Kotb v AAI Limited t/as GIO
[2024] NSWPICMP 138
•8 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kotb v AAI Limited t/as GIO [2024] NSWPICMP 138 |
| CLAIMANT: | Mustafa Kotb |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 8 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered psychological injury in the motor vehicle accident on 10 October 2020; Medical Assessor (MA) Fukui certified adjustment disorder with mixed anxiety and depression; a threshold injury; Held – accident caused psychiatric injury; accident caused an adjustment disorder with mixed anxiety and depressed mood; certificate of MA Fukui affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Atsumi Fukui dated |
STATEMENT OF REASONS
INTRODUCTION
On 10 October 2020 Mr Mustafa Kotb (the claimant) was driving his vehicle when it was involved in a rear end collision (the accident). He was wearing a seat belt and the airbags did not deploy. Mr Kotb asserts he sustained the following injuries in the accident:
(a) injury to both shoulders;
(b) injury to both wrists;
(c) injury to the lumbar spine;
(d) injury to both legs;
(e) injury to both ankles;
(f) injury to both knees;
(g) injury to both hips;
(h) injury to neck, and
(i) psychological injury.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Kotb under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Kotb is 67 years of age and was 64 years of age at the date of the accident.
On 11 November 2020 Mr Kotb lodged an Application for personal injury benefits in respect of injuries to his back, neck, shoulders, and right knee.
Mr Kotb’s 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 motor accident were threshold injuries.
On 18 February 2021 the insurer issued a liability notice declining liability for benefits beyond 26 weeks on the basis the injuries sustained by the claimant were minor (threshold) injuries for the purposes of the MAI Act.[1] The injuries referred to were soft tissue injuries to the lumbar and thoracic spine and right hip.
[1] Insurer’s bundle p 26.
On 9 April 2021 the claimant requested an internal review pertaining to the minor (threshold) injury decision.[2] In the letter seeking an internal review the solicitor for the claimant stated:
“We note that in particular the internal derangement should be considered non-minor, and further investigations that have been foreshadowed in relation to his other body parts and his emotional state.”
[2] Claimant’s bundle p 103.
The insurer issued a Certificate of Determination dated 23 April 2021 affirming the original decision.[3] In that determination the insurer stated:
“The writer notes that, in the Application for Internal Review, your Solicitors reported that further investigations were foreshadowed in relation to your emotional state.
The writer notes there is no evidence to suggest that your GP has diagnosed you with a Psychological Injury or has referred you for psychological treatment.Accordingly, the writer has omitted your alleged emotional state from minor injury assessment.”[3] Claimant’s bundle p 105.
The claimant filed an application with the 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 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 by a Medical Assessor.[4]
[4] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Personal Injury Commission (Commission) to Medical Assessor Atsumi Fukui. She issued a certificate dated 27 April 2022 in which she certified that the psychological injury sustained by Mr Kotb caused by the accident was a minor (threshold) injury.
The claimant has sought a review of the certificate of Medical Assessor Fukui.
DOCUMENTS BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 19 July 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal documents titled Claimant’s bundle paginated from pages 1 to 171. The solicitor for the insurer uploaded to the portal a bundle of documents marked Insurer’s bundle and paginated from pages 1 to 119.
The claimant also uploaded an Application to Admit Late Documents (AALD, 3 August 2023) on 3 August 2023 attaching the updated clinical notes of Charmaine Moubarak paginated from pages 1 to 22.
On 8 September 2023 the following message was sent to the parties:
“On or before 8 November 2023 the claimant is directed to upload to the portal the following:
1. The clinical records of all general practitioners consulted by the claimant in the period five years before the accident to date.
2. The clinical records of any psychologist or psychiatrist consulted by the claimant in the period five years before the accident to date.
3. A copy of the Centrelink records relating to the Disability Support Pension received by the claimant.”
On 21 December 2023 the claimant uploaded to the portal an Application to Admit Late Documents (AALD, 21 December 2023) attaching the clinical notes of Professor Murrell paginated from pages 1 to 81.
On 23 January 2024 the claimant uploaded an Income Statement from Centrelink dated
17 January 2024 showing his receipt of the Age Pension.On 23 January 2024 the claimant uploaded to the portal the clinical notes of Hurstville City Medical Centre paginated from pages 1 to 14.
On 23 January 2024 the claimant uploaded to the portal the clinical notes of Dr Wong paginated from pages 1 to 97 (Dr Wong clinical notes).
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 27 April 2022 Medical Assessor Atsumi Fukui certified the following injury caused by the motor accident was a minor injury for the purposes of the MAI Act:
(a) adjustment disorder with mixed anxiety and depressed mood.[5]
[5] Claimant’s bundle p 19.
