Janes v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 781
•21 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Janes v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 781 |
CLAIMANT: | Laura Janes |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Matthew Jones |
DATE OF DECISION: | 21 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; section 1.6(3); threshold injury; substance use disorder; specific phobia (driving); pre-existing condition; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 8 March 2021; Medical Assessor (MA) Samuell found claimant sustained an adjustment disorder caused by the accident; claimant sought review; Held – claimant had sustained exacerbation of substance use disorder (alcohol dependence) and a specific phobia (driving) caused by the accident; also probable diagnosis of panic disorder; certificate of MA Samuell revoked; specific phobia and exacerbation of a substance use disorder are non-threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Doron Samuell dated · exacerbation of a substance use disorder, and · specific phobia (driving). |
STATEMENT OF REASONS
INTRODUCTION
Ms Laura Janes (the claimant) sustained injury in a motor vehicle accident on 8 March 2021 when the insured vehicle failed to stop at a Give Way sign and collided with the claimant’s vehicle (the accident).
Ms Janes is now 33 years of age and was 30 years of age at the date of the accident.
Ms Janes lodged an Application for personal injury benefits dated 19 March 2021 in relation to injury allegedly sustained in the accident.
Insurance Australia Limited trading as NRMA Insurance is the relevant insurer with liability to pay statutory benefits to Ms Janes under the Motor Accident Injuries Act 2017 (the MAI Act).
Ms Janes’ claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the accident were threshold injuries.
On 11 June 2021 the insurer issued a Liability Notice - Benefits after 26 Weeks declining the claim for statutory benefits on the basis the injury sustained by the claimant was a minor (threshold) injury for the purposes of the MAI Act.
On 6 August 2021 the claimant requested an internal review of the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 30 August 2021 affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.[1]
[1] Insurer’s bundle p 312.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, 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 by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Commission to Medical Assessor Samuell.
The claimant has sought a review of the certificate of Medical Assessor Samuell.
DOCUMENTS BEFORE THE REVIEW PANEL
On 13 May 2024 the claimant uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 193 (claimant’s bundle).
On 22 May 2024 the insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 176 (insurer’s bundle).
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)adjustment disorder.”
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 MAI 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“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, Fifth Edition, Text Revision (DSM-5-TR), 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.”
ASSESSMENT UNDER REVIEW
In a certificate dated 1 June 2023 Medical Assessor Doron Samuell certified the following injury caused by the accident was a minor (threshold) injury for the purposes of the MAI Act:
· adjustment disorder.
The injury referred for assessment was:
· psychological injury.
Medical Assessor Samuell reported Ms Janes had a pre-existing intellectual disability, an attention deficit hyperactivity disorder (ADHD), anxiety and depression. He reported a history of panic attacks before the accident once per month which were manageable. He reported Ms Janes has an eight-year-old daughter who lives with her mother because she was unable to care for her.
Medical Assessor Samuell reported the accident began to affect Ms Janes around two months after the accident. She could not physically get into a car due to anxiety and it was taking her 20 to 30 minutes to leave her driveway. It took her three months to drive a car after the accident. She had 10 to 20 sessions of counselling which she found unhelpful.
Ms Janes reported flashbacks of the accident twice a week. Her mood was described as “pretty quiet”. There was no significant diurnal mood variation and her concentration was normal.Medical Assessor Samuell concluded the contemporaneous notes showed a deterioration in the claimant’s mental health following the accident. He stated it was less clear if the psychological difficulties constituted a new condition or an exacerbation of a pre-existing condition. He concluded on the balance of probabilities the deterioration of her mental health following the accident was a reaction to the accident. He concluded the claimant had sustained an adjustment disorder, which is a threshold injury for the purposes of the MAI Act.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Samuell on 2 June 2023 within 28 days of the date on which his certificate was made available to the parties.
