Pikos v AAI Limited t/as AAMI
[2023] NSWPICMP 401
•18 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Pikos v AAI Limited t/as AAMI [2023] NSWPICMP 401 |
| CLAIMANT: | Stefanos Pikos |
INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 18 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical Assessor (MA) diagnosed an Alcohol Use Disorder not caused by the accident; MA did not determine the question of threshold injury as found that the injury was not caused by the accident; Held – psychological injuries including PTSD, caused by the accident, and were non-threshold injuries. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement certificate issued under s 7.23 of the Motor Accidents Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Doron Samuell dated 26 May 2022. 2. Certifies that the claimant’s psychological injuries of aggravation of Persistent Depressive Disorder, with intermittent Major Depressive episodes, with current Major Depressive Disorder, with anxious distress, and aggravation of Alcohol Use Disorder, are not threshold injuries according to the act. |
STATEMENT OF REASONS
INTRODUCTION
Claim and dispute summary
Stefanos Pikos (Mr Pikos/the claimant) was injured in a motor vehicle accident (the accident) on 13 November 2018.
Mr Pikos was driving his motor vehicle on Edgar Street, Condell Park, when suddenly, another vehicle, which had failed to stop at a Stop sign on Yanderra Street at its intersection with Edgar Street, collided with the right-hand side of the vehicle which Mr Pikos was driving.
Mr Pikos made a claim against AAI Limited ABN 48005297807 t/as AAMI (called AAMI), the third-party Insurer of the offending vehicle.
On 8 January 2019, AAMI notified Mr Pikos that it had accepted liability for statutory benefits up to 26 weeks from the date of the accident.
On 26 May 2022, Medical Assessor Doron Samuell issued a certificate that the injury referred to him for assessment, a psychological injury, had been assessed and had been determined not to have been caused by the accident.
Mr Pikos has disputed Medical Assessor Samuell’s assessment.
The President’s Delegate has referred a medical dispute, as to whether or not Medical Assessor Samuell’s assessment was correct, to this Panel, namely, that the psychological injury referred to him was caused by the accident. Further, that it was a non-threshold injury.
The result of the collision
Mr Pikos sustained a whiplash injury causing referred pain in both shoulders, an injury to his lumbar spine causing referred pain in both legs, and shock, which he alleges resulted in psychological injury, causing whole person impairment of greater than 10%.
LEGISLATIVE FRAMEWORK
JURISDICTION
Regarding psychological injuries, a ‘threshold injury’ is defined in the Motor Accidents Injuries Act 2017 (MAI Act) at s 1.6(1)(b):
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Where the claimant sustained both physical and psychological injury, the ‘impairment threshold’ is applied, provided for in the MAI Act at s 1.7:
“(1) This section applies for the purposes of a determination under this Act of whether the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is greater than 10% (the impairment threshold).
(2) If an injured person receives both a physical injury and a psychological or psychiatric injury arising out of the same motor accident—
(a) the degree of permanent impairment that results from the physical injury is to be assessed separately from the degree of permanent impairment that results from the psychological or psychiatric injury (and accordingly those separate degrees of injury are not to be added together for the purposes of the impairment threshold), and
(b) the injured person is taken to have a degree of permanent impairment greater than the impairment threshold if either the degree of impairment caused by physical injuries or the degree of impairment caused by psychological or psychiatric injuries is greater than 10%.”
Mr Pikos’ application for review was made under s 7.26 of the MAI Act. Pursuant to s 7.26(5A) the Panel is to be constituted by a Member of the Personal Injury Commission (the Commission) and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of the matters alleged in the application to be incorrect.
CAUSATION
Guidelines
With respect to causation, the MAI Guidelines provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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 the Personal Injury Commission) in considering such issues.
6.6 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 nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell was asked to assess whether the psychological injury was caused by the accident.
Mr Pikos gave a history to Medical Assessor Samuell, which is set out at [9] of his determination:
“At the time of the examination, Mr Pikos was aged 47 and had been the recipient of a disability support pension since January 2022 for multiple sclerosis. He said that his multiple sclerosis had intensified and he now has problems with incontinence, ambulation and sensory disturbance. He has had multiple sclerosis since 2015. He last worked five years before I assessed him in catering.
There was a history of Depression and Anxiety before the subject accident. Mr Pikos consulted with a psychologist. He also noted that he had a previous car accident, before the subject accident, in 2014. He said that he had Depression associated with his multiple sclerosis and with the previous motor vehicle accident. There is no family psychiatric history…”
Mr Pikos then gave Medical Assessor Samuell a history of his symptoms and treatment following the accident, noted at [10]-[12]:
“…I asked about some specific symptoms. I could not get a clear answer about Mr Pikos’ sleep pattern… …He said that he had lost weight, but could not quantify it, nor advise me how he knew that he had lost weight...
When asked about his mood specifically, he said, ‘Good most of the time.’ He then said he was not happy, and when asked for further details, he said that was about ‘a lot of things’.
There is no diurnal mood variation.
It was difficult to tell whether there was concentration difficulty.
He said he was last suicidal around eight months before the current assessment when he said that he
walked into the water at Coogee into big waves. He said that he ‘didn’t care about dying…’”
Medical Assessor Samuell asked about his symptoms at the time of assessment. Medical Assessor Samuell said he could not get a clear answer about Mr Pikos’ sleep pattern:
“He variously said that he had three, four or five hours of sleep and that ‘it depends’.
He said that he had lost weight, but could not quantify it, nor advise me how he knew that he had lost weight.
When asked about his mood specifically, he said, ‘Good most of the time.’ He then said he was not happy, and when asked for further details, he said that was about ‘a lot of things’.
There is no diurnal mood variation.
It was difficult to tell whether there was concentration difficulty.
He said he was last suicidal around eight months before the current assessment when he said that he walked into the water at Coogee into big waves. He said that he ‘didn’t care about dying’”.
