Nguyen v QBE Insurance (Australia) Limited
[2024] NSWPICMP 663
•18 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Nguyen v QBE Insurance (Australia) Limited [2024] NSWPICMP 663 |
CLAIMANT: | Thi Thu Ba Nguyen |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Paul Friend |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 18 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of permanent impairment assessment; psychiatric injury; nervous shock; statutory provisions; past psychiatric history; post-traumatic stress disorder (PTSD); review medical history; PTSD symptoms; Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria; no alternative explanations for the development of conditions diagnosed; permanency of impairment; treatment effect allowance; Held – permanent impairment assessed at 15%; Medical Assessment Certificate revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Permanent Impairment 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% Review Panel Assessment certificate issued under s 7.23 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Melissa Barrett dated |
STATEMENT OF REASONS
INTRODUCTION
Thi Thu Ba Nguyen (the claimant) is a 41-year-old woman who suffered a psychiatric injury as a result of a fatal motor bike accident on 20 June 2019 which resulted in the death of her husband. Following this an Application for Person Injury Benefits (APIB) was lodged with the insurer thereafter and the claimant has, since that time, been accessing treatment in respect to her injuries.
The claimant has sought a concession from the insurer that her injuries exceeded 10% whole person impairment which the insurer denied.
An application for assessment of degree of permanent impairment was filed on 17 April 2023 the claimant was examined by Medical Assessor Melissa Barret who, in a certificate dated 23 April 2023, determined that the claimant had suffered post-traumatic stress disorder complicated by development of major depressive disorder and had sustained a whole person impairment of 8%. The claimant has sought a review of this certificate which was opposed by the insurer.
In a certificate dated 31 July 2023 the President’s delegate Tajan Baba certified that they were satisfied that there is reasonable cause to suspect the medical assessment was incorrect in a material respect. This determination was grounded primarily in respect to the assessment of the psychiatric impairment rating scale (PIRS) category of concentration persistence and pace.
Accordingly, the matter was referred to this panel and directions were made up on 11 June 2024 in respect to the provision of all material which was before Medical Assessor Melissa Barrett for the panel to consider.
On 19 June 2024 the panel convened by Microsoft Teams and determined it was appropriate to re-examine the claimant by a Teams meeting.
The following injuries were referred by the Personal Injury Commission (Commission) for further assessment:
· psychiatric condition-major depressive disorder, post-traumatic stress disorder, complex bereavement.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The Review Panel considered all the material and submissions uploaded on to portal including the late documents relied upon by the insurer and which were considered by Medical Assessor Melissa Barrett.
The claimant was interviewed by Medical Assessors Friend and Mason on 28 August 2024 using the Microsoft Teams application.
Personal history
The claimant is a 41-year-old woman who lives with her parents in their home in South Western Sydney. She has a 5-year-old son Koen who is in year K at the nearby primary school. Also living in the home is her 18-year-old niece who is a university student. Ms Nguyen is not working and is in receipt of a single parent person and family tax benefits A and B.
Her parents have retired from their wall and floor tiling company and are in receipt of Centrelink benefits.
Personal history
The claimant was born in Vietnam. Her father is 67 years of age and her mother 65 years of age. She has a 43-year-old brother, a 39-year-old sister who lives in the Philippines and a 37-year-old brother in Australia.
The claimant’s family left Vietnam when she was 2 years of age by boat. They were rescued at sea and taken to the Philippines where she remained for one year; she has no memories of being there. The family travelled to Australia by plane as refugees in September 1986. Her parents told her the family was very poor and escaped from Vietnam because of the war. No family members suffered from post-traumatic stress disorder but her parents witnessed people dying, starving and being tossed overboard. She denied any form of abuse throughout childhood.
The claimant attended the Sacred Heart Primary School in Cabramatta, completed Years 5 and 6 at Our Lady of Mount Carmel school in Mount Pritchard and then attended Cardinal Freeman High School in Bonnyrigg Heights where she completed the HSC in 2001 with TER scores in the 70s.
