Ozucargil v QBE Insurance (Australia) Limited
[2025] NSWPICMP 102
•19 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ozucargil v QBE Insurance (Australia) Limited [2025] NSWPICMP 102 |
CLAIMANT: | Ali Ozucargil |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
MEDICAL ASSESSOR: | Thomas Newlyn |
DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; claimant’s review of certificate; no evidence of psychosis; claimant’s insight and judgment appear to be within normal limits; no behavioural or emotional problems at school; no family history of psychiatric illness; no history of anxiety depression or need for treatment from mental health care providers; insured vehicle collided left rear side of claimant’s vehicle; Held – Review Panel’s findings on examination contrary to treating practitioner; Criterion A as per Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V) not satisfied; claimant not exposed to psychological trauma threatening serious injury or death; no finding of post-traumatic stress disorder (PTSD); initial adjustment disorder; no features to suggest or support a diagnosis of PTSD; Review Panel finds threshold injury; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Chew dated 5 October 2023. |
STATEMENT OF REASONS
INTRODUCTION
Ali Ozucargil (the claimant) is 24-year-old man who was injured in a motor vehicle accident which occurred on 26 September 2022. Following the accident an Application for personal injury benefits was lodged and thereafter the claimant sought a concession from the insurer that his injuries ought to be considered non-threshold injuries. The claimant was examined by Medical Assessor David McGrath who, in a certificate dated 10 September 2023, determined that he had sustained a non-threshold injury. The insurer sought a review of this determination and in a certificate dated 12 June 2024 the Medical Review Panel determined that the physical injuries sustained by the claimant are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.
The claimant was assessed by Medical Assessor Gerald Chew on 5 October 2023 who, in a certificate of the same date, determined that the claimant had sustained a psychological injury, being an adjustment disorder, which is a threshold injury. The claimant sought a review of this certificate.
The matter was considered by President’s delegate, Catherine Freeman who, in a certificate dated 4 December 2023 determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. Thereafter, the matter was referred to this Medical Review Panel (the Panel). The Panel met by Teams meeting on 9 December 2024 and noted that all relevant material was before the Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of 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 Personal Injury Commission (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.
Section 58 and s 60 of the MAC Act together with clauses 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 claimant was examined by Medical Assessor Thomas Newlyn and Medical Assessor Christopher Rikard-Bell on 24 February 2025. The claimant is currently unemployed and studying online IT and cyber security courses totalling about 20 hours per week.
PRE-ACCIDENT FUNCTIONING
Before the accident, Mr Ozucargil was managing and caring for himself well. He had a good relationship with his family. His concentration was good as he was able to study online and he socialised well with friends and family. He was working part-time at a kebab restaurant, part-time delivery driving and he could travel without any restrictions.
MENTAL STATE EXAMINATION
Mr Ozucargil presented as a pleasant young man of Turkish origin who was neatly attired wearing a business shirt. His eye contact was good and his hair was styled. His beard was well-groomed and he was wearing glasses. He engaged well with the interview process. Mr Ozucargil appeared to show some discomfort after approximately 1½ hours duration. Although he did not appear to be in great pain, he seemed uncomfortable and was moving to a certain degree. His speech was normal in tone and volume and he spoke with a slight accent. His cognitive function appeared normal. Mr Ozucargil’s affect was reactive and he seemed anxious, frustrated and irritable. His thoughts were logical and there was no evidence of psychosis. Mr Ozucargil’s insight and judgement appeared to be within normal limits. He regarded the motor vehicle accident as having contributed to his ongoing difficulties largely due to pain.
PERSONAL HISTORY
Mr Ozucargil was born in a small village in Turkey with less than 100 people. He helped his mother tend to the animals which included sheep and cows. He was always a good student at school and was top of the class throughout primary school. Mr Ozucargil stated the first 11 years of his life were very pleasant and he was close to his mother and siblings. He said his brother was like a father figure as he is 10 years his senior. He has a sister who resides in Japan and is married and his brother works in construction, is married and has two children. Mr Ozucargil had no contact with his father until he arrived in Australia in 2011. He said his father was like a stranger to him and there was never a close solid relationship, nevertheless, Mr Ozucargil did well at school in Australia where he attended Holroyd High School for Years 7-8 and then Mitchell High School for Years 9-12. Mr Ozucargil continued to excel at school and was near the top of the class. There were no behavioural or emotional problems at school, he played soccer at a high level and he enjoyed good friendships. The only issues since leaving school have been with driving offences, however, Mr Ozucargil learnt to curb this.
