Mahdi v Cerebral Palsy Alliance t/as Packforce
[2023] NSWPICMP 17
•20 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mahdi v Cerebral Palsy Alliance t/as Packforce [2023] NSWPICMP 17 |
| CLAIMANT: | Omar Mahdi |
INSURER: | Cerebral Palsy Allianz t/as Packforce |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Michael Li Ying Hong |
| MEDICAL ASSESSOR: | Samson Roberts |
| DATE OF DECISION: | 20 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Compensation Act 1999; Medical Review Panel; dispute related to assessment of permanent impairment; on 9 November 2017 at work boxes fell from a pallet being moved by a forklift landing on the claimant’s head and back; pre-accident history of post-traumatic stress disorder (PTSD), anxiety and depression symptoms; Held – accident caused a major psychological decline and aggravation of PTSD associated with major depressive disorder; whole person impairment (WPI) assessed at 15%; pre-existing impairment assessed at 1%; certificate of Medical Assessor who assessed a 4% WPI revoked; new certificate issued; assessment of 14%. |
| DETERMINATIONS MADE: | MOTOR ACCIDENTS COMPENSATION ACT 1999 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The Panel revokes the Certificate of Medical Assessor Samuell dated 24 August 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: · post-traumatic stress disorder, and · major depressive disorder. |
REASONS FOR DECISION
INTRODUCTION
On 9 November 2017 Mr Omar Mahdi (the claimant) was standing next to a truck when boxes fell from a pallet being moved by a forklift landing on his head and back (the accident).
The Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Mahdi under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Mahdi as a result of psychological injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Samuell. He issued a certificate dated 17 June 2021.
An application for review of the medical assessment of Medical Assessor Samuell was lodged on behalf of the claimant on 20 September 2021.
On 21 December 2021 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii), Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
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. The President’s delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[3]
[3] Clause 1.2 of the Guidelines.
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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] 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.[6]
[6] Section 63(3A) of the MAC Act.
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel considered it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Samuell was concerned.
On 13 September 2022 the Panel decided a medical examination was required.
MEDICAL ASSESSMENT UNDER REVIEW
In his certificate dated 17 June 2021 Medical Assessor Samuell provided an assessment of 4% WPI.[7]He found an adjustment disorder with mixed disturbance of mood was caused by the accident.
[7] AD3 p 16.
The following injuries were referred to Medical Assessor Samuell for assessment:
· major depressive disorder;
· post-traumatic stress disorder, and
· anxiety disorder.
Medical Assessor Samuell reported Mr Mahdi had arrived in Australia as a refugee via Turkey. He was a disability support pensioner and qualified on the basis of both psychological and physical difficulties. Mr Mahdi attributed his earlier psychological difficulty to the civil war in Iraq.
Medical Assessor Samuell provided the following assessment under the psychiatric impairment rating scale (the PIRS):
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
1
There is only mild difficulty in this area from a psychological perspective and could be considered a variation of normal.
2.
Social and Recreational Activities
2
There is significant difficulty with social and recreational activities however this is mostly attributable to the physical component of Mr Mahdi's complaints. From a psychological perspective, the contribution is mild.
3.
Travel
2
There is a mild difficulty from a psychological perspective, he can drive alone but only in his local area.
4.
Social Functioning
1
There was no impairment in social function from a psychological perspective.
5.
Concentration, Persistence and Pace
2
There was a mild self-perception of concentration impairment attributable to the psychological component of Mr Madhi's difficulties.
6.
Adaptation
1
I note the vocational assessment that identified some physical limitations to work but no limitations in hours.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 18 July 2022 (the first Direction) which required each party to upload an indexed, paginated bundle of documents.
In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 538 and marked as AD3. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 100 and marked as AD4.
In response to a Direction from the Panel the claimant uploaded to the portal the Centrelink file marked AD6.
Statement of the claimant[8]
[8] AD3 p 26.
The claimant is now 42 years of age. He came to Australia as a refugee in 2013. He is married with dependent children. The claimant asserts as a result of the accident he suffers from soft tissue injury to the neck, soft tissue injury to the lumbar spine, soft tissue injury to both shoulders, concussion and psychological injury.
Mr Mahdi commenced employment with Direct Sydney Transport Pty Ltd on
6 November 2017. He was scheduled to work 15 hours per week. Prior to commencing work with Direct Sydney Transport the claimant had engaged in part time employment of 15 hours per week as a delivery driver and before that as a driver for disabled children.The claimant concedes since coming to Australia on 27 August 2013 he suffered from depression. However, prior to the accident he had come off the medication.
Treating medical records
Clinical records of Liverpool Doctors
Mr Mahdi first attended Liverpool Doctors on 30 August 2013, three days after arriving in Australia re his diabetes, right thigh pain and sinuses. On 2 September 2013 Dr Al-Attiyah reported Mr Mahdi was depressed and anxious about his future.[9] He prescribed Prestiq.
[9] AD3 p 446.
