QBE Insurance (Australia) Limited v Al Baghdadi
[2024] NSWPICMP 282
•9 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Al Baghdadi [2024] NSWPICMP 282 |
| CLAIMANT: | Majed Al Baghdadi |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Christopher Canaris |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 9 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 31 August 2020; a medical dispute arose as to whether or not the injury which Mr Al Baghdadi sustained was a threshold injury; the Medical Review Panel conducted an examination of the claimant; Medical Assessor Rickard-Bell’s determination of threshold Injuries revoked; Held – the Review Panel certifies that the injuries referred for assessment and caused by the accident, namely an adjustment disorder, is a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Rickard-Bell, dated 2. The Review Panel substitutes the determination and certifies that the injuries referred for assessment and caused by the accident, namely an adjustment disorder, is a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
On 31 August 2020, Mr Majed Al Baghdadi, the claimant, was driving his vehicle, doing a school drop-off for his granddaughter. He remembered being in Green Valley, taking Hoxton Park St and was turning left. There was a red light. Suddenly, his vehicle was upside down. He didn’t know what happened but recalls that his car had hit a steel gate. He was taken to Liverpool Hospital, admitted, and remained 11 days.
It was subsequently established that no other vehicle was involved, and that immediately prior to the accident, Mr Al Baghdadi had an episode of vertigo.
QBE (the insurer) is the relevant insurer with liability to pay any damages to Mr Al Baghdadi under the Motor Accident Injuries Act 2017 (MAI Act).
A medical dispute has arisen as to whether or not the injury which Mr Al Baghdadi sustained, was a threshold injury.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Christoper Rikard-Bell for assessment.
REVIEW PROCEDURE
The insurer sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings.
On 23 January 2024, the Panel determined that a re-examination of Mr Al Baghdadi was required, and it was appointed for 23 April 2024. The examination by the Panel, took place by Teams. Mr Al Baghdadi was at home and his son Haidar, was present initially, and later, his daughter-in-law helped with the assessment, as Mr Al Baghdadi was hearing impaired. An interpreter, Warde Haddad, interpreted the Arabic.
CERTIFICATE UNDER REVIEW
On 3 November 2022, Medical Assessor Christoper Rikard- Bell determined that injury caused by the motor accident of agoraphobia, was not a minor injury, for the purposes of the Act.
There is a dispute between Majed Al Baghdadi and the insurer about: whether the injury is a threshold injury under Schedule 2, s 2(e) of the Act.
Medical Assessor Rikard- Bell examined Mr Al Baghdadi on 29 September 2022 and issued a certificate under s 7.23(1) of the MAI Act on 3 November 2022.
Majed Al Baghdadi was assessed by video conference. An Arabic interpreter facilitated the interview.
The following injuries were referred by the Commission for assessment:
(a) psychiatric – post-traumatic stress disorder, fear of driving, insomnia and flashback.
Medical Assessor Rikard- Bell summarised the submissions at [3]- [4]:
[3] The claimant has made an application in relation to a ‘non-minor’ psychological injury for the purposes of the Act.
[4] The insurer submits the claimant sustained a ‘minor’ psychological injury for the purposes of the Act.
Documents considered
Medical Assessor Rikard- Bell considered the documents provided in the application and reply. No additional documents were provided.
History
Medical Assessor Rikard- Bell took a history at [8] and a history of the accident at [9]. Nothing turns on the accuracy of the history taken.
At [10], the Medical Assessor took a history of symptoms and treatment following the motor accident.
The current symptoms were listed by Medical Assessor Rikard- Bell at [12], and the current and proposed treatment at [13].
Medical Assessor Rikard- Bell’s clinical examination is set out at [14]-[15]:
“14. Mental State examination
‘Mr Al Baghdadi presented as a man of stated age who was wearing a grey collared t-shirt, glasses and his beard was grey and short. Mr Al Baghdadi required the assistance of the interpreter and his son was required to assist due to Mr Al Baghdadi’s reduced hearing. Nevertheless, he was able to respond to most questions after clarification. Mr Al Baghdadi’s speech was normal in tone and volume. There was no abnormality of perception. Mr Al Baghdadi’s affect was reactive. At times he was sad and appeared distressed such as when talking about the loss of his wife and at other times he was able to smile and show a lighter mood. There was no cognitive disturbance and he was oriented in time, place and person. He was able to remember 3 out of 3 items. He was aware of his surroundings and there was no sign of significant cognitive impairment. Mr Al Baghdadi’s thoughts were logical.