On 3 August 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
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.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 9 July 2024 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits
In the application dated 19 March 2021 Ms Janes described her injuries caused by the accident as follows:
“Neck, mid back, low back, hips, abdomen, aggravation of depression and anxiety.”[4]
[4] Claimant’s bundle p 164.
She reported a prior history of anxiety and depression. Ms Janes also reported in addition to working with the Australian Foundation for Disabilities she was also in receipt of the Disability Support Pension at the time of the accident.
Treating medical evidence
My Family Health Medical Centre, clinical records
The records commence in May 2018.
On 26 December 2018 Dr Islam referred to a motor vehicle accident on 25 December 2018 (the 2018 accident).[5] Ms Janes was driving at about 80 kmph when a fast car hit her car from the back and pushed it to the side of the road. She reported neck and left shoulder pain. She had mild headaches and both hips were mildly tender.
[5] Claimant’s bundle p 24.
On 3 January 2019 and 7 January 2019, Ms Janes reported back, neck and shoulder pain. It was reported Ms Janes was not sleeping well due to flashbacks from the accident and on
7 January 2019 she reported anxiety worsening. On 18 January 2018 she reported ongoing neck, back and shoulder pain. On 21 January 2019 Dr Islam prescribed Zoloft.On 11 November 2019 Dr Das reported a history of depression and reported Ms Janes was taking Effexor 150mg daily.[6]
[6] Claimant’s bundle p 21.
On 25 November 2019 Ms Janes consulted Dr Touma. She had been assaulted by another girl and had slight swelling and bruising of the left eye.
On 23 November 2020 Ms James consulted Dr Touma following a laceration to the left forearm and hand with glass which required sutures.
On 28 December 2020 Dr Hasan reported an injury to the left foot and ankle after jumping from a retaining wall and landing on hard rock.
On 10 March 2021 Ms Janes consulted Dr Touma following the accident.[7] He reported she was a passenger in a car hit at a speed of 60 kmph. He recorded neck pain, headache, mid back pain, lower back pain, chest pain, and abdominal pain.
[7] Claimant’s bundle p 15.
On 15 March 2021 Dr Touma reported difficulty falling asleep, flashbacks, daytime tiredness, anxiety and depression and significant pain in the chest, back and lower abdomen.[8]
[8] Claimant’s bundle p 14.
On 17 March 2021 Dr Touma reported ongoing issues with depression, affecting her work and relationship. He noted sleeping issues and prescribed Effexor-XR SR capsule 150 mg daily.
On 1 April 2021 and on 4 May 2021 Dr Touma reported the depression was getting worse. On 27 May 2021 Dr Touma added the words “post MVA PTSD” to the certificate of capacity/certificate of fitness.[9]
[9] Claimant’s bundle p 106.
On 1 July 2021 Dr Touma reported low mood, insight, concentration and thoughts. The claimant was not sleeping well. [10]
[10] Claimant’s bundle p 7.
On 21 July 2021 Dr Touma reported a telephone discussion with Belinda from Benchmark when he noted she needed a psychologist to make a “PTSD diagnosis”.
On 16 September 2021 Dr Touma referred Ms Janes to Ms Ramsey Andrews, psychologist. The presenting problem was driving post-accident, noting Ms Janes had to drive 45 minutes to work on the highway.[11]
[11] Claimant’s bundle p 130.
In an email dated 11 November 2021 to Dr Touma re Ms Jane’s driving and improvement in the management of her driving related anxiety Ms Stabb of Benchmark reported Ms Janes had returned to work completing 3 x 4 hour days per week since 25 October 2021.[12] All was reported to be going well with her return to work. Ms Janes reported she will not be increasing her hours.
[12] Claimant’s bundle p 138.
Counselling and psychological treatment
The claimant commenced treatment with Martin Virgara of Caring Conversations Counselling on 8 April 2021.
