QBE Insurance (Australia) Limited v Boka
[2024] NSWPICMP 493
•19 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Boka [2024] NSWPICMP 493 |
CLAIMANT: | Sally Matti Danial L Boka |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Michael Hong |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 19 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychological injury; post-traumatic stress disorder (PTSD); pre-existing condition; whole person impairment (WPI); self-care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; adaptation; Medical Assessor certified 19% WPI in respect of PTSD caused by the accident; Held – PTSD caused by the accident; Medical Assessment Certificate revoked; 7% WPI assessed. |
DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Michael Robertson dated 2. post-traumatic stress disorder. 3. pursuant to the Motor Accident Injuries Act 2017. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 11 November 2018 Ms Sally Matti Danial Boka (the claimant) was a front seat passenger in a motor vehicle driven by her husband when it was struck in the rear, propelled forward and collided with a tree (the accident). Ms Boka sustained injury to her neck, back and knee.
Ms Boka has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Boka under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Boka as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s psychological injury was referred to Medical Assessor Michael Robertson. He issued a certificate dated 16 February 2023.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 14 December 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal submissions dated 25 March 2024. The insurer had uploaded to the portal submissions dated 8 March 2023 and a bundle of documents paginated from pages 1 to 119 (insurer’s documents). The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 174 (claimant’s documents).
On 11 April 2024 in response to a direction from the Review Panel the insurer uploaded to the portal the clinical notes of HK Medical as of 4 March 2020 and the claimant uploaded the certificate of Medical Assessor Martin Allan dated 28 October 2019.
On 21 May 2024 the claimant uploaded an Application to Admit Late Documents attaching the records of treating psychiatrist Dr Wael Wahaib paginated from pages 1 to 18 (AALD 21 May 2024). The insurer consented to the admission of these records. The Review Panel agreed to admit these documents where they are relevant to the dispute to be determined and where the medical examination had not taken place.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“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 non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
CERTIFICATE OF MEDICAL ASSESSOR ROBERTSON[3]
[3] Insurer’s bundle p 18.
The injury referred to Medical Assessor Robertson for assessment was:
· chronic post-traumatic stress disorder, major depressive disorder.
The claimant had arrived in Australia as a refugee from Iraq via Turkey in 2016. She was married with three children. On arriving in Australia, the claimant studied English and completed a Certificate 2 in Business Administration at TAFE.
Following the accident on 11 November 2018 the claimant felt immediate pain in the left knee and neck. Medical Assessor Robertson reported the claimant experienced psychopathological disturbance following the accident.
Medical Assessor Robertson reported the claimant had been under the care of a psychiatrist Dr Wahaib who confirmed symptoms of post-traumatic stress disorder and major depression. He also noted both Dr Rikard-Bell and Dr Teoh diagnosed post-traumatic stress disorder although they varied in their opinion of whole person impairment.
Medical assessor Robertson reported Ms Boka experienced depressed mood, often exacerbated by flare-ups of back pain. He reported insomnia, nightmares of the accident and flashbacks triggered by travelling past the site of the accident leading to phobic avoidant behaviour. He reports symptoms fs hyperarousal including irritability, exaggerated startle reflex and emotional lability. She reported impaired concentration and short term memory and an inability to focus for long periods. He diagnosed chronic post-traumatic stress disorder. The depressive symptoms were considered subsumed under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM5) diagnosis criteria of post-traumatic stress disorder.
He reported the claimant had no history of significant vulnerability to mental illness and nor was there any evidence of psychopathological disturbance attributable to experiences in Iraq.
In respect of diagnosis Medical Assessor Robertson found that the claimant’s chronic pain contributed to the claimant’s whole person impairment (WPI). This was represented in his assessment of self-care and personal hygiene, social and recreational activities and adaption. He assessed a 19% WPI.
REVIEW PROCEDURE
The insurer has sought a review of the medical assessment of Medical Assessor Robertson.
The application was lodged on 9 March 2023 within 28 days of the date on which the certificate of Medical Assessor Robertson was made available to the parties.[4]
[4] Section 7.26(1)(b) of the MAI Act.
On 19 April 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]
[5] Section 7.26 of the MAI Act; Claimant’s bundle p 9.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC 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.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 16 April 2024 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE PANEL
Police report
Event Ref No E308005594 is a late report of the accident on 11 November 2018 and notes the insured vehicle collided with the driver’s side door of the vehicle in which the claimant was a passenger. Reportedly the drivers exchanged particulars without any involvement from police.[7]
[7] Insurer’s bundle p 13.
Photographs
The Panel noted the photographs of the car and the tree.
Statement of Ms Boka
In a statement dated 4 March 2022 Ms Boka stated:
“11 Then, in an attempt to merge into the left lane in front of us, the other vehicle forcefully collided into our vehicle, which caused us to hit into a pole and slam into a tree.
12. This all happened very fast and every time I remember this moment, I feel extremely saddened, it is the worse memory that I replay in my head every single day and night. I was panicking and screaming and so was my young son sitting in the back seat.
14. The situation escalated very quickly, and I was shaking. I was so nervous and fearful of my husband’s life and my young son, it was almost like watching a horror movie, knowing something very bad is going to happen. Suddenly, the driver at fault started driving towards my husband trying to intimidate him and run him over. At this appoint, I was screaming and panicking again.