Medical Assessor Samuell then took details of Mr Pikos’ current and proposed treatment at [13]:
“He is under the care of a neurologist, a general practitioner, a physiotherapist, a chiropractor and a rehabilitation provider. He sees a psychologist, Dr Sam Albassit, and did so before the subject accident. He said that he takes the antidepressant, Duloxetine, one tablet every two to three days, together with non-prescribed medication and medication for his sleep. It is my understanding that he takes prescribed cannabis.”
Medical Assessor Samuell then undertook a clinical examination of Mr Pikos:
“Mr Pikos presented as a casually attired man, wearing a T-shirt, a necklace and had greying hair. Mr Pikos acknowledged that he had consumed both alcohol and cannabis prior to the examination (it took place at 11 a.m.). It is possible that he was intoxicated. His narrative was vague and sometimes internally contradictory. It was very difficult to obtain precise information from him. His speech meandered and it was often necessary for me to redirect Mr Pikos back to my questions. The symptoms were described in vague terms. His affect was reactive. At times, he looked a little agitated. His affect was consistent with the narrative. His cognitive functioning was likely impacted by his substance use. There was no evidence of psychosis.”
Mr Pikos then gave details of his current functioning:
“Mr Pikos is a disability support pensioner. He lives alone. He has sons, aged 21 and 22, with whom he has no contact. When asked about this, he could not explain it, other than saying, ‘I can’t be around them.’ He got upset when talking about them. He said that he had friends, but not anymore as they have ‘gone their own way’. He does not drive. He said that he ‘doesn’t get around’. He has a National Disability Insurance Scheme (NDIS) driver every two to three weeks who takes him to Leichhardt. He says that he does not trust the driver. He goes shopping by himself, or gets food delivered. The NDIS workers cook for him, as required. He prepares some simple meals, like porridge. He dresses himself and showers and toilets himself. He showers every three to four days. When asked about hobbies and interests, he said there is ‘no point now’. In attempting to elicit his day-to-day activities, he said that he prefers not to see the daytime. He said that, when he is awake, he watches TV and smokes.”
Diagnosis
Medical Assessor Samuell arrived at a diagnosis at [18] of Alcohol Use Disorder (noting his extremely high level of alcohol consumption). He stated that he also had a pre-existing history of mood disturbance, the precise diagnosis of the mood disturbance being unclear.
Causation and reasons
Medical Assessor Samuell considered that Mr Pikos’ Substance Abuse Disorder was not caused by the accident. He engaged in maladaptive coping mechanisms, but these were unrelated to the accident. His mood difficulties had preceded the Accident and were not caused by it.
Consistency
Medical Assessor Samuell did not consider that there were any issues with consistency.
The Medical Assessor’s conclusion
Medical Assessor Samuell concluded that the claimant’s psychological condition was not caused by the accident.
ISSUES FOR DETERMINATION
Submissions on behalf of the claimant of 23 June 2022
The claimant made submissions to the President’s Delegate on 23 June 2022.
The Panel briefly summarises the submissions by reference to the relevant paragraph numbers:
[6] The claimant submits that Medical Assessor Samuell’s determination was vitiated by material errors:
(a)Failure to adequately consider the relevant material and afford a proper, genuine realistic consideration of the material.
(b)Failure to afford procedural fairness.
(c)Failure to provide sufficient reasons.
[7] Medical Assessor Samuell is said to have failed to adequately consider material relevant to the causation of injury and assessment of impairment:
(i) Reports of Dr Hatoum
(ii) Discharge Referral of Bankstown Hospital
(iii) Report of Dr Jonathan Herald.
[12] Medical Assessor Samuell did not refer to Dr Herald’s Certificate of 27 July 2020, where he says:
“……Stefanos is suffering from chronic stress and depression. He needs further evaluation and management…’”
[13] “… … It is necessary for an assessor to give some explanation for his or her preference of one conclusion over another and that aspect may have particular significance in circumstances where the assessor comes to a different conclusion from that which other medical practitioners have set out [in] reports provided…
[14] - [16] Refers to Case Law – Medical Assessors are required to consider and comment on the evidence produced in support of the central issues [and] to provide sufficient Reasons in support of their decision when certain evidence is important to or critical to the proper determination of the matter, and it was not referred to by the Medical Assessor, it may be furthered that the evidence was overlooked or that there was a failure to give consideration to it.
[17] Refers to AAI Ltd v Fitzpatrick – when there is a medical controversy of a particular issue, a more expansive [read “extensive”] explanation needs to be given and express consideration in revealing the use the Medical Assessor made of the information…
[18]-[19] When one looks at the Dr Hatoum certificate, there is a further history that says:
“Injuries that should not be classified as minor, will not benefit from treatment beyond the 26 from [sic – read: 26 weeks] timeline restrictions for minor injuries under the act. I strongly urge that approval is granted for the continuous treatment.”
The claimant’s submission refers to the medication history and the prescription of “Pristiq 100 mg tablet, one per day.” The submission notes that Pristiq is a treatment for Major Depressive Disorder.
[21] Medical Assessor Samuell diagnosed “Alcohol Abuse Disorder” with “pre-existing mood Disturbance” without giving reasons as to how he came to the diagnosis. The submission complains that the Medical Assessor did not refer to the nature of the physical trauma, to the Assessments of Assessor Home of Bankstown Hospital [A9/10], or to the police reports.
[22] Medical Assessor Samuell was silent in respect of Dr Herald, the Claimant’s Statement. Medical Assessor Samuell did not genuinely consider the records.
[23] Medical Assessor Samuell did not review the prior 2014 accident or the treatment by Dr Al-Bassit, Psychologist, nor to the administration of Duloxetine.
[24] Medical Assessor Samuell’s reference at paragraph 12 of his report with his finding of no DSM-5 condition so as to even satisfy a predisposition for a psychiatric condition.
[26]-[27] Criticisms of Medical Assessor Samuell’s reasoning and findings.
[28] Medical Assessor Samuell should have made a finding of at least Major Depressive Disorder.
Procedural fairness
[30] Failure to provide a substantial and clearly articulated Argument equated to a failure to provide procedural fairness.
[32] Assessor Samuell failed to consider PTSD or Major Depressive Disorder.
[33] There was no evidence for Substance Use Disorder.
