Jones v AAI Limited t/as AAMI
[2024] NSWPICMP 748
•31 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Jones v AAI Limited t/as AAMI [2024] NSWPICMP 748 |
CLAIMANT: | Mercedes Jones |
INSURER: | AAI Limited trading as AAMI |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Wayne Mason |
MEDICAL ASSESSOR: | Surabhi Verma |
DATE OF DECISION: | 31 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); review of single medical assessment; whether the claimant has suffered a psychological injury that is a threshold injury for the purposes of the MAI Act; claimant submitted to have suffered post-traumatic stress disorder as diagnosed by general practitioner and treating psychologist; diagnosis of adjustment disorder to be viewed with caution due to language barriers; found that the criteria for post-traumatic stress disorder is not met; the claimant suffered a pre-existing adjustment disorder with mixed anxiety and depressed mood which has been aggravated by the motor accident and is a threshold injury for the purposes of the MAI Act; Held – Medical Assessment Certificate revoked and new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Chew dated 29 June 2023 and certifies that: (a) the aggravation of pre-existing adjustment disorder with mixed anxiety and depressed mood was caused by the motor accident of 18 June 2021 and is a threshold injury. |
STATEMENT OF REASONS
INTRODUCTION
Ms Mercedes Jones (the claimant) alleges injury from a motor accident occurring on
18 June 2021. The claimant was the driver of a vehicle on the Hume Highway that was rear ended by another vehicle. This caused her vehicle to collide with the vehicle in front.She subsequently lodged a claim upon AAI Limited trading as AAMI (the insurer), the insurer of the truck considered at fault. The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury for the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, 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.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
Medical Assessor Gerald Chew issued a certificate and reasons dated 1 May 2023, which certified that the motor accident caused the claimant to suffer an adjustment disorder which is a threshold injury for the purposes of the MAI Act.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act. On 29 June 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel met via video conference on 10 July 2024 and determined that a re-examination of the claimant was required. A medical examination was arranged to take place on 4 September 2024 with Medical Assessor Mason and Medical Assessor Verma via Microsoft Teams. The examination took place as scheduled.
The Panel reconvened via videolink for a second teleconference on 18 September 2024.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a 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:
“General provisions for assessment
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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric 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, 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
Medical Assessor Chew took a history of the claimant experiencing a depress and anxious mood with passive suicidal ideation at times feeling “hopeless” but with no plan.
He diagnosed the claimant as suffering an adjustment disorder as a consequence of the motor accident with her experiencing a prolonged clinically significant stress related disorder which does not meet the criteria for another disorder.
The Medical Assessor determined that the claimant’s unrelated issues regarding her late husband’s estate has contributed to the perpetuation of the disorder.
SUBMISSIONS
Claimant’s submissions dated 19 May 2022
These submissions were attached to the claimant’s original application in respect of the threshold dispute. Insofar as they are relevant to the dispute as to psychological injuries, it is submitted that the claimant’s mental condition has deteriorated since the subject accident.
It is noted the claimant was diagnosed with posttraumatic stress disorder by Dr Markenzinis and she was referred under the Mental Health Care Plan for treatment on 20 June 2021.
Claimant’s review submissions dated 21 May 2023
It is submitted that the Medical Assessor failed to adhere to the Guidelines. It is suggested that it is not clear that Medical Assessor reviewed all relevant records available at the assessment.
The claimant notes that the Medical Assessor referred to the claimant’s treating psychologist who made the diagnosis of prolonged adjustment disorder with mixed anxiety and depressed mood. It is noted that the diagnosis was made in March 2022 and the notes mention language barriers. As such, the diagnosis should be approached with caution.
It is submitted the Medical Assessor did not address the criteria in the DSM-5 and should have applied his own clinical judgment.
It is further submitted that the Medical Assessor failed to give reasons for his conclusions. It is submitted that the diagnosis made by the Assessor is inconsistent with medical history and his own observations.
