Kokuru v QBE Insurance (Australia) Limited
[2024] NSWPICMP 50
•30 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kokuru v QBE Insurance (Australia) Limited [2024] NSWPICMP 50 |
| CLAIMANT: | Barbara Kokuru |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 30 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; replacement certificate under section 7.23(1); PTSD not a threshold injury; reasonable cause to suspect medical assessment incorrect in a material respect; new assessment of all matters; mental state examination; DSM-5-TR Diagnostic criteria for PTSD; past psychiatric history; claimant has no current treatment; Held – replacement certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the Certificate of Medical Assessor Doron Samuell dated · post-traumatic stress disorder which is not a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Barbara Kokuru (the claimant) is a 34-year-old woman who was injured in a motor vehicle accident which occurred on 26 March 2021. The present dispute between the parties is whether the claimant suffered a psychiatric injury as a consequence of the motor vehicle accident and whether that injury is a non-threshold injury.
ASSESSMENT SUBJECT TO REVIEW
Medical Assessor Doron Samuell examined the claimant on 9 August 2022 and provided a Certificate dated 22 August 2022. Medical Assessor Samuell found that the claimant’s complaints of psychological difficulty satisfied the diagnosis of a panic disorder. He goes on to find the panic disorder is not causally related to the subject motor vehicle accident. He found the panic disorder is a constitutional disorder for which the claimant may have been at higher risk due to pre-existing problems with depression and anxiety.
The claimant’s solicitor sought a review of the insurer’s decision which was considered by the President’s delegate, Rachel Brittliff, who issued a certificate stating that she was satisfied there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Accordingly, the review application lodged by the claimant was accepted and referred to a review panel.
The reasons given included that the reasons were insufficient to set out an actual path of reasoning; that the Medical Assessor did not refer to any documentation in support of his observation that the claimant had previous mental health conditions and that the Medical Assessor did not provide any apparent reasons as to why the interventions sought by the claimant were considered “limited” for the purposes of the assessment.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provides that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel determined that an examination of the claimant was required.
SUMMARY OF DOCUMENTATION CONSIDERED
The Review Panel confirmed that they had received and considered all material and documentation which was before Medical Assessor Samuell together with both the claimant’s and the insurer’s submissions lodged in this matter.
EXAMINATION
The Medical Panel examined Ms Kokuru at 3pm on 17 January 2024 via telehealth using the Microsoft Teams application. Ms Kokuru was unaccompanied for the interview and located at her home. Ms Kokuru’s identity was confirmed by NSW Driver’s License.
Ms Kokuru lives in Bankstown with her three children; an 11-year-old son and two daughters aged 4 and 6. She has lived at her current address since March 2022.
She is currently working approximately four overnight shifts a week. She is part of the casual registered nurse pool for Canterbury Hospital and typically does two shifts a week there. She is a casual disability support worker and typically works 2 shifts a week through Connect Care. While she is working, she usually drops her children off to her aunt or sister’s house and picks them up afterwards.
THE SUBJECT MOTOR ACCIDENT
When asked to describe the motor accident, the claimant reported that on 26 March 2021 she was driving to pick up her children after a night shift. She reported that she was stopped at a red light when there was a “loud bang” with impact to the driver’s side of her car. She was in shock and thought that she could have been seriously injured. She said that her heart was racing and she was scared and she thought that “someone was trying to take me out”. The door was jammed and she had to climb out the window. She said that there was an elderly couple who initially got out of the “at fault” car. She said that the man went back into the car and drove off without the woman. She said that she and his partner went looking for him. They found him and obtained his details. No Police or Ambulance attended the scene.
She then climbed back into the car and drove to pick up her children. She said that she rang the number provided and spoke to the man’s daughter, Tanya, who was extremely rude and accused her of trying to kill them. She found Tanya very confronting and distressing.
SYMPTOMS AND TRATMENT AFTER THE ACCIDENT
The claimant reported that she experienced pain in her right knee which she noticed walking up the stairs to collect her children immediately after the accident. She attended Bankstown emergency department and was assessed and had x-rays. She was given an MRI referral to use if there was ongoing pain. She later had an MRI which detected a tear in her tendon.
She reported that while her knee had improved it has “never felt the same” being more vulnerable to pain and difficulty with mobility.
She reported that after the accident she felt anxious and couldn’t sleep at all. She felt nervous all the time and worried about her and her children’s safety. She has completely avoided the site of the accident.
When she hears a loud car she “freaks out” and her heart races. She experiences flashbacks to the accident a few times a week. She has had weight gain.