17. During this time, I also noticed that I was becoming very easily agitated and constantly anxious. My sleep was disturbed, as I would sleep at around 2.00 am or 3.00 am, then wake up at either 4.00 am or 5.00 am. I started to have dreams of the accident, as well as constant flashbacks of the unexpected trauma we experienced on that day, which began to haunt me. I notices that I wanted to stay home all the time, I was sad and felt flat, to the extent that even my family members and friends noticed a change in my attitude and overall vibe.
22. I am still terrified when I am in a vehicle, especially when I approach roundabouts. I completely avoid the big roundabout in Polding Street. I cannot event attempt to driver around that area anymore. I feel that an accident is bound to happen and that we are going to get hurt again….
24. … it was my intention to secure full-time work as a medical secretary or receptionist and continue to do so to at least normal retirement age. …
25. Now I have lost all motivation in studying further. I cannot concentrate anymore, and I always distract myself with my own thoughts of the accident. I worry so much about the future, and I do not know what I will do. The injuries which I suffered from the accident make it difficult for me to begin my study or find work, because I am always tired and cannot think clearly. .. I have had problems with motivation, concentration and social withdrawal ever since the accident. I had to force myself, after the accident, to complete the Certificate III and medical administration course. Out of embarrassment, I tell others that I want to find work. I am in a deteriorating state of mind, and I no longer have the energy and motivation to study further or find employment.
26. … I was studying two different courses at the same time, while being responsible for most of the house chores and shopping, as well as taking care and play with my three young children…
27. Following the accident when I attempt to do these things, I felt immediate pain and I become stressed and agitated. I rely heavily on my daughter, Malak to assist me with all household duties that I used to take care of, such as washing, cleaning and laundry. My husband Ramy is now responsible for grocery shopping …. Ramy is also responsible for cooking, but most of the time orders takeaway food….
29. Before the accident, I had many friends and enjoyed many social outings with them. I have lost contact with many friends after the accident. … I do not speak to most of them anymore. I now spend most of my time at home and I rarely go out because I know it is not enjoyable and I know I will be in my own thoughts most of the time.
I used to want to look good, to put on make-up, to wear nice clothes and socialise. Not I just do not care for it or for how I look. I cannot be bothered. I do not have manicures and pedicures as often as I previously did, and I avoid wearing make-up. I have also lost around 16 kilograms, sometimes I just do not want to eat and cannot eat well.
30. I am aware that my personality has changed. I have great difficulty controlling my internal thoughts and frustration. I have lost touch with so many people in my life, from family to friends, and the relationship with my husband. At first, we were happy, he always wanted to take me out, go shopping and to dinner and to parties together. He has told me that I have changed so much as I don’t want to be out. Everything triggers me and I feel like I don’t belong in social settings. Our sexual intimacy is non-existent. … Our relationship is so strained …”.
Pre-accident treating medical evidence
HK Medical clinical notes
On 21 March 2017 Dr Haythem Amir, general practitioner (GP) reported “the patient having generalis weakness with anxiety”.[8]
[8] HK Medical clinical notes p 1
On 3 November 2017 Dr Amir recorded the following:
“Poor sleep. Low self-esteem. Depressed mood. Anxious. Stress at work. Relationship problem. Irritability. Irrational fears. Panic attacks. Delusions. Suicidal thoughts.”[9]
[9] HK Medical clinical notes p 5
On 7 August 2018 Dr Amir recorded:
“tension headache
Advice about life style management change and review/par follow up”.[10]
[10] HK Medical clinical notes p 8.
On 5 October 2018 Dr Amir reported, “pt is worry due to her daughter fall down”.[11]
Post-accident treating medical evidence
[11] HK Medical clinical notes p 9.
Fairfield Hospital
Ms Boka attended Fairfield Hospital with her husband. It was reported she was a front seat passenger and her car had been hit by another car behind and then hit a tree in front. Ms Boka was said to have a whiplash injury with pain and tenderness of the cervical spine. A CT scan of the cervical spine reported no acute cervical spine fracture.
Dr Haythem Amir, GP
On 29 May 2019 Dr Amir referred Ms Boka to Dr Wahaib for recurrent panic attacks and anxiety after the accident. He also noted evidence of depression due to chronic pain.
Dr Weal Wahaib, consultant psychiatrist
Following a consultation on 4 July 2019 Dr Wahaib provided a report. He diagnosed post-traumatic stress disorder and major depressive disorder. He noted good eye contact, normal affect, nil thought content disorder and intact judgment. He reported stopping Fluoxetine and starting Duloxetine 30mg. He also stated:
“Reporting recurrent flashbacks of her car accident [happened last Nov], with nightmares, feeling on the edge, lacking tolerance to any stress or noise, and feel flat in mood with bouts of anger or frustration.
She is having difficulty in driving her car [experiencing flash backs or fearful feeling of another accident] although she was not the driver at the car accident, but she felt that her life was in danger when another car hit her car side and moved her car to crash”.[12]
[12] Claimant’s bundle p 104.
On 5 September 2019 Dr Wahaib reported Ms Boka was still struggling with depression, feeling on the edge, experiencing flashbacks of the accident and lacking stress tolerance. Noting she was four weeks pregnant her medication was ceased, and psychotherapy recommended.
