state as follows:
“The claimant experienced deterioration in his mental state characterised by nightmares, flashbacks, anxiety, avoidance of driving, low mood, reduced enjoyment in activities, social withdrawal, sleep disturbance, impaired memory, impaired attention, impaired concentration, hypervigilance and heightened startle reaction.”[26]
[26] Page 110 of joint bundle.
On examination, Dr Khan recorded the following:
“On mental state examination, Ms Iqbal described his mood in anxious terms. There were no abnormalities of speech or thought form. The claimant’s thought content comprised trauma, depressive and anxious cognitions. There were no acute risk issues. The claimant had some cognitive difficulties. He had appropriate insight and judgment.”
His diagnosis was that of post-traumatic stress disorder (improving) and chronic pain.[27]
[27] Page 111 of joint bundle.
Dr John McMahon
Dr John McMahon, psychologist, was qualified by the insurer. He assessed the claimant on 5 June 2021. In his report dated 5 August 2021, Dr McMahon recorded that the claimant reported that in the accident, a kangaroo had struck his car and that the left side of his car struck a rocky embarkment.[28]
[28] Page 424 of joint bundle.
As the Panel has previously noted, Dr McMahon was of the opinion that the claimant’s presentation was “marred by feigning spectrum behaviour to the extent that no diagnosis can be conducted”.[29]
RE-EXAMINATION FINDINGS
[29] Page 428 of joint bundle.
Medical Assessor Hong and Medical Assessor Roberts conducted the examination of the claimant via audio-visual link. The claimant was located on his own at his home for the duration of the examination.
The claimant presented as an impaired historian and intermittently changed his history and struggled to remember information in a sequential logical manner. The Medical Assessors of the Panel formed the view that this was partly because it has been several years since the accident, and partly reflected his psychopathology.
Psychosocial history and pre-accident history
The claimant was born in Pakistan and came to Australia in 2012 on a student visa. He said he had a good family and his father worked as a foreman in a factory and they were reasonably well off. He enjoyed playing cricket and sports when he was younger. He grew up with his parents and was the youngest of six siblings and has one sister. There was no major adversity in his childhood.
In terms of general medical history, he does not have cardiac, respiratory or liver disease. He does not have drug or alcohol problems. He is not aware of a family history of mental illness. He does not have a forensic history. He has not had any previous motor accidents. The claimant does not have a past psychiatric history.
History of the motor accident
On 19 November 2020, the claimant was driving by himself on Bylong Valley Way. He reported that he was working near Mudgee and was going home, and his family was living in Morisset Park. He often stayed overnight in a motel when he was working near Mudgee, as he did the night before.
The claimant's recollection was that he was in his Kluger and suddenly he thought somebody had jumped out on the right-hand side, and then he realised it was a kangaroo. He swerved to the left and remembered he panicked. He went off the road and said it was not a gravel shoulder and he thinks he went down a ditch or an embankment before the left side of his car struck some rocks. He kept driving for about 200 to 300 metres and then he stopped. He remembered he was in a rural area with poor mobile reception.
The claimant remembered that his right hand was painful. He was in a daze but did not fully lose consciousness. He said he was panicking. His airbag did not deploy. He thinks he hit his head during the accident. He had a patchy memory of the events and said that it could have been a few minutes to half an hour, before he started driving again, and it took him a long time before he got home. The trip normally took about one and a half hours, but that day it took four to five hours.
Once home, he spoke to his wife and she gave him analgesics.
The Medical Assessors tried to clarify if he did collide with the kangaroo (as stated in the application for personal injury benefits), and that he went off the road and hit the rocks, sustaining damage to the left side of his car. Despite efforts to clarify whether there was an actual impact between the kangaroo and the vehicle, his vague manner and contradictory responses left the Medical Assessors unclear as to whether the kangaroo hit the vehicle or not. The Medical Assessors formed the view that certainty regarding this detail would not influence the psychiatric conclusions.
The Medical Assessors clarified his driving speed and he said that he was driving straight but there was a bend coming up, and he said he probably only was driving at 40 to 50kmph when the accident happened.
A week later, the claimant recalled his pain symptoms were more severe, so he consulted a doctor and had X-rays, and was told that he had cracks in the bones in his right hand. He said that over time he also developed back and neck pain. He had an MRI, and was told it was a minor problem that would fix itself, but the pain did not resolve over time. Even now, he still has neck and back pain, and right-hand weakness. He said that more scans were recommended but he could not afford them. He has not had surgical treatment.
