QBE Insurance (Australia) Limited v Almassri
[2024] NSWPICMP 338
•24 May 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Almassri [2024] NSWPICMP 338 |
CLAIMANT: | Hussein Almassri |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Glen Smith |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 24 May 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether claimant suffered a threshold injury; Medical Assessor found claimant suffers major depressive disorder caused by the motor accident, not a threshold injury; causation; claimant uses cannabis as a consequence of physical injuries; no evidence of previous cannabis use; absence of any psychological complaints within the material provided, however, medical evidence out of date with documentation only evidencing complaints up until 2020; Held – absence of psychological complaint to a medical professional is not in itself conclusive evidence that a psychological injury has not taken place; the claimant suffers a cannabis use disorder and consequent cannabis-induced depressive disorder caused by the motor accident; injuries are not threshold injuries; an exacerbation of post traumatic stress disorder is not a threshold injury; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Threshold Injury Issue under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Alexy Sidorov dated 23 May 2022 and issues a new certificate determining that: 1. The following injury caused by the motor accident is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017: · cannabis use disorder, and · cannabis-induced depressive disorder. |
STATEMENT OF REASONS
INTRODUCTION
Hussein Almassri (the claimant) alleges injury from a motor accident occurring on
23 March 2020 when he was the rider of a motorcycle that lost control after a vehicle turned into his path of travel.
He subsequently lodged a claim upon QBE Insurance (Australia) Limited, the insurer of the vehicle considered at fault (the insurer). The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury of the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
Medical Assessor Sidorov issued a certificate and reasons dated 23 May 2022, which certified the claimant as suffering a major depressive disorder caused by the motor accident, which was not a minor injury (now known as “threshold injury”) for the purpose of the MAI Act.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act. On 5 September 2022 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
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 and is to be by way of a new assessment of all the matter with which the medical assessment is concerned: s 7d.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
Directions were issued requiring the parties to lodge with the Commission paginated and indexed bundles of all documents relied upon. The Panel subsequently held a preliminary conference on 8 October 2023 and it was determined that a re-examination of the claimant was required. This was scheduled to take place on 26 October 2023. That examination was cancelled due to unforeseen circumstances. A further medical examination was arranged to take place on 10 April 2024 with Medical Assessor Hong and Medical Assessor Smith via Microsoft Teams. That examination took place as scheduled.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
ASSESSMENT UNDER REVIEW
The Medical Assessor provided a certificate dated 23 May 2022. He diagnosed the claimant as suffering from a major depressive disorder which is related to an injury caused by the motor accident and was not a minor (now known as a threshold injury) for the purposes of the MAI Act. The Medical Assessor found that there were no other identifiable causes for the development of the depressive illness.
The Medical Assessor took a history of the claimant smoking 20 cigarettes a day, and using cannabis three days per week, spending around $40 per week. It was explained that it was used to manage the claimant’s pain.
Further, history was recorded of the claimant developing a low mood after the motor accident in the context of pain symptoms and inability to work. The claimant reported his appetite decreasing leading to weight loss and he suffered from disturbed sleep. His mood self-esteemed was described as weak.
SUBMISSIONS
Claimant’s original submissions dated 27 August 2020
So far as the submissions are relevant to the issue of psychological injury the claimant submits that Dr Selim may have been awaiting a determination of the liability issue before referring the claimant to a psychologist for treatment.
Insurer’s original submissions dated 24 November 2020
The insurer contends there is no evidence of the claimant sustaining psychological injuries as a result of the accident. The insurer notes that the general practitioner (GP) and subsequent certificates of capacity do not include a diagnosis of psychological injury. Further, the notes of Dr Selim do not contain evidence of the claimant attending with complaint of psychological symptoms.
The insurer submits that “…it cannot be argued that the claimant sustained a psychological injury from the subject accident if there is objective evidence indicating that there is nil presence of same”. The insurer submits that if there was a condition “…one would assume that continuous psychological treatment would have been sought in respect of same”.
Insurer’s review submissions dated 23 June 2022
The insurer submits the Medical Assessor failed to give proper reasons for his causation findings (Dogon v Richmond & Ors [2010] NSWSC 1329). In this regard, it is submitted the Medical Assessor did not reference or address the contemporaneous or clinical records available, particularly the Medical Certificate, Certificates of Capacity and clinical records of GP Dr Selim.