On 12 October 2019 Dr Wahaib reported Ms Boka’s mood was still flat, she had poor sleep, she was struggling with limited tolerance, feeling on the edge and depressed.[13]
[13] Claimant’s bundle p 116.
On 9 November 2019 and again on 14 December 2019 Dr Wahaib reported flashbacks, nightmares, low mood, limited energy and motivation.
On 16 May 2020 Dr Wahaib reported a normal birth 14 days earlier. The claimant was feeling anxious with low mood, on edge and had tried to have psychotherapy sessions. She still had recurrent flashbacks from the accident. He suggested starting antidepressant medication if a few weeks if the claimant’s condition worsened.
On 11 July 2020 Dr Wahaib reported Ms Boka’s mood was low, she had limited energy, poor sleep with flashbacks of the accident.[14]
[14] Claimant’s bundle p 136.
On 8 May 2021 Dr Wahaib reported poor sleep, bad dreams, nightmares, flashbacks of the accident, driving very cautiously. He started Mirtazapine and recommended referral to a psychologist.
On 31 July 2021 he noted the claimant’s mood was still low, her sleep was poor with bad dreams. He noted she had not continued the medication.
On 20 November 2021 Dr Wahaib noted post-traumatic stress disorder. He reported the claimant’s mood was still low and she was continuing to suffer from symptoms including feeling on edge, flashbacks, nightmares with sleep problems though with no thoughts of self-harm, no psychotic symptoms, and no substance abuse. He prescribed Mirtazapine 3mg.[15]
[15] AALD 21 May 2024 p 1.
On 14 May 2022 Dr Wahaib reported “mood stable, but still depressed, struggling with nightmares, feeling on the edge, lacking stress tolerance which is impairing her function and performance”. He diagnosed post-traumatic stress disorder and major depressive disorder and described her condition as “more chronic and resistant with limited progress”.[16]
[16] AALD 21 May 2024 p 5.
On 25 June 2022 Dr Wahaib reported continued symptoms and noted the ongoing stress with the insurer was feeding her anxiety and worsening her depression resulting in impaired function. Dr Wahaib discussed with the claimant crises plans. She was on Mirtazapine 15mg at night and Venlafaxine 75mg daily. [17]
[17] AALD 21 May 2024 p 7.
On 6 August 2022 Dr Wahaib again reported the same symptoms and recommended the claimant increase Venlafaxine to 150mg, Mirtazapine 15mg and continue with psychologist. On 5 November 2022 Dr Wahaib reported the same symptoms and added Temazepam 5mg as needed.
Dr Wahaib reviewed the claimant on 8 February 2023. He reported “Mood still depressed, with limited interest, motivation and energy, feel on the edge, limited stress tolerance, with poor sleep with bad dreams”. He suggested a referral to a psychological for post-traumatic stress disorder and major depressive disorder. He increased the Mirtazapine to 30mg at night but she remained on Venlafaxine 150mg daily with Temazepam 10mg at night.
At review on 3 May 2023 the claimant’s symptoms were unchanged. Dr Wahaib prescribed Mirtazapine 45mg, Venlafaxine 150mg and Temazepam 5mg on need.[18]
[18] AALD 21 May 2024 p 13-15.
Kim Shortridge, psychologist, Benchmark Rehabilitation
Ms Shortridge provided a vocational assessment report dated 17 June 2020.[19] Ms Boka had given birth to a baby on 2 May 2020 and had no plans to return to the labour market in the near future. Ms Shortridge reported Ms Boka advised her current states as follows:
[19] Claimant’s bundle p 80.
(a) pain in the low back, left knee and neck;
(b) flashbacks of the accident;
(c) nightmares of the accident and accidents generally;
(d) poor sleep, secondary to pain and nightmares;
(e) low mood;
(f) loss of interest in and energy for previously enjoyable activities, such as spending time with her children;
(g) anxiety regarding the future;
(h) impaired concentration, unable to focus as well as pre-accident, and
(i) impaired memory, forgetting where she places items.
Leudmila Ugov, occupational therapist, Benchmark Rehabilation
Ms Leudmila Ugov, occupational therapist undertook an activities of daily living assessment. In her report dated 1 July 2020 she stated Ms Boka had the physical and psychological capacity to complete most of her pre-accident daily living tasks.[20] She also observed she demonstrated the ability to concentrate, sequence and recall necessary to perform tasks.
Medico-legal evidence
[20] Insurer’s bundle p 57.
Dr Rikard-Bell, consultant psychiatrist
The claimant was jointly assessed by Dr Rikard-Bell on 15 June 2021.[21] He diagnosed post-traumatic stress disorder in partial remission and assessed 6% WPI including 1% for the effects of treatment.
[21] Insurer’s bundle p 42.
In respect of self-care and personal hygiene Dr Rikard-Bell reported Ms Boka has pain which restricts her ability to do activities around the house and she cares for her children with assistance from her husband because of physical constraints. He assessed a class 2 - mild impairment.
In relation to social and recreational activities Dr Rikard-Bell reported Ms Boka does not go out a great deal but she has three close friends who she sees, friends will visit, and she will occasionally go out to see friends. He assessed a class 2 – mild impairment.
In relation to travel Ms Boka can drive short distances but feels unsafe when driving. He assessed a class 2 – mild impairment.