The injuries referred for assessment were “post-traumatic stress disorder, anxiety state and severe depression”.
Medical Assessor Fukui reported Mr Kotb was married with six children. He came to Australia in the 1980’s and had not worked for approximately 10 years. He suffered from leg pain from a work related accident and was involved in a motor vehicle accident about seven or eight years earlier. He reported he was on medication for diabetes and hypertension and had undergone surgery for bowel cancer nine years earlier.
Mr Kotb reported he saw a psychiatrist Dr Yunan about eight years earlier because he couldn’t sleep and for “depression”. He reported he took medication for about two years. He also reported he saw a psychologist Dr Mustafa two years earlier because he was not sleeping well. He reported prior to the accident he was mentally stable, he was independent with his self-care, went out with his friends, walked and took the children to the park.
Mr Kotb reported following the accident he had pain in both shoulders, right wrist and back. He described being “stressed because of the accident”. He denied having flashbacks or nightmares. His sleep was disrupted due to pain, he could not drive due to back and leg pain. Medical Assessor Fukui reported Mr Kotb felt sorry for himself because he could not do things, he reported cognitive difficulties with a decline in concentration and being forgetful. He was referred to a psychologist and was prescribed diazepam which he took once or twice a day.
Medical Assessor Fukui disagreed with the diagnosis of Dr Robert Gertler of post-traumatic stress disorder where Mr Kotb did not describe characteristic symptoms such as intrusion symptoms, avoidance behaviour or dissociative episodes. She also found the accident did not meet Criterion A for post-traumatic stress disorder where it was a minor accident, allowing Mr Kotb to drive the vehicle away from the scene and go home.
Medical Assessor Fukui diagnosed an adjustment disorder with mixed anxiety and depression. She found Mr Kotb did not meet the diagnosis of a major depressive disorder because there was no evidence of a pervasive depressed mood on mental state examination, and he had a reactive affect.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Fukui within 28 days of the date on which his certificate was made available to the parties.
On 12 July 2022 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 Review Panel (the Panel).
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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. [6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI Act.
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.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 15 November 2023 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits
In the Application for personal injury benefits dated 11 November 2020 Mr Kotb reported he injured both shoulders, lower back and right leg. In respect of pre-accident injury to the same body parts he recorded:
“Back, knee, shoulder, neck, but now has gone more worse”.
Statement of claimant
Mr Kotb provided a statement dated 14 June 2021.[9] He reported he was involved in an earlier motor vehicle accident where he injured his back and neck. Whilst working with Broadlex Cleaning he had an accident at work and suffered injury to his right knee, his back and shoulders. He also began to suffer from depression and saw a psychiatrist. Following that accident, the claimant was placed on the disability pension.
[9] Claimant’s bundle p 166.
Mr Kotb also disclosed other pre-existing conditions including obesity, sleep apnoea, bowel cancer, low back pain, neck injury, adjustment disorder, both shoulders, metabolic syndrome, diabetes, arthritis and hypertension.
Mr Kotb stated since the accident he has had flashbacks which cause him increased anxiety and depression. He states he has put on weight because he is an emotional eater. He avoids crowds and no longer visit friends and family as he did before the accident. He stated his sleep is disturbed by pain which has taken a toll on his mental state. He is now short tempered, frustrated and easily angered.
Police report
The police report documents a late report on 19 October 2020 of a minor traffic crash which occurred on 10 October 2020.
Photographs of the damaged vehicles
Photographs show obvious damage to the rear bumper bar, boot and tail light area of the white Camry sedan driven by the claimant.[10] The beige Camry sedan driven by the insured driver showed damage to the front bumper bar on the passenger side and to the passenger side headlight.
Pre-accident treating medical records
[10] Claimant’s bundle p 156 – 157.
Mr Kotb saw Professor Murrell on 28 November 2001 for a right shoulder problem.[11] He reported treatment from Dr Jerome Goldberg including a cortisone injection some five years earlier. On 20 February 2002 Professor Murrell reported the ultrasound showed a rotator cuff tear and long head of biceps rupture of the right shoulder.
[11] AALD 23 December 2023 p 21.
On 12 February 2010 Mr Kotb alleged he sustained injury to his left shoulder, back, neck, left wrist and left knee during his employment as a cleaner. He saw Professor Murrell who recommended a rotator cuff repair to the right shoulder.
Mr Kotb attended St George Hospital with a right shoulder dislocation after a fall in the shower on 22 May 2011. He subsequently saw Dr Medhat Guirgis on 30 May 2011. He also diagnosed aggravation of underlying degenerative changes of the cervical and lumbar area of the spine, and of both knees. He also noted injury to the left wrist.