The claimant completed one year of a Bachelor of Business (taxation) at University of New South Wales and then transferred to a Bachelor of Business (economics and finance) at University of Western Sydney. She completed this degree over four years because she failed some subjects. She worked with Cash Stop Financial Services for six years and then Fox Symes as a debt advocate for three years. She changed to work in car loans before going on maternity leave.
The claimant had a few long-term relationships prior to her marriage. She met her husband Garry in 2014 and they married in 2016. They separated for four months in 2017 during which time she became depressed. She had a few counselling sessions through an Employee Assistance Program and consulted a general practitioner. She did not take medication. There were some thoughts of suicide and deliberate self-harm but she did not act on them. She denied thoughts and acts of deliberate self-harm as a teenager.
The claimant denied being depressed prior to the separation. She said the depression settled when she and her husband got back together.
They were happy and pleased she got pregnant and had their son. She denied postnatal depression following the birth of their son.
Leisure activities prior to the motor accident consisted of going out on Friday nights to the club or going out for drinks and dinners. They travelled overseas frequently. She enjoyed seeing her friends and walking her dog. Ms Nguyen denied any past insurance claims and said she had never been in trouble with the law.
Pre-accident history
The claimant said there were no major medical problems prior to the motor accident apart from fracturing her left arm when she was five years of age. She said she was not taking medication and had not required surgery.
Past psychiatric history was as described above following a brief marital separation. She denied a family history of psychiatric illness.
Current medications consist of use of paracetamol for headaches and/or migraines. She said these occur once weekly and she needs to close the curtains (photophobia) and go to bed. They commenced in 2023 and were not present prior to the motor accident. Ms Nguyen denied the use of cigarettes, alcohol and recreational drugs and said she does not gamble.
History of the motor accident
The claimant said she spoke to her husband by telephone at 3:30pm on 30 June 2019. He was preparing to leave work and she was expecting him home at about 4:30pm. His mother, sister and brother were at home with her for a family dinner. She said he was riding his motorcycle because she needed the car to pick up the dog from the vet.
The claimant said she had bathed Koen when the police arrived and said her husband had been in a motor accident. She handed her baby to her sister-in-law and the police drove her to Royal Prince Alfred Hospital. She was told he was breathing and possibly had a fractured leg.
While en-route she phoned her father (her parents were separated) and her friends.
The claimant and the two police officers were shown into a room and after 10 minutes a doctor came in and asked questions about her husband’s tattoo to identify him. She was then told they tried to save her husband, but he did not survive.
The claimant was able to see him. She said he was on a cold steel table and had cuts and bruises. His sister and a friend arrived and they all went to see him together again. She said she did not want to believe he had passed. At that point she said she was in denial, was crying and found it hard to breathe. She said after 30 minutes she knew she had to tell her parents but could not do it and asked her sister to tell her parents and brother. His father then arrived with another family member and his friends.
History of symptoms and treatment following the motor vehicle accident
The claimant said the motor accident occurred on Canterbury Road, Dulwich Hill. She said a lady made a right-hand turn and he came off his bike and landed on the road. She said it was finally determined it was a pure accident and no one was at fault.
The claimant said she feels robbed by that decision.
Th claimant went with her family to the morgue to say goodbye. She said the place was cold, sterile and hard. That was when the reality kicked in that he was not coming back. His funeral was held 10 days later. He was cremated and half his ashes were placed at the temple and she retained the other half.
In the following days her mother and mother-in-law stayed with her. She said they all tippy toed around her and did not want to mention the subject. After about 2.5 weeks she asked them to leave. She said she found it hard to sleep. She was breastfeeding her 5-month-old son at the time. She said her son kept looking for him.
The claimant described being deeply depressed but she had to care for her son. She had to bathe and feed him and change his nappies. She stayed in their apartment and her parents checked on her regularly. She did not want to let go of the life she had with Garry and remained in their apartment for 14 months, until relocating to live at her parents’ house. Moving into her parents’ home felt like giving in but the COVID-19 pandemic was also a factor in the decision. Eventually it turned out to be a good move.
