McDonald v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 52
•1 February 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | McDonald v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 52 |
CLAIMANT: | Aaron McDonald |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 1 February 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Degree of impairment greater than 10%; prolonged grief disorder; alcohol use; end of life decisions; unresolved grief; psychiatric impairment; no prior psychiatric conditions; clinical conditions for prolonged grief disorder; mental state examination; current functioning; psychiatric impairment rating scale; Held – Medical Assessment Certificate revoked; prolonged grief disorder giving rise to 9% whole person impairment. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 (the Act) as to 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% 1. The Panel revokes the Certificate of Medical Assessor Newlyn dated 10 June 2022. The claimant has suffered a psychological injury being Prolonged Grief Disorder DSM5TR F43.8 giving rise to 9% whole person impairment. The claimant’s whole person impairment of 9% is not greater than 10% whole person impairment. |
STATEMENT OF REASONS
INTRODUCTION
Aaron McDonald (the claimant) is a 46-year-old man who is the father of a seven-year-old daughter named Maddison. The claimant’s daughter Maddison was involved in a serious and tragic motor vehicle accident on 22 September 2018 when she was a passenger in a motor vehicle being driven by her mother, the claimant’s former partner. The claimant’s daughter suffered a severe brain injury and died shortly after her eighth birthday in 2019. The claimant suffered a psychiatric injury following the death of his daughter.
The claimant sought a concession from the insurer that the psychiatric injury he sustained left him with a greater than 10% whole person impairment. The insurer did not make this concession and thereafter the matter was referred to the Personal Injury Commission for an assessment of whole person impairment.
The claimant was assessed by Medical Assessor Newlyn on 20 May 2022 in respect to the psychological injury. Medical Assessor Newlyn issued a certificate dated 10 June 2022 in which he determined that the accident caused a prolonged grief disorder which gave raise to a 6% whole person impairment. The claimant thereafter sought to have the assessment of Medical Assessor Newlyn reviewed on the basis that it was incorrect in a material respect. The claimant submitted that the Medical Assessor assessed a class 1 impairment pursuant to the psychiatric impairment rating scale for social functioning which was at odds with the claimant’s report and history and accordingly the medical assessment was incorrect in a material respect.
The matter was referred to the President’s delegate Tammy O’Carroll who, in a decision dated 11 October 2022, found that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. Accordingly, the matter was referred to a review panel comprising of Medical Assessors Michael Hong and John Baker and Member Hugh Macken.
The Review Panel convened on 26 September 2023 and determined that a further examination of the claimant is required.
SUBMISSIONS
The submissions from the applicant for this review were considered.
All material provided to Medical Assessor Newlyn together with the late documents were before the Review Panel and considered in this review.
The claimant attended the assessment alone, via videoconference, on 30 January 2024. The assessment was conducted with Medical Assessor Baker and Medical Assessor Hong both attending the assessment.
HISTORY
Psychosocial history and pre-accident history
The claimant stated that he was born and raised in the rural region of Murringo and Young, NSW. The claimant reported that his family heritage was of four generations living in this rural community and attending the Murringo public school. He completed his Year 10 education at Young High School. Prior to the motor accident on 22 September 2018 the claimant was an active member of the local school’s parent and friends’ association. His children had attended the school.
The claimant reported that he was also an active participant of his local Rural Fire Service. In his early adulthood he had been his local fire station’s captain. About the same time his fire crew had won the Australian national fire crew’s championship under his captainship.
The claimant reported that he had separated from his first wife (Melanie). She was the mother of his deceased daughter Maddison (Maddie).
The claimant stated he enjoyed living on the family’s 650-acre sheep grazing property. He reported that his mother died about three years prior to his father’s death. He added that he suffered from three deaths, being his mother, father and daughter, each separated by three years over a nine-year duration.