Mr Al Baghdadi stated it was his perception that the motor vehicle accident caused the dizziness. He did not seem to be able to distinguish between the dizzy episode causing the accident and he now has an ongoing fear of a further motor vehicle accident due to dizziness. Mr Al Baghdadi does now have a fear of dizziness and there appears to be a strong association between the motor vehicle accident, dizziness and fear of a further accident. I asked Mr Al Baghdadi about his wishes and he smiled stating that his main wish was to be married. His main fear is of the dizziness.’
15. Current functioning
Medical Assessor Rikard- Bell, set out his decision on current functioning:
‘Currently Mr Al Baghdadi finds it difficult to care for himself well. He does not always shower or wash himself and he requires reminding. Therefore, there is mild impairment of self-care and personal hygiene.
In terms of social functioning, Mr Al Baghdadi relates well to his son and granddaughter, therefore there is no impairment of social functioning.
In terms of concentration, Mr Al Baghdadi can concentrate and he is able to focus. He is able to use the internet and will look at Facebook, cultural issues, blogging and reading books. Therefore, there is no impairment of concentration, persistence and pace.
In terms of social and recreational activities, Mr Al Baghdadi is reluctant to go out. He is fearful of further injury and he worries about experiencing a dizzy attack. He does not like to socialise or interact with others. Therefore, there is moderate impairment of social and recreational activities.
In terms of adaptation, Mr Al Baghdadi was not working prior to the accident and is in receipt of the Disability Support Pension. Therefore, there is no impairment of adaptation from a psychological perspective.
In terms of travel, Mr Al Baghdadi is fearful of travelling and he will not drive any longer. He can go in the car with others; however, he refuses to drive himself. Therefore, there is moderate impairment of travel’.”
Review of Documentation
Medical Assessor Rikard- Bell provided a summary of the relevant documentation at [17], which he considered in his determination:
“The insurer’s submissions noted there was a motor vehicle accident on 31 August 2020 on Hoxton Park Road in Green Valley and sustained cervical spine and psychological injuries. It was noted he suffered an episode of vertigo which caused the motor vehicle accident. Therefore, it was noted the Claimant had a pre-accident history of vertigo and bilateral hearing loss. In addition, it is noted there is a pre-accident history of kidney transplant, obesity, diabetes, hypertension, vertigo and hearing loss. It was noted the Liverpool hospital records reported vestibular neuritis. The insurer submitted there was no evidence of a psychological injury as a result of the motor vehicle accident and there were only minor injuries.
The APIB indicated there was a motor vehicle accident on 31 August 2020. The ambulance report stated there was a moderate motor vehicle accident when a vehicle collided with a metal fence at approximately 70 km/hr on Hoxton Park Road. There was a female granddaughter in the vehicle. The GCS was 15. The airbags did not deploy. The records of Liverpool hospital dated 31 August 2020 noted vestibular neuritis which caused the motor vehicle accident. The MRI of the brain dated 9 February 2020 did not indicate any acute vascular event causing neurological symptoms. The Certificate of Capacity dated 11 September 2020 noted moderate post-traumatic stress, now scared to drive and insomnia. Post-Traumatic Stress Disorder was noted by the general practitioner, Dr Vincent Surinashaham.”
Medical Assessor’s determination
Medical Assessor Rikard- Bell set out his determination at [18]:
“I formed the view Mr Al Baghdadi is has developed Agoraphobia (300.22) . In my view, had the episode of vertigo not occurred whilst he was driving, it is unlikely he would have developed Agoraphobia. However, as he was driving at the time this has resulted in a significant adverse event and his granddaughter was also in the vehicle which has resulted in high levels of anxiety. The features according to DSM-5 are outlined below:
A. marked fear or anxiety about:
· being outside of the home alone
· being in open spaces and,
· standing in line or being in a crowd
B. avoidance of being outside of the home alone with a fear of falling or becoming incapacitated and developing panic like symptoms
C. leaving the home provokes fear or anxiety
D. avoidance of going out and requires a companion
E. the fear or anxiety is out of proportion to actual danger or sociocultural context
F. duration of 6 months or more
G. significant impairment of functioning
H. not due to another medical condition and,
I. not another mental disorder.”
At [20] Medical Assessor Rikard- Bell concluded that the following injury was caused by the motor accident:
(a) agoraphobia.