History of symptoms and treatment following the motor accident
The claimant described the onset of anxiety symptoms shortly after the subject accident and his psychological symptoms have never substantially remitted. He took the car to a mechanic, but it was too expensive to repair, and then he sold the car because he did not want to drive that car anymore. He said he could not bear to go back into the same Kluger. He said for about three to five months after the accident, he could not bear to drive any other cars, even though his wife was heavily pregnant (39 weeks) and she needed to go to the doctor. He could not drive her and his brother and his brother's family had to drive her.
Even now, his driving is still quite limited. He said he drives to do the school pickup which is about a kilometre away, and sometimes does this on foot.
The claimant said that he was normally very friendly and even though he is still friendly now, he avoids people. He does not want people to visit him or to visit other people. His brother helps him and they are close, but now he only sees him once or twice a month and the relationship has become distant.
He said that he was 93kg before the subject accident and he lost a lot of weight, maybe 10kg in the first three months (this correlates with Dr Lim's entry in February 2021, that he was 82kg). He then gained weight because of Zactin, his antidepressant, and is currently 85kg.
He reported he gradually suffered more depression and anxiety, and he kept worrying about how bad his health is and how his family would survive, and how his wife had to do more for the family. It reached a point where he went to the railway station and wanted to jump – this was maybe one and a half years ago. He said that his wife could not find him and went to look for him and found him at the train station. He told his wife he wanted to end his life. She wanted him to see a doctor but he promised that he would not end his life, so he did not see a doctor after that.
Details of any relevant injuries or conditions sustained since the motor accident
He reported around one or one and a half years after the subject accident, he was driving a BMW and then had a minor accident with rear damage which was repaired. Because he had financial difficulties and had to pay for his mother's cancer treatment, he sold the BMW three months later. He did not sustain an injury from the second accident.
Current symptoms
The claimant has concentration and memory problems and described variable anxiety and depressive symptoms. He reported having ongoing sleep problems, generally only sleeping two hours, and sometimes he has nightmares. He described being frustrated and tense and being socially withdrawn. He is irritable. He has chronic anxiety and depressive symptoms.
He had suicidal ideation a couple of times and denied actually engaging in self-harm behaviour.
The Medical Assessors asked the claimant about hearing "voices" and he said that he first realised this was happening about two or more years ago, and he told his wife and told his psychologist, Yulia Vystavkina, at Insightful Minds. He said that he could hear several people talking, mostly men, and he felt like he was sitting between them as their voices were outside his head and around him. They were talking about him, saying that he was not good for anything and laughed at him, and claimed he was bludging. This happened when he was wide awake.
He said that sometimes he has an unusual taste in his mouth but cannot explain it.
He said he has told psychologists that he sees something no one else can, which does not happen very often, and this includes a man who has four eyes, including two red eyes on his cheeks, but again he cannot explain it.
Current and proposed treatment
The claimant is currently taking:
· Zactin/Fluoxetine 20 mg morning and night, and
· Panadol and Aspirin as needed for pain.
He previously took Sertraline. He consulted Yulia Vystavkina, psychologist and Dr Abdal Khan, psychiatrist but has not seen them for a long time. He had treatment with Nadim, another psychologist, but could not recall how long ago,
He said he is having a consultation with a psychologist based in Pakistan on video, as it is cheaper. He has never had a psychiatric admission.
Clinical examination
Mental state examination
The claimant was assessed by video. He had short dark colour hair and was clean-shaven. He wore a collared shirt and spoke with an accent and was disorganized and at times verged on being thought disordered. He changed his history several times, and with clarification, the Medical Assessors were able to confirm a reasonable overall history. He was talkative and the Medical Assessors interrupted him sometimes when he spoke off topic, and noted he often jumped to different topics. He was moderately restricted in his affect range and reactivity.
The claimant reported that when he was at primary school age, he was closing a door and fell and hit a wall, and that is why he has a scar on his forehead.
Current functioning
The claimant is 41 and living with his wife, who is an enrolled nurse and also works in a kebab shop. He reported that he feels bad because since the accident, he cannot work and she has to do more and take on more jobs to support the family.
They have three children at home, aged 11, 5 and a half and 3, who are healthy.