The next relevant attendance was on 2 November 2013 when Dr Al-Attiyuah diagnosed depression and reported:
“Normal sleep, Early morning wakening. Depressed mood. Normal self esteem. Irrational fear. No compulsive behaviours. NO delusions. No hallucinations. No suicidal thoughts. No substance abuse. He is feeling down and boared [sic].”
On 30 November 2013 he reported feeling down and depressed. He was prescribed Lexapro. On 28 February 2014 Dr Al-Attiyah referred Mr Mahdi to Dr Benjamin, psychiatrist.[10] On 2 May 2018 the reason for contact was depression and Mr Mahdi reportedly discussed the result of Dr Benjamin’s report.
[10] AD3 p 438.
Dr Samir Benjamin, psychiatrist provided a report dated 23 April 2014.[11] He concluded
Mr Mahdi was not suffering a diagnosable psychiatric disorder. Dr Benjamin reportedMr Mahdi did not appear to be anxious or depressed, he reported a strong overlay in his presentation, both physically and psychologically and noted his history was frequently inconsistent.[11] AD3 p 525.
On 2 July 2014 and on 23 July 2014 Dr Haloob reported complaints of insomnia, that overnight he found himself outside his room and he had seen a psychiatrist with no diagnosis and had also seen a psychologist.[12] He reported no medication, not even Cymbalta had worked.
[12] AD3 p 436 and 437.
On 4 October 2016 Dr Al-Attiyah reported Mr Mahdi had been taking an antidepressant when needed.[13] He was advised to take it regularly and to use 60 mg daily for 12 months and then may wean it. On 19 December 2016 Dr Al-Attiyah reported the claimant had ceased Cymbalta although he advised him to take it to help with neuropathic pain.[14] This is the last reference to anti-depressant medication before the accident.
[13] AD3 p 428.
[14] AD3 P 427.
On 11 November 2017 Dr Al-Attiyah saw the claimant in respect of nausea and a head injury and reported:
“work injury
pallet of boxes of 10.8 kg
he had head CT scan thoracic and cervical all were normal
discharged home with analgesia
represented to Liverpool hospital because of headache, dizziness and neck pain and vomited twice
had another CT scan was normal
counselling has been provided.”[15]
[15] AD3 p 424.
Mr Mahdi was reported to be feeling unsteady, anxious, with limited movement bending down and lifting his head up. On examination he was tender at the cervical spine, with limited movement.
Mr Mahdi saw Dr Al-Attiyah for lower back pain on 16 November 2017, 17 November 2017 and 24 November 2017. He also complained of poor memory.
On 1 December 2017 Dr Al-Attiyah reported the claimant was still in pain. He noted Cymbalta EC capsule ceased. On 22 December 2017 the claimant reported headache, amnesia and neck pain, on 11 January 2018 he was reportedly still in pain and on
8 February 2018 he was complaining of headache, neck and back pain.[16][16] AD3 p 421 – 434.
On 22 March 2018 Dr Al-Attiyah diagnosed depression and reported Mr Mahdi was feeling down, teary, not interested in activities, “he thinks sometimes devastated and willing to hurt himself”. Cymbalta was prescribed and Mr Mahdi was referred to a psychiatrist and psychologist.[17] This is the first recorded complaint of psychological symptoms following the accident.
[17] AD3 p 420.
Ambulance report
The ambulance report states:[18]
“O/A 37 YOM sitting in chair. Staff n scene state PT is truckdriver and tried to hold pallet of boxes that was slipping off the back of his truck, and some of the boxes fell onto his head. Witnesses state PT staggered back and they caught him, and he did not fall over or get knocked out. O/E PT alert, slightly confused, C/O pain to top of head and cervical neck pain. PT oriented to time and place, nil chest pain, nil SOB, lung sounds clear and equal. Abdo soft, Nil nausea/vomiting. PT dizzy. PT pupils R>L but reactive (PT says history of eye surgery). Nil motor deficits. Nil obvious bruising/haematoma. PT initially amnesic to events, poor historian. Cervical collar applied. PT declined analgesia. Stable en route.”
Liverpool Hospital
[18] AD3 p 392.
The claimant suffers from Type 1 diabetes complicated by microalbuminuria and diabetic retinopathy. Mr Mahdi has been under the care of the Diabetes clinic at Liverpool Hospital. The clinical records disclose a pre and post-accident history of hypoglycaemic episodes.
The Liverpool Hospital Emergency Department (ED) Discharge Referral dated
9 November 2017 states:“37 Y M Level 2 trauma. was standing behind truck which held pallets of 10.8kg boxes. pallets fell onto pt to chest and head at a height of ~1.5m height. states did not fall onto ground but was caught by friend and didn’t hit his head on the floor. Amesic [sic] to event with ambo, but was able to recall the events with us. Complaining pain t head and neck. PMHx: T1Dm; HTN; Hyperlipidaemia; Left eye cataract surgery.”[19]
[19] AD3 p 110.
Mr Mahdi underwent a CT scan of the head, the cervical spine and the chest which were all reported as normal, with no acute injury. He was observed to have dizziness when he stood up.