On 7 June 2021 Professor Murrell reviewed Mr Kotb and concluded he had probably bilateral cuff-insufficient shoulders which had been exacerbated by the accident.[12] On 6 June 2022 Professor Murrell diagnosed cuff tear arthropathy right and left shoulder – initiated/exacerbated by the accident. He recommended a reverse total shoulder replacement, initially on the right.[13] The insurer declined to approve the surgery.
Post accident treating medical records
Clinical notes of Hurstville City Medical Centre and Dr Wong
[12] AALD 23 December 2023, p 65.
[13] AALD 23 December 2023, p 75.
In the Certificate of capacity/certificate of fitness dated 11 November 2020 Dr Ben Wong, general practitioner (GP) provided a provisional diagnosis of “soft tissue injury to neck, back, shoulder, knee”.[14]
[14] Insurer’s bundle p 8.
The records of Dr Wong cover the period 12 July 2021 to 23 June 2022. Mr Kotb was hospitalised on several occasion with COVID-19 related conditions between 30 August 2021 and 31 December 2021.
The only record of psychological symptoms appears on 20 April 2022 when Dr Wong reported he discussed with the claimant a psychologist letter re pain management and regaining self-confidence.[15]
[15] Claimant’s bundle p 139.
On 5 September 2011 Dr Monir Younan, psychiatrist reported to Dr Wong.[16] Dr Younan diagnosed a major depressive disorder following a work accident and commenced Mr Kotb on Efexor XR 75 mg.
[16] Dr Wong clinical notes p 10.
Mr Kotb was reviewed by Dr Valachova, psychogeriatrician on 3 November 2020.[17] She stated Mr Kotb reported feeling sad, anxious uptight in his chest, emotional and easily upset. His wife noted increased anxiety. Repetitive questioning, increased frustration and rude behaviour through the day for the last two years. Dr Valachova reported Mr Kotb presented with a late onset anxiety and mild cognitive deficits most likely of vascular origin given the history of OSA, hypertension and T2DM.
[17] Dr Wong clinical notes p 78.
Charmaine Moubarak, psychologist
The claimant was referred to Ms Moubarak by Dr Wong on 20 May 2021. Ms Moubarak provided a report dated 1 July 2021. She stated Mr Kotb had attended his second session where he presented with lower mood, flat affect, fatigue and rumination of the accident. His self-confidence had diminished, and he had a sense of vulnerability and weakness which inhibited independent activity.
On 14 December 2021 Ms Moubarak reported Mr Kotb had resumed treatment after contracting COVID-19. She reported his mood was significantly depleted, his activity levels lessened, and he had low energy, low motivation and difficulty in elevating his mood.
On 29 March 2022 Ms Moubarak reported Mr Kotb had continued treatment. She reported he had depleted quality of life, his activity levels were low, he had low motivations, low energy, persistent fatigue and difficulty maintaining self-care.
On 17 November 2022 Ms Moubarak reported the claimant advised he often cried about his situation; he had persistent low mood and felt helpless and useless.[18]
[18] AALD, 3 August 2023 p 18.
On 22 February 2023 Ms Moubarak reported the claimant stated he was agitated, highly frustrated, finding it hard to manage his anger, his relationship with his family was strained and his activity level low.[19] He reported lowered cognitive ability, lowered memory function and sleep disturbance.
[19] AALD, 3 August 2023 p 18.
On 20 March 2023 Ms Moubarak reported Mr Kotb had continued to attend treatment monthly.[20] She reported he remained distressed regarding his pain and his lowered functionality, the primary trigger to his psychological symptoms. She reported he presented with learned helplessness and has become increasingly more dependent on his wife.
[20] AALD, 3 August 2023 p 3.
Dr Ian Hargreaves, hand and wrist surgeon
Dr Hargreaves saw Mr Kotb on 13 April 2021. He noted his involvement in the accident and a subsequent fall when his knee gave way and he fell onto his hands. He noted the right hand was swollen volarly and radially and painful.
On 22 April 2021 Dr Hargreaves reported the CT scan showed that both wrists looked like Swiss cheese, with multiple holes from old arthritic changes. He noted extensive chondrocalcinosis and a suspicion of a pathological fracture into the scaphoid and recommended use of a soft splint.
Medico-legal reports
Dr Robert Gertler, consultant psychiatrist
Dr Gertler assessed the claimant at the request of his lawyer and provided a report dated
23 July 2021.[21][21] Claimant’s bundle p 116.
Dr Gertler reported when the accident occurred, he had stopped at an intersection when he saw another car in his rear vision mirror, approaching at speed. He expected that the car would stop but it did not and there was a collision. He reported Mr Kotb was shocked, but was able to exit his car, exchange details with the other driver and drive home.