In an Allied health recovery request (AHRR) dated 26 April 2021 Mr Virgara diagnosed “severe anxiety and depression, PTSD and adjustment disorder”.[13] He reported Ms Janes had a negative view of her future, felt sad most of the time, lacked motivation, and was afraid to travel in a motor vehicle. She also reported intrusive re-occurring nightmares, cold sweats and flashbacks to the accident. He reported she had just gotten over the earlier car accident when this accident occurred. Mr Virgara’s goals were to reduce anxiety when travelling in a motor vehicle and to reduce depression and be more positive about the future.
[13] Claimant’s bundle p 149.
On 23 August 2021 Mr Virgara reported Ms Janes had made some progress but still had flashbacks to the accident.[14] He reported intrusive thoughts and nightmares continued but had decreased. He reported Ms Janes said she had an inability to sleep more than two hours and wakes in a cold sweat. Whilst she had resumed driving she could only drive a short distance and reported heightened anxiety levels when in heavy traffic.
[14] Insurer’s bundle p 106.
In an AHRR dated 28 September 2021 Ramsey Andrews, psychologist reported the current signs were “heart palpitations, disrupted sleep, frequent flashbacks regarding the motor vehicle accident”.[15] He reported Ms Janes could drive twice per week for approximately 10 minutes at a time avoiding highways and main roads due to her severe anxiety resulting from the accident.
[15] Insurer’s bundle p 103.
In an AHRR dated 23 November 2021 Mr Andrews reported Ms Janes continued to experience heart palpitations, disrupted sleep and flashback to the accident.[16] He reported she could drive four times a week for approximately 20 minutes at a time but still avoided highways and main roads.
[16] Insurer’s bundle p 113.
Benchmark Rehabilitation
In a report dated 28 May 2021 Ms Belinda Stabb reported Ms Janes had commenced counselling with Martin Virgara. She stated Mr Virgara reported there were developmental problems that were long standing impacting on the claimant’s ability to take on and consistently implement strategies designed to address her mental health. He reported the driving related anxiety was the biggest barrier in her return to work at that time.
In a report dated 30 November 2021 Ms Stabb stated Ms Janes had returned to work completing four hour shifts, three days a week.[17] She reported she was independently driving to and from her workplace with some increased, but managed, anxiety. Psychological counselling had ceased.
Medical-legal reports
[17] Insurer’s bundle p 90.
Dr Abhishek Nagesh, psychiatrist
Dr Nagesh assessed Ms Janes at the request of her lawyer on 20 March 2023.[18] He reported the claimant was a 32-year-old single female living by herself and working as a process worker four days a week, eight hours a day. Prior to the accident she worked up to 40 hours per week. He reported her involvement in the accident on 8 March 2021.
[18] Claimant’s bundle p 153.
Dr Nagesh reported Ms Janes developed panic attacks a few days after the accident. Seeing a car made her anxious as did the rain. She stopped driving in the rain. She started to have flashbacks of the accident. Her mood became depressed, her appetite was affected, and she lost confidence. She felt worthless and stopped driving completely for three months. She became depressed and anxious in the context of the physical injuries sustained. He reported her general practitioner commenced her on antidepressant medication Sertraline and Venlafaxine and she has seen a psychologist over 15 to 20 sessions undergoing psychotherapy and cognitive behavioural therapy. Dr Nagesh reported Ms Janes had returned to driving but was still anxious. She continued to have panic attacks. He reported she spent the majority of her time at home and struggled to clean, cook and shop. She reported poor concentration. Before the accident she was very sociable but since the accident she had lost friends and kept to herself. Her relationship of four years ended in September the previous year, she said, because of her mood swings and irritability.
In relation to her past history Dr Nagesh reported Ms Janes was diagnosed with ADHD, depression and anxiety at the age of 16 and had been on medication for ADHD. He reported her depressive and anxiety symptoms were in complete remission at the time of the accident.
Dr Nagesh diagnosed a persistent depressive disorder caused by the accident. He assessed a 15% whole person impairment (WPI).