The insurer submits that such material does not demonstrate the claimant being diagnosed with any psychological injury or related symptoms as a result of the accident. Further, that the claimant did not consult with Dr Selim complaining of any psychological symptomology or related treatment, despite regular attendances.
It is submitted that the diagnosis was arrived at solely on the “…claimant’s own subjective opinion regarding his condition and self reporting”. The insurer goes on to submit that there exists numerous incongruities in the claimant’s self-reporting. This includes inconsistencies in respect of weight loss, and the history related to the claimant’s stay in a detention centre when he sought refugee status in Australia.
The insurer submits the Medical Assessor erred “…in not seeking to verify the plausibility and reliability of the claimant’s self-reporting, and also in providing an adequate path of reasoning…”
Claimant’s review submissions dated 4 August 2022
The claimant submits proper reasons were given by the Medical Assessor and that same were clear and articulated.
PREVIOUS MEDICAL ASSESSMENTS
Medical Assessor Alexander Woo provided a certificate and reasons dated 6 April 2022. He certified that various soft tissue injuries caused by the motor accident were “minor” injuries for the purposes of the MAI Act. He also found that a requested MRI of the cervical spine was not reasonable or necessary nor would it improve the recovery of the injured person.
The Medical Assessor noted that whilst the claimant told him that he was knocked unconscious in the accident, the ambulance report does not accord with such assertion. The Medical Assessor also found the claimant to be pain focussed with some exaggeration of his symptoms.
DOCUMENTATION
The Panel has considered all material provided by the parties in their document bundles. In addition the Panel has considered the further material provided by the parties including updated clinical notes of Dr Selim and the documents in the insurer’s application to admit late documents dated 9 October 2023.
Application for personal injury benefits form dated 3 April 2020
The claimant included a description of injuries related to the accident as: “Neck, headaches, Back pain, numbness around the neck, shock…”
Certificates of capacity
In the certificate of Dr Selim dated 1 April 2020, it was noted: “MVA neck and back injuries…”
In the certificate of Dr Selim dated 21 August 2020, it was noted: “MVA neck and back injuries…”
Allied health recovery requests (AHHR)
The three AHHR provided included requests for treatment for physical injuries. There is no mention of psychological symptoms.
Ambulance electronic medical record dated 23 March 2020
In this document, it was noted:
“C/T 25 yo male, MVA O/A pt laying in middle of intersection, nurse and bystanders on scene pt states he was trying to go straight through the intersection on his motorbike and a car turning right hit the front of his motorbike and he hit the riht [sic] back of the car, pt has no recal [sic] of events after that, car was a hit and run so unable to confirm damge [sic] to the other vehicle or speed pt states he was going approx 40kms/h on his bike O/E pt alert, orientated and well perfused, GCS 15, c/o headache and c-spine tenderness, PEARL, denies altered sensation or pins and needles, chest clear and equal on auscultation, abdo soft and non-tender on palpation, pt c/o lower back and groin pain, pain increased on movement of legs, femurs intact spina immobol1sat1on and pelvic binder placed, unable to gain Iv access, pt refused pain relief pt transported to hsp for further investigation, stable en route…”
Discharge Referral – NSW South Western Sydney Local Health District, dated 25 March 2020
This document records the claimant being admitted on 23 March 2020 after the motor accident and discharged on 25 March 2020. The main complaint is listed as cervical and thoracic back pain. A CT scan demonstrated no significant injuries. On account of significant midline cervical spine tenderness an MRI of the cervical spine was conducted which demonstrated no significant soft tissue injury.
Report of Dr Maniam dated 30 June 2020
This report was provided to the insurer. Dr Maniam noted ongoing issues with the right shoulder, cervical spine and lumbar spine. He was at the time considered as unfit for heavy manual work.
Complete Record of Medical and Dental Centre as at 29 September 2020
The clinical notes provided to the Panel begin on 1 April 2020 and do not go beyond August 2020. The notes document the claimant attending upon Dr Selim, GP, on a regular basis after the motor accident complaining of physical symptoms, including the neck, low back and right shoulder. There is no mention of psychological symptoms.
Complete record of Belconnen Medical Centre
These notes are limited to a short period prior to the accident and includes complaints of an unrelated nature. There is no mention of any psychological complaint. It was noted, however on 8 November 2017 that he was an “ex-smoker” and no longer smoking cigarettes.