Dr Gertler reported since the accident the claimant had suffered from chronic pain and a worsening in his level of disability. He had become easily irritated and frustrated and tended to withdraw from friends. He reported the claimant’s sleep was disturbed by pain and by dreams related to the accident. He described difficulties with concentration and had become forgetful. He was anxious and his mood fluctuated. He had consulted a psychologist and after the sessions he will ruminate on the accident and the fact that he lost control of his car after the crash.
Dr Gertler reported Mr Kotb had stopped working in 2014 due to knee pain and his wife had become his carer.
Dr Gertler concluded Mr Kotb was suffering from a post-traumatic stress disorder and an adjustment disorder with depressed mood related to the accident. He also concluded
Mr Kotb’s psychiatric condition had not stabilised as his counselling with a psychologist had only recently begun.
Dr Peter Conrad, general surgeon
Dr Conrad assessed the claimant at the request of his lawyer and provided a report dated
15 July 2022.[22][22] Claimant’s bundle p 142.
In addition to documenting the claimant’s physical symptoms he also reported since the accident Mr Kotb had developed anxiety, nightmares and flashbacks to the accident.
Medical Assessment Certificates
Medical Assessor Alan Home
Medical Assessor Home issued a certificate dated 8 November 2022.[23]
[23] Insurer’s bundle p 69.
He concluded the following injuries caused by the accident were minor injuries for the purposes of the MAI Act:
(a) left shoulder: exacerbation of symptoms related to established rotator cuff tears;
(b) right shoulder: exacerbation of symptoms related to underlying rotator cuff tears, and
(c) lumbar spine: exacerbation of chronic low back condition.
He also found that the referral to Professor George Murrell and the referral for MRI imaging of both shoulders was caused by the accident and was reasonable and necessary in the circumstances.
Medical Assessor Home also certified the following treatment and care did not relate to the injuries caused by the accident and was not reasonable and necessary in the circumstances:
(a) the request for X-ray and ultrasound of both shoulders;
(b) the requirement for a TENS machine;
(c) the referral to Dr Ian Hargreaves;
(d) the request for MRI scans of both hands, and
(e) the 10 sessions of cleaning and lawn mowing services.
Medical Assessor Home undertook a detailed study of the claimant’s pre and post-accident medical records. He noted Mr Kotb had a poor memory and could not remember his history. He did not recall attending Dr Rosario in June 2020 or undergoing spinal injections in the months before the accident. He did not recall that he had chronic knee pain with a poor walking tolerance or that he had been advised to undergo knee replacement surgery prior to the accident. Medical Assessor Home also noted an extensive history of shoulder complaints with bilateral rotator cuff tears diagnosed in 2002 and 2012 and a right shoulder dislocation in 2012. He also noted a history of chronic right wrist pain related to prior wrist stabilization surgery and chronic left wrist pain. Mr Kotb could not recall his pre-accident level of function but did recall he did not perform domestic chores.
Medical Assessor Home noted a long history of symptomatic chronic advanced osteoarthrosis and active synovitis of the right knee. He concluded the post-accident imaging did not demonstrate any pathology caused by the accident but established tricompartmental degenerative change of the right knee. He concluded the mechanism of the accident would not be likely to cause right or left knee injury. He concluded the pain experienced by Mr Kotb several days after the accident was not due an acute traumatic injury to the right knee but a continuation of his chronic well established symptomatic right knee osteoarthrosis complaint.
Whilst the claimant suffered a fall in late 2020 Medical Assessor Home found this was a frequent occurrence for the claimant and there was no evidence it was accident related. Therefore, he found the further injury to the claimant’s right wrist and the direct injury to the left knee were caused by a fall, which was unrelated to the accident.
Whilst Dr Szomor concluded Mr Kotb may have suffered synovitis due the accident, Medical Assessor Home noted synovitis was well established prior to the accident as documented by Dr Rosario.
Medical Assessor Home concluded the injuries to the left leg, the left knee, the left wrist, the left ankle, the right wrist, the right ankle, the right knee and the right leg were not caused by the accident.
Review Panel Certificate
A review panel comprising Principal Member John Harris, Medical Assessor Michael Couch and Medical Assessor Neil Berry issued a certificate dated 30 June 2023 affirming the certificate of Medical Assessor Home as it concerned threshold injury only.[24]
[24] Insurer’s bundle p 96.
Claimant’s submissions
The claimant provided undated submissions in support of the initial threshold injury dispute.