At [21] Medical Assessor Rikard- Bell also concluded that the following injury was not caused by the motor accident:
(a) post-traumatic stress disorder.
At [26] Medical Assessor Rikard- Bell determined the following injury was not a minor injury:
(a) agoraphobia.
LEGISLATIVE FRAMEWORK
Threshold injury
Section 1.6(2) of the MAI Act provides:
“(2) A ‘soft tissue injury’ is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 4(1) of the MAI Regulation provides:
“4 Meaning of ‘threshold injury’, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
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 Allsop P explained the tests 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.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
THE EVIDENCE BEFORE THE PANEL
On 28 November 2023 the insurer uploaded to the portal an indexed bundle of documents paginated from page 1 to 59 (insurer’s documents). The claimant did not upload a bundle of documents and solely relies on the Medical Assessment Certificate of Medical Assessor Christopher Rikard-Bell dated 3 November 2022.
REVIEW OF THE MEDICAL RECORDS
Application for personal injury benefits (PIB) form
On the Application for personal injury benefits form, Mr Al Baghdadi described the accident in the following words:
“I was driving, vertigo resulted in an accident”.
Mr Al Baghdadi described the injuries he received as result of the accident as:
“PTSD, insomnia, whiplash”
Ambulance report
An ambulance attended the scene of the accident, in the report the following was recorded:
“66YOM - Moderate speed MVA post onset of dizziness? vertigo O/a pt located in car into metal fence - Hoxton Park Rd x Park Rd Pt 1/2 - second pt female granddaughter assessed by 907 (green label - nil co pain or Injuries) O/e pt in driver’s seat - trapped by confinement - door unable to be open due to obstruction - pt attempting to climb over centre console and seated in passenger seat States was driving when he had a onset of dizziness, has been unable to operate the car, lay back in seat resulting m car veering to the left and Into metal fence at approx 70km/h with nil braking noticed Events confirmed with granddaughter NiI LOC noted throughout O/e pt oriented and well perfused GCS 15 NII co c spine pain - pt moving neck freely without pain or decreased ROM OA Nil major haemorrhage A - patent self-maintained B - =bs with entry to bases good TV Speaking in sentences Nil signs of resp distress Chest wall movement = with nil subcut emphysema noted Nil signs of chest trauma C - normotensive Normocardic Nil chest pain 12 lead - NSR. with ischaemic changes noted Radial pulses L= R Warm and well perfused Nil pale/clammy/diapheresis D- Dizzy, FAST - lve, NIHSS score 0 Minor horizontal nystagmus noted bilaterally Nil N&V Nd tinnitus Pt bilaterally hearing Impaired Pupils PEARL 3 Nil signs of head strike, nil maxilofacial injuries Nil signs of thoracic injuries Abdo soft non tender nil seatbelt abrasions Pelvic ring appears intact, pt weightbearing and ambulating on scene unaided All long bones intact with good movement and strength En route pt co mild lumbar back pain - refusing analgesia Pt stable en route nil change in condition Car significant frontal damage, nil cabin Intrusion nil steering wheel deformity, airbags not deployed seatbelts worn Pt 2/2 assessed by 907”
Liverpool Hospital discharge summary
The Discharge Referral from Liverpool Hospital documents the date of admission as
31 August 2020 and the discharge date as 7 September 2020.The Admission Summary documented the following:
“Presenting Problems
Motor Vehicle Accident
PRINCIPAL DIAGNOSIS
Vestibular Neuronitis
Summary of Progress
Dear Doctor,
Thank you for your ongoing care of Mr Majed Al Baghdadi, a 66 year old gentleman who presented to Liverpool Hospital on 31/082020 following an episode of vertigo which resulted in a motor vehicle accident. His primary and secondary survey were clear. He was admitted under the care of Dr Alan McDougall for a stroke and vestibular workup. Please find a summary of his care below.
Background
CKD
- renal transplant march 2016
-Renal biopsy june 2016 no rejection
Bilateral hearing loss
Latent TB (completed 9 months isoniazid)
PVD
HTN
Obesity
Issues
Vertigo
66M with MVA following sudden onset vertical vertigo
Impression:
- No critical stenosis/ occlusion, aneurysm or dissection within the major head and neck arteries.