The claimant returned to Liverpool Hospital the following day, 10 November 2017.[20] The hospital notes state:
[20] AD3 p 112.
“Pt returned from home with worsenign [sic] headache and dizziness post head tr[a]uma yesterday when he was seen and DC from Liverpool ED following review by Trauma team and –ve scans.
Pt not taken any analgesia;
was no advised re: concussion type symptoms;
has had a few episodes of vomiting;
was initially very agitated
since given analgesia pt settled
no new neurology noted
Rpt CT Brain = NAD imp: concussion
plan: reassurance and home with HI advice in arabic.”[21]
Dr Balsam Darwish, neurosurgeon
[21] AD3 p 147.
Dr Darwish reviewed Mr Mahdi in respect of his lower back pain and stiffness and provided a report dated 24 January 2019.[22] He noted the MRI scan of both shoulders of 9 January 2019 showed bilateral subacromial bursitis. He referred him to Dr Chandra Dave in respect of his shoulders.
Dr Shatha Al-Attiyah, general practitioner (GP)
[22] AD3 p 103.
Dr Al-Attiyah provided a report dated 7 March 2020.[23] He reported Mr Mahdi attended on
11 November 2017 after a pallet of boxes weighing 10.8 kg fell on his back and head. He was anxious, restless and complaining of back pain, neck pain and severe headache. He said Mr Mahdi was teary from the stress.[23] AD3 p 87.
He noted Mr Mahdi was a diabetic, had hypertension, diabetic retinopathy and a history of post-traumatic stress disorder which he described as stable at the time of the accident.
Dr Al-Attiyah stated the claimant’s post-traumatic stress disorder was exacerbated by the accident.
Dr Raiz Ismail, psychiatrist
Mr Mahdi consulted Dr Ismail for the first time on 23 March 2018.[24] He reported Mr Mahdi had recently started on Cymbalta 60 mg as he had previously responded to this medication. He reported complaints of low mood, anhedonia, low frustration tolerance, nightmares and flashbacks.
[24] AD3 p 506.
Dr Ismail, psychiatrist provided a report dated 1 February 2019. He stated he had been seeing Mr Mahdi for the past 12 months as a treating psychiatrist.[25] He said he suffered from major depressive disorder with post-traumatic stress disorder.
[25] AD3 p 101.
Dr Ismail referred to the trauma experienced by the claimant in the Iraq war and described the accident on 9 November 2017. He stated because of that accident Mr Mahdi started to have severe depression with post-traumatic stress disorder symptoms. Dr Ismail stated
Mr Mahdi had flashbacks of the accident and nightmares. He complained of low mood, anhedonia, crying spells, ideas of worthlessness, low frustration tolerance, pain in his scalp, neck and lower back. He stated the accident had a severe impact on the claimant’s mental health.Dr Ismail provided a report to Dr Al-Attiyah on 3 September 2021.[26] He reported Mr Mahdi still had pain in his neck and his sleep was intermittently disturbed. He had numbness in his legs and back pain. His appetite had increased, and he had gained weight. He had nightmares and flashbacks of the accident. Dr Ismail reported the claimant’s affect looked restricted and his mood was low. Dr Ismail concluded the accident had had a huge impact on the physical and mental health of the claimant irrespective of his past history. He reported the claimant was on the DSP (disability support pension).
[26] AD3 p 516.
Kasim Abaie, psychologist
Mr Abaie, treated Mr Mahdi and provided a report dated 27 February 2020.[27]
[27] AD3 p 105.
Mr Abaie reported Mr Mahdi demonstrated symptoms of anxiety and depression due to a work related injury on 9 November 2017. He described his mood as severely anxious and moderately depressed. Treatment included exposure therapy, CBT, OCT, problem solving and relaxation techniques.
Dr David Freiberg, physician respiratory and sleep medicine
Dr Freiberg undertook a respiratory assessment of Mr Mahdi and provided a report dated
1 August 2022. He concluded Mr Mahdi had significant sleep disordered breathing as a result of his narrow upper airway and obesity although he thought post-traumatic stress disorder may also be contributing to his sleep disturbances.[28][28] AD3 P 80.
Dr P F Teychenne, neurologist
Dr Teychenne saw Mr Mahdi on a number of occasions in respect of pain in the neck, lumbar spine and head.[29]
Medico-legal reports
Dr Leonard Lee, 26 February 2019
[29] AD3 p 525.
Dr Lee assessed the claimant at the request of his lawyers. He reported whilst living and working in Iraq in about 2007 he, his uncle, a cousin and a female employee were in a car when they were attacked by militants. His cousin and the female employee were killed, his uncle was injured, and Mr Mahdi escaped. Shortly afterwards his niece was killed. He reported Mr Mahdi developed sleep problems, anxiety with tachycardia and was startled by door knocks. He took Valium for anxiety. In 2011 after being threatened with death twice
Mr Mahdi fled to Turkey with his family. After arrival in Australia in 2013 Mr Mahdi consulted a psychologist and took Cymbalta until 2016. Dr Lee reported he suffered intrusive nightmares, flashbacks and depression, although the symptoms cease about one year before the accident.Dr Lee reported the claimant noticed the pallet was about to fall “so he jumped about a metre to the ground from the truck, and then put up his arms to protect himself but about 700 kg of the load wrapped in plastic sheeting fell on him”. He felt dizzy, his visions was blurry, and he experienced severe head and neck pain and was “extremely fearful”. He reported at Liverpool Hospital he could not stand, was vomiting and experiencing severe neck, head, shoulder and back pain.