RE-EXAMINATION
Who attended the assessment
The assessment occurred via MS Teams.
Medical Assessor Hong and Medical Assessor Smith were in their Sydney offices and
Mr Almassri was at his home alone.
An Arabic interpreter attended via MS Teams.
Psychosocial history and pre-accident history
Identifying details
Mr Almassri is a 29-year-old man living with his wife and three-year-old daughter in a rented three-bedroom unit in Riverwood. He stated that he is not currently working and he has received ‘superannuation’ as his income after the motor accident. He is also supported by his wife, who works as a teacher and in a second job as a language tutor.
Personal history
Mr Almassri reported that he was born in Gaza, Palestine. He stated that his father previously worked in construction and is retired and his mother worked as a secretary at a university. He has an older brother, four younger brothers and a younger sister. He described his childhood as “normal life” and he denied exposure to abuse or violence in his childhood. He said that he attended school until Year 11 and then he worked as a ‘carpenter for bedrooms’. He said that he was in Gaza during periods of military conflict but he did not directly witness fatalities. He noted, “it was just a thing like seeing it on the television”.
Mr Almassri stated that he came to Australia in 2013 by boat alone. He said that he left Gaza “to enjoy my life as a young person”. He stayed at the detention centre in Nauru for 18 months, then at the detention centre in Darwin for 18 months and then the Villawood detention centre for 15 months, until he was released into the community in 2017. He stated that after that he was enjoying his life working in aluminium and form work and going out with friends. He met his wife in 2018.
In terms of previous psychiatric history, Mr Almassri reported that when he was at the Villawood detention centre, he felt “a bit down” and he saw a psychiatrist (he could not recall the name of the psychiatrist and he could not recall how many times he saw them). He said that he was prescribed “sleeping tablets” (he did not know the name of medication).
In terms of general medical history, Mr Almassri reported that he was previously generally medically well and he denied major health issues such as diabetes mellitus, epilepsy, asthma, thyroid disease, head injury and ischaemic heart disease. He denied a history of surgery and he denied known allergies.
In terms of drug and alcohol history, Mr Almassri denied alcohol use in his life at any time. He denied smoking cannabis prior to the motor accident in 2020 but he has smoked cannabis heavily from around two months after the accident with a gradual increase in tolerance to the effects of cannabis and escalating consumption. He could not recall his last cannabis-free day and he now smokes around $250 worth of cannabis per week; over 3g per day. He denied other illicit substance use. He denied problematic benzodiazepine and opioid medication use. He said that he started smoking cigarettes in around 2014 and he currently smokes 40 to 50 cigarettes per day.
Mr Almassri denied a known family history of mental health issues.
Mr Almassri denied a history of criminal charges and previous compensation claims.
History of the motor accident
Mr Almassri reported that on 23 March 2020, late in the afternoon, he was riding alone on his motorcycle (a Kawasaki Ninja 650; 2017 model) and he was wearing a helmet, a jacket and jeans. He said that he was travelling on Meredith Street in Bankstown at around 50 to 60kmph and then a white van turned across in front of him and “I didn’t have enough space or time [to stop], I hit him”. He was thrown from the motorcycle and he hit the van “with my whole body”. He said that he did not lose consciousness. He said that the van drove away from the scene and people surrounded him and called the ambulance. He said that he was in severe pain, “everywhere in my body, my head, shoulders, neck, back and legs”. He said that he was taken by ambulance to Liverpool Hospital.
History of symptoms and treatment following the motor accident
Mr Almassri said that after the accident, he was admitted to Liverpool Hospital for around two or three days. He said that at the hospital “they did scans” and he was prescribed various medications for the pain, including Tramadol and Meloxicam. He had follow-up with his GP, who continued to prescribe the analgesic medications. He said that he needed more scans, “because there was a hole in my shoulder and a disc [problem] in my back”. He said that Tramadol, “wasn’t effective enough [for the pain]” and after around “two or six months” he “started smoking weed instead”. He said that cannabis has assisted with managing the pain. He received physiotherapy but he ceased that treatment (he could not recall the timeframes) and after that he has had massages fortnightly. He has not had surgery. Mr Almassri said that he continues to suffer “a lot of pain in his back, right shoulder, right arm and sometimes down his right leg and slight pain in the neck”.