- Mild atheromatous disease involving the aortic arch, left carotid bulb, and the V4 segment of the right vertebral artery without significant associated stenosis noted.”
Brain MRI, 2 September 2020
Mr Al Baghdadi received a brain scan as an impatient at Liverpool Hospital, the report is as follows:
“Findings:
No parenchymal diffusion restriction to indicate an acute infarct or susceptibility artifact to indicate blood product deposition or abnormal calcification.
The ventricular size and sulcal space prominence are at the upper limit normal for patient age.
There are scattered T2 hyperintense signal foci within the supratentorial periventricular and deep white matter regions compatible with a moderate degree of chronic small vessel ischaemic change.
Flow voids are preserved within the dural venous sinuses.
On the time of flight MRA, there is no critical stenosis or aneurysmal disease involving the major intracranial.
There is a developmentally dominant right vertebral artery, a normal anatomical variant.
Small right mastoid effusion.
Impression:
No acute infarct and no hemodynamically significant major intracranial arterial stenosis Moderate degree of supratentorial parenchymal chronic microvascular ischaemic change.”
The certificate of capacity, dated 11 September 2020
The certificate of capacity/ certificate of fitness form for the State Insurance Regulatory Authority (SIRA) provided the following comments; vertigo, moderate post-traumatic stress disorder , now scared to drive, insomnia.
In the certificate of capacity, Dr Sundrasingham (treating general practitioner) provides the following comments “…has mild to moderate post traumatic stress disorder. Now scared to drive, insomnia – may need psychological counselling if symptoms”.
SUBMISSIONS
Insurers submissions, dated 2 December 2022
The Panel summarises the insurer’s submissions by reference to paragraph number:
Errors in DSM-V Diagnosis and Failure to Provide Adequate Reasons
[6] The insurer submits that Medical Assessor Rikard-Bell failed to provide adequate reasons as to how he determined that the claimant suffered from Agoraphobia, as defined by the DSM-V, as a result of the subject accident.
[7] The duty to provide reasons in support of a determination of injury is mandated by
s 7.23(7) of the Act.[11] On page 7 of his Certificate, Medical Assessor Rikard-Bell states as follows with respect to his diagnosis:
‘Following the accident Mr Al Baghdadi has developed a significant phobia of a further vestibular attack or dizziness. The fear has resulted in significant avoidance of going out and of driving, even though he has been medically cleared to drive. I formed the view Mr Al Baghdadi is has developed Agoraphobia. In my view, had the episode of vertigo not occurred whilst he was driving, it is unlikely he would have developed Agoraphobia. However, as he was driving at the time this has resulted in a significant adverse event and his granddaughter was also in the vehicle which has resulted in high levels of anxiety’.
[12] The Medical Assessor then goes on to simply list the DSM-V criteria for Agoraphobia, without explaining how he considers the claimant satisfies same.
[13] The insurer submits that the Medical Assessor’s explanation on page 7 of his Certificate is inadequate in circumstances where it appears (for the reasons discussed below) that the claimant does not meet the DSM-V criteria for Agoraphobia based on the Medical Assessor’s examination and the history recorded.
[14] In particular, the insurer submits that the need for adequate reasons was critical in circumstances where several of the Medical Assessor’s comments in the certificate, are inconsistent with the diagnosis made. In the absence of proper reasons explaining how the claimant’s presentation satisfies the DSM-V criteria for an agoraphobia diagnosis, it is submitted that the parties are unable to understand how the Medical Assessor reached his determination or have any confidence in the accuracy of his determination.
[15] By way of demonstration of the deficiency of the Medical Assessor’s reasons, the insurer makes the below observations with respect to the following DSM-V diagnostic criteria for Agoraphobia and the contents of the Certificate:
(a) Criterion A: Marked Fear or Anxiety About 2 (or more) of the 5 Situations: (Using public transport, being in open spaces, being in enclosed spaces, standing in line or being in a crowd and being outside of the home alone).
·The insurer submits that a reading of the Medical Assessor’s Certificate does not appear to suggest that the claimant meets 2 (or more) of the required criteria.