After leaving school he worked in landscaping. He also drove a heavy rigid “dump truck” for casual work. The claimant reported that at about 24 years of age he moved to the Hunter Valley and pursued a career in viticulture. He left this industry to work in the family signage business, “McDonald’s Signs”. The business was well known and a successful small business. His mother had developed a trophy selling business that was sold prior to her passing. He stated he held an associate degree in viticulture and had completed a course in automotive maintenance, small motors and computer skills such that he could run the signage business.
The claimant reported that he was able to perform all the graphic artwork, organise and quote on jobs in his region, make the necessary signage, formulate traffic plans when necessary and install the final product prior to the motor accident 22 September 2018, without difficulty.
The claimant reported that he had a 25-year marriage to his first wife. They had two children to this union. His first wife had a son to a prior union. This elder son had left the family home prior to the claimant’s separation from his first wife.
The claimant reported that he had never been exposed to any childhood trauma, abuse or neglect. He reported that as the relationship progressed, he discovered that he was the “victim of domestic violence”. He said his children were also affected by his first wife’s domestic violence. He discovered that his wife had also engaged in “financial abuse”. He explained that the family signage business had been accumulating debts and that he was unaware of this financial problem prior to his decision to separate from his first wife.
The claimant reported that he was separated from his wife for more than six months when he met his now second wife, (Sarah). She had three children to her first union aged 12, 10, and 8 years. The claimant and his second wife now have one child to this union aged 2 ½ years. The claimant and his second wife had recently married prior to this assessment.
The claimant lived with Sarah and her children prior to the motor accident. They lived in a converted “shed” on Sarah’s family’s Clydesdale Stud. This small acreage of about 190 acres continued to be managed by Sarah. She runs 15 Clydesdale horses, 12 cattle, 40 sheep, 20 pigs, 5 miniature goats and poultry that included chicken, ducks and guinea fowl. At the time of this assessment the claimant was 46 years and Sarah was 42 years of age.
The claimant reported that he would drink about a carton of beer most weeks. He would drink as much as his peers. He encouraged his friends to visit. He would socialise with his friends. He socialised in public with Sarah and his extended family. He attended little athletics with his children during the summer season and football (soccer) during the winter season. After discovering the large debts accrued to the family signage business, the claimant had decided to meet each debtor in person and negotiate his debt payment. He worked long hours up to 70 hours each week to meet his financial commitments prior to the motor accident.
The claimant reported that he did not gamble, smoke tobacco or use illicit substances. He reported that he was a regular blood donor. He said he did not have hypertension prior to the motor accident as his blood pressure was measured three monthly by his blood collection agency.
The claimant stated at about 35 years of age he had a knee reconstruction. He had injured his anterior crux ligament. He had sustained the injury playing country rugby league. He played “prop” and enjoyed this sport prior to retiring. He reported that he reduced his drinking after football. He had also stopped brewing his own beer. The claimant reported as a young driver he had a mid-range driving under the influence of alcohol charge. He was fined and his license was not restricted in the long-term. He was successful having a limited licence permission being granted to enable him to work about 3 months after the initial conviction. He stated that he drank the same as his peers. He had listened to his medical advice regarding his alcohol.
The claimant had no other legal problems prior to the family law matters that developed prior to the motor accident.
The claimant reported that this was his first psychological injury. He reported that he had been referred to attend a psychologist for advice regarding his access to Maddie. He reported that the family law court had provided him with less than 50% care of Maddie. He reported that the 40/60 split was not satisfactory for him. He wished to have access to his daughter at least half the time. He said he was frustrated and angry with the restrictions placed on him via the Family Court, however he was not psychologically impaired or ill. He accepted that he would need to have advice from his female psychologist as the childcare arrangements required a person to document another opinion to his own.
History of the motor accident
The claimant reported that it was Maddie’s 7th birthday on 22 September 2018, the same day as the motor accident. The claimant reported he did not have access to his daughter prior to the motor accident. He stated he had tried to ring and wish his daughter “happy birthday” however Maddie’s mother refused to allow him to speak to his daughter.