The claimant found it hard to empty out all the closets because it was the place they had created together. She felt out of place with her parents and felt like a burden. She needed to cry frequently but did not want to do so in front of them. She said she tried to protect them from her feelings.
The claimant avoided being with people. She said she felt extremely uncomfortable in groups of people. She found it difficult to enjoy anything except her son. She had thoughts of suicide but would not act on them because of her son. She found it difficult to sleep and was woken by nightmares in which she was reliving scenes from the hospital and the funeral home. She said they occurred at least once per month. She said she woke up crying in an agitated and sweaty state. She found it impossible not to ruminate on what had happened to her husband. Her only recreational activity consisted of making herself take the dog for a walk. She described being much closer to her son and said as he grew older he would make efforts to console her when she was distressed.
Because of COVID-19 pandemic she was using a lot of click-and-collect orders for shopping and continues to do so. Her only outing is to go to an Asian grocery store if she needs some specific items. She said on some days she would be okay and would be able to go out for a walk but on other days she could not leave the house. She avoided all her friends. She said after some time her school friends stopped phoning to check on her and she had only one close friend.
The claimant described the hypnagogic experience of feeling like she was being suffocated when she goes to sleep and she is unable to move; she said she wants to scream but cannot make a noise. When she closes her eyes she sees colours and she is unable to get out of it.
Anniversaries were particularly distressing for her. Her husband's birthday and the anniversary of his death have always been times of distress.
The claimant described avoidance symptoms and said for a long time it was hard to go near the crash site. She needed a family member to be with her and still prefers to avoid it completely. Her husband's father is Buddhist and he held a ceremony with a monk at the crash site. She would only go there with a family member to take flowers.
The claimant and her husband would take the dog to a particular dog park and she has not been able to return there.
The claimant also avoids the ANZAC Bridge because it was a part of their normal commute together.
When asked about treatment Ms Nguyen attended her general practitioner Dr Zeng. In September she was referred to psychologist Ms Flora Truong. She said in addition the insurer referred her to psychologist Dr John McMahon. He provided Eye Movement Desensitisation and Reprocessing therapy which she described as brutal and said it made her much worse. Conversely, the sessions with Ms Truong on a fortnightly basis were much better and helped her to begin to do some things. She said that treatment is ongoing.
The claimant has not been referred to a psychiatrist. Her general practitioner had suggested antidepressant medication but she was breastfeeding at that time and declined to use it for that reason. She was not keen to commence after breastfeeding ceased because her parents were against it.
Injuries or conditions since the motor accident
The claimant said her maternal grandmother died in November 2021. She had lived with them and she saw her pain and saw her take her last breath. Her funeral was in the same funeral home as that of her husband which she found particularly distressing.
There was a breakdown in the relationship with her mother-in-law. She is now more distant from her husband's siblings. She said they demand to see their grandson but they do not provide any help for her. She has a more cordial relationship with her husband's father.
There have been no other adverse events or traumas.
Current symptoms
The claimant said she continues to be tearful at least once weekly. Memories of her husband still cause distress. She continues to experience nightmares at least monthly. She said she experiences a build-up of anxiety. She described suffering abdominal cramps which are like contractions and which can last for between one and six hours. She uses a hot water bottle for relief. Her general practitioner thinks it is stress.
The claimant remains withdrawn from friends because she does not feel comfortable with them. She does not like to be in a group setting because she thinks people look down on her and judge her. She believes they think she is a “weirdo” because she is not working and not progressing.
The claimant said she feels worthless and like she has failed. Because of this she does not want to go out and try to put on a happy face. She continues to have difficulty enjoying anything apart from being with her son.
The claimant makes herself walk the dog but does not enjoy it.
The claimant continues to have intermittent suicidal ideation but said she would not act on it because of her son and parents.