[34] The Claimant had been prescribed medications for his psychological condition.
[41] Assessor Samuell’s negative finding on causation was predicated solely on the basis that there were pre-accident complaints and symptoms for alcohol use. He did not record the reasons for alcohol use, tolerance, functionality, or relationships due to the substances.
[43] He refers to the past formal psychiatric history and treatment.
[44] Further comments on paragraph 12, his current symptoms, and the relevance to a diagnosis of Major Depressive Disorder or PTSD.
[47] No evidence of prolonged taking of alcohol.
Submissions for the insurer of 28 April 2022
The Panel briefly summarises the submissions for the insurer:
[2] The claimant’s psychiatric injuries are largely secondary to his physical injuries. Causation will… follow causation of the physical injuries.
[3] The claimant was assessed by Medical Assessor Alan Home on 8 March 2022.
[4] Medical Assessor Home certified that the only accident-related injuries were soft tissue injuries to the cervical spine and lumbar spine. He considered that these injuries had resolved.
[5] Medical Assessor Home concluded that neurological symptoms in the upper and lower arms were due to Multiple Sclerosis (MS) and there were no accident-related neurological symptoms.
[6] Medical Assessor Home identified a pre-existing C5 fracture following a 2014 motor vehicle accident.
[7] Claimant does not have any continuing accident-related impairments. Psychiatric symptoms related to, or derived from, physical complaints and disabilities are not caused by the accident.
[8] It is incumbent on Medical Assessor Samuell to adopt the conclusions of Medical Assessor Home.
THE EVIDENCE BEFORE THE REVIEW PANEL
The Panel had all of the material which was available to Medical Assessor Samuell and considered all such material.
Re-examination of the claimant
The Panel decided that both Medical Assessor Smith and Medical Assessor Chew would jointly re-examine Mr Pikos.
The assessment went ahead on 26 July 2023, but Medical Assessor Chew was unable to attend.
Medical Assessor Smith recorded the results of this examination on 26 July 2023 and his assessment.
History
Psychosocial history
Identifying Details
Mr Pikos is a 48-year-old man, sharing a house in Bass Hill “with another Greek gentleman”. He is not in a relationship. He said that he has two sons, aged 24 and 23 years, who reside in Sydney, but he does not see them often. He is not working, and he has received the Disability Support Pension for around two years. He last worked around eight years ago in his own restaurant.
Personal history
Mr Pikos said that he was born in Greece, and he came to Australia in around 1996 for his cousin’s wedding. He met his future wife in Australia. He said that he was married for 17 years until around 2014. He completed secondary school in Greece. He studied mechanical engineering in Greece, but only worked in that field for two weeks. He studied English for seven years at a private college.
Mr Pikos denied a history of traumatic incidents in his childhood, and he noted, “I had a very good childhood”. His father, who had owned a restaurant, passed away in 2006 at the age of 68 “throwing dynamite to kill fish” and was killed in an explosion. His mother is aged 75. He has two older sisters, living in Kalymnos.
Drug and alcohol use history prior to the motor accident
Mr Pikos said that prior to the motor accident in November 2018, he would consume alcohol only in social settings. He first consumed alcohol at age 16 or 17 in Greece. He denied a history of legal or medical complications associated with alcohol consumption. He repeatedly denied being charged with driving under the influence of alcohol at any stage. Mr Pikos said that he smoked cannabis on a small number of occasions during early adulthood, “two to three times”, but denied a history of regular cannabis use. Regarding his use of methamphetamine (MA), he said that he “saw people” taking MA in 2013, but he did not take it at the time (as noted in the assessment of Medical Assessor Samuell). He denied taking cocaine, 3,4-methylenedioxymethamphetamine (MDMA, Ecstasy), gamma-hydroxybutyrate (GHB) or LSD. He denied a history of intravenous drug use. He denied problem gambling. He said that for some years he has consumed three to four cups of coffee per day and organic tea, but no Cola or energy drinks. He does not believe that caffeine worsens his anxiety. He said that he smokes seven to eight cigarettes per day.
Family history
Mr Pikos denied a known family history of mood, anxiety, addictive, or psychotic disorders.
Past psychiatric history
Mr Pikos said that he saw Mr Sam Al-Bassit, psychologist, from around 2014 due to difficulties in his marital relationship. He was also involved in a motor vehicle accident in 2014 during which he was driving in the M5 tunnel and was hit from behind. He said that a tow truck took him out of the M5 tunnel and he experienced pain and “felt a bit dizziness, I had a stiff neck”. He was diagnosed with MS in early 2015. Mr Pikos said that he saw Dr Stuart Saker on one occasion in Bankstown in around 2015 for treatment of depressive symptoms. He said that he felt down after being diagnosed with MS, “hearing about that, it’s a lifetime condition”. He said that he was prescribed antidepressant medication, Desvenlafaxine (Serotonin Noradrenaline Reuptake Inhibitor antidepressant medication, SNRI) and this was beneficial. He said that he was spending time in Greece for five to six months of the year and he noted, “life was good, I was getting life back on track”. He said that he did not, however, return to work.
Pre-accident history
Mr Pikos said that prior to the accident, he was living in the granny flat (where he is currently living). He said that he was planning to start a new business (“trademarks of new products, drinks and energy drinks”) with his sons, “my kids were going to jump in”. He said that he “met a woman on the plane back from Greece” in September 2018 and they were in a relationship for around five months.
History of the accident
Mr Pikos said that on 13 November 2018, he was driving an “old Ford Econovan” (a white 1996 model) along Edgar Street in Condell Park towards Campsie to see a friend. The accident occurred on a sunny afternoon at around 4.30pm. He said that “suddenly, the only thing I saw was a big silver four-wheel drive right on top of my window, the car was in the air”. He said there was “a powerful impact right in my face, it was lucky that I didn’t lose my hand or die”. He confirmed that the car had come from his right and collided with his vehicle. There were no airbags. He said that he could not recall what happened after the impact, “there was a crowd, somebody got me out of the car, when I got back conscious [sic], I was on the grass with a lot of people around me”. He said that he was shocked, and he might have lost consciousness briefly. He said that the police attended the site of the accident and took him to the Bankstown Hospital. He said that they put a brace on his neck and performed scans but there were no fractures.