Dr Lee reported Dr Darwish advised him he did not have significant brain injuries. He consulted Dr Dave regarding his shoulders and was told he has impingement. He was continuing to attend physiotherapy at that time.
Dr Lee noted Mr Mahdi was consulting Dr Raiz Ismail, psychiatrist. He reported low mood, anhedonia, crying spells, ideas of worthlessness, low frustration tolerance and pain. He reported frequent nightmares, 50% due to experiences in Iraq and 50% due to the accident. He reported intrusive memories, 70% due to the accident and 30% due to Iraq. His sleep is broken, and he wakes exhausted. He is forgetful, angry, intolerant and argues with his wife. He startles easily and is hypervigilant which he says did not occur before the accident.
Dr Lee diagnosed post-traumatic stress disorder caused by the accident and also a recurrence of his previous post-traumatic stress disorder.
Dr Lee assessed a 19% WPI but deducted 10% for the pre-existing post-traumatic stress disorder. The Panel notes this is not the prescribed method to assess a pre-existing condition under the Guidelines.
Category
Class
Reason for Decision
1.
Self-care and Personal Hygiene
3
Has gained weight. Requires much assistance from his wife due to a combination of pain and psychological problems. He cannot live independently without regular support
2.
Social and Recreational Activities
3
He rarely attends social events unless prompted, will not go out without a support person and remains quiet and withdrawn.
3.
Travel
2
Due to anxiety, he can only travel without a support person in a familiar area and tends to be hypervigilant
4.
Social Functioning
2
There is tension and arguments with his partner and children and he has lost some friendships.
5.
Concentration, Persistence and Pace
2
He has difficulties recalling simple instructions
6.
Employability
5
He is totally impaired and cannot work at all.
Dr Yuk Kai Lee, 13 September 2021
Dr Lee, orthopaedic surgeon assessed the claimant at the request of his lawyers.
He concluded Mr Mahdi injured his left shoulder, neck and back as a result of the accident. He reported Mr Mahdi cannot go to the gym, he cannot play soccer with his children, help with housework or pray normally.
Dr Yajuvendra Bisht, 1 September 2021
Dr Bisht, psychiatrist assessed the claimant for the purposes of his workers compensation claim.[30] He reported the following symptoms since the accident:
[30] AD3 p 53.
(a) ruminations;
(b) feeling anxious whilst having ruminations;
(c) hypervigilance;
(d) lack of enjoyment in previously pleasurable activities;
(e) lack of motivation towards socialising and self-care;
(f) initial and middle insomnia;
(g) difficulty concentrating for long periods and making complex decisions;
(h) feeling anxious around people;
(i) feeling emotionally distant from people;
(j) being easily startled, and
(k) persistent flat or irritable mood.
Dr Bisht obtained a history of the claimant’s traumatic experience in Iraq and reported he described symptoms of post-traumatic stress disorder after that incident. He reported on arrival in Australia Mr Mahdi consulted a psychologist and took the antidepressant Cymbalta. However, his symptoms improved over one to two years and he stopped treatment.
Dr Bisht diagnosed post-traumatic stress disorder and major depressive disorder. He concluded the claimant was unfit for any type of work and that the prognosis of further recovery was low.
Dr Horace Ting, 29 April 2019
Dr Horace Ting undertook a Home and Living Skills Assessment Report.[31] He reported
Mr Mahdi stopped going to the gym about three months before the accident. Otherwise, he enjoyed fishing and social activities including seeing friends three or four times a week. After the accident he ceased fishing and has not seen his friends in a long time. He still sees his brother. He suffers from low self-worth, experiences broken sleep and nightmares. He also reported suffering from flashbacks which take him back to the trauma he suffered in Iraq.[31] AD3 p 64
Dr Ting concluded Mr Mahdi demonstrated a physical capacity to perform modified sedentary work.
Dr David Maxwell, orthopaedic surgeon
The claimant saw Dr Maxwell at the request of the insurer. He provided a report dated
6 February 2020.[32] He reported the claimant’s main problem was numbness in the outer aspect of the left thigh and left sided back pain.[32] AD4 p 8
He reported the claimant as vague about his work history. He drove a bus for disabled children for about 15 hours per week and before that he worked as a truck driver for about 1½ years. He suggested his income was supplemented by the New Start Allowance.