The claimant said currently her son is asking a lot of questions about his father and wanting to know how he died and what happened to him. This causes distress but she wants to be more positive in order to help him grow and develop. She also wants to be able to look after her parents but struggles to be positive about being there for them.
The claimant tried to work in 2021 at the end of two years of maternity leave. She did two weeks full-time with Fox Symes in the workplace but was unable to cope with it. She asked for part-time work or the ability to work from home but was told this was not available so she discontinued.
In February 2021 the claimant accepted an offer from Lend Connect to work from home at lower pay but lasted only two months because she was not able to concentrate, was slow and was making mistakes. Again, she discontinued.
The claimant was asked if she had thought of returning to work now that her son was at school. She said she did not have the confidence to hold herself together emotionally in the workplace and hated the idea of having to take a lesser job because it would be degrading.
The claimant would feel more “put down” and more like a failure. She said it is hard for her to connect with people and her mood fluctuations cause her to be irritable. She repeated that she was afraid she would break down in tears.
In response to direct questioning she said she did go to Vietnam with her parents in 2022 and again in 2023. She said it was good to see relatives and to get an understanding of her family's cultural background. She also thought it was good for her son.
The claimant confirmed she did visit Canberra with her girlfriend and their sons. Her son enjoyed going to Questacon because at that time he was interested in space. She said she could not have driven to Canberra alone.
When questioned about sleep she said she goes to bed between 11:00pm and midnight but usually wakes at 2:00am or 3:00am and is awake for two or three hours. She said four hours sleep is a good night. She acknowledged taking short naps in the afternoon. This sleep pattern is consistent with an ongoing depressive disorder. Thoughts of suicide continue intermittently.
Current treatment
The claimant continues to consult with her psychologist Ms Flora Truong on a fortnightly basis. She is not consulting a psychiatrist and not using antidepressant medication.
Consistency of presentation
The claimant’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnoses made.
Diagnosis and reasons
At the time of the subject motor accident Ms Nguyen was a 36-year-old woman who was breastfeeding her first child, a 5-month-old baby. She received news from the police that her husband had been in a serious motorcycle versus car accident and she was taken to Royal Prince Alfred Hospital where she learned he had not survived.
The claimant described symptoms consistent with the development of both post-traumatic stress disorder and major depressive disorder.
The claimant did not take antidepressant medication because she was breastfeeding and because of cultural beliefs which precluded their use. She received psychological counselling which is continuing.
The current diagnoses are continuing low level post-traumatic stress disorder and persistent depressive disorder.
The claimant meets DSM-5 diagnostic criteria for post-traumatic stress disorder as follows:
·Criterion A is met because she was informed of the loss of her husband and viewed his body in the hospital, the morgue and the funeral home.
·Criterion B is met by intrusive dreams and distressing memories.
·Criterion C is met by avoiding the accident site and external reminders.
·Criterion D is met by negative beliefs about herself and the world, a persistent negative emotional state, diminished interest in participation in significant activities and feelings of detachment from others.
·Criterion E is met by irritability and angry outbursts, problems with concentration and sleep disturbance.
·Criterion F is met because the duration is greater than one month.
·Criterion G is met because there was impairment in both social and occupational functioning.
·Criterion H is met because it is not attributable to a substance or another medical condition.
The claimant meets DSM-5 criteria for persistent depressive disorder as follows:
· Criterion A is met because she has had depressed mood most of the day for more days than not for at least two years.
· Criterion B is met because she described insomnia, low self-esteem, poor concentration and difficulty making decisions and feelings of hopelessness along with suicidal ideation.
· Criterion C is met because the above symptoms have never been absent for more than two months at a time.
· Criterion D is met because criteria for major depressive disorder have been present.
· Criterion E is met because there has never been manic or hypomanic episode.
· Criterion F is met because the condition is not better explained by another major psychiatric disorder.
· Criterion G is met because the condition is not due to a substance or another medical condition.