History of symptoms and treatment following the accident
Mr Pikos said that after the accident he suffered from pain in his neck, right arm, and hand. He was discharged from the Bankstown Hospital the next day. He said that the car was written off. He does not know if the other driver was charged.
Mr Pikos said that after discharge from hospital, he saw his general practitioner (GP) and he was referred to a physiotherapist. He said, “my state of mind was not there, I was feeling depressed, slowly slowly the doctor [Dr Hatoum] prescribed Pristiq.” He said, “things changed dramatically, I didn’t lose my life, but I lost everything else, it felt like I was dead, I felt paralysed, completely worthless, like I had no wings, no power”. He said that this was not just due to the pain in his neck but also due to posttraumatic anxiety. He lost interest in and motivation for activities, “I didn’t know what it was and what I was going through”. He said that a few months after the accident he bought a Holden Commodore, but he only drove it twice in two years. He said, “I couldn’t connect with being out in the open, driving through, it brought back memories and flashbacks, certain triggers like semi-trailers and noises, squeaking sounds of brakes”. He stopped driving because of anxiety and fear of being involved in another accident. He said that the relationship with his partner broke down after the accident because he felt too anxious to leave the house. Mr Pikos said that he experienced nightmares of the accident around twice per week for some years after the accident. He said that for a period the nightmares ceased (he could not say when this was and for how long) but they returned and continued to occur around one to two times per week.
Mr Pikos said that after the accident, his alcohol consumption escalated as a means of coping with his emotional distress. He said that after he moved to a hostel in Newtown, in around 2021, there were people there who were consuming alcohol on a daily basis. He said that he consumed alcohol daily at varying levels (moderate to heavy; up to 16 standard drinks at times) for several months and he noted, “there was a gentleman bringing port and beer” into his room. This pattern of moderate to heavy alcohol consumption on most days continued until he moved out of the hostel in around August 2022. Mr Pikos said that he has consumed alcohol only sporadically since then. He said that he last consumed a glass of wine around three weeks ago. Mr Pikos said that he smoked MA with an associate in the hostel around two days before the assessment with Dr Samuell in May 2022 and that was the only time that he had ever taken the substance, “I didn’t want to do it but I felt so down”. He said that he also smoked a couple of puffs of cannabis shortly before the assessment with Dr Samuell. He apologised for his behaviour at the assessment of Dr Samuell, noting “I wasn’t thinking clearly”. He said that he felt intoxicated with alcohol and drugs at that time.
Mr Pikos reported that he returned to see the psychologist, Mr Al-Bassit, who provided exposure therapy to attempt to help him to return to drive. He said that for around one year he generally did not leave the house, from around 2019 until mid-2020. He said that he moved to stay with family briefly in Stanmore and then to the hostel in Newtown. He said that he could not clearly recall the timeframes of his moves, but he moved to the hostel at some stage in around 2021. He said that Dr Hatoum referred him to Dr Phillips, psychiatrist, whom he saw for a single video assessment. Mr Pikos said that Dr Phillips “talked to me about drinking, I was drinking more than usual then, I don’t know what I told him”.
Mr Pikos said that he saw another psychologist, Mr Sava Tsolis, on a few occasions and he last saw Mr Al-Bassit over 12 months ago. He said that he has had treatment with a new psychologist, Sharon, from October 2022, via telephone, on over 10 occasions. He most recently had a session with Sharon two weeks ago. He said that due to his persistent, recurrent, intrusive memories and nightmares of the accident, Sharon has discussed referring him to a practitioner who can provide eye movement desensitisation and reprocessing therapy (EMDR). he said that she had suggested that he see a psychologist in the city but he felt too anxious to travel there and he has avoided this treatment.
Mr Pikos said that he saw a pain specialist, Dr Tim Ho, in Newtown and Dr Ho referred him for physiotherapy and recommended Cannabidiol (CBD) oil but he did not take this because of the cost. He most recently saw Dr Ho over 12 months ago. Mr Pikos said that he ceased Mirtazapine in 2022 but he continues Duloxetine.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Pikos last drove around three years ago. He does not own a motor vehicle. There have been no further motor accidents and no subsequent injuries.
Current symptoms
Mr Pikos reported anxiety and depressed mood with no clear diurnal mood variation. He described reduced interest and enjoyment of his previously enjoyed activities. He feels anxious when leaving the house and he has panic symptoms when he sees “movements, traffic, noises, a glass breaking, a semi-trailer”. He described hypervigilance and exaggerated startle response, “not all sounds, but some, the sound of brakes squeaking”. When he hears those noises, he experiences intrusive memories of the accident in November 2018. He described feeling “a weight on my chest, suppressing, palpitations, I can’t breath [sic]”. He avoids triggers and reminders of the accident, including driving. He reported that currently his neck pain is “not too bad”. He sleeps from 3.00am (on the recommendation of his psychologist because that might minimise the impact of dreams and flashbacks) but he wakes up after midday, “it spoils the day”. He has nightmares of the accident around once per week. He said that on one occasion he had a nightmare of his son being killed by a truck, “that disturbed me, another time I saw shining silver coming towards me”. He said that his appetite has been reduced and he has lost around 15kg in weight. He described difficulties with thinking and concentration. He said that he does not participate in certain tasks because he knows that he will not be able to complete the task and he finds this embarrassing. He sometimes has thoughts that life is not worth living, “I’ve thought about it a lot of times but mostly as a thing because I can’t participate in things, I can’t be with friends, the family and the friends, my business”. He denied plans to act on those thoughts. He has considered moving to an isolated town in the country “where there are no cars, triggers, flashbacks”.
Current and proposed treatment
Sharon, psychologist – fortnightly. Mr Pikos said that Sharon referred him to a psychologist in the city for eye movement desensitisation and reprocessing, but he does not feel capable of travelling into the city due to his anxiety and he has not had the treatment.
Mr Pikos started treatment with a new GP at Bass Hill Medical Centre a few months ago (he could not recall the name of the GP).