It is submitted the claimant suffered from the following symptoms as a result of the accident:
(a) depression;
(b) sleep disturbance and nightmares;
(c) diminished interest or pleasure in activities;
(d) weight gain;
(e) slowing down of thought and reduction in physical activities;
(f) fatigue;
(g) feeling of worthlessness and inappropriate guilt;
(h) impaired social functioning;
(i) heightened anxiety, and
(j) difficulty relaxing.[25]
[25] Claimant’s bundle p 17.
The claimant anticipated being referred to a clinical psychologist and submitted his psychological state was suggestive of post-traumatic stress disorder but required further investigation.
Insurer’s submissions
The insurer provided submissions dated 16 June 2022 addressing the question to be determined by the delegate, that is whether the assessment was incorrect in a material respect.
The insurer provided submissions dated 9 June 2021 in respect of the minor (threshold) injury dispute. The insurer noted that section 4 of the Regulation states that an adjustment disorder and acute stress disorder are included as a minor (threshold) psychological injury for the purposes of the MAI Act. The insurer submitted there was no evidence (at that time) that a psychological diagnosis had been made in accordance with DSM-5.
THE MEDICAL EXAMINATION
Mr Kotb was examined by Medical Assessor Mason and Medical Assessor Chew on behalf of the panel by videoconference through MS teams on 28 February 2024.
Mr Kotb is a 67-year-old right-hand dominant man whose appearance is consistent with his stated age. He was identified by his photograph on his NSW driver licence which was sighted. He was present in a room in his home. His wife was present throughout the interview because of his memory difficulties. At the request of the Panel, she was able to provide details of medications and other history when required. Arabic interpreter Ms Lamia Lounici, NAATI CPN9JM40O, assisted Mr Kotb throughout the interview. The interview commenced at 1pm and concluded at 2:20pm.
Personal history
Mr Kotb is a 67-year-old married man who lives with his 55-year-old wife and three of his six children in his own home in a South Western Sydney suburb. Two children are married and live independently. Another child is married and lives in a granny flat attached to the home. He is not working and is in receipt of the age pension. He previously received the disability support pension for pre-existing pain and physical impairment; he said this was converted to the age pension about 18 months ago.
He was born in Egypt the youngest of 10 children and described a normal birth and development. He said his parents died a long time ago and he cannot remember when they died. When asked about schooling he said he could not remember but believes he left at the age of 12 or 13. He remained in Egypt until he was 15 and then migrated to Australia unaccompanied; he said he had two brothers in Australia. He did not go on to obtain further qualifications. When asked about work he said he worked in factories and referred to aluminium fabrication and working as a cleaner in the National Spring company. He said his last form of employment was as a cleaner. He thinks he last worked about 10 years ago.
Leisure activities prior to the accident consisted of going out with family and friends. A group of friends would visit each other's houses. He also enjoyed going out for dinner and for coffee with friends and family. In addition, he enjoyed swimming.
Past insurance claims consisted of a back injury subsequent to a fall at work more than 10 years ago. He said he developed lower back and shoulder pain and believed he was off work for approximately 10 years. There was a settlement involved. He was asked if there were previous motor accidents and he said he could not remember. He was reminded the GP records indicated a motor accident in 2013 but he was still not able to remember. Mr Kotb denied any history of problems with the law.
His past medical history is extensive. He spontaneously listed problems with blood pressure, diabetes, arthritis and cholesterol. In response to direct questioning, he said he had surgery to both wrists a long time ago and had undergone surgery for bowel cancer also a long time ago, which was successfully treated. He also acknowledged obstructive sleep apnoea treated with CPAP and oesophageal reflux treated with proton pump inhibitors. Past medical history obtained from the GP clinical record is as follows:
· Osteotomies of right knee, obesity and sleep apnoea;
· 1991 right mid carpal fusion;
· 1995 right shoulder impingement;
· 2000 hearing impaired;
· 2001 bilateral trochanteric bursitis, left knee pain, rupture of right biceps tendon;
· 2009 bowel cancer and hemicolectomy;
· 2010 cervical spine degenerative disease, lower back injury, left knee injury and adjustment disorder;
· 2012 bilateral rotator cuff tear, metabolic syndrome, left wrist fracture, left hamstring tear, male hypogonadism, diabetes, left wrist surgery;
· 20 March 2013 exacerbation of knee and back pain;
· 23 March 2013 motor vehicle accident - soft tissue injury to neck, back and ankle;
· 3 April 2013 exacerbation of chronic pain;
· 26 April 2014 hypertension;
· 5 July 2014 tonsillitis;
· 2015 rheumatoid arthritis;
· 12 December 2015 otitis externa, and
· 6 March 2018 Helicobacter pylori infection, colonoscopy and gastroscopy.