(b) Criterion C: The Agoraphobic situations almost always provoke fear or anxiety.
·The insurer submits that it is unclear how the Medical Assessor considered Criterion C was satisfies in the absence of further enquiries or reasons.
(c) Criterion G: The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
·In the absence of adequate reasons, the insurer submits that the parties are unable to understand the Assessor’s application of Criterion G. To the contrary, the Assessor’s determination appears to be inconsistent with the claimant’s self-reporting and his own assessment, meaning the diagnosis is unable to be reconciled with the observations made.
(d) Criterion H: If another medical condition is present, the fear, anxiety, or avoidance is clearly excessive.
·In circumstances where Medical Assessor Rikard-Bell determined on page 5 that there was a ‘strong association between the motor accident, dizziness and fear of a further accident’, the insurer submits that it was incumbent upon the Assessor to properly address Criterion H, and express a view to provide reasons as to whether the fear or anxiety from that medical condition is ‘clearly excessive’ as required by the DSM-V.
[19] The insurer submits that further clarification was needed as to the actual source of the claimant’s symptoms and whether it was appropriate to assess the present complaints as being related to the subject accident, as opposed to the pre-existing vertigo and dizziness condition.
[23] In its reply submissions, the insurer noted the lack of a formal DSM-V diagnosis in the post-accident treating records. The insurer relies on the Supreme Court of NSW decision of AAI Limited v Fitzpatrick [2015] NSWSC 1108, where it was held that, where there is a medical controversy over a particular issue, a more expansive explanation needs to be given and express consideration revealing the use the Assessor made of the information provided is required.
[28] The Medical Assessor’s failure to engage properly with the DSM-V diagnostic criteria for Agoraphobia or provide adequate reasons to enable the parties to understand the determination made, or the accuracy of same, is clearly not a trivial or immaterial error, especially as a more detailed assessment and engagement with the issues could have resulted in a different diagnosis.
Claimant’s submissions, dated 14 December 2023
On 14 December 2023, Mr Chen from Alliance Compensation and Litigation Lawyers posted onto Pathways:
“The claimant relies on the Medical Assessment Certificate of Medical Assessor Christopher Rikard Bell dated 3 November 2022 and does not have additional materials for the Review Panel.”
EXAMINATION BY THE PANEL
The examination was conducted by Medical Assessor Michael Hong and Medical Assessor Christopher Canaris.
The examination was conducted by audio- visual teams. Mr Al Baghdadi was at home. His son, Haidar Baghdadi was present initially, and later, his daughter-in-law helped with the assessment, as he has hearing impairment. Ms Warde Haddad was the interpreter.
Psychosocial history and pre-accident history
Mr Al Baghdadi was born in Iraq and came to Australia in 2001 as a refugee. He had a brother who passed away from a car accident when he was 28.
Mr Al Baghdadi was married in 1982 and his wife passed away in 2016. He has not suffered from a distinct psychiatric injury in the past.
He has had chronic health issues and had a renal transplant in 2016 and remains on anti-rejection medication. He also suffers diabetes and hypertension.
He did not have any drug or alcohol problems.
He was not aware of a family history of mental illness.
In terms of employment history, Mr Al Baghdadi told the Medical Assessors he has never worked in Australia and has been on Disability support pension from Centrelink for more than 20 years due to his physical conditions.
History of the motor accident
On 31 August 2020, Mr Al Baghdadi was driving and doing school drop-off for his granddaughter in Green Valley. He remembered he took Hoxton Park Street and turned left. There was a red light. Suddenly his car was upside down. Mr Al Baghdadi didn't know what happened at the time, he remembered that his car hit a steel gate. There were no other cars involved. The ambulance and police arrived at the scene of accident and assessed him.
Mr Al Baghdadi said he was taken to Liverpool Hospital and stayed for 11 months - the Medical Assessors clarified that he meant 11 days. He recalled he was quite frightened in the accident because the car was upside down.
History of symptoms
Since the accident, Mr Al Baghdadi has had persistent dizziness, which he told the Medical Assessors is always there.
Since taking Serc from his neurologist, there has been some improvements in dizziness. He cannot identify any situation that would aggravate dizziness and aside from Serc, nothing else seems to improve it.
Mr Al Baghdadi reported that since the accident he was always scared and anxious, and he worries about being dizzy. He is anxious to go out because of dizziness, and said he was always accompanied.