Current medications
i.Duloxetine 60mg daily (SNRI).
ii.Dimethyl fumarate (MS).
iii.Voltaren cream for the neck pain.
Clinical examination
Mental state examination
Mr Pikos was punctual, and he was visible in the telehealth assessment from the shoulders up. He did not appear intoxicated (for example, there was no slurred speech and no disinhibition). He had short greying hair and was cleanshaven. He wore a light long-sleeved jumper. His speech was accented but of normal volume and spontaneity. His thought form was generally circumstantial. He described his mood as depressed and anxious, and his affect was restricted to that range with minimal appropriate reactivity. He reported feelings of worthlessness, hopelessness, and ideas that life is not worth living but he denied plans to act on those thoughts. He described ongoing intrusive memories of the accident from November 2018, particularly with reminders of the accident.
Current functioning
Mr Pikos said that he is generally restricted to his room, and he usually only leaves to attend appointments. He is isolated from his friends and family. He does not shower daily. He has meals delivered to his house by a company supported by the NDIS (for the MS). A carer visits him two to three times per week for cleaning and shopping. He does not drive at all. He has no hobbies or interests. He last went to Greece in around September 2018.
Comments on consistency
There were inconsistencies in the drug and alcohol history provided by Mr Pikos. Firstly, Medical Assessor Samuell documented that Mr Pikos told him that he had used MA in 2013. Medical Assessor Smith raised this with Mr Pikos, and he said that he had been in a room with people using MA in 2013 but he had not used MA. He also said that he was intoxicated when he saw Dr Samuell and he could not clearly recall the history that he provided. Medical Assessor Smith believes that this appears likely based on the accounts provided by Dr Samuell and Mr Pikos.
Mr Pikos maintained that there was no history of legal complications associated with alcohol or any other problems with alcohol consumption prior to the motor accident. Medical Assessor Smith noted the history that he had provided to Medical Assessor Samuell and the history from the GP file (of possible problems with alcohol prior to the accident) and he said, “I am trying to be as honest as I can, I don’t think I was thinking clearly before”. He reiterated that his alcohol consumption escalated after the motor accident.
Based on all of the available evidence, it appears probable that Mr Pikos had consumed alcohol in a problematic pattern prior to the accident in 2018 but that his alcohol consumption escalated in the context of emotional distress after the accident. There was no evidence of problematic alcohol consumption prior to the accident in 2014, the diagnosis of MS from 2015 and the development of his depressive symptoms.
REVIEW OF DOCUMENTATION
Summary of relevant documentation
Clinical records of Bankstown Family Medical Practice printed on 5 July 2023
On 2 April 2014, Dr Hatoum noted:
“On the way to work, first day
Works as a Cook
had MVA, neck pain ++
feels all shaken up
stressed out…
…traveling at about 80kph at the M5 then he was hit from behind in a fast Porsche
went to police & report
Car was taken by tow truck as car was a right off
Taken home by Taxi
Was going to work, first day at new job…”
On 2 May 2014, Dr Hatoum noted:
“depression
Teeth need fixing +
Financial problems…
Prescription printed: Pristiq 50mg Tablet 1 Daily…”
On 8 July 2014, Dr Hatoum noted:
“Pain stable
started physio, will start twice a week next week
when he does any significant work, he gets a lot of pain & finds it hard to get out of bed in the am
Psychotherapy in the am
Depressed mood
sleep problems
Poor motivation
social issues
Ventilation re problems
Councelling [sic] re possible solutions
advice re possible medications…”
On 25 July 2014, Dr Hatoum noted:
“Started Pristiq & starting to feel better
Stressed
Financial issues…”
On 14 October 2014, Dr Hatoum noted:
“Spoke to Sam, the psychologist
asking for change of meds as did not feel any better
sleep issue
trial of Avanza instead of Pristiq…”
On 7 November 2014, Dr Hatoum noted:
“Panic attack the other day
Scared it will happen again
Felt SOB & as if could not get enough O2 in, FAST breathing & felt chest tightness
Pt managed to relax…”
On 7 November 2014, Dr Hatoum noted:
“Panic attack the other day
Scared it will happen again
Felt SOB & as if could not get enough O2 in, FAST breathing [sic] & felt chest tightness
Pt managed to relax…”
On 3 December 2014, Dr Hatoum noted:
“Depression worse
Pain stablke [sic]
Seeing Phyio [sic] soon
Seeing Sam in the am…”
On 16 January 2015, Dr Hatoum noted:
“+++ anxious about the MS
thinks it was caused by the Dental issues…”
On 13 February 2015, Dr Hatoum noted:
“Stressed
Pain
Anxious
Thinks the accident riggred [sic] by the accident
advised that it is not likely…”
On 2 April 2015, Dr Hatoum noted:
“Persistant [sic] pain
Stressed
since the accident nil work
Depression & anxiety since the loss of income…”
On 21 July 2015, Dr Hatoum noted:
“Persistant [sic] pain
Post MVA depression
insurance may settle
Ventilation re problems & non directive counselling…
May need to FU psych
Letter to Dr Stuart Saker printed…”
On 10 August 2015, Dr Hatoum noted:
“Persestant [sic] pain & anxiety assoc with driving…
Pristiq 50mg Tablet changed to Pristiq 100mg Tablet…”
On 11 November 2015, Dr Hatoum noted:
“Summary re court, forgot to admit to drink driving on immugration [sic] papers…”
On 12 October 2016, Dr Hatoum noted
“upset that the lawyer took 50% of the payout…”
On 27 September 2017, Dr Hatoum noted:
“Unhappy with the ORS job search
Discuss personal problems & non directive counselling given…”
On 27 February 2018, Dr Hatoum noted:
“seeing Sam
copy of the MS reports…”
On 11 April 2018, Dr Hatoum noted:
“complains of insomnia on & off. Worse recently with very poor sleep last night
counselling re sleep Hygiene with reduction of caffeine (Coke / coffee/ tea/ energy drinks like V & chocs)
advise re increase AM excercise [sic] and avoiding stimulation just before bed + routine bedtime & reduce TV / Phone /
lights ++
Avoid big meals or hunger (snack is ok) before bed
advice re relaxation
no pills at this stage
addictive potential explained
Alcohol reduction strategies, ceased beer so reduceed [sic] calories ++
Discuss long term problems with excessive alcohol intake including liver & brain & BP & heart damage…”
On 16 October 2018, Dr Tsolis noted:
“Initial assessment of Mr Pikos completed today. Confidentility [sic] discussed and agreed upon. Mr Pikos reported difficulties with mood and motivation in context of following stressors:
1)stress from unpaid fines
2)difficulties with obtaining work due to his diagnosis of MS
3)feeling insecure in his rental accomodation [sic] and wanting to seek housing assistance.