Mr Kotb was unable to provide details of his current medication and the panel accepted the suggestion of his wife that she read out the medications which were as follows:
· Diabex (metformin) 500 mg for diabetes;
· Avara (leflunomide) 20 mg in the morning for arthritis;
· Rexulti (brexpiprazole) an atypical antipsychotic 1 mg in the morning for confusion;
· Aricept (donepezil) 5 mg for Alzheimer's symptoms;
· Oxytrol (oxybutynin) patch 3.9 mg 2 or 3 times weekly for bladder symptoms;
· Eliquis (apixaban) 5 mg twice weekly to prevent clots;
· Panadol Osteo (paracetamol) 665 mg 2 tablets 2 or 3 times daily for pain;
· Lyrica (pregabalin) 75 mg twice daily for pain;
· Pariet (rabeprazole) 20 mg twice daily for reflux;
· Crestor (rosuvastatin) 10 mg for cholesterol;
· Twynsta (telmisartan 40 mg/amlodipine 10 mg) half tablet twice daily for blood pressure;
· Efexor (venlafaxine) 75 mg in the morning for depression;
· Methotrexate 10 mg 3 tablets once weekly for arthritis;
· Megafol 5 mg on 6 days out of 7 for folic acid replacement;
· Endone (oxycodone) 5 mg 2 or 3 tablets/week for excess pain;
· Ozempic 1 mg once weekly for diabetes and weight control, and
· extra pain control tablets include Tramadol and Morphine as needed.
He was treated for depression by psychiatrist Dr Younan in 2011 following a work accident and reported a recovery.
When asked about his past psychiatric history the claimant was able to spontaneously recall that he had a fall at work following which he became depressed and was treated by psychiatrist Dr Monir Younan with antidepressant medication which he said was helpful. The record indicates this was in 2011.
Mr Kotb denied any other prior psychiatric history. He was questioned about a motor vehicle accident in 2013 and was asked if it gave rise to a need for psychiatric treatment; he said he could not remember. He was also asked about a 2017 referral to a psychologist under a GP mental health care plan; again, he said he could not remember. He then added maybe he had some psychological problems prior to the accident but they were much worse afterwards. He denied any family history of psychiatric illness, but then added there were so many brothers and sisters he could not really remember.
Most significantly, Mr Kotb was diagnosed with early onset Alzheimer's disease by geriatric psychiatrist Dr Iveta Valachova on 3 November 2020, only three weeks after the accident. She noted the gradual onset of extreme anxiety and mild cognitive difficulty at that time. She has continued to provide treatment consisting of the antidepressant Venlafaxine 75 mg, the antipsychotic agent Brexpiprazole 1 mg for treatment of anxiety and the anti-Alzheimer's agent Aricept (donepezil) 5 mg. He attends consultations every three months.
When asked about substance use Mr Kotb said he stopped smoking six or seven years ago. He denied the use of alcohol and recreational drugs and said he did not gamble.
History of the accident
The claimant said he was driving a rental car on a street in Bankstown which he could not name. His wife was a restrained front seat passenger. He said a car hit him from the back at high-speed and the car he was driving was written off by the rental company. He was moving at approximately 40 to 50kmph when the rear-end accident occurred. He believed the other vehicle must have been travelling at approximately 80kmph. He said his vehicle was pushed towards the kerb but did not hit another vehicle. He was wearing a seatbelt and the airbags did not deploy. There was no head injury or loss of consciousness. He said he was "just shocked". He got out of the car, exchanged details with the other driver and took photographs. He said he drove the car back to the office of the rental firm.
History of symptoms and conditions following the accident
Mr Kotb said within a couple of days he began to develop pain in his lower back, leg, shoulder and right wrist. He went to the GP a couple of days later because his right knee was painful and he was limping. He said he also had a sharp pain in his back. The GP sent him for X-rays. He said his right wrist became swollen. Treatment consisted of the prescription of pain killers. X-rays were taken and he was sent to physiotherapy for massage. He said when he was receiving physiotherapy three times weekly the pain got better but now it has returned. He said he also attended some hydrotherapy but that was not helpful, although it was useful after his right knee replacement surgery in 2023.
Mr Kotb said prior to the right knee replacement surgery in 2023 he had been falling over because of right knee pain and giving way, but that has now improved. He said unfortunately his left knee has now begun to cause problems. Currently his physical symptoms consist of back pain, right wrist pain, pain in both shoulders and pain in his left knee. Treatment consists of pain killers and doing hydrotherapy in the pool at Roselands; he attends three times weekly and walks in the pool.