He reported that he has been with his wife for maybe 12 years, and this was an arranged marriage. He initially said they had never separated, but later said that his wife left him two or three times to stay with his brother for a few days because of his mental health and he was getting frustrated with her.
In terms of education and employment history, he came to Australia and studied a MPA, a Masters of Professional Accounting, and finished that in about two years, which is within normal time, in about 2015. He also did leadership courses. He then worked in high pressure cleaning.
At the time of the accident, he worked for Railcorp for maybe three years and did full-time protection officer work. After the accident, he said that he might have stopped work for one month, then went back and did three or four shifts, and then his Railcorp manager discovered he had had an accident had said that he could not continue to work until he had a psychiatric assessment. He recalled he completed psychometric testing in an office, but after that, his employer said he could not come back to work.
He reported that he started his own cleaning business around four years before the accident and specialised in transport cleaning and cleaning the train stations, with a turnover of $0.8 to $1 million a year and had a team of 20 to 30 cleaners. He said he did a lot of hours in the business before the accident, but after the accident he could not run the business anymore. Then the customers told him that if he did not turn up they would cancel the contracts, and he struggled to fulfil the work requirements. He lost money. The business is still active but he does not operate the business now – he said that his wife handles the business now.
Comments of consistency
The police determined the subject accident to be a minor traffic accident with three units being involved, that is a car, a kangaroo and a guardrail or safety barrier.
Determination
Diagnosis and reasons
The claimant has been referred for the assessment in relation to the accident on 19 November 2020.
The claimant had no pre-accident psychiatric problems. He described that he was in a relatively minor accident on 19 November 2020, however, he developed chronic pain, depression and anxiety symptoms. He developed severe driving anxiety with phobic avoidance in the first three to five months, and his driving avoidance has not completely resolved. He described unusual phenomena and possible psychotic symptoms in the past two to three years.
He functioned reasonably well for many years before the subject accident, but after the accident there was almost immediate disruption to his life functioning. He could not attend to his wife's pregnancy needs. He failed psychometric testing arranged by his employer and was deemed unfit to continue work as a rail protection officer. He also could not operate his cleaning business and his wife subsequently took over. The Medical Assessors noted he engaged with psychiatrist and psychologist treatment, and has taken at least two antidepressant medications, and current consults an overseas psychologist due to funding limitations.
The Medical Assessors accepted that the accident was objectively minor, but it was a distressing incident for him and his psychological responses have been severe and persistent, and he developed a persistent depressive disorder.
Because of the cross-sectional nature of the assessment, the Medical Assessors cannot conclude whether he has had true psychotic symptoms.
In terms of persistent depressive disorder DSM-5 TR diagnostic criteria, the claimant's anxiety and depressive symptoms commenced not long after the subject accident and have been more than two years now. He has depressed mood for most of the day, on more days than not, as indicated by his provided history and treatment records. In addition to depressed mood, he has poor appetite and major weight loss in the first three months, insomnia, poor concentration feelings of hopelessness and suicidal ideation.
The Medical Assessors noted, it has been more than two years since the accident, and since the subject accident, he has never been without the described psychological symptoms for more than two months at a time. There has never been a manic episode. His symptoms are not better explained by schizophrenia, delusional disorder or a specific psychotic disorder, however there may be an element of psychotic symptoms. His psychological symptoms are not attributable to the physiological effects of a substance or another medical condition. The claimant’s symptoms cause clinically significant distress and impairment in social and occupational functioning. His symptoms may have fulfilled the DSM-5 TR criteria for major depressive disorder but it is difficult to confirm this, with the limited records supplied.
The claimant has no past psychiatric history and developed immediate anxiety symptoms after the subject accident, and over time developed depressive symptoms and possible psychotic symptoms. He had another accident, which was minor and he did not sustain a psychological injury from that accident. There are no other major personal changes contributing. The Medical Assessors concluded there is more than a negligible contribution from the subject accident to the claimant’s current psychological injury.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were or were not threshold injuries, as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen[30] and Insurance Australia Ltd v Marsh.[31]
[30] [2021] NSWCA 287 at [40], [41] and [45].
[31] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of the Panel’s Medical Assessors.
The Panel finds that the claimant suffers from a psychiatric injury – Persistent depressive disorder caused by the motor accident. This a not a threshold injury for the purposes of the MAI Act.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Samuell is revoked. The Panel issues a new certificate which is attached to these reasons.
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