Next session to focus on goal setting for future and explanation of cognitive model…”
On 15 November 2018, Dr Hatoum noted:
“MVA on 13th/11/18
was in his VAN
driving on Edgar
T- bones, was going 30-40KPH
Was Driver
Had seat belt
Speed other car was about ? 50-60KPH, damage +++ right off the Van
Felt pain in the neck & Back & shoulder & hip
NIL attendance by any of the Ambulance, Police took him to hospital, but Tow truck took both cars…”
On 30 November 2018, Dr Hatoum noted:
“Persistent pain for a few weeks despite OTC medication (simple analgesia)
Unhappy with progress
Discuss treatment options including Physiotherapy / Chiro
Advised re importance of Exercise esp core stability
discuss various medications available to help with possible better pain control
Importance of the Mental health emphasised…
anxious re MS
Prof pollard was unhappy [sic]
MRI on 13/12 & rebview [sic] MS centre after that…”
On 16 December 2018, Dr Hatoum noted:
“Depression Mx- Supportive counselling, activity scheduling, Anti-depressants-how to start, S/E discussed, not to cease suddenly,
cont. for minimum 6/12, written info,
Discuss better diet…
Prescription printed: Avanza 30mg Tablet 2 Before bed…”
On 11 January 2019, Dr Hatoum noted:
“Persistant [sic] pain
Unsure when the pain will get better or get worse
has some good days & some bad days
the smalest [sic] movement such as putting shoes on can set the pain off & the pain is there a few days…”
On 24 January 2019, Mr Andrew Fayad noted:
“Presenting complaint
T boned. other person ran through vstop [sic] sign
pt went to bankstown hospital.
- pt stayed at bankstown hospital overnight…
-tingling down left leg occasionally. pt says he notices tingling down left leg whenever walking. sitting seems to be better
than walking for pt. likely some stenosis in spine but awaiting reports.
pt finds it difficult to sleep at night. pt feels that his neck is numb. he finds it difficult to findpositions [sic] of comfort/.pt hasnt
been able to find a position of comfort. aim to find him with that toay [sic]
Complaint history
all since the accident. previous ccident [sic] 4-5 years ago but pt says he has been feeling fine since that…
patient is very anxious and pain focused. will need passive movements at the beginning to show that movement does
not = pain
then eventually more active movements
t spine stretching
muscle work; stretching and strengthening definitely…”
On 25 January 2019, Dr Hatoum noted:
“unhappy with progress
in pain ++…
depression
panic attacks
Medicare related part of the consult only
Anxious about MS
wants brain scan…”
On 12 February 2019, Dr Hatoum noted:
“Pain ++…
angry re old injury
wants to open old case…”
On 6 March 2019, Dr Hatoum noted:
“Neck pain ++
concern re MS + the MVA
Persistent [sic] pain
await MRI shoulders / neck + nerve conduction studies ++…”
On 7 March 2019, Mr Tsolis noted:
“Mr Pikos seems to be making unrealistic goals and then becoming overwhelmed and consequently not achieving them…”
On 28 March 2019, Mr Tsolis noted:
“Cognitive restructuring undertaken…”
On 8 April 2019, Dr Hatoum noted:
“In pain & distress
unsure re pain & weakness where the MVA & where the MS start and finish…”
On 1 May 2019, Dr Hatoum noted:
“DepressionMx-Supportive [sic] counselling, activity scheduling. Anti-depressants-how to start… Pristiq 100mg Tablet 1 daily…”
On 14 May 2019, Dr Hatoum noted:
“Depressed mood
sleep problems
Poor motivation
Social issues
Ventilation re problems…”
On 23 May 2019, Mr Tsolis noted:
“Therapy session…
He continues to experience amotivation…”
On 4 June 2019, Dr Hatoum noted:
“Pain stable
Reg meds…”
On 18 June 2019, Dr Hatoum noted:
“pain
depression
Nil work
asking he can travel to see family as he is depressed…”
On 26 June 2019, Dr Hatoum noted:
“Pain post MVA…
Multiple fines
the latest from electoral commission for failure to vote
Anxiety
Depression
asking to see the Psychologist…”
On 9 September 2019, Dr Hatoum noted:
“Stable…
concern re deterioration due to the MVA…
concern re MS…”
On 20 September 2019, Dr Hatoum noted:
“Saw Dr Herald
Pain +++out of proportion as per report…”
On 1 October 2019, Dr Hatoum noted:
“Pain
depression
in distress…”
On 7 February 2020, Dr Hatoum noted:
“pain++
Physio for the neck + Sava psych review
Panic attacks increasing recently
Feels SOB…
PDx: Panic attacks & anxiety…”
On 27 February 2020, Mr Tsolis noted:
“Long absence from therapy…
…increased physical deterioration…
Mood low but stable…”
On 10 March 2020, Dr Hatoum noted:
“MS ++
anxiety re corona…”
On 17 March 2020, Dr Hatoum noted:
“Pain management…
Multiple fines /worried…Corona ++…
Anxiety
Depression…”
On 17 March 2020, Ms Azzi noted:
“…seeing Sava [Tsolis]
reported suffering from depression
taking antidepressant medication
had a car accident in 2018 – fractured neck…
Diagnosed with PTSD…
wanted another psychologist in case Sava not available….
reported passing suicidal thoughts
advised nil plans…
reported did not want to discuss past
advised he has appointment to see Sava…”
On 20 May 2020, Dr Hatoum noted:
“Depressed mood fluctuating, worse recently
sleep problems on & off
Poor motivation…
Letter to Sam Albassit…”
On 13 July 2020, Dr Hatoum noted:
“saw his lawyer
depressed
advised him to see Psych for FU & reports…
Dose of Avanza 30mg Tablet changed from 2 Before bed to 1 Before bed…”
On 27 July 2020, Dr Hatoum noted:
“Chronic pain
Discuss management options…”
On 25 November 2020, Dr Chan noted:
“Reviewed letter from Dr Phillips.