The claimant stated that he continued his day as best he could. It was in the evening that he was telephoned about the motor accident. He said he immediately responded and went to the Children’s Hospital at Westmead. He stated that he was aware that his daughter was being airlifted from the closed field to the accident site, to enable helicopter access.
The claimant stated that he became aware of details of the accident. He felt shocked and overwhelmed. He reported that Maddie was in the front passenger seat without her sitting in a booster. He stated that Maddie’s mother had fallen asleep whilst driving. He reported that he believed his ex-wife, the driver of the car, was “on drugs”. His daughter sustained a severe head injury as she had not been restrained during the motor accident. He stated his daughter’s head had hit a tree during the accident.
The claimant reported that he was provided with a room at Ronald McDonald House in Randwick whilst his daughter was in hospital in Sydney. She initially was in intensive care. She was diagnosed with a stroke after three days in intensive care. The medical team had prepared the claimant for “end of life” decisions for his daughter. After a brief period away from her bedside to return and check on his family in the country, the claimant returned to hospital to be informed that Maddie had shown “signs of life”. The claimant reported mixed emotions about the news. He feared that his daughter would have no quality of life. He decided to activity engage in Maddie’s rehabilitation.
The claimant reported his daughter was moved to the rehabilitation ward after about 28 days of care in the intensive care unit.
The claimant engaged in daily physiotherapy, phonic skills and arithmetic skills training for his daughter on her return to his family permanently. He stated that Maddie’s mother was provided with one to three hours access at a local McDonald’s restaurant once every two weeks under his supervision. He reported that during the following year his daughter made strong gains. She returned to being able to walk. She was able to increase her speech fluency and she was supported and encouraged by her school community.
The claimant reported that Maddie fell ill again about one year after the motor accident. He said she was diagnosed with a “golf ball” sized brain abscess. She developed meningitis. Maddie was readmitted to Westmead Children’s hospital. She had a craniotomy. His daughter died about one week after her 8th birthday.
The claimant reported that he felt that he had experienced his daughter dying twice. He said he felt that it was unfair as his daughter suffered greatly. He said he believed that the mother of his daughter only suffered a “cracked rib” from the motor accident. The claimant concluded by stating the “criminal case against his ex-wife, the driver of the car”, remained outstanding at the time of this assessment.
History of symptoms and treatment following the motor accident
The claimant reported that he remained overwhelmed and emotionally distressed by the memory of the suffering and death of his daughter. He reported that she died in October 2019.
The claimant reported that he had experienced many years of unresolved grief. He stated that he is preoccupied with thoughts and memories about Maddie. He explained that whenever there is an extended family gathering or gathering of families in the region all he can think is that “Maddie is not amongst them, that Maddie had missed out”.
The claimant described that whenever he is reminded about the motor accident such as the outstanding case against Maddie’s mother, he experiences intense emotional pain including anger and bitterness when thinking about Maddie’s suffering and death.
The claimant reported a sense of disbelief regarding Maddie’s death. He said, “It is as if she died twice”.
The claimant reported that he knew Sarah loved him as they practice the “five languages of love” however he still experiences intense loneliness as a result of Maddie’s death.
The claimant reported that he had experienced repeated panic and anxiety attacks initially after the motor accident. He reported his blood pressure was very high. He reported he was prescribed Propranolol 40mg twice daily and Prilace 2.5mg daily. He said that the medication was to reduce his anxiety and blood pressure. He had ceased this medication.
The claimant reported that he was recently assessed for a heart condition and was treated with Atorvastatin 40mg for elevated lipids.
The claimant reported that he continued to attend a clinical psychologist. He had been attending her since about the time of the motor accident. He reported that he received benefit from his attendance with Ms Lanna McAllister until the insurer ceased payment. He reported that he is unable to afford the cost of any psychological or psychiatric treatment.
The claimant reported that he had one close friend who visited him at his home. He said that he would share a beer with him. The claimant reported that his consumption of beer remained the same whilst the court case is in recess. He said he would drink more when he had news about the motor accident and that any developments always distressed him. When the criminal case was in session, he reported he would drink more during these periods.