Certificate of Medical Assessor Neil Berry
Medical Assessor Berry assessed the physical injuries sustained by the claimant and provided a certificate dated 28 March 2023.[19] He certified the claimant had sustained soft tissue injuries to the cervical spine and lumbar spine in the accident. He certified both injuries were minor (threshold) injuries.
SUBMISSIONS
[19] Claimant’s bundle p 171.
Claimant’s submissions
The claimant provided submissions dated 2 June 2023.[20] The claimant submits Medical Assessor Samuell failed to apply the DSM-V diagnostic criteria for an adjustment disorder which requires:
“Once the stressor or its consequences has terminated, the symptoms do not persist for more than an additional 6 months.”
[20] Claimant’s bundle p 185.
The claimant submits that nowhere does Medical Assessor Samuell state the claimant’s symptoms had resolved. The claimant submits she continues to suffer from marked distress that is out of proportion to the severity or intensity of the stressor.
Noting more than six months have elapsed since the stressor and its consequences the claimant submits that Medical Assessor Samuell misapplied DSM-V in diagnosing an adjustment disorder.
The claimant submits that Dr Nagesh diagnosed a persistent depressive disorder and Medical Assessor Samuell did not provide reasons for disagreeing with the assessment of
Dr Nagesh and for not diagnosing a persistent depressive disorder.The claimant notes the assessment with Dr Nagesh occurred less than six weeks prior to the assessment with Medical Assessor Samuell, yet he failed to put to the claimant perceived inconsistencies in the history recorded by Dr Nagesh and the history he obtained from the claimant. Dr Nagesh reported the claimant suffered from insomnia, fluctuating appetite, diminished ability to concentrate, social withdrawal, lack of motivation and energy and feelings of worthlessness, symptoms which satisfy the diagnosis of persistent depressive disorder. However, Medical Assessor Samuell only reported she sleeps for only two to three hours per night, tosses and turns but attributes it to lower back ache. He reported no problems with bad dreams. He reported her appetite was good, her concentration was normal and there was no significant diurnal mood variation.
Insurer’s submissions
The insurer provided submissions dated 5 July 2023 in response to the application for review.[21]
[21] Insurer’s bundle p 3.
The insurer refers to page 286-287 of DSM-V which described the adjustment disorder criteria and notes that on page 287 it states:
“If the stressor or its consequences persist, the adjustment disorder may also continue to be present and become the persistent form.”
The insurer submits if the psychological symptoms arising from the accident remain an ongoing issue for the claimant the adjustment disorder diagnosis is correct and has simply become the persistent form.
The insurer submits that Medical Assessor Samuell provided a clear path of reasoning for his diagnosis and addressed the report of Dr Nagesh. The insurer submits Dr Nagesh was not aware of the claimant’s pre-existing psychological history. In relation to the claimant’s suggestion there was a denial of procedural fairness the insurer notes that Medical Assessor Samuell reported at times the claimant’s narrative was internally inconsistent which he brought to the claimant’s attention. In any event, the insurer submits the alleged inconsistencies relate to the subjective symptoms as reported by the claimant and not inconsistencies in clinical findings or on observation.
The insurer provided submissions dated 31 January 2022 in response to the threshold injury dispute.[22]
[22] Insurer’s bundle p 7.
The insurer submits the claimant’s pre-existing history cannot be ignored. The insurer submits the claimant was diagnosed with anxiety and depression about the age of 14 or 15 and has been taking medication since that time. It is also submitted the claimant was diagnosed with ADHD at the age of seven for which she took Ritalin, which ceased when she commenced taking anti-depressant medication. The insurer submits the claimant was hospitalised at about age 16 for an eating disorder which she experienced between the ages of 10 to 16 years.
The insurer submitted there was insufficient medical evidence for the claimant’s condition to be diagnosed as a recognised psychiatric illness in accordance with DSM-V.