To commence the desvenlafaxine, start 50-100mg…”
On 28 June 2021, Dr Chan noted:
“Needs referral to psychologist – Sam Albassit…”
On 31 August 2021, Dr Chan noted:
“Been to pain Mx. plan - ? suggest antidepressant…
Discussion re mx. by Dr Ho…”
On 11 October 2021, Dr Chan noted:
“Not taking Avanza/pristiq…
seen Dr Ho in July…for trial of venlafaxine/duloxetine. For pain…”
On 7 March 2022, Dr Chan noted:
“discussion re MVA issues…
Going to rehab with Dr Tim Ho…”
Report of Dr Stuart Saker, consultant psychiatrist, dated 23 July 2015
In this treating psychiatrist report, Dr Saker diagnosed Major Depressive Disorder in the context of a motor accident in 2014, the diagnosis of MS in late 2014, and Interferon treatment. Desvenlafaxine 100mg was prescribed with a plan to increase towards 200mg daily. There was no reported alcohol or substance abuse history.
Dr Saker noted:
“He had just started a new job as chef when he had the MVA…He was in the M5 tunnel and voids [sic] this now. He will not drive a small car anymore…
Major Depressive Disorder on background of an MVA which made him lose his job and subsequent development of Multiple Sclerosis…
He has been seeing Sam Albassit for Cognitive Behvaioural [sic] Therapy for anxiety/depression…”
Discharge Referral of Bankstown-Lidcombe Hospital dated 13 November 2018
In this document, it was noted:
“presented to emergency after an MVA. The patient complained of neck pain and parathesia down the right arm…tender at C5…A CT C-Spine demonstrated loss of height at C5…MRI of the C spine…consistent with the CT Brain showing an old C5 crush fracture with no spinal cord compression…
Driver of the vehicle, t-boned on driver side, driving 30-40km/hr, oncoming vehicle 40-60km/hr…
vehicle written off
self extricated walked few steps and sat down
Police brought to hospital as ambulance not available.
immediate pain over right side of neck…
non-drinker
Denies recreational drug use…”
Report of Dr Ashraf Phillips, consultant psychiatrist, dated 11 September 2020
In this treating psychiatrist report, it was noted:
“Stefanos reported a long history of depressive symptoms for many years. The symptoms have worsened since 2018 since the MVA.
Stefanos reported that he started to have depression in 2015 following the end of his marriage. He saw Dr Sakar…and was diagnosed with major depression…
No evidence of psychosis, mania, PTSD, OCD or other anxiety disorders was found during the assessment…
Stefanos sees Sam Elbassit [sic]..and also Sava. he is currently taking desvenlafaxine 100/day…and mirtazapine 30mg which he takes at midday.
Stefanos was diagnosed with MS in 2015. He suffers chronic pain issues since the accident…
He drinks 5-6SD almost every night. He smokes 20 cig/day…
Impression and Plan:
…symptoms suggestive major depression in partial exacerbation and Alcohol abuse. It is likely the organicity is playing also a part…”
Report of Dr Kieren Po, consultant neurologist, dated 22 February 2022
In this treating specialist report, it was noted:
“Diagnoses:
1. Relapsing remitting multiple sclerosis…
2. Chronic neck pain following MVA 2018, cervical spondylosis
3. Depression…”
Statement of Stefanos Pikos dated 12 November 2021
In his statement, Mr Pikos stated:
“13. As a result of the accident and my resultant injuries, I have and continue to suffer the following disabilities:…
m. Depression…
v. Anxious
w. Frustrated
x. Social withdrawal
y. Strained relationship
z Flashbacks
aa. Nightmares…”
DETERMINATIONS
Diagnosis and Reasons
Medical Assessor Smith considered that Mr Pikos had presented with symptoms consistent with:
· Persistent depressive disorder, with intermittent major depressive episodes, with current major depressive episode, with anxious distress.
· Post-traumatic stress disorder.
· Alcohol Use Disorder, in early remission.
Medical Assessor Chew was unable to attend the physical examination but had read Medical Assessor Smith’s examination report prior to the second Telephone Conference of the Panel, At the Telephone Conference, the two Medical Assessors discussed both Medical Assessor Smith’s examination notes, and the diagnosis, and agreed with what is set out below as “justification of diagnosis.”
Justification of diagnosis
The Panel is of the opinion that Mr Pikos has suffered from symptoms consistent with a diagnosis of Major Depressive Disorder, since around 2014, as documented by Dr Saker, treating psychiatrist in 2015. There was an improvement in his anxiety and depressive symptoms and his functioning improved to some extent. For example, he commenced a new relationship prior to the accident in November 2018, but he had not been able to return to work. The Panel is of the opinion that Mr Pikos’ depressive condition that initially developed in the context of the breakdown of his marriage, the motor accident in 2014 and the onset of MS had improved but not fully remitted before the accident in November 2018.
He suffered from an aggravation of anxiety and depressive symptoms in the context of chronic pain after the accident in 2018, as documented by Dr Hatoum, the treating GP, Mr Tsolis, the treating psychologist, and Dr Phillips, the treating psychiatrist.
Mr Pikos reported that he had also seen other psychologists, including Mr Al-Bassit, but that there was no available documentation from these psychologists.
Mr Pikos had suffered from persistently depressed mood for over two years (Criterion A). In conjunction with his depressed mood, he had had a reduced appetite, weight loss, sleep disturbance, reduce energy, feelings of worthlessness, difficulties with thinking and concentration, feelings of hopelessness, and suicidal ideation (Criterion B).