Dr Maxwell reported Mr Mahdi was confused as to whether he had a DSP, but he reported he was exempted from full time work because of diabetes and psychological problems. However, he also reported he still has to look for jobs.Dr Maxwell reported the claimant experienced headaches, and pain in both sides of his neck and on the inside of his left shoulder. He reported Mr Mahdi’s right shoulder hurts a little and his lower back aches.
Dr Maxwell found evidence of modified pain behaviour, non-organic signs and conscious fabrication of clinical signs. He concluded the claimant sustained a concussion which settled within a week or two and a contusion of the neck which would have settled in four to six weeks. He was of the view none of the claimant’s disability were related to the accident. In relation to the lower back Dr Maxell concluded any symptoms in the lower back were somatic manifestations of underlying depression and secondary to inactivity. Dr Maxwell was of the view the claimant was fit for work without restrictions.
Susan Dinley, occupational therapist
Ms Dinley provided a report dated 29 April 2020 in which she provided an assessment of the claimant’s need for assistance with activities of daily living. She reported Mr Mahdi asserted he was in too much pain and too emotionally labile with associated fatigue to complete his own self care, domestic tasks, maintenance and childcare tasks.[33]
[33] AD4 p 42, 45 and 57.
Vocational Capacity Centre
Mr Mahdi was assessed by Gillian Stewart functional assessor and by John Raue vocational assessor and provided a report dated 14 August 2020.[34]
[34] AD4 p 65.
The functional assessment concluded Mr Mahdi had the ability to perform sedentary and light work at optimal height on a full time basis with suitable postural breaks based on Mr Mahdi’s physical capabilities only. Ms Stewart found Mr Mahdi’s performance during the assessment to be inconsistent and pain behaviour was noted throughout the assessment. Mr Raue reported Mr Mahdi said he was stressed and tired and lacks energy and drive. He reported Mr Mahdi was very focused on pain and disability.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 20 September 2021.[35]
[35] AD3 p 1.
The claimant submits that the correct diagnosis is post-traumatic stress disorder and major depressive disorder in accordance with the opinions of Dr Leonard Lee, psychiatrist,
Dr Kasim Abaie, psychologist and Dr Raiz Ismail, psychiatrist. The claimant submits this opinion as to diagnosis is supported by the more recent report of Dr Bisht who assessed the claimant for his workers compensation claim. The claimant submits that whilst he had a past history of post-traumatic stress disorder he had recovered from that condition prior to the accident and had stopped all treatment in 2016.In respect of self-care and personal hygiene the claimant submits that he is unable to live independently, he lacks motivation, has gained weight, does not shower every day and occasionally sleeps through the day, missing meals. The claimant submits he meets the criteria for a class rating of 2.
In respect of social and recreational activities the claimant submits in accordance with the opinion of Dr Lee he meets the criteria for a class rating of 3. The claimant asserts since the accident he has not attended the mosque or social events he enjoyed attending prior to the accident unless prompted by a support person. It is noted that Medical Assessor Samuell reported the claimant can no longer go to the gym, he spends most of his time sitting at home and eating, he has one friend who visits and does not attend his local mosque consistent with a class rating of 3.
The claimant does not cavil with the assessment of a class rating of 2 for travel.
In respect of social functioning the claimant submits that whilst he has not separated from his partner the relationship has become strained and distant and he has suffered a loss of friendships. The claimant submits he meets the criteria for a class rating of 2.
In respect of concentration, persistence and pace the claimant submits he meets the criteria for a class rating of 3. Medical Assessor Samuell and Dr Lee reported the claimant complained of problems concentrating and remembering. In his recent report Dr Bisht reported the claimant asserts he is unable to read more than a few lines before losing concentration although he noted the claimant was able to sustain concentration during the course of the interview.
The claimant submits that Medical Assessor Samuell erred in relying solely on the insurer’s Vocational Capacity Assessment report dated 14 August 2020 and determined the claimant had no ongoing dysfunction without considering whether the claimant had a lack of capacity to work due to his psychological impairment. The claimant notes that both Dr Lee and
Dr Bisht have assessed the claimant as totally impaired and unable to work at all as a result of his psychological symptoms.
Insurer’s submissions
The insurer provided submissions dated 15 October 2021.[36]
[36] AD4 p 1.
The insurer submits that Medical Assessor Samuell arrived at his diagnosis as required by the Guidelines and notes the diagnosis is required to be made at the time of the assessment. The insurer notes the diagnosis of Dr Lee was based on an assessment of 25 February 2019.
The insurer notes that the report of Dr Bisht was not before Medical Assessor Samuell, that it is merely a different opinion, and that Medical Assessor Samuell was entitled to make the diagnosis that he did.
The insurer submits that in making his assessments Medical Assessor Samuell had regard to the whole of the medical and factual material but also his own perceptions arising out of the assessment. The insurer also notes that Medical Assessor Samuell also had regard to the claimant’s physical limitations (pain) when assessing the claimant’s level of function.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MEDICAL ASSESSMENT
Mr Mahdi was assessed by Medical Assessor Michael Hong and Medical Assessor Samson Roberts by videoconference on 8 December 2022. Mr Mahdi was at home on his own. He was assisted by Ms Rose Ward Haddad, interpreter (NAATI Number CPN1L174N).