THE MEDICAL EXAMINATION
Ms Janes was interviewed via audio-visual link through the MS Teams platform on
6 November 2024. Present were Medical Assessors Christopher Canaris, psychiatrist, and Matthew Jones, psychiatrist. Ms Janes was alone for the assessment.Ms Janes is a 33-year-old woman living in Campbelltown, where she has lived for approximately 25 years. She currently lives with her partner, Stephen, and the relationship has been extant for a little under eight years. Stephen is not currently working and is receiving Newstart benefits.
Ms Janes reported that her mother and father have had care of her daughter, Charlotte, since she was two years old. She is currently nine years old, well, and living in the next suburb. The Panel asked Ms Janes why her daughter was in the care of her mother, and she said that she was physically and mentally unable to look after her child. Ms Janes reported that she looked after Charlotte from birth to the age of two and was overwhelmed by the tasks of motherhood and thought it was best that Charlotte have a life with her parents that she felt she was not able to offer. There was no involvement of the Department of Family and Community Services or other government service. She reported that Charlotte’s father was not in the picture and left the relationship with Ms Janes when she was 15 weeks pregnant. The process went through court at Ms Janes’ instigation. She speaks to her daughter every week and sees her in person every week.
Ms Janes is currently working for a company called Afford Packaging, where she has been for a number of years. She works in their warehouse. Her current lifting capacity, because of injuries due to the accident, is only 3kg. She reported she does not currently have a forklift licence but is intending to obtain one. She reported that she loves her work. She works 7.30am to 3.00pm Monday to Thursday, in a permanent arrangement. This equates to 28 hours per week. She is also receiving the Disability Support Pension through Centrelink, which is reduced because of her working capacity and earnings. She reported the full pension rate is approximately $1,200 per fortnight and she receives about $550 per fortnight from Centrelink.
History of the accident
Ms Janes confirmed the date of accident was 8 March 2021, approximately three and a half years before the assessment. Her car was travelling straight ahead in three lanes of traffic. Two lanes had stopped but her lane was still moving. The driver of the other car did not see her and turned from a side street across the two stopped lanes resulting in a collision at the front corner of her vehicle. She reported she was driving, and Stephen was in the back seat because the front seat had been wet due to the window being left open.
An ambulance attended the scene, and Stephen was taken to hospital with Ms Janes accompanying him. She was examined at the hospital as well. No police attended the accident scene. Her car was written off.
History of symptoms and treatment following the accident
Ms Janes reported that the clinicians at the hospital had to monitor her back, which she said still causes her problems to today. She was born with a spinal problem which she described as double scoliosis.
With respect to her physical injuries, her back was sore, and she also had a seatbelt mark across her chest, which persisted for approximately two months.
The Panel asked Ms Janes how her injuries had gone over time. She reported she received some physiotherapy which did not seem to assist her and that she had learnt to live with constant pain. If the pain gets too bad she uses heat packs or wheat bags. She does not want to go on painkillers. She was told to take Panadol and Nurofen and was not prescribed any other medications. She takes Panadol daily. She has not received any injections or had any operations related to her back. She still performs back stretches, for example prior to work and if she does not do anything, for example if she is just watching television, her back will not hurt. She has some pain with respect to sleep and stated that if she turns the wrong way she will wake-up. She commented that she never experienced pain with her double scoliosis.
The Panel asked Ms Janes what activities her physical injuries limited, and she reported that if she does too much in one day she becomes bedridden for the next few days. She reported she needs to push herself to go to work and she remembered that she had no physical restrictions whatsoever with respect to her work prior to the accident.
Ms Janes’ back and seatbelt injuries were her only physical injuries. With respect to housework, she can still perform this, such as vacuuming, however she does it in stages, for example for 10 minutes and then has a break. She has some limits with respect to how long she can sit, for example when driving. When she drives between work and home her back becomes sore. The drive is 45 minutes to an hour.