Insurer’s internal review decision dated 15 December 2021
The insurer notes that the general practitioner (GP), Dr Markenzinis did not set out how his diagnosis of post-traumatic stress disorder met the assessment criteria according to DSM-5. In any event the diagnosis is invalidated by the treating psychologist (Ms Egan) diaganosis of prolonged adjustment disorder
Insurer’s “issues in dispute” dated 12 September 2022
This document is exceptionally brief and does not address the issues in dispute in any meaningful way. There is a simple statement that the diagnosis of posttraumatic stress disorder is not made according to the DSM-5.
DOCUMENTATION
The Panel has considered all documents included with the claimant and insurer’s bundle of documents that were provided in accordance with direction of the Panel dated 23 May 2024.
The Panel issued further directions dated 10 July 2024 that required the claimant to identify all treating practitioners and the parties to provide copies of the complete records of such practitioners.
In compliance with those directions, the parties provided, the following (which have also been considered by the Panel):
(a) clinical records of Dr Pope as at 25 March 2024;
(b) clinical records of Multicare Family Medicare Centre as at 10 May 2023;
(c) clinical records from Burwood MedHealth Centre as at 26 May 2023, and
(d) clinical notes of psychologist Cathy Egan from New Perspective Psychology received 11 July 2022.
Burwood MedHealth Centre
General practitioner, Dr Nham saw the claimant on 24 August 2021, after the motor accident. Apart from physical issues, the claimant is recorded as being stressed about symptoms and was prescribed Endep. On 2 October 2021 it was noted the claimant needs to receive ongoing treatment from a psychologist.
On 30 October 2021 the claimant was noted to still be in pain, with the reason for contact being depression. It was noted that she had family issues and was depressed and was experiencing hypervigilance and flashbacks and was catastrophising about the event. A note of “PTSD with event. Needs psych” is made.
By 16 May 2023 the claimant was noted to still be in a lot of pain and she was hearing voices and still had nightmares. There were no flashbacks of the accident.
Certificate of Capacity dated 22 June 2021 completed by GP, Dr Markenzinis, includes a diagnosis of “Anxiety/generalised bruising”.
Clinical file of Multicare Family Medical Centre
The file begins on 22 July 2021, with the claimant attending upon Dr Markenzinis as a result of the motor accident. The claimant was noted to have been seen at the Royal Prince Alfred Hospital after the accident and she was anxious. He diagnosed anxiety.
On 14 July 2021 the claimant attended again and stated that she would like to speak to psychologist/counsellor. She was noted to be very anxious and a full history was unable to be given.
Dr Markenzinis referred the claimant to Ms Cathy Egan, psychologist, on 20 July 2021 with a note of a history of the motor accident “PTSD” and “anxiety disorder with stress and depression”.
Clinical file of New Perspective Psychology – Ms Cathy Egan
The clinical file notes language difficulties, however, in a letter to the GP dated 31 March 2022 Ms Egan provides a diagnosis of Prolonged Adjustment Disorder with Mixed Anxiety and Depression.
The notes note the claimant catastrophizing with some anger. It was noted she had a reduction in the quality of her life with reliance on family and friends. Compounding issues of family breakdowns is noted due to inheritance and debt. This includes behaviour of her children in respect of their father’s will.
RE-EXAMINATION
Ms Jones was re-examined by Medical Assessors Verma and Mason via Teams videolink on 4 September 2024. A Tagalog interpreter, Mr Ruben Amores, was present throughout the interview.
It should be noted at the outset that Ms Jones was difficult to interview, did not respond to the questions put to her, spoke loudly and rapidly in a mixture of English and Tagalog and was not responsive to attempts to contain her. Unless forcibly asked to stop, she provided more information than the interpreter had any hope of remembering and translating.
Despite the difficulties encountered throughout the examination, the Medical Assessors were satisfied that sufficient information was provided to properly proceed to an assessment.