History
Psychosocial history and pre-accident history
Mr Madhi was born in Iraq and went to Turkey for one or two years before he came to Australia in 2013 as a refugee. He grew up with his parents, being the youngest of eight. The only family in Australia is one brother. He is not aware of a family history of mental illness.
He reported his psychological condition first commenced when he worked as a security guard at a hospital in Iraq. He said he tried to run away as he feared he would be killed, and an uncle died from similar problems in Iraq. There were further incidents where he was threatened in Iraq.
Once he came to Australia, he started having treatment for post-traumatic stress disorder, depression and anxiety. He said he saw a psychologist for one session only and then took medications, predominantly Cymbalta (Duloxetine). He thought he probably stopped Cymbalta in 2015.
We discussed that in his records, there is a suggestion he had depression at age 11. He said this is not true, his psychological problems only started when he worked as a security guard.
We discussed the entry related to Cymbalta around a year before the accident and he said his GP told him that he did not need treatment and he will "get over it gradually", so he stopped the Cymbalta a year before the accident. He said initially he was scared of being killed but gradually he “forgot about it”, and he was not bothered by the traumatic experience in Iraq. On specific enquiry regarding his psychological response when he sees cues related to the war or threats in Iraq, he said it had no impact on him. The Panel did not find this particularly plausible.
Mr Madhi said that before the accident, he had a group of friends, they socialized, and they used to have picnics in the parks. He went to the mosque regularly. He went to the gym and the pool twice a week, generally on his own but would talk to people there. He said he read a lot.
He does not have drug or alcohol problems.
History of the accident
On 9 November 2017, Mr Madhi was doing a delivery in his car by himself. He said that a truck was loading heavy pallets and the forklift tried to take the pallet but it became unbalanced. He tried to get out of the car and the pallet fell on him. Mr Madhi recalled trying to run away from it. His first memory after that, was seeing the driver of the forklift and he said that his “picture comes back in my dreams”, and “the image of his face” makes him feel “haunted in my dreams”, he feels scared and tired from it. Sometimes he felt like somebody wants to choke him. He was taken to Liverpool Hospital and discharged himself the same day. He said he did not like to be in hospitals reporting he previously developed post-traumatic stress disorder when he was threatened in a hospital.
Physically, Mr Madhi reported he suffered injuries to his neck, shoulder, back and head. He reported having left leg numbness, which radiated from his back. He finds it hard to sit down for long and can tolerate half an hour but can only stand for five to seven minutes. He reported he can walk 15-20 minutes before his back and leg numbness gets in the way. He is in pain all the time.
Mr Madhi had problems with driving after the accident although he still drives to do the school pick-up. He can drive half an hour before he needs to get out and stretch his back and leg. He has not tried to drive beyond 30 minutes and does not know if there would be any problems psychologically. There is no specific avoidant behaviour in relation to driving from a psychiatric perspective.
History of symptoms and treatment following the accident
Mr Madhi reported that he was scared during the accident, and within one or two weeks of the accident, he became depressed and psychologically declined rapidly. He said he feels like life is finished, as he cannot work, he does not know how to support his family and he has no future, therefore, he has been chronically depressed.
He reported shortly after the accident, he started having bad dreams and memories related to the Iraqi war as well as dreams related to the accident. After a while, he got over it and now he does not really think about or have dreams about Iraq. His nightmares are only about the accident now.
Details of any relevant injuries or conditions sustained since the accident
Mr Madhi has not had further car accidents or sustained other psychological injuries.
Current symptoms
Mr Madhi reported having chronically depressed mood.
He reported an inability to enjoy things he would normally enjoy.
He described having poor concentration and memory.
Suicidal ideation has ceased.
He was 90kg before the accident and is now 110kg, having gained weight in 2022. He reported he cannot move much and described general inactivity and poor motivation, contributing to his weight gain.
He reported having sleep problems, generally only sleeping for four hours due to severe pain. He has nightmares daily, related to the accident.
He has intrusive memories and panic attacks.
He was irritable initially, and this is no longer a problem and he feels “calm” now.
He is easily startled and feels “scared”.
He reported being quiet and socially withdrawn.
Mr Madhi denied having self-harmed.
Current and proposed treatment
Mr Mahdi is currently taking:
· Quetiapine;
· Cymbalta;
· Insulin;
· Panadol Osteo;
· Mobic;
· Ramipril, and
· Mylanta.
He has been consulting Dr Kessim and Dr Ismail.
Mr Madhi has never had a psychiatric admission.
Clinical examination
Mental state examination
The assessment by Medical Assessor Hong and Medical Assessor Roberts by videoconference took more than two hours.
Mr Madhi had receding hair and a full beard and presented as overweight. He stood up regularly and shifted his posture to accommodate his pain during the assessment. He presented as emotionally fragile and cried at times, and generally had a worried expression. He was moderately restricted in his affect. He spoke spontaneously and readily through the interpreter and gave a long detailed history. He was not thought disordered. He provided a good history. There were no difficulties in alternating between topics and staying within a topic. He maintained a normal speed.