Mr Almassri reported that due to the persistent pain and limitation in functioning since the accident, he has been “staying at home, I have lost my normal life, I can’t work”. He said that he has not returned to riding a motorcycle because of the pain in his right shoulder. He said, “I keep smoking” cannabis “to sleep and keep away from the pain”. He said that he smokes 40 to 50 cigarettes and at least 10 joints or cones of cannabis per day. He said that he smokes joints of cannabis from around two hours after waking, “then the pain comes” and he smokes cannabis in a bong at night. He said that his friend brings cannabis to him every week and it costs around $250 per week.
Mr Almassri said that he has felt depressed “because I can’t work, I used to be the breadwinner, now my wife has two jobs, I can’t do anything, I can’t even lift my daughter”. He has been unable to return to work. He said that he has spoken with his GP about his depressed mood but he could not recall when he spoke with his GP. He said that his GP said, “it was normal with the pain [to feel depressed], then the pain got worse”. Mr Almassri said that he was referred to a psychologist but he could not recall the details of treatment, “maybe a couple of times, I didn’t notice any improvement and I stopped seeing them”. He said that he has not been prescribed any antidepressant medications. He said that he sees his GP monthly. He said that his GP “advised me to go out of the house and get rid of the depression, I can’t because of the pain”.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Almassri said that he has not been involved in any other motor accidents.
Mr Almassri said that he has not had any contact with his family since the onset of conflict in Gaza in late 2023.
Current symptoms
Mr Almassri reported that he remains very tired and low in mood. He described reduced interest in activities and he spends most of his time at home. He said that he goes out once per month to see his GP and to have his hair cut. He said that he sleeps from 7:00am until noon. He sometimes returns to sleep for two hours in the late afternoon and he noted, “I spend my days like that”. He said that he does not eat much, “sometimes a piece of chocolate lasts the whole day” and he has lost weight since the accident (he was unclear of the details of his weight loss but thinks that he has lost weight from 82kg to 68kg). He has no hobbies or interests. He reported thoughts that life is not worth living, “I ask myself why I am still living”.
Current and proposed treatment
Mr Almassri sees his GP monthly.
Medications
Nil regular.
Mental state examination
Mr Almassri was visible in the telehealth session from the waist up. He wore a black hoodie. He had a trimmed beard and moustache. He smoked throughout the assessment (he said that he smoked three cannabis joints and also cigarettes). He reported that his mood is low and his affect was restricted to the depressed range. He denied current suicidal ideation. He said that he sometimes experiences auditory hallucinations and he checks with his wife, “noises, two people talking to each other, mumbling, I couldn’t understand what they were talking about, it’s not clear”. He said that this happens “sometimes, not that much”. He denied persecutory ideation and he noted that he worries more about his health. He said that the cannabis helps with the pain and improves his mood, “I become less irritable and calm”.
Current functioning
Mr Almassri reported that he spends most of his time lying in bed and smoking either cigarettes or cannabis. He eats only very small amounts. He sees his GP monthly and has his hair cut monthly but otherwise he spends his time at home. His friend visits him once per week to bring him cannabis.
Comments on consistency
Mr Almassri stated that he had discussed his psychological symptoms with his GP but there were no recorded entries of this in the GP file. The Panel considers that this is likely because the file did not contain any entries after September 2020.
The Panel noted the insurer’s submissions regarding Mr Almassri’s weight loss and questioned him about his weight. He was unsure of the specifics of his weight loss, which seemed consistent with his presentation.
Regarding the possible inconsistency of whether Mr Almassri lost consciousness in the accident or not, it is notable that in the Ambulance Electronic Medical Record, it was documented that he did not clearly recall the events. This is consistent with Mr Almassri suffering a head injury and at least a transient loss of consciousness. He said that he did not believe that he lost consciousness and the Panel considered his history in that regard to be generally consistent with the documentation regarding the accident.
DETERMINATIONS
Diagnosis and reasons
The Panel considered that, based on the provided history, the mental state examination and review of documentation, Mr Almassri presented with symptoms consistent with the following recognised psychiatric diagnoses according to the criteria of the DSM-5:
(a) cannabis use disorder, and
(b) cannabis-induced depressive disorder.