Psychosocial history
Ms Jones explained she was living in a recently purchased home in Bowenfels on the outskirts of Lithgow NSW and had been there for approximately 10 months. She said her children sold the old house in Ashfield in 2023; she lives with a 50-year-old nephew who is apparently some form of carer for her. She said she has money in the bank from the sale of the family home and is also in receipt of the age pension.
Ms Jones was born in the Philippines the third of 13 children. Her parents were both of Filipino origin. She said her father was in the military and died in the USA. She described a good childhood and said she suffered no form of abuse. She finished 10 years of schooling in the military camp where her father was stationed. She then attended secretarial college. Ms Jones was unable to provide a history of her employment other than working in hotels and doing housekeeping. When asked to elaborate she said she forgot. She did however note she last worked in 2007.
She said she had a son while in the Philippines who is now 49 years of age. When she left to come to Australia she left him in the care of her parents.
She stated her sister sponsored her to Australia in 1985 and she married a man called Alan Jones. He died in 2019 of disseminated lung cancer. They had two children together, a
37-year-old son who developed schizophrenia following drug abuse, and a 30-year-old daughter who lives in the Southern Highlands with her boyfriend. Her daughter is caring for the schizophrenic son. At various points throughout the interview Ms Jones indicated she had quite an extensive family network in Australia consisting of children, siblings, nieces and nephews.Ms Jones denied any past insurance claims. When questioned about past motor accidents she denied this was the case. She did acknowledge a work injury in 1997 while working at a nursing home. She denied any further worker's compensation claims such as in 2003 in which she suffered bilateral shoulder injuries. She denied any of these claims involved a psychological component.
Ms Jones denied any past history of psychiatric illness and similarly denied any family history of psychiatric illness. It was pointed out the GP had recorded a past history of anxiety but she again denied this was the case. When asked about medical history she said she suffers from severe blood pressure which makes her feel like a vegetable and she has to lie down. She said she gets sick in the stomach and has to take painkillers and does not feel well. She also acknowledged shoulder problems. She was questioned about surgery but it was impossible to understand what she was saying other than that she was fearful she might die.
Current medications consist of Panadeine (paracetamol/codeine), paracetamol, ibuprofen and Coveram (perindopril/amlodipine). She said she uses no psychotropic medication. She also uses something else for her eyes and ears but cannot remember the name. She denied the use of cigarettes, alcohol or recreational drugs and said she does not gamble.
History of the motor accident
When asked to describe the motor accident the claimant said she had ordered “3 wreaths for a funeral” and “her sister can describe everything”. She then said she panics and had broken legs. This was followed by stating "I am nothing to the NRMA".
After considerable encouragement she said she was driving a Mazda 3 at 60 or 70kmph and her sister was a front seat passenger. She said they were hit by a Mercedes Benz van and pushed 10m forward into another vehicle. She said "we were squashed front and back". She was able to stop but there were skid marks on the road from the braking. They were wearing seatbelts but the air bags did not deploy. Three Lebanese nurses arrived and provided assistance until her family arrived.
Ms Jones said she can still see it in her head. Police came to the scene and then came to her home subsequently; she said they made a report. Ambulance arrived and all the drivers were tested. She said they wanted to take her to hospital but she did not have time to do that. She said her sister signed the documents (whatever they might be). She then said her son or her daughter took her to Concord Hospital on the following day.
History of symptoms and treatment
When asked to describe her symptoms and treatment she said there was a report available from Concord Hospital. When asked to tell us herself what her symptoms were she said she had bruises and pain in her chest and shoulder and a seatbelt bruise. She was given some medicine to calm down and then she received a phone call every week from the psychiatrist at Concord Hospital. When asked what this was about she said she told people she had intended to hurt herself.
She said after she came home from Concord Hospital she was restless, could not sleep well and heard voices and sounds. She said she attended several hospitals including Burwood, Ashfield and Croydon. She made reference to receiving attention from a Community Health Centre but it was impossible to discern if this was in relation to her physical or emotional health.