The Panel asked Ms Janes about any mental health or psychological problems emanating from the accident. She stated that it was raining when the accident happened and mentally she “freak[s] out” when she sees rain. She even has a similar experience when there is dripping in the shower. She reported she has “full blown panic attacks” and sometimes even when it is not raining. She can have these panic attacks four to five times a day and they last for between one and three minutes. If she is at home when these occur, she can sense that it is happening, and she will sit down or lie down and let it pass.
The Panel asked Ms Janes if there were any particular triggers to the panic attacks and she stated that if it is about to start raining, or she thinks it is, she will have a panic attack. She reported she has attempted to drive whilst it is raining, only going in and out of the driveway. She said that if the weather is not rainy, she will only have one or two panic attacks in a fortnight. She reported she will take time off work if it is raining. She will also have panic attacks if it is raining and she is a passenger. Ms Janes reported that her panic attacks increased soon after the accident.
With respect to her previous experience of panic attacks, she reported they were nowhere near as frequent, perhaps every month or so, and they were generally caused by stress.
Ms Janes reported she tried to hide these problems from her partner, and she has been too embarrassed to see anyone or to talk about it.
She was unable to get into a motor vehicle for six months and was unable to drive for mental health reasons, although she was physically able to drive.
With respect to psychiatric medications, Ms Janes has been on Ritalin since the age of seven or eight for ADHD. She currently takes 40mg of long-acting Ritalin, once a day. She said it helps with her ADHD. She denied any other psychiatric medications.
Ms Janes has not seen any psychologists or psychiatrists regarding the accident. She does see a psychiatrist, Dr Elbaky in Camden, every six to nine months, to monitor her ADHD.
The Panel asked Ms Janes if she experienced any other mental health symptoms related to the accident, and she replied, “no”. On specific enquiry, she denied any dreams or nightmares related to the accident but does have “some sort of flashbacks”. She has had a few of these when she is asleep, and they have sometimes woken her. She described them as “nothing really major”. She was unable to remember specific details of these “flashbacks”.
Ms Janes reported that she was off work following the accident for six to seven months and then returned to work with normal hours. Prior to the accident, she was performing the same work and at the same hours. She has been on the Disability Support Pension since approximately 2007. At the time of the accident, she was living with Stephen, and Charlotte was in the care of her mother and father. The only medication she was taking was Ritalin.
The Panel asked Ms Janes about the 2018 accident. She reported a car ran up the back of her vehicle when she and Stephen were driving back from Wollongong. She had no physical injuries related to this accident. From a mental health perspective, she could not remember any significant problems. She had totally forgotten about that accident but thinks she may have been a bit anxious and scared following this, but “nothing like this one”.
The Panel crosschecked with her the reference to flashbacks in the general practitioner records. Ms Janes remembered that after the accident she became scared about cars getting to close to her. She said she is still scared about this, but now she has a panic reaction.
The Panel cross-checked with Ms Janes whether she may have been prescribed antidepressants in the form of Sertraline. She thinks she took these for more than a few weeks, however ceased taking them because she was feeling addicted to them and believed that she was “relying on them every day”. She experienced a sense of panic if she did not take the medication.
The Panel also asked Ms Janes whether she saw her general practitioner regarding feelings of depression in November 2019 and was prescribed Venlafaxine (another antidepressant). Mr Janes stated that she did not remember taking this medication. She commented that her general practitioner wanted her to re-start on this medication after the accident, however she declined. She stated, however, she thought it might help her.
Psychiatric history
Ms Janes denied any history of psychiatric hospital admissions. Her ADHD had been longstanding. She developed some symptoms of anxiety following the 2018 accident and panic attacks following the accident. She denied any history of sexual assault, postnatal depression, psychosis or any family history of mental health problems. She reported that with respect to the subject accident, she had not experienced any depression, “just anxiety and panic”.
The Panel enquired about the mention of an eating disorder in her early teens. Ms Janes reported that her mother told her she had an eating disorder when she was younger, but she does not really remember this. She does remember that taking Ritalin decreased her appetite.