In relation to adaption Dr Rikard-Bell noted since the accident Ms Boka had not been able to work but had completed the Certificate III in Business Administration. He noted her restrictions are due to being unable to sit for long periods. He concluded there was no impairment of adaption because she was not working prior to the accident.
In relation to concentration, persistence and pace Dr Rikard-Bell reported Ms Boka said she was forgetful and not able to focus well. She required extra help when completing her studies. He assessed a class 2 – mild impairment.
In relation to social functioning Dr Rikard-Bell reported the claimant’s relationship with her husband was good and there was no impairment of social functioning.
Dr Ben Teoh, consultant psychiatrist
Dr Teoh assessed the claimant on 15 November 2021 and provided a report dated 9 December 2021.[22]
[22] Claimant’s bundle p 61.
Dr Teoh reported the claimant had intrusive memories of the accident, insomnia and nightmares. She was also hypervigilant and concerned about further accidents. He reported poor concentration, irritability, social withdrawal and lack of motivation.
Dr Teoh recorded a report of significant anxiety symptoms, avoidant behaviour, hyperarousal, hypervigilance and agitation. He considered the claimant’s condition had become chronic.
Dr Teoh opined the claimant is fit for suitable duties with reduced hours, in an environment that does not involve face to face public interactions or an unsafe environment.
He diagnosed chronic post-traumatic stress disorder and assessed 15% WPI.[23]
Medical Assessment Certificates
[23] Claimant’s bundle p 67
Medical Assessor Martin Allan, 28 October 2019
Medical Assessor Allan was asked to determine a threshold (minor) injury dispute between the parties.
He reported the claimant’s mental health was fine prior to the accident. Although she indicated increasing concern about the political situation in Iraq which led to her move there over five years earlier she reported she was coping well with the police stress and increasing violence in her homeland recalling “it was how we grew up”.
Medical Assessor Martin found the accident was traumatic in nature and led to the development of an adjustment disorder. He noted her symptoms including low mood, anxiety, possible feelings of panic and a pervasive sense of stress. He did not consider the vivid intrusive recall of the accident were consistent with flashbacks.
Medical Assessor Martin noted some vulnerability given her past experiences living in Iraq but concluded there was no evidence of a pre-existing psychological condition.
Medical Assessor Martin certified she has sustained an adjustment disorder caused by the accident, a threshold (minor) injury as defined by the MAI Act.
Medical Assessor Melissa Barrett, 5 October 2020
In a certificate dated 5 October 2020 Medical Assessor Barrett certified post-traumatic stress disorder caused by the accident was not a minor (threshold) injury for the purposes of the Act. [24]
[24] Claimant’s bundle p 25
Ms Boka grew up in Iraq and whilst she was aware of the war in 2007 she did not witness any fighting. As a Christian she and her family were subjected to religion persecution and her husband was threatened by militia in 2007. Her family fled to Turkey where they lived for two and half years before receiving refugee visas to travel to Australia which they did in 2016. Ms Boka acknowledged that she had difficulties initially adjusting to life in Australia stating, ‘everything new’ and for a few months she felt a bit ‘dizzy’ and ‘unwell’.
She reported Ms Boka lived with her husband and three children aged 10, seven and four and a half months. After arriving in Australia, she completed an English course and a Certificate 2 at TAFE in Business Administration.
Medical Assessor Barrett reported Ms Boka said the accident was a big shock, not just the collision but hitting the tree. She described fear, being “always tens” and easily irritated. She is “very moody”, “very nervous, frustrated”, her sleep is disturbed, and she has nightmares. The accident is on her mind all the time. She finds it difficult to tolerate noise, has reduced energy and impaired concentration and finds it difficult to focus. She had persistent fears of another accident. Initially she avoided driving for two months and continued to avoid driving for more than a few minutes on her own. She was consulting a psychiatrist monthly.
Medical Assessor Barrett noted some brief self-limiting symptoms of depression and anxiety suggesting the claimant had an increased vulnerability to mood and anxiety symptoms. She also noted the accumulation of traumatic events to which Ms Boka was exposed before moving to Australia would have increased her risk of developing a psychiatric condition if she was exposed to a further traumatic event. She considered the accident fulfilled Criteria A for post-traumatic stress disorder.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 8 March 2023 in support of the application for review.[25]
[25] Insurer’s bundle p 1.
Psychiatric not physical diagnosis
The insurer submits that impairment due to physical injury is assessed using different criteria as outlined in other parts of the Guidelines.
Medical Assessor Robertson reported the claimant acknowledged that her impairment of self-care related in part to the effects of pain and in part to diminished motivation and anxiety. The insurer submits “the effects of pain” is a reference to physical pain and in failing to apportion between the physical and psychological symptoms Medical Assessor Robertson conflated the two.
The insurer notes that in relation to social and recreational activities Medical Assessor Robertson reported the claimant “avoid[s] activities where she fears she may further injure herself”. Again, it is submitted this is a reference to a physical symptom. However, the insurer otherwise concedes the assessor has given appropriate reasoning for his assessment of class 3 in that category.
In relation to adaption Medical Assessor Robertson stated:
“…[the claimant] reports that she is productive one of [sic] two hours per day around the house. She is constrained by physical symptoms. She does cooking, but often fatigues and defaults to feeding her family takeaway food or pre-prepared meals or other household consistent with her physical symptoms”.