There had not been a period of more than two months in which Mr Pikos had been free of depressive symptoms since the accident of 13 November 2018 (Criterion C).
Mr Pikos had experienced periods in which full criteria for the diagnosis of Major Depressive Disorder had been met (Criterion D).
There had never been a manic or hypomanic episode (Criterion E).
There had been no history of psychosis (Criterion F).
The symptoms were not solely attributable to the use of substances or a general medical condition because the depressive symptoms persisted despite his reported marked reduction in alcohol use (Criterion G).
The symptoms had caused clinically significant distress and impairment in function
(Criterion H).Below are the criteria according to the Diagnostic and Statistical Manual of Mental Disorders (DSM)-5-TR for the diagnosis of post-traumatic stress disorder and the reasons why full criteria were met in Mr Pikos’ case.
Criteria Comments Criterion A: Stressor (one required)
The person was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following way(s):· Direct exposure
· Witnessing the trauma
· Learning that a relative or close friend was exposed to a trauma
· Indirect exposure to aversive details of the trauma, usually in the course of professional duties
The accident described by Mr Pikos satisfied Criterion A, as he was frightened that he could have been killed in the accident or that his hand could have been severed by the impact. He described being shocked after the accident and he was taken to hospital by the Police. Criterion B: Intrusion symptoms (one required)
The traumatic event is persistently re-experienced in the following way(s):· Unwanted distressing memories
· Nightmares
· Flashbacks
· Emotional distress after exposure to traumatic reminders
· Physical reactivity after exposure to traumatic reminders
This criterion is met. Mr Pikos reported recurrent intrusive memories, flashbacks and nightmares of the accident. Criterion C: Avoidance (one required)
Avoidance of trauma related stimuli after the trauma, in the following way(s):· Trauma-related thoughts or feelings
· Trauma-related external reminders
This criterion is met. Mr Pikos reported that he has avoided driving a motor vehicle due to his anxiety, distress and fear of being in another accident. Criterion D: Negative alterations in cognitions and mood (two required)
Negative thoughts or feelings that began or worsened after the trauma, in the following way(s):
· Inability to recall key features of the trauma
· Overly negative thoughts and assumptions about one’s self or the world
· Exaggerated blame of self or others for causing the trauma
· Negative affect
· Decreased interest in activities
· Feeling isolated
· Difficulty experiencing positive affect
This criterion is met. Mr Pikos presented with a marked impact on cognition and mood. Criterion E: Alterations in arousal and reactivity
Trauma related arousal and reactivity that began or worsened after the trauma, in the following way(s):· Irritability or aggression
· Risky or destructive behaviour
· Hypervigilance
· Exaggerated startle reaction
· Difficulty concentrating
· Difficulty sleeping
This criterion is met. Mr Pikos reported difficulties with concentration, hypervigilance, an exaggerated startle response to sounds when travelling in vehicles and sleep disturbance. Criterion F: Duration (required).
Symptoms last for more than 1 monthThis criterion is met. The symptoms have persisted since the accident in November 2018. Criterion G: Functional significance (required).
Symptoms create distress or functional impairment (for example, social or occupational).This criterion is met. Mr Pikos presented as functionally impaired by his symptoms, generally avoiding leaving the house. Criterion H: The symptoms are not attributable to substance use or a general medical condition The symptoms are not solely attributable to substance use or general medical condition.
The Panel, as a result of the examination and its consideration of the history and available documentation, is also of the opinion that the additional diagnosis of Alcohol Use Disorder is justified.
The Panel is of the opinion that Mr Pikos described the period of several months, from at least 2021, in which he consumed alcohol in larger amounts on most days with the development of marked tolerance (Criterion A).
Mr Pikos reported that, since August 2022, he had, however, only consumed alcohol sporadically, so that his Alcohol Use Disorder could be considered to be in early remission.
There was some information from Mr Pikos’ GP clinical file, that he likely had a problematic pattern of alcohol consumption prior to the accident. For example, there was a note from Dr Hatoum in November 2015 regarding a charge from driving under the influence of alcohol. Mr Pikos denies this, and there was no other information about this issue.
There was also a clinical note by Dr Hatoum, expressing concern regarding Mr Pikos’ alcohol use prior to the accident:
“Alcohol reduction strategies, ceased beer so reduceed [sic] calories ++…Discuss long term problems with excessive alcohol intake”
Medical Assessor Smith, however, noted that there was no information about the quantities of alcohol consumed, and it was documented that Mr Pikos had ceased consuming beer, so that there is uncertainty about the actual history of substance problems.
Medical Assessor Smith noted that there was no documentation of problematic alcohol consumption prior to the accident. He considered that it was notable that Dr Saker, in 2015, reported that there were no issues with problematic alcohol consumption.
The Panel considered that it was probable that the motor accident in 2014, the onset of depressive symptoms after the breakdown of his marriage, and the impact of MS, had resulted in an escalation of alcohol consumption.
In the Panel’s opinion, based on all of the available evidence, it is probable that Mr Pikos had a history of pre-existing Alcohol Use Disorder, that was aggravated by post-traumatic anxiety and a deterioration of his depressive symptoms after the accident, and this was a very common clinical presentation.
Summary of injuries referred by the parties
The Panel concludes that the following injuries WERE caused by the motor accident:
· Persistent Depressive Disorder, with intermittent major depressive episodes, with current major depressive episode, with anxious distress (aggravation).
· Post-traumatic stress disorder (new onset after the accident in November 2018).
· Alcohol use disorder (aggravation).
Non-threshold injury
The recognised psychiatric diagnoses of Post-traumatic stress disorder, an aggravation of persistent depressive disorder, with intermittent major depressive episodes, with current major depressive disorder, with anxious distress and an aggravation of alcohol use disorder are not threshold injuries according to the MAI Act.
For these reasons the Panel concludes that the Medical Assessment Certificate of Medical Assessor Doron Samuell dated 26 May 2022 is revoked and a new certificate should be issued. The new certificate appears at the commencement of these Reasons.
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