WORK HISTORY
Mr Ozucargil worked with his mother in her shop in 2018 for a year then decided to study. In 2019 he completed a real estate certificate and worked for a year, however, he found he was not rewarded adequately with incentives. In 2020 he began working at a kebab shop on night shift and delivery driving. He worked as a bricklayer’s apprentice between 2021 and 2022 as he was encouraged by his mother and brother to follow his brother in the construction industry, however, Mr Ozucargil decided to change his career in 2022 when he began working at the kebab shop and delivery driving. In addition, he commenced studies in cybersecurity. Mr Ozucargil was doing well before the accident and his life was stable. Since the accident, Mr Ozucargil has tried to return to work and has made many applications, however with the history relating to his injuries, he is often rejected and he has been unable to find employment relying solely on Centrelink payments. He considered driving; however, he has been unable to obtain a car. In addition, working as a delivery driver for six hours per day would be an issue as he can normally only drive for an hour due to pain. He was unable to return to the kebab restaurant as the management changed the position was no longer available and his mother would not loan him her vehicle. Mr Ozucargil took out a loan of $2,000 and bought a 2009 Volkswagen that broke down four months later and he has been unable to replace it.
PAST MEDICAL HISTORY
There is no history of serious, illnesses, injuries or conditions. He has received treatment for chronic migraine from age 9 and will take Panadeine Forte on a weekly or monthly basis. He fractured his ankle in 2016 after a pushbike accident. There is no current medication. There is no family history of psychiatric illness and no drug or alcohol issues, although he does vape. He has not smoked cigarettes or used alcohol for several years. His father is on a disability pension in relation to anger difficulties, however, Mr Ozucargil is unsure whether there is a formal psychiatric diagnosis.
PAST PSYCHIATRIC HISTORY
There is no history of anxiety, depression or need for treatment from mental health care providers. After arriving in Australia at the age of 11 or 12 there was school counsellor support for several years throughout high school.
PAST FORENSIC HISTORY
There is no history of other motor vehicle accidents, workers’ compensation claims or insurance claims. There were driving offences in 2018 and Mr Ozucargil continued to drive without a licence, however he was eventually caught and incarcerated for two weeks.
HISTORY OF THE MOTOR VEHICLE ACCIDENT
On 26 September 2022, Mr Ozucargil was involved in a motor vehicle accident as the driver of a white Hyundai rental vehicle. He was turning left when a vehicle behind him collided with the left rear side of his vehicle. Mr Ozucargil was in a state of shock at the time and had to take time to readjust. A fire truck arrived and enquired as to whether all occupants were stable or needed any help. The police and ambulance did not attend. Mr Ozucargil drove the rental hire company and returned to the vehicle then went home.
SYMPTOMS AND TREATMENT POST-ACCIDENTACCIDENT
Following the accident, Mr Ozucargil visited the general practitioner a week after the accident, however, he was advised they did not deal with accident claims; therefore, he did not consult another general practitioner for a further two weeks. Mr Ozucargil did not notice any particular issues at the time of the accident, however, several days or a week later there was a gradual onset of pain. He finds he is in a lot of discomfort and he rated the pain as 8/10 where 10 is the worst in his neck and left shoulder and occasionally 6/10 in the right shoulder. The lower back pain has now improved. In addition to pain, Mr Ozucargil experienced some trauma symptoms such as nightmares and flashbacks about the accident. One month after the accident, Mr Ozucargil’s father forced him out of the house and he became homeless. He received assistance with accommodation from HomeLink and he was unable to work as a delivery driver as his mother had his vehicle. After the accident, Mr Ozucargil received psychological treatment for post-traumatic stress symptoms with Carl Nielson, psychologist, from late 2022 into early 2023 until funding ceased after six sessions and found the treatment helpful. He then received treatment with Dr Antoun who noted an adjustment disorder from a low impact motor vehicle accident. There has been physiotherapy treatment related to chronic pain which ceased in early 2023. Since the motor vehicle accident, Mr Ozucargil has completed several courses in JavaScript and other cybersecurity courses, such as bounty hunting online for three to five hours per day.
CURRENT ROUTINE
Mr Ozucargil goes to bed at 1.00am and wakes up at 10.00am. He generally sleeps well although after the accident there was some interrupted sleep and nightmares which have ceased. There is not a great deal of interest during the day and Mr Ozucargil feels frustrated. Mr Ozucargil will have a coffee and eggs when he wakes up and he vapes throughout the day. He will watch television and at about 4.00pm he will start studying and may study for three hours, however if he is feeling well, he will study until 11.00pm. On the weekend he sees his brother and mother, although there has not been a great deal of contact with his father since 2015 when his parents separated. Mr Ozucargil has not been involved in many intimate relationships although there was a relationship after the accident that broke down at the end of 2024 when she moved to the Central Coast.