By himself, Mr Al Baghdadi is only able to go out to the front of the house; he stated his family does not allow him to go out by himself as they worry about what will happen to him. Even when he goes to the toilet at home, he has to tell somebody to make sure somebody stays outside the door in case he becomes dizzy, or he falls.
He told the Medical Assessors that when he gets dizzy, he will close his eyes and lie down. If he gets dizzy, he says it is good if somebody is there to hold his hand, and to help steady him.
The Panel made specific enquiries to Mr Al Baghdadi, regarding potential situations that can change his anxiety or dizziness:
(a) in terms of open spaces and parking lots, he said there was no change;
(b) he rarely uses public transportation such as trains and busses, and only does so if he is accompanied. He said he always makes sure he holds onto the pole tight, so he is safe, but his anxiety and dizziness are not different;
(c) when there are people around or crowds, his anxiety was in fact better as he feels that there is more support, and
(d) regarding situations where escape might be difficult, this was difficult to clarify with him even with the interpreter. The Panel formed the view that the issue was not to do with his anxiety or needing to escape, but more about being dizzy and needing to steady himself. Mr Al Baghdadi also told the Medical Assessors that he wakes up feeling dizzy.
Mr Al Baghdadi has not driven a car since the accident, and on clarification whether dizziness or anxiety is a problem, he reported he feels anxious because he might become dizzy in the car. He also told the Medical Assessors that the family does not allow him to drive anymore because of dizziness.
Mr Al Baghdadi said that he rarely goes out and generally only goes out to doctors’ appointments. He doesn’t go to the shops and his family does the shopping.
On general enquiry, Mr Al Baghdadi and the family did not believe he had other psychological problems apart from anxiety and dizziness.
On specific enquiry regarding depression, Mr Al Baghdadi reported that he felt depressed after his wife passed away from cancer in 2016. He doesn’t feel any better or worse over time. He doesn’t think he suffered depression from the accident itself.
Regarding Mr Al Baghdadi's concentration, he felt that this had declined, especially since the accident, but also a steady decline over time.
When he spends time with his family and grandchildren, he reported he felt better in his moods. The Medical Assessors asked him what else could improve his mood. He made a joke and said that if he could find another wife, he would be happy. Mr Al Baghdadi said he was happy when some things happen and on specific enquiry, this revolved around his family and his grandchildren.
Mr Al Baghdadi reported that he lost some weight since the accident, and then went on to say that he lost about 15kg in the last four years. He was now 89kg and wanted to lose another 2kg. He was not bothered by weight loss as he was trying to lose weight.
The Medical Assessors clarified depressive cognitions and confirmed that he had hope for the future and in addition, he was hoping something more would be done about his dizziness, so that he can return to how he was before the accident.
The Medical Assessors were mindful that Mr Al Baghdadi reported he was increasingly tired as the assessment progressed.
Mr Al Baghdadi has not had any further car accidents or sustain other psychological injuries.
Current symptoms
Mr Al Baghdadi was 70 years old and lived with his son and daughter-in-law and his grandchildren.
He described anxieties and worries related to his dizziness.
He had low moods at times and could be cheered up and felt hopeful for the future.
He had initial insomnia for many years, and his sleep had been worse since the accident, and recently, he only slept 2-3 hours at a time.
He had concentration and memory problems.
He had never had suicidal ideation.
Current and proposed treatment
Mr Al Baghdadi had never taken psychiatric medication. He took Serc, renal medications, glucose-lowering medication for diabetes, and transplant-related medications.
Mr Al Baghdadi had an assessment with a psychologist a few months ago and only had one session, and said it was too far, so he did not return. He recalled community transport took him there. He had not had any other psychological/psychiatric treatment ever.
Clinical examination
Mental state examination
The Panel explained why the assessment was organised that day, and Mr Al Baghdadi had some difficulties understanding it initially, and after repeated explanation through the interpreter, he understood why he was being assessed. He said he wasn't having a good day because he had a fall earlier that day. He reported being tired after 45 minutes, and the Panel discussed he could take a break when he wanted to and made accommodations.
He had short hair and was in his pyjamas. He smiled and laughed appropriately and made a joke. Many questions were repeated to ensure comprehension. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity. He was not thought disordered.
Comments of consistency
There was no inconsistency identified.