When asked about psychological symptoms Mr Kotb said he felt depressed and felt like he was choking. Sometimes he talks to himself. He described significant social anxiety and said he does not like to see anyone and does not want to go out and socialise. He said he is so anxious he wants his wife to be with him all the time. He said if she has to go anywhere the anxiety becomes unbearable for him. He said he sleeps a lot and he does not like to wake up or get up out of bed or off the lounge. He said even if he is awake he will go to lie down and have a rest or sleep. The claimant confirmed in his opinion these problems have been caused by the accident because of the increase in anxiety and depression since that event.
Mr Kotb was questioned about depression and he stated it was due to the chronic pain in his back, shoulder and knee. He said he wakes at night due to the pain. Sometimes he gets up and talks to himself in the night. He said he talks out loud but he does not hear anyone respond to him, that is, it seems he was not engaged in auditory hallucinatory activity. When questioned further about the anxiety he experienced after the accident and currently he said it is mostly about his wife not being in his immediate vicinity.
Specifically, Mr Kotb did not describe intrusion symptoms of flashbacks or nightmares and he did not describe persistent avoidance symptoms. Negative alterations in cognition and mood were associated with depression secondary to pain rather than the accident itself, and he did not describe altered arousal and reactivity.
Psychological treatment consisted of a referral to psychologist Ms Charmaine Moubarak.
Mr Kotb believes he saw her two or three times per month and last saw her a couple of months ago before she commenced maternity leave. He said in the sessions they did a lot of talking and she gave him advice, strategies to go out and socialise, and she encouraged him to swim and to see people. When asked if he found it helpful he replied, "kind of".The treatment he received from psychiatrist Dr Valachova was aimed mainly at his cognitive difficulties but would also have been useful in managing the anxiety and depression arising from the accident. The panel note he was prescribed an antidepressant, an antipsychotic agent and an anti-Alzheimer's drug.
Injuries or conditions since the accident
As noted Mr Kotb was in the early stages of the development of Alzheimer's disease at the time of the accident and has continued to attend an appropriate psychiatrist for ongoing treatment. It is apparent his memory difficulties have been exacerbated by that condition since the interview with Medical Assessor Fukui.
In late 2021 the claimant was hospitalised for 2.5 months for treatment of acute COVID-19 related pneumonitis requiring immunosuppression. He said he was not conscious for much of the admission to Royal North Shore Hospital. He remembers struggling to breathe and thinking every breath might be his last. He acknowledged it was an extremely anxiety provoking experience and this was confirmed by his wife who was present during the interview. He said it took him a long time to recover and it exacerbated his anxiety and depression.
In October 2023 Mr Kotb underwent right total knee replacement and confirmed this was a significant ordeal. His wife offered that he spent two days in ICU and was in hospital for several weeks, which was much longer than expected. She said during that time he was in an extreme state of anxiety and confusion and was commenced on extra medications but they did not know specifically which medication. It is likely some form of antipsychotic medication such as brexpiprazole had been introduced. The description of his psychological state while in hospital is consistent with a delirium. He and his wife confirmed this was an extremely frightening time.
The GP record also indicated the claimant had difficulties with prostatic hypertrophy and had been prescribed Oxytrol, which is the appropriate medication for its treatment.
Current symptoms
The claimant said his symptoms have not changed. He continues to experience pain in his back, shoulder and knee which results in sleep disturbance and depression. He also continues to experience anxiety which is largely focused on avoiding any period of separation from his wife.
Current and proposed treatment
The claimant said he continues to consult his GP and use the medications provided. He hopes to return to psychological sessions with his psychologist when she returns from maternity leave. He continues to use the medication provided by his geriatric psychiatrist.
Mental state examination
Mr Kotb was a pleasant and engaging gentleman. He provided information willingly and without prompting within the limits of his ability to remember. His range of affective expression was full and largely appropriate, although at times he displayed rather fatuous affect. He did not appear to have a good insight into his deteriorating cognitive functioning because he did not seem at all distressed by his memory difficulties and at times found it amusing.
He described significant anxiety since the accident which largely focused on being anxiously attached to his wife. They were clear the anxiety had been exacerbated by the accident. There was a social anxiety component in that he did not wish to see anyone outside the family. He described depressed mood in which he found it difficult to take enjoyment in activities. He was not actively suicidal but often thought life was not worth living.
Mr Kotb was not fully oriented. He was able to name the day of the week but not the date. He could not name the Premier of New South Wales or the Prime Minister of Australia. He was able to name the president of Egypt, Mr El Sisi, who had been president of his country of origin since 2014. There was no evidence of psychotic psychopathology but there was evidence of organic psychopathology, namely Alzheimer's disease.
Current functioning
When asked how he spends an average day Mr Kotb said he wakes up and then sleeps all day or else he goes swimming. He said he watches television and apart from that never goes out.