· Criterion H is met because it causes distress and impairment in social and occupational functioning.
Causation and reasons
The panel is satisfied there are no alternative explanations for the development of the conditions diagnosed.
A brief period of depression during a 4-month marital separation had resolved and the couple were planning a life together.
The loss of her husband is an event capable of causing both post-traumatic stress disorder and an ongoing mood disorder.
The panel is satisfied that the death of her husband caused the conditions diagnosed.
Permanency of impairment
The claimant's condition has not changed substantially in the last 12 months. It is likely it could improve with antidepressant medication but this was not culturally acceptable. The panel is satisfied the conditions have stabilised.
Degree of Permanent Impairment
| Psychiatric diagnoses | 1. Post-traumatic stress disorder | 2. Persistent depressive disorder |
| 3. | 4. | |
| Psychiatric treatment description | Psychological counselling | |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | Ms Nguyen said she usually showers daily and makes the bed but may miss occasionally. She said she is not good at putting clothes away. She has put on 10 kg due to emotional eating. She is mildly impaired. |
| 2. Social and Recreational Activities | 3 | Ms Nguyen said she avoids people. She would attend family events if forced to do so by her parents but will remain for only one hour. She does take her son to the park where he picks four leaf clovers. She has taken him to Monkey Mania with his cousins. She attempts to attend school assemblies but said she missed the one where he was presenting. She does not maintain contact with school or work friends. She does not go out to clubs, hotels or entertainment venues. She does not go out for coffee or meals. She has contact with only one close girlfriend. She is moderately impaired. |
| 3. Travel | 2 | Ms Nguyen can drive alone only in the local area. She has shared the driving on a trip to Canberra with her girlfriend. She said she could not do that journey on her own. She is able to travel on public transport if accompanied by her mother. She has been able to travel overseas with her family. She is mildly impaired. |
| 4. Social Functioning | 3 | Ms Nguyen lost her husband in the subject motor accident. She has not resumed dating because she said it is hard for her to be open and trust another person. She was questioned about telling her counsellor that she would like more children. She said she and her husband had planned to have 2 children. The panel note she has not been able to initiate a new relationship 5 years after her husband's demise. She is moderately impaired. |
| 5. Concentration, Persistence and Pace | 2 | Ms Nguyen said her concentration is not good and gave the example of taking 1.5 hours to put an Ikea dog bed together. She said she enjoyed reading in the past but now has no interest in reading books. She said she sits with her father while he watches television but she does not pay particular attention and does not have favourite shows. She is able to manage her money online. She said she often starts a task and does not finish it and is slow to do things. The panel noted her concentration throughout the interview was satisfactory when she was not distressed. She is mildly impaired. |
| 6. Adaptation | 3 | Ms Nguyen has not been able to return to work despite two attempts to do so. She said working in the finance industry requires the ability to make decisions about a borrower’s ability to service a loan. She said her attention to detail is poor and when she did attempt to work she made silly mistakes. The panel note she has been able to be a good mother to her son. She is moderately impaired. |
| List classes in ascending order: 2 2 2 3 3 3 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 15 | ||
| % Whole Person Impairment: 15% | ||
Apportionment
There was no requirement for apportionment for pre-existing or subsequent conditions.
Treatment effect allowance
The panel noted there was no psychiatric treatment and no use of psychotropic medication. Ms Nguyen reported that one form of counselling was counter-productive while the other was helpful.
Ms Nguyen finds the psychological treatment helpful. There is no evidence that it has improved functioning and no evidence that discontinuing the treatment would lead to a decline in functioning.
The panel makes no allowance of the effect of treatment.
Final whole person impairment is 15%.
Conclusion
The Panel determined that the claimant suffers from post-traumatic stress disorder and persistent depressive disorder as a result of the subject motor vehicle accident which caused the death of her husband Mr Gary Vo. The Panel assesses the claimant’s degree of whole person impairment at 15%.
0
0
0