Justification of diagnosis
Mr Almassri reported daily heavy use of cannabis, with the gradual development of tolerance to its effects, from around two months after the accident. He could not recall his last cannabis-free day and stated that he has not had a cannabis-free day for years. Much of his time is spent smoking cannabis, including during the assessment, fulfilling criterion A (A1, A3, A10) for the diagnosis of cannabis use disorder.
Although Mr Almassri presented with depressive symptoms fulfilling DSM-5 criteria for the diagnosis of persistent depressive disorder, with persistent major depressive episode, his mood symptoms have developed in the context of daily cannabis consumption. Criterion H for the diagnosis of persistent depressive disorder states that the symptoms must not be attributable to the physiological effects of a substance. Because he has smoked cannabis daily in heavy quantities, gradually increasing from around two months after the accident, the diagnoses of major depressive disorder and persistent depressive disorder cannot be made and the diagnosis is cannabis-induced depressive disorder. He presented with depressed mood and diminished interest in all activities (criterion A). The symptoms developed after the commencement of the use of cannabis (criterion B). The symptoms are not better explained by a persistent depressive disorder because the depressive symptoms did not predate the onset of his cannabis use (criterion C). The symptoms have not occurred exclusively during the course of a delirium (criterion D). The symptoms have resulted in significant impairment in all areas of daily functioning (criterion E).
Differential diagnosis
Medical Assessor Sidorov diagnosed major depressive disorder and whilst the criteria for that condition were met, the Panel did not consider this condition to be diagnosable because Mr Almassri has used cannabis heavily throughout the period of his experience of depressive symptoms and his symptoms could be attributed to the use of cannabis.
Mr Almassri presented with vague hallucinations, likely as part of his cannabis-induced mood disorder and his presentation was not consistent with the additional diagnosis of a psychotic disorder.
Causation and reasons
Mr Almassri reported that he has suffered from persistent pain after the motor accident in March 2020. He started to use cannabis from around two months after the accident because he found this more effective for pain than analgesic medications. Mr Almassri has been unable to return to work due to his pain and he has felt pervasively demoralised and depressed with marked impairment in functioning. He has used cannabis in heavy daily quantities, with marked tolerance and no cannabis-free days, consistent with the diagnosis of cannabis use disorder.
Because his depressive symptoms have only been present during the period of heavy cannabis use, the diagnosis is cannabis-induced depressive disorder. He reported that he received brief psychological therapy but ceased this as he did not find it beneficial. Although the GP clinical records do not contain any references to his psychological symptoms and referral for psychological treatment, this is likely because there are only records up to September 2020.
Mr Almassri’s pain has been deemed to have been caused by the accident (according to the certificate of Medical Assessor Woo) and he reported the onset of cannabis use as a means to cope with the pain after the accident. There was no evidence of previous cannabis use. Therefore, the cannabis use disorder and consequent cannabis-induced depressive disorder are related to the motor accident and are non-threshold injuries.
The Panel notes the absence of psychological complaints within the medical material provided. However, it is also noted that the clinical evidence, particularly that of the GP, is somewhat out of date. The clinical notes only document complaints made up to August 2020. Likewise, the various certificates of capacity of Dr Selim, whilst making no mention of any psychological symptoms, do not include any record after August 2020.
Moreover, the absence of psychological complaint to a medical professional is not in itself conclusive evidence that a psychological injury has not taken place. It is common for patients and practitioners to focus on the treatment of pain and physical symptoms, at least initially, with the expectation that with improvement of pain and functioning that any secondary psychological symptoms would also improve. Given Mr Almassri’s persistent pain after the accident, this was likely a factor in his case. Moreover, it is also common for a person to be suffering psychological symptoms and not make a complaint regarding same to their GP.
The Panel rejects the insurer’s argument that absence of documented complaint is “conclusive” evidence that a psychological injury has been sustained. It is not conclusive evidence, but merely a factor to be taken into consideration, which the Panel has.
Following examination of the claimant, the Medical Assessors, utilising their skill and medical judgement, accepted that the claimant’s history in respect of cannabis use and associated psychological symptoms, were genuine and caused by the injuries sustained in the subject motor accident.
Accordingly, the Panel agrees with the original Medical Assessor has suffered a psychological injury that is not a threshold injury for the purposes of the MAI Act. The original medical certificate is revoked simply due to a different diagnosis being reached.
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