Determinations
Diagnosis and reasons
Mr Baghdadi experienced grief reactions and low moods after his wife passed away in 2016, and had no confirmed pre-accident psychiatric diagnosis. He described a good level of functioning and being able to do the school drop-off. His life revolved around his family activities.
After the accident, Mr Al Baghdadi described having persisting dizziness, which was the main driver of his ongoing anxiety symptoms. While he had suffered low moods and depressive symptoms, these were consistent with an adjustment disorder and did not reach the criteria for another distinct psychiatric disorder or depressive disorder.
The Panel was unclear whether his dizziness was causally related to the accident. The Panel noted the nature of the collision itself was capable of producing an adjustment disorder, but his persisting dizziness was a perpetuating factor that prevented him from achieving a full resolution of the adjustment disorder.
Mr Al Baghdadi had been referred for the assessment of a psychological injury in relation to the accident in 2020. He had developed psychological symptoms since the accident, and this was consistent with an adjustment disorder.
Mr Al Baghdadi did not have agoraphobia, as his anxiety symptoms did not fulfill two or more of the criterion A symptoms, as listed in DSM-5-TR:
· using public transportation (e.g., automobiles, buses, trains, ships, planes) – no clinically significant anxiety or change in psychological symptoms;
· being in open spaces (e.g., parking lots, marketplaces, bridges) – no clinically significant anxiety or change in psychological symptoms;
· being in enclosed places (e.g., shops, theatres, cinemas) – no clinically significant anxiety or change in psychological symptoms;
· standing in line or being in a crowd – his anxiety was better, and
· being outside of his home alone – his anxiety increased and was relieved by being accompanied or being steadied to prevent falling from dizziness.
Mr Al Baghdadi's described symptoms did not fulfill all of the DSM-5-TR diagnostic criteria for post-traumatic stress disorder because:
(a) Criterion B was not fulfilled. This criterion was about intrusive re-experiencing symptoms (such as recurrent involuntary intrusive memories, nightmares about the subject motor vehicle accident or dissociative flashbacks), prolonged distress, or marked physiological arousal after encountering an associated trigger. Mr Al Baghdadi thought about the subject motor vehicle accident, which was not a re-experiencing symptom.
(b) Criterion C was not fulfilled. Mr Al Baghdadi did not describe experiencing persistent effortful avoidant behaviour related to the subject motor vehicle accident. He described anxiety related to dizziness.
(c) Criterion D was not fulfilled as he did not have negative cognition or mood problems (which were marked, persistent, exaggerated, or distorted) as a result of the subject motor vehicle accident.
Causation and reasons
Mr Al Baghdadi described chronic psychological symptoms since the accident and apart from the impact of the subject accident and his dizziness, there were no other stressors contributing. The Panel considered even if dizziness was not caused by the subject accident, the impact of the subject accident itself was sufficient to cause his adjustment disorder.
Panel’s discussion
The insurer’s submission noted there is no evidence of a recognised psychiatric illness diagnosed according to DSM-5 criteria and Certificate of capacity completed less than one month after the subject accident, diagnosed post-traumatic stress disorder but this conflicted with DSM diagnostic criteria for post-traumatic stress disorder.
The Application for personal injury benefits form noted post-traumatic stress disorder and insomnia. The section for pre-existing factor was ticked as yes, without any information recorded.
The ambulance record noted 66M, dizziness, ? vertigo. GCS was 15. There was no loss of consciousness throughout.
The Liverpool Hospital discharge summary noted motor vehicle accident, vestibular neuronitis and sudden onset vertigo after the subject accident.
Certificates of capacity noted vertigo and also, moderate post-traumatic stress disorder, now scared to drive, insomnia. Mr Al Baghdadi was certified as having no work capacity due to post-traumatic stress disorder on 11 September 2020.
The Commission’s certificate related to Mr Al Baghdadi's physical injuries by Medical Assessor Ian Cameron, diagnosed threshold injuries with cervical spine and head soft tissue injuries.
Conclusion
The Review Panel revokes the certificate of Medical Assessor Rickard-Bell, dated
3 November 2022.In light of the above evidence, the Review Panel substitutes the determination and certifies that the injuries referred for assessment and caused by the accident, namely an adjustment disorder, is a threshold injury for the purposes of the Act.
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