The insurer submits Medical Assessor Robertson found no psychological impairment for adaption and submits it warrants a class 1.
Inconsistencies
The insurer submits Medical Assessor Robertson failed to consider inconsistencies between the medical records and his examination in accordance with paragraph 6.41 of the Guidelines.
The insurer submits Medical Assessor Robertson failed to put to the claimant the inconsistency between her telling him that she had not experienced any symptoms of note before the accident and the history reported by Medical Assessor Barrett that the claimant “acknowledged that she had difficulties initially adjusting to life in Australia stating, ‘everything new’ and for a few months she felt a bit ‘dizzy’ and ‘unwell’”.
The insurer notes Medical Assessor Barrett reported the claimant was able to concentrate well for the duration of the assessment of one and a half hours and in the report from Benchmark Rehab it was noted the claimant had the capacity to attend and concentrate during the assessment of two hours without difficulty. The insurer submits this is inconsistent with the history reported by Medical Assessor Robertson that she was forgetful and inattentive and had difficulty maintaining focus.
The insurer submits there is also an inconsistency in relation to the claimant’s social life. Medical Assessor Robertson reported the claimant told him she does not go out and there was a reluctance to socialise due to phobic avoidant behaviour and diminished motivation. However, Medical Assessor Barrett in October 2020 reported the claimant had a friend who visits her home about once a week, and she also visits her friend’s home. Dr Rikard-Bell reported she has three close friends who she sees but her pain restricts her from going on outings. Friends will come visit her and she will occasionally go out to see her friends. The insurer submits if this inconsistency was put to the claimant it would have been apparent that part of the diminished capacity to socialise was physical.
The insurer submits there is objective evidence of pre-accident psychological symptoms. The claimant consulted her GP as follows:
(a) 21 March 2017: “the patient having generalis [sic] weakness and anxiety”;
(b) 3 November 2017: “poor sleep, low self-esteem, depressed mood, anxious, stress at work. Relationships problem. Irritability, irrational fears, panic attacks, delusions. Suicidal thoughts.”;
(c) 7 August 2018: “advice about life style management change and review/par follow up”, and
(d) 5 October 2018: “pt is worry due to her daughter fall down”.
The insurer submits a Medical Assessor must use the entire gamut of clinical skill and judgement in undertaking an assessment. Medical Assessor Robertson stated: “there was no record of exposure to traumatic experiences despite the challenging geopolitical circumstances in Iraq during childhood” and “the family were Christian and faced threat from Shia insurgency and she and her husband fled Turkey, where they remained for two and a half years prior to being accepted as refugees in Australia”. The insurer submits it would be reasonable for the claimant to have at least a nominal fear for the safety of herself and family members. It is submitted the Medical Assessor Robertson failed to give appropriate regard to this information when assessing the claimant’s pre-accident mental state and impairment.
The insurer also notes the police report indicates the accident was a “minor traffic crash” and the claimant reported “late injury only”. At no time is the accident described as “high speed” or a “major crash”. The insurer submits the threat to the claimant and her family whilst in Iraq that warranted refugee status would have had a more significant adverse impact on the claimant’s mental health than a minor car accident.
The insurer also submits the Medical Assessor erred when he failed to note the claimant was not working before the accident.
Taking these matters into account the insurer submits the permanent impairment would have been assessed below the threshold.
The insurer filed further submissions dated 25 March 2024 which are in similar terms to the submissions dated 8 March 2023.
Claimant’s submissions
The claimant provided submissions in response to the application for review dated 28 March 2024.[26]
[26] Claimant’s bundle p 1.
The claimant submits Medical Assessor Robertson considered the history of chronic pain as a potential contributor to impairments for the purposes of the Permanent Impairment Rating Scale (PIRS) noting he stated at page 7 of the certificate as follows:
“The applicant’s chronic pain appears to make a substantive partial contribution to the applicant’s observed levels of WPI, reflected in the variation in categories of impairment, parsing the contribution of chronic pain as against the sequalae of the psychological injury attributable to the subject motor vehicle accident.”
The claimant submits appropriate adjustments were made when determining where the claimant fits within the various categories. Further the claimant submits that there is no prohibition on the assessor determining impairment with respect to the PIRS categories were there is, or may be, some contribution to the functional impairment referred to by him within his assessment by reason of chronic pain. Further, it is submitted there is no prohibition on assessment of impairment where psychiatric impairment arises as a consequence of chronic pain, which was caused by the accident.
The claimant relies upon the decision of Fagan J in QBE v Shah where the court found clause 1.41 of the Guidelines only required inconsistencies to be brought to the injured person’s attention if they are material from a clinical point of view.[27] The claimant notes the asserted inconsistencies are within the certificate of Medical Assessor Barrett and Dr Rikard-Bell, they were referred to by Medical Assessor Robertson and he adequately engaged with them.
[27] QBE v Shah [2021] NSWSC 288.
The claimant also notes that neither Medical Assessor Barrett nor Dr Rikard-Bell formed the view the claimant had any pre-existing condition. Consistent with what Fagan J said in Shah none of the apparent “inconsistencies” relied upon by the insurer were “material from a clinical point of view”.
The claimant submits it could not be seriously contended that the assessor did not use the entire gamut of his clinical skill and judgment in assessing impairment.