Medical history
Ms Janes denied any significant medical history and specifically denied any history of diabetes, epilepsy, thyroid disease, heart disease or head injury. She denied any surgical history and said she had never fractured any bones.
Substance use history
Ms Janes reported she used to drink alcohol up until about four or five months before the assessment. She currently has no alcohol whatsoever. She previously drank up to five bottles of wine every day and this was the case for a year or two. Her alcohol ingestion prior to this was also high, drinking three to four bottles of wine. She had a couple of drinks at the age of 16 but started drinking more regularly at the legal age of 18. She had been drinking heavily for the last six or seven years, particularly after the 2018 accident. She reported she drank “to get the mind off things and to try and live a normal life”. She reported that when she drank, she did not feel any panic or stress, but when she stopped, the panic came back. She reported she had never been to a detoxification or rehabilitation facility, and she had not got into legal trouble associated with her drinking.
The Panel confirmed that Ms Janes drank alcohol heavily after the 2018 accident and kept drinking heavily. Her drinking increased considerably, from two to three bottles of white wine a day to five bottles of white wine a day, following the subject accident. She reported she went to see her doctor a few months before the assessment and was told her “liver was giving up”. She quit alcohol rapidly without medical assistance and reported no significant withdrawal effects, although she found it was “hard”.
Ms Janes reported that years ago, from the age of 18 or 19 and for a short while, she smoked cannabis “once in a blue moon”. She ceased this when she had her daughter. She denied any history of intravenous drug use and had never abused benzodiazepines, amphetamine, cocaine, ecstasy or opiates. She denied any problematic gambling history and does not ingest excessive caffeine, having only two or three coffees per week.
Forensic history
Ms Janes was somewhat embarrassed and reluctant to answer when asked about her criminal history. She said she was arrested following one incident with Stephen. She had been drinking, he was out, and a friend informed her that he was cheating on her. She said she ultimately “ran him over with [her] car”. She was arrested and charged, Stephen came to court, and she received a community order for a short while. She said this occurred one or two years prior to the accident. She denied any other criminal history.
Ms Janes denied any history of work-related injury or worker’s compensation. She reported the accident in 2018 did not become a CTP or compensation case. She denied any other major motor vehicle accidents or involvement in any other compensation or litigation processes.
Relevant injuries or conditions sustained since the accident
Ms Janes reported that Stephen’s father died on 16 June 2024. Ms Janes had previously worked with him, and this was how she had met Stephen. She said Stephen was his carer and his father lived with them. She reported she is still trying to get over this and it is “day by day”. She commented that they are currently living in his father’s house, which was transferred into their name. It is a Housing Commission tenancy, and it is secure.
Mental state examination
Ms Janes was a Caucasian woman with long, blonde hair and no overt make-up. She seemed to have a couple of front teeth missing. She wore a high-visibility work shirt with a red collar. She was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal and there was no evidence of formal thought disorder or delusional thought processes. She vehemently denied any thoughts of self-harm or thoughts of harm to others. When asked about her mood, she described it as “like every other day, pretty shit”. She said she has no energy and “could be lying in bed right now”. Her affect (expressed emotion) was reactive, congruent and appropriate and she came across as a very genuine historian. She denied any perceptual abnormalities consistent with psychosis. Her cognition, insight and judgement appeared intact in the context of the assessment. Rapport was excellent and Ms Janes spoke openly and freely.
Recent symptoms and functioning
Ms Janes reported that her sleep lately had “been alright”. She said she gets her normal amount of sleep, which is about four or five hours per night, and this has been the case for the last five years. She goes to bed around 10.30 or 11.00pm, is awake for a while and then wakes-up at 5.50am to go to work.
With respect to her appetite, Ms Janes reported she is eating normal meals, although not much during the day. She said around 5.30pm she starts eating and then keeps eating. Her current weight is around 57-58kg and her height is 5’9” or 5’10”. She described her day-to-day energy levels as low.