It was clear she had attended her GP Dr Markenzinis and he referred her to psychologist Ms Cathy Egan. She believes she saw her "for some time" but could not remember when or for how long. She also denied seeing her prior to her accident although further documentation made clear she had been referred in 2019 following her husband's death. She said she was referred to a psychiatrist Dr Jankart (?) but could not afford to continue going. She believes a Burwood doctor gave her medicine to stop her from hearing things. At this point in the interview she said she needed to lie down. She then stated she is hearing voices and panicking and is unable to sleep. She said she hears people screaming at her and then the motor accident comes back to her.
Throughout the interview she was holding and rubbing her left shoulder with her right arm and said she needed a pain killer. She then said something about someone saying the rosary for her. She was not able to describe treatment with medication but added she had stopped the antidepressants duloxetine and mirtazapine because they were not good for her. She was unable to remember if starting or stopping these medications caused the voices. She then said rather contradictorily she hears the screams if she does not take the medication. She spontaneously noted she is very nervous and cannot calm down. It is not clear if she was referring to her general experience of life or her experience of the interview.
In a further attempt to clarify symptoms she said she has back pain, neck pain and leg pain. She then began to rub the side of her neck on the left-hand side and said she had pain everywhere. She spoke about taking paracetamol to calm herself down. She then said she applies heat patches and uses the liniment Metsal for physical treatment of neck and shoulder pain. She repeated that she has pain everywhere and especially in the left shoulder. She acknowledged her left arm is very weak and she has difficulty with many physical activities.
Injuries or conditions since the motor accident
Denied.
Current symptoms
Ms Jones said she continues to suffer from pain in her back, neck and legs and has pain everywhere. She also described hearing voices which were screaming. In addition she was anxious and nervous.
Current and proposed treatment
The claimant plans to continue seeing her physiotherapist in addition to GP Dr Markenzinis and neurologist Dr Nham at Burwood. She said there were no further plans to see a psychologist; the last appointment was early this year. She stated she had to stop the use of mirtazapine and venlafaxine. Because of communication difficulties it was difficult to accurately determine if she had been using an antidepressant or not and if she had any intention of continuing their use.
Mental state examination
The claimant is a 69-year-old right-hand dominant woman who was neatly dressed and well presented. She was located alone in a room at the offices of Benefit Legal Lawyers. She was assisted in the interview by Tagalog interpreter Mr Ruben Amores, NAATI No CPN4 DW70R. She was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 2.15pm and concluded at 3.50pm.
It was difficult to establish rapport with Ms Jones. She spoke loudly and rapidly in a mixture of Tagalog and English. She tended to speak non-stop for periods up to five minutes and frequently needed to be asked to limit the length of her replies to questions so the interpreter could translate what she was saying. On one occasion it was necessary to point out to her the interview would be terminated if she could not comply with reasonable requests for information and respond directly to the questions put to her.
Ms Jones was frequently hyper-emotional and screeching in a loud voice. She frequently answered questions with "I do not know or I cannot remember", particularly in relation to her past history. The details provided were particularly vague. She made it clear that she resented answering any questions about her background.
On the other hand she was able to accurately recall all the details of the subject motor accident even though they were provided in a disjointed and hyper-emotional manner. Despite these rather bizarre behaviours she was not tearful or distressed and did not appear to be depressed.
She responded accurately to brief questions regarding orientation to time and place, leading to the conclusion that she was not cognitively impaired. While she referred to hearing voices and screams, there were no other symptoms suggesting a psychotic condition. She was fully oriented in time person and place.
Current functioning
Self-care and personal hygiene: When asked if she showers regularly Ms Jones said she frequently has to apply running hot water to her shoulder because of pain. It appeared she was showering daily. She said she was changing her clothing less frequently than prior to the motor accident. She said she is now gaining weight because family members bring her food, although she had lost 14kg since the motor accident.