She travelled back to Ghana a few months after the accident and stayed for around two months. She was appreciative of family support there.
She admitted that her alcohol intake had increased after the accident. She said that it helped her sleep. She would typically consume 2-3 glasses of wine and 2-3 units of whiskey around 4 times a week. She denied the use of cannabis or recreational drugs.
She was able to restart work for financial reasons around June 2021 however found it more difficult and stressful. She has been working in disability support for around eight months and prefers this as it is less stressful despite the lower remuneration.
CURRENT AND PROPOSED TREATMENT
The claimant has no current treatment for her knee except for as required ibuprofen and Paracetamol. She expressed an interest in medicinal cannabis but did not want to pursue this because of cost.
She said that she finds it helpful to talk to her Christian pastor.
She was interested in obtaining psychological therapy however could not afford the cost.
She was willing to engage with a psychiatrist however also cited cost as a barrier.
PAST PSYCHIATRIC HISTORY
The claimant denied any past psychiatric history. She denied any previous diagnosis or treatment. She denied any psychiatric hospitalizations.
She was asked about reference in the material to past mental health issues. She said that she thought that might relate to an antenatal check up with her youngest child where she burst into tears as she was not coping financially or with all the household duties etc. She said that she was referred to a social worker which was helpful. She denied any symptoms consistent with a formal diagnosis of a disorder at the time.
MEDICAL HISTORY
The claimant reported no past medical history.
She is overweight and has been trialled on Ozempic with little effect. Prior to the accident she weighed 75kg and she is now 90kg.
PERSONAL HISTORY
The claimant was born in Ghana and migrated to Australia at age 12.
Her parents separated when she was around 15 or 16 years old. Her mother, father and two sisters live in Ghana. She has two sisters who reside in Bankstown nearby. She has two other half siblings in Ghana.
She did not know of any family psychiatric history.
She reported a “good” upbringing and specifically denied being the victim of any abuse or trauma. She completed the equivalent of Year 12 and said that she performed well at school.
She completed a Bachelor of Nursing at Western Sydney University and she has worked since graduation. She initially had a permanent full-time job however when she had children she moved to casual hours as she preferred the flexibility. She has worked full time hours as a casual.
She is currently in a relationship since early 2022. She maintains contact with the father of her children who lives in Canada and calls a few times a week to speak to the children.
MENTAL STAE EXAMINATION
The claimant appeared reasonably and appropriately groomed. She engaged freely and easily. She reported a “depressed and anxious mood”. Her affect was restricted to the dysphoric range. Her speech was of normal rate, rhythm, volume and prosody. There was no formal thought disorder. There were no delusions and no hallucinations. She was oriented to time, place and person. Her cognition appeared grossly intact with no obvious concentration difficulties. There was no suicidality.
DIAGNOSIS AND REASONS
The claimant suffers from post-traumatic stress disorder (PTSD);
“DSM-5-TR Diagnostic Criteria for PTSD
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1. Directly experiencing the traumatic event(s).
2. Witnessing, in person, the event(s) as it occurred to others.
3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s). Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s). Note: In children, there may be frightening dreams without recognizable content.
3. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.) Note: In children, trauma-specific reenactment may occur in play.
4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia, and not to other factors such as head injury, alcohol, or drugs).
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5. Markedly diminished interest or participation in significant activities.
6. Feelings of detachment or estrangement from others.
7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Irritable behaviour and angry outbursts (with little or no provocation), typically expressed as verbal or physical aggression toward people or objects.
2. Reckless or self-destructive behaviour.
3. Hypervigilance.
4. Exaggerated startle response.
5. Problems with concentration.
6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F. Duration of the disturbance (Criteria B, C, D and E) is more than 1 month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.”
She fulfils the Criteria as follows:
(a) directly experiencing the motor accident with threatened death and serious injury;
(b) recurrent, involuntary and intrusive distressing memories a few times a week;
(c) psychological distress at loud car noises;
(d) complete avoidance of the site of the accident;
(e) persistent and exaggerated negative beliefs about the danger of the world to herself and her children;
(f) persistent negative emotional state of “depression and anxiety”;
(g) sleep disturbance, hypervigilance, exaggerated startle response to loud car noises and problems with concentration;
(h) the disturbance has persisted since 2021;
(i) the disturbance causes clinically significant distress, and
(j) the disturbance is not attributable to the physiological effects of a substance or another medical condition.
CONCLUSION
The claimant suffers from a post-traumatic stress disorder which is not a threshold injury.
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