The claimant had never been admitted to psychiatric hospital or treated by a psychiatrist.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
The claimant’s current symptoms of prolonged grief disorder caused by the motor accident are listed in bold.
Prolonged Grief Disorder DSM5TR code F43.8.
(a) The death at least 12 months ago, of a person who was close to the bereaved individual.
(b) Since the death, the development of a persistent grief response characterized by one or both of the following symptoms, which have been present most days to a clinically significant degree. In addition, the symptom(s) has occurred nearly every day for at least the last month:
(i) Intense yearning/longing for the deceased person.
(ii) Preoccupation with thoughts or memories of the deceased person
(c) Since the death, at least three of the following symptoms have been present most days to a clinically significant degree. In addition, the symptom(s) has occurred nearly every day for at least the last month:
(i) Identity disruption.
(ii) Marked sense of disbelief about the death.
As evidenced by the claimant feeling as if his daughter had to die twice.
(iii) Avoidance of reminders that the person is dead.
As evidenced by the claimant increasing his consumption of alcohol when the criminal case involving the motor accident is in session.
(iv)Intense emotional pain (e.g. anger, bitterness, sorrow) related to the death.
As evidenced by the claimant having angry outbursts and ongoing feelings of bitterness daily towards the mother of his deceased daughter.
(v) Difficulty reintegrating into one’s relationships and activities after the death.
(vi) Emotional numbness as a result of the death.
(vii) Feeling that life is meaningless as a result of the death.
(viii)Intense loneliness as a result of the death.
As evidenced by the claimant having intense lonely feelings and isolation from his community.
(d) The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The claimant had not been able to return to his daily work and is not able to work as intensely or in an organised manner due to daily distressing symptoms of prolonged grief.
(e) The duration and severity of the bereavement reaction clearly exceed expected social, cultural, or religious norms for the individual’s culture and context.
As evidenced by the date of death of the claimant’s daughter in October 2019 and this review date over 4 years later.
(f) The symptoms are not better explained by another mental disorder, such as major depressive disorder or posttraumatic stress disorder, and are not attributable to the physiological effects of a substance (e.g. medication, alcohol) or other medical condition.
The claimant does not reach DSM5TR criteria for either major depressive disorder or posttraumatic stress disorder. The claimant does not reach DSMTR5 criteria for Alcohol Use disorder. The claimant does not have a pre-existing alcohol use disorder. The claimant’s consumption of alcohol is in keeping with his community norms.
Current and proposed treatment
The claimant had had ceased treatment due to lack of funds. The insurer ceased funding his clinical psychological treatment. He is not receiving any medication for this psychological injury.
The claimant had been trained in psychological skills of mindfulness, relaxation and diversion skills to manage his psychological injury.
CLINICAL EXAMINATION
Mental state examination
The claimant was seated alone in his house. He was assessed by videoconference. He had a beard and wore a blue singlet. His hair and beard were washed. The claimant’s clothing was lightly soiled.
The claimant was anxious and irritable during the initial part of the assessment. Rapport was difficult to establish and required active management throughout the assessment to enable to claimant to speak about his experiences related to the death of his daughter. He spoke slowly and deliberately.
The claimant remained angry and bitter about the death of his daughter whilst in the care of her mother. He reported that he had disbelief that he had to experience the death of his daughter “twice”. He reported emotional pain and was emotionally angry whilst describing the suffering his daughter experienced in the year prior to her death.
The claimant reported a sullen, bitter, and angry mood.
The claimant was orientated in time place and person. He complained of difficulty concentrating for long periods and was unable to perform complex tasks such as estimating and managing traffic control sites whilst working. He had reduced his business to simple tasks, that could be quickly completed under 30 minutes. He could no longer complete complex tasks such as the “art design” and “wrapping a car” for a client. He reported he dwelt daily on the memory of his daughter. She was never not with him.