At the end of the assessment Mr Madhi was asked for any additional information that he thought may be relevant, but he had nothing to add.
Current functioning
Mr Madhi is 42 and living with his wife, who works as a support worker. He has three children, and he said they were born in 2008, 2010 and 2016. He reported that he has separated from his wife, and they are living together for the children’s sake. Financially, they have separated, and he has declared this to Centrelink. He does not remember how long they have been together and reported that because of the changes in his behaviour and poor psychological health after the accident, they were no longer intimate, they stopped sleeping in the same room and it was a mutual decision to separate.
He does not exercise and reported that he will eat foods such as bread, rice and soup. His wife prepares all the meals. He said he cannot cook because he cannot stand up long enough to do anything. If he is hungry, he might get takeaway food, such as KFC.
Mr Madhi has not gone to the mosque for a long time and said he does not see anybody. He said he does not want people to see him, and nobody contacts him anymore. Aside from doing school pick-up, sometimes he will take the children to McDonald's restaurant to eat but does not do other activities with them out of the house.
Before the accident, Mr Madhi said he did a bit of housework such as cleaning up and washing up, but now he said he cannot do it because “I cannot move”. He needs help to have a shower and cannot scrub his body or wash his hair. He generally only showers every second day now. Mr Madhi does a bit of shopping sometimes, although his wife does most of it.
Mr Madhi has diabetes. He reported that this affected his eye and kidney. He needs reading glasses, and he can only read a few words. Even in Arabic, he can only read for one or two minutes. When the panel asked him why he could not read more he said that he is not comfortable when he sits down to read, and when he stands up, he cannot concentrate and feels dizzy.
The Panel noted this contrasted with his cognitive capacity during the assessment, where he gave a long, detailed history of the accident early in the assessment, and maintained focus well throughout the assessment. Sometimes he would ask questions and spontaneously elaborate on his history through the interpreter.
Employment history
He completed 10 years of school in Iraq. He sold cars and then worked as a security guard in hospitals. He ceased work as a result of post-traumatic stress disorder.
Mr Madhi went to Turkey where he did not work and where he remembered he lived in a private rental property. He then came to Australia. He worked for the Cerebral Palsy Alliance, taking disabled children to school as a driver, but could not remember how long he did this.
Mr Madhi then became a truck driver for one and a half or two years until the accident occurred. He reported since coming to Australia, he has been on a Centrelink payment (which is likely a DSP) due to a combination of his psychiatric and physical injuries and can only work 15 hours a week. He explained he suffered from diabetes, he had a lot of health issues and eye problems, and therefore could not work beyond 15 hours.
After the accident, Mr Madhi has not been able to work at all. He explained he has major physical impediments, and he finds it hard to motivate himself to return to work as he has depression.
The panel asked Mr Madhi whether he could work if his back was better and he could drive without pain, and he explained that if his back was not a problem, psychologically he would be better, and he would of course be able to go back to some work.
Consistency of presentation
The Panel formed the view Mr Madhi underestimated his pre-existing injury. Overall, he presented as a reasonably consistent historian.
Centrelink file
The Panel directed the claimant to provide a copy of the Centrelink file. The file was uploaded to the portal and marked AD6. The Panel has reviewed the Centrelink file which is consistent with the history provided by Mr Mahdi as to his pre-existing condition.
PANEL DECISION
Diagnosis
Mr Mahdi has a history of being threatened and traumatised and suffered from post-traumatic stress disorder and anxiety and depressive symptoms prior to the accident.
After the accident, Mr Madhi described experiencing a major fear which is sufficient to cause an aggravation of his previous psychiatric injury. He now presents with post-traumatic stress disorder and major depressive disorder, complicated by chronic pain symptoms. He has had sufficient treatment over time and his condition has stabilised.
Mr Madhi's psychological symptoms fulfil all of the DSM-5 diagnostic criteria for post-traumatic stress disorder. The accident and previous assault whilst working as a security officer, are both consistent with criterion A stressors, capable of producing a major fear of injury. He has developed flashbacks and nightmares, persistent avoidance of situations and anxiety when exposed to reminders of the accident, persistent negative cognitions and mood including negative beliefs, fear, horror, detachment and shame. He has physiological hyper-arousal with disturbed sleep, concentration and high anxiety. His symptoms have persisted longer than four weeks, cause clinical distress, and are associated with functional impairment. Finally, the Panel has not identified another medical or psychiatric condition that better explains his trauma symptoms.
In terms of the DSM-5 criteria for major depressive disorder, he has had more than five of the listed symptoms for at least two weeks, and there are no other better explanations for his depressive symptoms. He has a pervasively depressed mood and significant anhedonia, he has experienced significant weight gain, more than 5% of his weight. He described significant sleep impairment. He described a loss of energy. He reported suicidal ideation which subsided. His symptoms cause him clinically significant distress. His symptoms are not due to the physiological effects of a medication or substance and are not part of a general medical condition. His symptoms are not better explained by schizophrenia, acute stress disorder symptoms or adjustment disorder. He has not experienced manic or hypomanic symptoms.