The claimant provided submissions dated 18 May 2022 in support of the initial dispute outlining the evidence supporting a diagnosis of post-traumatic stress disorder and a WPI greater than 10%.
The claimant provided submissions dated 15 June 2022 in response to the insurer’s submissions dated 9 June 2022.
In relation to self-care the claimant notes Dr Amir reported on 7 May 2019 “looks tired” and in his certificate Medical Assessor Allan reported “she takes care of her children adequately, but she states not like before as she feels less motivated, less able and less attentive to their needs”.
The claimant notes the following in relation to avoidant behaviour to travel:
(a) report to Dr Amir on 15 June 2019;
(b) report to Dr Wahaib on 4 July 2019 and 8 May 2021;
(c) report to Medical Assessor Barrett on 5 October 2020, and
(d) paragraphs 17 and 22 of her statement dated 4 March 2022.
In relation to concentration, persistence and pace the claimant notes the following:
(a) report to Dr Wahaib in the initial consultation;
(b) report to Medical Assessor Barrett on 5 October 2020, and
(c) paragraphs 24, 25 and 26 of her statement dated 4 March 2022.
MEDICAL EXAMINATION
Ms Boka was assessed by Medical Assessor Canaris and Medical Assessor Hong by videoconference through MS Teams on 25 June 2024. An Arabic interpreter Rose Haddad assisted the claimant.
Background
The panel was mindful of the insurer’s submissions seeking a review of Medical Assessor Robertson’s certificate dated 16 February 2023. In essence, the insurer submitted that in a number of categories, the Medical Assessor did not differentiate between limitations related to physical symptoms including pain from limitations due to psychological impairment. It further submitted that the assessor did not consider evidence of pre-existing impairment.
The Panel noted the claimant’s submissions in relation to the review.
Pre-accident history
Ms Boka is now 36 years of age and is married.
Ms Boka was asked about her functioning before the accident. She said that when she arrived in Australia [in 2016], her mother had died in Iraq, and she was “very tired” saying she had had the responsibility of caring for her mother as the oldest daughter. She was new to the country and “everything was strange for me, and I lost my mum – I was under pressure… but then I was good… I studied…”. She did not have any treatment reiterating, “I was just under pressure, and I’d lost my mum, but this went after a while”. She denied any other history of psychiatric illness.
Ms Boka was asked how the situation in Iraq had affected her before coming to Australia. She said, “Of course everything in Iraq was upside down and this affected everyone – especially the Christian people and that was why we came to Australia”. Her husband was exposed to death threats as a Christian though not to actual violence.
At the time, she was a hairdresser as was her mother. She recalls people coming to the salon delivering threats if they did not leave.
She came to Australia via Türkiye where she had been for two and a half years.
Her attention was drawn to entries in her medical file indicating significant psychological symptoms in 2017 including anxiety, depression, suicidal thoughts, and family problems. Ms Boka was adamant she had “nothing like that”. She said in relation to this, “When I came to Australia, I had an allergy on my foot – plus my mother had died… my doctor did give me some medication”. She added, “I’m going to ask [my doctor] how he could write stuff like that”. Her attention was drawn to the fact that she had been prescribed Lovan (fluoxetine – an antidepressant). She said then, “He probably gave me this medicine, but I never took it”. She was invited later to comment further on this issue. Ms Boka reiterated that she had been under a lot of pressure at the time, and she acknowledged at the end of 2017 she had been tired and anxious but that she had never taken the medication prescribed. She said, “it was nothing compared to how I am now – I didn’t have dreams – I didn’t have my fear of driving – I didn’t have the pain…”.
She had been medically well before all this. She does not drink alcohol, smoke, use drugs, or gamble.
She has no history of problems with the law. She had no other claims history.
Ms Boka knew of no family history of psychiatric illness.
Ms Boka has two brothers – one older and one younger. Both are in Australia. Her father is still alive. He was in the army in Iraq. He does not work in Australia. She has two children and after the accident had a third child hoping this would help her.
She is an Orthodox Christian although her husband is a Chaldean Christian. She described a happy childhood. However, “when I grew up and married, we were under threat and that why we had to flee, and I was thinking of giving my children a better future”.
She lived in a rural area but attended a college in Mosul. She was studying for a commerce diploma in Iraq.
Ms Boka studied for six months to acquire English and then embarked on her other diplomas. She had not worked before the accident but had been studying.
Ms Boka married in 2009. Her husband is carer for one of their relatives. In Iraq, he worked as a labourer – he had a degree in music but could not find work.
The accident
On 11 November 2018, Ms Boka was a front seat passenger in a car driven by her husband. She indicated she did not like talking about the accident saying, “it hurt me a lot… my life changed 180 degrees – before the accident I was a completely different person”.
The Panel asked her to describe the accident and its impact. Ms Boka began to speak volubly and intensely at considerable length. At the time, she and her husband and son were going out. Her son was sitting in the back when suddenly she heard a car hitting them and the car was turning “and finally the car collided with a tree… I was screaming”. She was fearful for the safety of her family though thankfully there are now in good shape “although my son always remembers the accident… it was so close to the house… he says this was where we had the accident”.
Ms Boka said she did not feel pain straight away saying the impact had her “bouncing” and she has injured two discs. She cannot sit or stand for long periods and relies on her husband and children to help with housework saying she is “a clean freak”.