CURRENT SYMPTOMS
Mr Ozucargil is now sleeping well and nightmares and flashbacks have ceased. He has lost about 10kg in weight without actively trying to lose weight and he has a sense of hopelessness. There are no suicidal feelings, however, there has been a reduction in motivation. He is not socially confident, although there are no avoidance behaviours. Mr Ozucargil’s mood is unsettled and irritable and there is low self-esteem with lacking confidence and he worries about the future. He enjoys going for walks and seeing family but he is avoidant of interacting with friends as he is unable to talk about goals or ambitions. He stated the ongoing frustration is a major difficulty and he is not sure what would help him improve.
DIAGNOSIS and CAUSATION
Mr Ali Ozucargil is a 25-year-old man of Turkish origin who arrived in Australia at the age of 11 in 2011. He was never particularly close with his father, however there was a good relationship with his mother and siblings. Mr Ozucargil resides in subsidised housing and received Centrelink payments. Mr Ozucargil was an excellent student and did well throughout primary school and continued to do well in high school to Year 12. He has worked in a variety of capacities since leaving school including working with his mother, as a real estate agent, in a restaurant and as a delivery driver. Mr Ozucargil is currently studying cybersecurity online which is his main interest currently. At the time of the motor vehicle accident, Mr Ozucargil’s father had moved to the family home and Mr Ozucargil was residing with both parents.
On 26 September 2022, Mr Ozucargil was involved in a motor vehicle accident as he was making a lefthand turn when a vehicle travelling at approximately 50kmph collided with the rear left side of his vehicle. Mr Ozucargil was significantly jolted and he said he felt shocked. There was no immediate pain and he was able to drive the vehicle following the accident. He consulted the general practitioner a week later; however, the general practitioner did not take on motor vehicle accident claims. On 3 December 2022, he consulted the general practitioner for treatment of migraine however there was no mention of the accident. On 7 December 2022, he consulted Dr Daw who diagnosed pain and some post-traumatic stress symptoms with a view to returning to work. On 17 February 2023, he saw Dr Dixon for neck pain and on 30 March 2023, he consulted Dr Oo who provided a return to work certificate on reduced capacity. On 7 December 2022, Dr Lim noted anxiety and post-traumatic stress and Dr Antoun noted an adjustment disorder on 13 February 2023. Mr Ozucargil had eight sessions of physiotherapy treatment and he received psychological treatment with Carl Neilson from December 2022 to February 2023 for counselling, which he found helpful. The certificate of Medical Assessor Chew dated 5 October 2023 found an adjustment disorder, however there the interview was interrupted which truncated the ability to complete a thorough assessment. The main ongoing difficulties have been with chronic pain involving his neck and left shoulder. The certificate of Medical Assessor McGrath found the injuries were “non-threshold” injuries for the purposes of the MAC Act and after a review, the certificate was revoked and the Panel found the soft tissue symptoms to be “threshold” injuries.
MEDICAL MATERIAL
The Panel noted the report of the claimant’s treating psychologist, Dr Karl Neilsen, psychologist, dated 22 December 2022. The Panel’s findings on examination are quite contrary to this report. Specifically, Carl Neilsen identifies criteria for post-traumatic stress disorder as per Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V) Criterion A to be incorrect. That is, the Panel was not satisfied that the claimant was exposed to psychological trauma threatening serious injury or death. Absent the establishment of Criterion A there cannot be a finding of post-traumatic stress disorder. Similarly, the Panel found no intrusive symptoms, no avoidant behaviour, no changes in arousal. The Panel was of the view that the psychological sequalae of the motor vehicle accident was minor and not causing considerable distress.
Following the motor vehicle, the panel formed the view there was an initial adjustment disorder and is a “threshold” injury for the purposes of the MAC Act. There are no features to suggest or support a diagnosis of post-traumatic stress disorder as Criterion A according to DSM-5-TR has not been satisfied with no suggestion that the motor vehicle accident was a life-threatening event and no exposure to serious injury or sexual violence. There are no other major psychiatric conditions and the major challenges facing Mr Ozucargil from a psychosocial perspective relate to family issues when he was unwelcome at home after his father moved back to the family residence. The criteria according to DSM-5-TR are outlined below:
“A. An identifiable stressor (the motor vehicle accident causing ongoing chronic pain)
B. Significant symptoms with decreased weight, social isolation, decreased motivation, decreased self-esteem and low mood.
C. Not another mental disorder or exacerbation of pre-existing mental disorder.
D. Not normal bereavement and not prolonged grief disorder.
E. Symptoms should resolve once the main stressor is terminated.”
Conclusion
There was an initial adjustment disorder which is a threshold injury for the purposes of the MAC Act. Accordingly, the claimant has sustained a threshold injury.
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