Causation and reasons
Mr Madhi has a past psychiatric history, of post-traumatic stress disorder and depressive symptoms. He received treatment until around one year before the accident. He has a protracted history of psychopathology and would have experienced intermittent symptoms in the period before the accident. His pre-existing psychological injury continued to cause occupational impairment.
After the accident, he experienced a major psychological decline with re-experiencing symptoms and anxiety and depressive symptoms and has sustained an aggravation of post-traumatic stress disorder associated with major depressive disorder.
His psychological injury has not resolved at any time since the accident. There is no other factor identified as causative of his psychological injury in the relevant timeframe.
Having analysed the nature of the accident, and the onset and progress of Mr Madhi's psychological symptoms, the Panel determined the accident is a major causal factor of his current psychological injury.
Permanency of impairment
Permanent impairment is defined in the AMA4 Guides as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Mr Madhi's impairment is permanent and entrenched, and unlikely to change substantially and by more than 3% in the next year, with or without medical treatment.
Degree of permanent impairment
Psychiatric Impairment Rating Scale (PIRS) – current impairment
| Psychiatric diagnoses | 1. Post-traumatic stress disorder | 2.Major depressive disorder |
| 3. | 4. | |
| Psychiatric treatment description | Psychotropic medications Psychiatrist Psychologist | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 2 | Mr Madhi reported neglecting his self-care. He manages his diabetes without assistance, he showers every second day and eats regularly, three meals a day. He gained weight due to inactivity and a lack of motivation. He is capable of independent living without regular support and does not need prompting with self-care. |
| 2. Social and Recreational Activities | 3 | He used to have an active social life and went out with his friends regularly, such as having picnics in the parks. He stopped attending social gatherings and has no social recreational activities now. |
| 3. Travel | 1 | Mr Madhi can drive and go out on his own. He has no travel impairment. His physical injuries and pain are not assessable in the PIRS. |
| 4. Social Functioning | 3 | Mr Madhi's relationship with his wife deteriorated and they separated, living in the same home in different rooms. He is anxious and socially avoidant and ceased contact with all of his friends. The relationship with his children has deteriorated, and he is only capable of caring for them with some difficulty. |
| 5. Concentration, Persistence and Pace | 2 | Mr Madhi described having poor concentration. His mental state examination is consistent with 2. |
| 6. Adaptation | 4 | Mr Madhi has not worked since the accident and his anxieties impact his capacity to work. From a psychological perspective, he can return to work as a driver, less than 20 hours per fortnight with erratic attendance and pace. |
| List classes in ascending order: 122334 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 15 | ||
| % Whole Person Impairment: 15 % | ||
*%WPI = Percentage Whole Person Impairment
The Panel noted reports from Dr Lee and Dr Bisht. The Panel found Mr Madhi more impaired in social functioning than Dr Lee or Dr Bisht.
The Panel found Mr Madhi less impaired in travel. Whilst Dr Lee and Dr Bisht assessed a class 2 rating Mr Madhi reported he does not have specific avoidant behaviour and cannot drive beyond 30 minutes due to his physical injury. The Panel found from a psychological perspective, Mr Mahdi has no specific impairment, and the Panel considered a more appropriate rating was class 1.
Dr Lee and Dr Bisht rated concentration, persistence and pace as class 3 noting he had difficulties with concentration during their assessments. The Panel noted during their assessment Mr Madhi exhibited good concentration for more than two hours. He has some impairment in his concentration and the Panel finds this is consistent with class 2.
The Panel also found Mr Madhi less impaired in productivity and rated adaptation as class 4
Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment
Mr Madhi has not sustained a subsequent injury.
He has a past psychiatric history.
Psychiatric impairment rating scale – pre-existing impairment
Category
Class
Reason for Decision
Self-care & Personal Hygiene
1
Mr Madhi had no impairment before the accident. He ate and showered regularly.
Social & Recreational Activities
1
No impairment before the accident.
He engaged in social and recreational activities with his friends.
Travel
1
No impairment before the accident.
He worked as a driver and went everywhere.
Social Function
1
No marital or interpersonal impairment identify before the accident.
Concentration, Persistence & Pace
1
No impairment before the accident.
Adaptation
3
He could not work as a security guard due to post-traumatic stress disorder. He could work, but not more than 20 hours per week from a psychological perspective.
He was on a Centrelink payment for a combination of psychological and physical injury and was only allowed to work 16 hours per week.
List classes in ascending order: 111113
Median Class Value: 1
Aggregate Score: 8
% Whole Person Impairment: 1%
Apportionment
Pre-existing impairment = 1%.
Effects of treatment
Mr Madhi's treatment has had negligible effects on his psychological injury.
Final WPI
Taking into account the pre-existing impairment the final assessment of WPI is 14%.
0
0
0