The claimant was labile in his affect and had an angry outburst during the assessment. He does not suffer from any self-harm ideas or plans. His judgment was normal. His insight was normal. He did not report any psychotic symptoms or delusions.
Current functioning
The claimant’s current functioning was as follows:
(a) He reported that he was repairing the “woolshed” and making it a home. He had not cladded all areas of the shed and had a large “potbelly heater” for warmth and hot water during colder months, visible in the background where he sat. He was hopeful of future improvements as he could afford. He would split wood when angry to supply firewood for the household.
(b) The claimant reported he mainly spoke with his best friend.
(c) He spent his time working and was often alone.
(d) The claimant’s wife worked the farm providing all the animal husbandry and supervision.
Selfcare and personal hygiene
The claimant relied on Sarah to cook food for him most days. He reported that he could attend his vegetable garden in the house paddock. He could live independently at the time of this assessment.
Recreation and social activities
His mate would come over and meet once each week. They would usually talk and “share a beer, like most country blokes”. The claimant stated he was less involved in his school’s partner and friends committee. He reported he was less interested in winter football for his children.
Travel
The claimant reported he was able to travel to local and familiar locations. He did not travel far from home and usually to attend clients to provide estimates.
Social
The claimant reported that he had recently married Sarah. He reported that they practiced the “five languages of love”. He reported that he was not as intimate with his wife as he desired as he was often feeling emotional pain and bitterness for the loss of his daughter.
The claimant reported that his relationship with his eldest daughter to his union with his first wife was severely strained and they were estranged from each other. She was living outside the house and making angry comments towards him should they accidently meet in town.
Concentration persistence and pace
The claimant reported he could concentrate and persist at simpler tasks within his business. He reported that he had stopped doing more complex tasks as he did not want to make errors. He could persist for less than 30 minutes before needing a break. He was progressing slower in his pace of completion of complex tasks due to intrusive memories of his deceased daughter.
Adaptation
The claimant had returned to work in the signage business. He worked in a simpler role. He was working less hours. He estimated being at work about 30 hours weekly. He butchered animals when they had a meat order from the farm. He spent most of his time alone at the signage shed.
Comments of consistency
The claimant’s presentation was consistent with the clinical records forwarded from the treatment services who had attended the claimant.
DETERMINATIONS
Diagnosis and reasons
The Review Panel was of the opinion that the best diagnosis that provided a complete understanding of the claimant’s psychological injury sustained in the motor accident was DSM5TR F43.8 prolonged grief disorder.
The claimant provided a complex history of his life and circumstances prior to, and subsequent to, the death of his daughter.
The Review Panel accepts that the motor accident was the cause of the claimant’s daughter’s death, as his daughter died from the complications of a severe head injury.
The Review Panel acknowledges the extensive efforts the claimant made to assist in the rehabilitation of his daughter from her injury. The prolonged grief remains and unresolved legal processes in relation to the driver of the car have not concluded. The claimant is daily reminded and experiences symptoms of prolonged grief that remain despite the extended time normally considered sufficient for the grieving of a lost family member.
Causation and reasons
The claimant was unable to talk with his daughter on the date of the motor accident. The motor accident happened on Maddie’s 7th birthday. The claimant invested extensive emotional resources in the assistance in rehabilitation of his daughter after she was discharged from hospital with a severe head injury. The claimant noted initial improvement. He was unable to alter the unprecedented complication of the severe head injury. His daughter died about three weeks after her 8th birthday. The criminal court proceedings continue at the time of this assessment. The Review Panel accepts that the condition and nature of the claimant’s death could, and did, cause a prolonged grief disorder.
The Review Panel recognised that the claimant’s use of alcohol did not meet criteria for an alcohol use disorder either before or after the motor accident.
The Review Panel recognised that the use of a clinical psychologist to assist a parent with family court matters is a common use of these services without the client having reached sufficient criteria for a DSM5TR disorder such as major depressive disorder. The claimant may have had a depressed or unsettled mood due to his restricted access to his daughter. The minimum necessary criteria to meet a DSM5TR condition was not present prior to the motor accident. For this reason there was no pre-existing psychiatric condition.