She said her neck was also affected, and she has not been able to cook the way she did before. Her mother-in-law cooks or else they rely on takeaway – if she cooks, she cooks “only small things”.
She takes pain killers including Voltaren (diclofenac) as well as applying local heat.
Psychologically, Ms Boka said she is:
“…not good at all – I’m always tired – I don’t like to go out – I was a makeup artist in Iraq and my dream was to study in Australia and be a makeup artist again – I don’t put on makeup – I didn’t wear nice clothes – I didn't like talking to people – I don’t like to sit in the light – I didn't like to hear voices”.
Ms Boka has been anxious and depressed. She has panic attacks. She is very irritable. She said she found it hard to explain how she was other than that she was “not like before – my children are always asking me, why are you angry, why are you screaming…”.
She said, “I cannot sleep – I always see the accident in my dreams – because the accident happened close to my home, so I always see the tree…”.
Ms Boka was able to finish her certificate III in business administration in 2019 as she was nearly finished. She also completed a six-week course in medical administration which was part of the course.
Ms Boka sees a psychiatrist and has had a number of changes of medication. Some 20 days ago, she had her medication changed and is now on amitriptyline 25mg at night to help her sleep. She could not recall what had been prescribed before that time.
She lay down about 45 minutes into the interview saying she could not remain seated longer.
Current functioning
Ms Boka said, “There are many things I can’t do – I was studying business administration, and I was in stage 3 – I had to stop – I tried to do a beauty diploma – I could not do it… I had to stop it”. She explained she could not sit for long hours because of the problems in her back and neck. Additionally, she found it difficult to sit with people finding she could not concentrate. She nominated her back as her biggest problem saying she could walk previously for an hour whereas now she could not walk 100 metres because the pain in her back was so bad. She could not sit for more than half an hour at a time.
Ms Boka was asked how she spent her time at home. On a school day, she gets her children to dress themselves. She drives them to school, a three-minute drive. She does “little things” but otherwise has her husband do the shopping. She lies down or sits. She added she was getting “black bruises – blue bruises – my GP said it’s because I’m not comfortable”.
In relation to concentration, she said she found it hard to concentrate on what she was talking about. She has become forgetful. She does not read. When asked how long she could sit with a book, she responded, “I feel choking… I cannot – maximum I can sit with a book is five minutes…”. She lies down to watch TV but again can’t manage more than 15 minutes. She said again, “That’s the thing I can’t describe… something choking me… I can’t breathe… and the thing is, this feeling is increasing day after day…”.
Ms Boka drives her children to school which is her limit. She cannot drive any longer and if her husband drives she reclines her seat. She blames this mostly on the pain in her lower back because she cannot sit for long hours. Ms Boka admits to being an anxious driver. When a passenger, she is always on the lookout for danger screaming at her husband.
Ms Boka said she went out “very rarely” socially saying it was “because I can’t sit for long hours” and in the last three months has not been out (“no christening – no weddings”) apart from Christmas with the family “but that was a very long time ago”. She does not like to change her clothes to go out and see people saying, “This happened after the accident”.
The Panel asked how she was getting on with her family. She responded, “Thank God, it’s good” and she denied quarrels or arguments. Her husband puts up with her being anxious or angry – he is very understanding. Ms Boka has one close friend and has friends she has met through her children’s school. Her friend usually visits as she knows she cannot go out and she calls around every 10 or 15 days although sometimes they talk on camera.
Ms Boka does “not always” attend to showering or changing her clothes saying it depends on her pain levels “and I’m in a lot of pain, my husband helps me”. Her appetite depends on her pain levels, and she has lost 14kg. She has been told that losing weight was good for back pain saying, “that’s why I need to rest and to lose weight”.
She had been hoping to get into the workforce at the time of the accident. She says now that she is “so sick – so tired – I just cannot do it”. She sees the biggest obstacles as “both physical and mental”. She sees her pain in her back, neck, and leg as an insuperable obstacle particularly as she would not tolerate being at a job for several hours. From the psychological perspective, she is “always tired – I can’t talk to people – I can’t sit down with people… my friend sees me and asks me how long I am going to be like that”. She believes she has some prospect of getting back into the workforce. She is “always angry with myself” particularly when she sees others working and living life saying, “I want to work – I want to learn…”.
DIAGNOSIS
The panel considered Ms Boka’s diagnosis to be one of post-traumatic stress disorder. In terms of DSM-5-T the Panel noted she had experienced an event that carried a threat of serious injury (Criterion A), that she reported intrusion symptoms including recurrent, involuntary and intrusive and distressing memories of the accident as well as nightmares of the event (Criterion B) and that she had persisting avoidance of stimuli associated with the event manifest in her anxiety and avoidance of driving (Criterion C). There was evidence of negative alterations and cognitions and mood characterised by depressed mood, social withdrawal, and diminished interest and participation in significant activities (Criterion D). She reported marked alterations and arousal and reactivity manifest in problems with concentration and sleep disturbance (Criterion E). Her symptoms had been present since 2018 (Criterion F), caused her clinically significant distress and impairment in psychosocial functioning (Criterion G), and were not attributable to the physiological effects of a substance or to another medical condition (Criterion H).