The Panel enquired about Ms Janes’ memory, and she reported she was born with a memory problem. She said she cannot remember what happened two days ago. She reported her long-term memory is much better than her short-term memory. With respect to her concentration, she reported it depends on what she is doing. She can concentrate on a television show if she likes it, for example. She reported she is not much of a reader. Her concentration and memory appeared intact at assessment.
Ms Janes maintains a driver’s licence and drives.
In her spare time, Ms Janes will play games on her phone, for example colouring by numbers, which she reported she can do for hours. She described it as “more zoning out” than intense concentration.
Ms Janes has two cats and a dog. She looks after them, feeds them and walks her dog, except when her back is playing up.
Ms Janes reported she does more housework than Stephen at home.
When the Panel asked about family or friends Ms Janes reported she does not have any friends and tries to “stay out of everyone’s dramas”. She tends to stick to herself and this has been the case for her entire life.
The Panel asked about Ms Janes’ documented mild intellectual disability and she reported she has problems comprehending some things but not others. She said her intellectual capacity depends on the circumstance. She finished Year 10 at school but tended to avoid schoolwork. She remembers being made to do her schoolwork and does not remember if she had any special education classes or was provided any teacher’s aides.
The Panel asked Ms Janes if she felt she had any treatment needs and she responded, “not really.” She did comment that some counselling might be helpful, but she was not sure why.
DIAGNOSIS AND THRESHOLD INJURY
Ms Janes provided a frank and earnest account of herself and her symptoms. Diagnostically, the Panel considers that she has three diagnoses of significance related to the accident. The Panel acknowledged that this was on the background of mild intellectual disability and longstanding ADHD.
The three diagnoses are an exacerbation of a substance use disorder (alcohol dependence), a specific phobia (driving) and panic disorder (probable).
Her substance use disorder was present prior to the accident but increased significantly following the accident and is now in remission (she has not drunk alcohol for about five months).
The Panel accepted that the volume of alcohol reportedly consumed, on a daily basis, was pathognomonic of a substance use disorder noting it had given rise to hepatic impairment, without having to explore all of the diagnostic criteria. Ms Janes acknowledged the severity of the problem.
Her specific phobia for driving was present for about six months following the accident, and she still has some residual symptoms.
With respect to specific phobia, Ms Janes satisfied DSM 5 diagnostic criteria in the following ways. She reported marked fear and anxiety about driving (Criterion A). Driving almost always provoked fear and anxiety (Criterion B). Her fear and anxiety were disproportionate to the actual danger posed by driving (Criterion C). Driving was actively avoided, and when recommenced was associated with intense fear and anxiety (Criterion D). Her fear and anxiety associated with driving caused significant distress, and her avoidance of driving caused impairment in occupational functioning (Criterion E). Her avoidance, fear and anxiety persisted for 6 months or more (Criterion F). Ms Janes’ symptoms were not better explained by an alternative mental disorder (Criterion G). Her phobia was specific for driving.
Her panic disorder persists and appears to be strongly connected to whether or not it is raining. The Panel accepted Ms Janes’ description of the timing and frequency of panic attacks as being representative of a panic disorder.
The Panel did not explore in depth the physiological symptoms experienced during episodes of panic. While there was a likely contribution of alcohol consumption in her experience of panic, it has persisted since the cessation of alcohol. There was an element of situational triggering (rainy weather) of her panic. These are all considerations in the academic discussion regarding DSM5-TR diagnostic criteria, and whether the diagnostic criteria are fully satisfied.
This however is a moot discussion as the Panel was asked to determine a threshold injury dispute and both diagnoses of specific phobia and exacerbation of a substance use disorder meet the relevant DSM-5 diagnostic criteria and the definition of non-threshold injury under s 1.6 of the MAI Act and part 1, cl 4(2) of the MAI Regulation.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Doron Samuell dated 1 June 2023 and issues a new certificate determining that the following injuries caused by the motor accident are non-threshold injuries:
· exacerbation of a substance use disorder, and
· specific phobia (driving).
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