The Review Panel’s finding was that this motor accident did cause the claimant’s prolonged grief disorder with marked loss of activity of daily functioning. The psychological injury caused by the motor accident had not recovered prior to the assessment by the Review Panel.
Summary of injuries referred by the parties
The following injuries were caused by the motor accident:
·Prolonged Grief Disorder DSM5TR F43.8.
PERMANENCY OF IMPAIRMENT
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p 315) 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.”
The claimant’s condition had now become permanent and is unlikely to improve for any reason with or without medical, psychological or other interventions. He had been grieving for his deceased daughter for over four years. This is a prolonged grief disorder. He had been appropriately treated and had not recovered.
Degree of permanent impairment Psychiatric Impairment Rating Scale
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Psychiatric diagnoses
1. Prolonged grief disorder DSM5TR 43.8
Psychiatric treatment description
The claimant received evidence based psychological treatment for his psychological injury. He received cognitive behaviour skills in the form of mindfulness, diversional skills and relaxation.
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
The claimant relied on Sarah to cook food for him most days. He reported that he could attend his vegetable garden in the house paddock. He reported he did this as a kind of mindfulness. He could live independently at the time of this assessment.
2. Social and Recreational Activities
2
His mate would come over and meet once each week. They would usually talk and “share a beer, like most country blokes”. The claimant stated he was less involved in his school’s partner and friends committee. He reported he was less interested in winter football for his children. .
3. Travel
2
The claimant reported he was able to travel to local and familiar locations. He did not travel far from home and usually to attend clients to provide estimates.
4. Social Functioning
3
The claimant reported that he had recently married Sarah. He reported that they practiced the “five languages of love”. He reported that he was not as intimate with his wife as he desired as he was often feeling emotional pain and bitterness for the loss of his daughter.
The claimant reported that his relationship with his eldest daughter to his union with his first wife was severely strained and they were estranged from each other. She was living outside the house and making angry comments towards him should they accidently meet in town
5. Concentration, Persistence and Pace
2
The claimant reported he could concentrate and persist at simpler tasks within his business. He reported that he had stopped doing more complex tasks as he did not want to make errors. He could persist for less than 30 minutes before needing a break. He was progressing slower in his pace of completion of complex tasks due to intrusive memories of his deceased daughter.
6. Adaptation
2
The claimant had returned to work in the signage business. He worked in a simpler role. He was working less hours. He estimated being at work about 30 hours weekly. He butchered animals when they had a meat order from the farm. He spent most of his time alone at the signage shed.
List classes in ascending order: 2, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7%
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment
The Review Panel finds that there is no pre-existing condition. Whilst the claimant had experienced psychological symptoms, the claimant did not have any DSMTR5 definable psychiatric disorder. No apportionment for pre-existing condition was made.
The Review Panel found that there was no subsequent impairment.
No apportionment for subsequent impairment was made.
Effects of treatment
The claimant had received psychological treatment from his clinical psychologist. He had learnt to use diversional skills, such as splitting wood to displace his anger safely. He had learnt mindfulness with the planting and tendering of his vegetable garden, which enabled him to contribute to the fresh food for the family. These psychological evidence based treatments have enabled him to manage and maintain his family signage business as a simple less stressful operation. The claimant does not use any psychiatric medication. He had not been able to afford treatment by a psychiatrist or psychologist after the insurer ceased his funding. The Review Panel finds the effects of treatment was moderate. For this reason a 2% WPI adjustment was made.
CONCLUSION – PERMANENT IMPAIRMENT
Determination
The Review Panel revokes the certificate of Medical Assessor Newlyn dated 10 June 2022. The claimant has suffered a psychological injury being Prolonged Grief Disorder DSM5TR F43.8 giving rise to 9% whole person impairment.
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