When asked about self-care and personal hygiene he said he showers twice weekly, changes his clothes when his wife tells him, and his weight has remained the same. Mr Kotb said he does not really see friends or extended family. He does not go on any excursions or outings or attend entertainment venues, apart from attending the pool for exercise.
He said he is unable to drive because of cognitive symptoms and reported he gets scared when his wife drives. He is unable to use public transport alone.
His relationship with his wife is intact but he said sometimes he argues with her and with the children. He said he takes it out on them.
Concentration is impaired although he said he likes to watch some movies on television but cannot always follow what is going on. He is not working and does not help out at home.
Mr Kotb is significantly physically impaired although he said that has improved slightly since his right knee replacement.
Consistency of presentation
There were significant inconsistencies in his presentation but these were all largely due to his increasing cognitive difficulties.
PANEL CONCLUSION
Medical Assessor Fukui issued a certificate in which she diagnosed an adjustment disorder with mixed anxiety and depressed mood. She provided clear reasons why the claimant did not meet the DSM-5 criteria for post-traumatic stress disorder and why she disagreed with the diagnosis of Dr Gertler. The panel confirms her diagnosis of adjustment disorder with mixed anxiety and depressed mood.
In a report dated 23 July 2021, psychiatrist Dr Robert Gertler diagnosed post-traumatic stress disorder and assessed whole person impairment at 6%. The panel respectfully disagreed with his assertion that the accident was of sufficient severity to satisfy the DSM-5 Criterion A for a diagnosis of post-traumatic stress disorder, in that it was not a life threatening event.
The treating psychologist Ms Charmaine Moubarak did not offer a formal psychiatric diagnosis but provided clear descriptions of the aggravation of his physical difficulties by the accident and the impact this had on his anxiety and depression. The panel viewed this report as consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
Diagnosis
Mr Kotb was involved in a rear end motor vehicle accident nearly three and a half years ago. At the time of the accident, he had significant pre-existing physical injuries and it seems that these were exacerbated by the accident. He subsequently developed symptoms of anxiety and depression as a direct result of the accident and also secondary to the exacerbation of his physical problems and pain.
The panel is of the opinion that the accident was not life-threatening and does not satisfy Criterion A for the diagnosis of post-traumatic stress disorder. The panel notes this is determinative and the presence or absence of other symptoms in DSM-5 Criteria B to E does not alter the required exclusion of the diagnosis.
However, Mr Kotb did not describe symptoms consistent with post-traumatic stress disorder. Specifically, he did not describe intrusion symptoms of flashbacks or nightmares (Criterion B), he did not describe persistent avoidance symptoms (Criterion C), negative alterations in cognition and mood (Criterion D) were associated with depression secondary to pain rather than the accident itself and he did not describe altered arousal and reactivity (Criterion E).
Nor did he describe symptoms consistent with persistent depressive disorder, major depressive disorder or another form of anxiety disorder.
Mr Kotb’s condition meets DSM-5 criteria for an adjustment disorder as follows:
· Criterion A. The development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of the onset of the stressor.
· Criterion B. The symptoms or behaviours are clinically significant as follows:
1. Marked distress out of proportion to the severity or intensity of the stressor.
2. Cause significant impairment in social or occupational functioning.· Criterion C. The condition does not meet criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.
· Criterion D. The symptoms do not represent normal bereavement.
· Criterion E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months. The panel note the ongoing consequences of the accident are pain and anxiety. These continue and therefore the diagnosis of an adjustment disorder is appropriate.
· The specifier mixed anxiety and depressed mood is most appropriate.
The panel has therefore diagnosed an adjustment disorder with mixed anxiety and depressed mood.
In addition, there is a diagnosis of major neurocognitive disorder (Alzheimer's disease).
Mr Kotb meets DSM-5 criteria as follows:“A. There is evidence of significant cognitive decline from a previous level confirmed by the claimant, his wife and his geriatric psychiatrist.
B. The deficits interfere with independence in everyday activities.
C. The deficits do not occur exclusively in the context of delirium.
D. The deficits are not better explained by another mental disorder.”
Causation
The psychiatric members of the panel concluded that the accident was of sufficient severity to cause a psychiatric condition, especially when the claimant's vulnerable pre-existing physical condition is taken into account. The Panel concluded the accident therefore was the cause of the adjustment disorder with mixed anxiety and depressed mood.
The Panel notes the accident was not the cause of the major neurocognitive disorder (Alzheimer's disease).
Threshold injury
The Panel notes in accordance with s 1.6 of the MAI Act and Part 1 cl 4(2) of the MAI Regulation an adjustment disorder with mixed anxiety and depressed mood is a threshold injury for the purposes of the Act.
Accordingly, the Panel affirms the certificate of Medical Assessor Fukui dated 27 April 2022.
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