Social and recreational activities: Ms Jones said her nephew takes her to anniversary events with the social worker. This appeared to be in reference to the time of her husband's death but this was not certain. She said she receives a lot of community support. It was difficult to obtain further information.
Travel: Ms Jones said she has been able to drive in the local area since July. She said she needs someone beside her. She is able to use public transport and she travelled by air this year.
Social functioning: Ms Jones said she has not had another partner since her husband died. She is well supported by her family.
Concentration, persistence and pace: Ms Jones said she does not read books but she does watch television. When asked if she managed her own money she said this was done by her lawyer and the children. It appears she does her own banking. The experience of the interview suggests that she has particular difficulty with concentration but the documents suggest this was a pre-existing problem.
Adaptation: the claimant is not working and is in receipt of the age pension. She said her siblings provide her with some money.
Consistency of Presentation
There were a number of inconsistencies in Ms Jones' presentation.
She denied any past history of psychiatric problems when in fact the GP record indicates there were past episodes of anxiety and depression and that she had been referred for psychological counselling. When this was put to Ms Jones she denied it was the case.
Ms Jones initially denied any past worker's compensation or motor accidents; when questioned she acknowledged the 1997 work injury but denied the 2003 work injury.
It was almost impossible to obtain accurate details of family history. Ms Jones frequently referred to family members as him or her only later to change gender. She also referred to the same people as her children or a nephew or niece.
Diagnosis and reasons
Ms Jones is a person with a pre-existing anxiety and depressive condition well documented in the GP record. Also noted in the physiotherapy record is a tendency for her to become agitated and disorganised. A pre-existing diagnosis of adjustment disorder with mixed anxiety and depressed mood is warranted, together with features of histrionic personality disorder.
She did not present with symptoms consistent with post-traumatic stress disorder, another specific anxiety disorder, or a major or persistent depressive disorder.
The panel is of the opinion that the subject motor accident exacerbated the pre-existing condition because she presented with symptoms of anxiety and agitation and reported some symptoms of depression.
She meets DSM-5 criteria for persistent adjustment disorder with mixed anxiety and depressed mood as follows:
Criterion A is met by the development of emotional and behavioural symptoms in response to the subject motor accident occurring within 3 months.
Criterion B is met because there is (1) distress that is out of proportion to the severity and intensity of stressor and (2) there is impairment in social functioning.
Criterion C is met because the disturbance does not meet criteria for another mental disorder.
Criterion D is met because the condition has persisted since the subject motor accident.She does not meet DSM-5 criteria for major depressive disorder because she does not have depressed mood most of the day nearly every day, is not anhedonic, there has been no significant weight loss, and she does not have recurrent thoughts of death or dying.
She does not meet DSM-5 criteria for post-traumatic stress disorder because she was not involved in a life threatening motor accident, she does not have persistent intrusion symptoms, there was an inconsistent history regarding avoidance symptoms, the pre-existing level of negative cognitions was unchanged, and there was no clear history of alterations in arousal and reactivity.
CAUSATION
Ms Jones was involved in a frightening but not life threatening motor accident. Given the inconsistency of her presentation it is difficult to be sure the motor accident was the sole cause of her difficulties. The death of her husband in 2019 and subsequent family difficulties are noted as significant prior stressors. It is clear from the GP record that these events gave rise to significant psychological symptoms. The guidelines state the motor accident does not have to be a sole cause but it does require that the accident has made a more than negligible contribution. The panel therefore finds the motor accident was a material contributing cause of the exacerbation of adjustment disorder with mixed anxiety and depressed mood.
CONCLUSION
The Panel has concluded that the claimant suffers from adjustment disorder with mixed anxiety and depressed mood, to which the motor accident was a material contribution.
Pursuant to cl 5.12 of the Guidelines and adjustment disorder is deemed a threshold injury for the purposes of the MAI Act.
Given the diagnosis differs (exacerbation) from the diagnosis of Medical Assessor Chew, the original medical certificate is revoked and a new certificate is issued at the beginning of these reasons.
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