The Panel considered she had a pre-accident psychiatric history, with symptoms consistent with an adjustment disorder. The Panel noted some inconsistencies between her recollection and her medical records. There were difficulties assessing her pre-accident psychological functioning, but overall, the Panel did not find significant impairment and the pre-accident PIRS would have been 0% WPI.
CAUSATION
Her post-traumatic stress disorder is a direct consequence of the accident. Notwithstanding any prior symptoms, or trauma exposure, the claimant’s present draft of symptoms is very much specific to that event.
The Panel considered the accident was a traumatic event which could have caused the diagnosed post-traumatic stress disorder and that notwithstanding any trauma to which Ms Boka was exposed in Iraq the Panel finds the accident was a major cause of her current psychological injury.
WHOLE PERSON IMPAIRMENT
The insurer submitted in a number of categories, the Medical Assessor did not differentiate between limitations related to physical symptoms and pain from limitations due to psychological impairment.
In Scott v Ivy Contractors Pty Ltd,[28] Schmidt AJ considered whether it was appropriate for a medical assessor or medical panel to make specific allowance for the contribution of chronic pain when undertaking an assessment of permanent impairment in accordance with the PIRS which is utilised to establish an entitlement to compensation for permanent impairment in accordance with the Workers Compensation Act, 2017 and Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act, 1988.
[28] Scott v Ivy Contractors Pty Ltd [2023] NSWSC 891.
Under the statutory scheme governing the entitlement to workers compensation benefits the PIRS uses class descriptors, ranging from 1 to 5, in accordance with severity to assess factors relating to activities of daily living and employability. This PIRS is in near identical terms to the psychiatric impairment rating scale set out in the Motor Accident Guidelines.
In considering assessment under the PIRS Schmidt AJ stated at [45]:
“Those ratings are concerned with identifying the severity of the adverse consequences of an injury which has been suffered. In the case of psychological injury, conclusions about those consequences and the resulting impairment suffered must all be reached without consideration of any contribution which it is considered pain may or may not have made.”
The Panel considers the approach favoured by Schmidt AJ is also the approach to be followed by the Panel when assessing permanent impairment under the MAI Act.
Current permanent impairment
Self-care and personal hygiene
Ms Boka did “not always” attend to showering. She has lost weight and has been told that losing weight was good for back pain saying, “that’s why I need to rest and to lose weight”. From a psychological perspective, there were minor deficits. There is reduced attention to her appearance, she no longer wears nice clothes, and she no longer wears cosmetics.
The Panel assesses class 1.
Social and recreation activities
She said she went out “very rarely” socially saying it was “because I can’t sit for long hours” and in the last three months has not been out (“no christening – no weddings”) apart from Christmas with the family “but that was a very long time ago”. She does not like to change her clothes to go out and is concerned people will see her and comment “This happened after the accident”.
The Panel assesses class 3.
Travel
She drives her children to school which is her limit. She cannot drive any longer and if her husband drives she reclines her seat. She is an anxious driver and when she is a passenger, she is always on the lookout for danger screaming at her husband. The Panel assesses a mild impairment where Ms Boka is able to travel without a support person but only in a familiar area.
The Panel assesses class 2.
Social functioning
Ms Boka denied quarrels or arguments with her family. Her husband is tolerant and understanding when she is anxious or angry. She is irritable and screams at her children. She has one close friend who will visit her at home every 10 to 15 days or talk to her on camera because she knows the claimant cannot go out. She also has friends she has met through her children’s school. However, she rarely attends social functions including family functions.
The Panel assesses class 2.
Concentration, persistence, and pace
Ms Boka reported she found it hard to concentrate on what she was talking about. She has become forgetful. She does not read for longer than five minutes and she cannot watch TV for more than 15 minutes. Ms Boka described a feeling of something choking her or of being unable to breathe when she tries to read or watch TV.
The Panel assesses class 3.
Adaptation
From a psychological perspective, Ms Boka has mildly reduced adaptation. She engages in limited pre-accident life roles, she helps at home, and does school pick-up. The Panel assesses a mild impairment and considers Ms Boka has the capacity to fulfil her pre-accident life role but not for more than 20 hours per week.
The Panel assesses class 2.
Scores
The scores are 1, 2, 2, 2, 3, 3.
The median score is 2.
The aggregate score is 13.
The WPI is 7%.
Pre-existing Impairment
The Panel considered the question of pre-existing impairment noting evidence of prior trauma exposure and pre-existing symptoms. While the claimant may have minimised her pre-existing symptoms and/or impairment, the Panel assessed the impairment arising out of any pre-existing condition in accordance with clause 6.218 of the Guidelines as follows:
Category
Class
Reason for Decision
Self-care & Personal Hygiene
1
Ms Boka had suicidal ideation in 2017 and never acted on it. She attended to her self-care and personal hygiene.
Social & Recreational Activities
1
No impairment before the subject accident.
Her recreational activities revolved around her family.
Travel
1
No impairment before the subject accident. She was not scared to drive.
Concentration, Persistence & Pace
1
No impairment before the subject accident and she was able to study.
Adaptation
1
No impairment before the subject accident.
She attended to household chores and family roles.
List classes in ascending order:
1
1
1
1
1
1
Median Class Value: Aggregate Score:
1
6
Whole Person Impairment:
0
After deducting the pre-existing impairment of 0% from the current impairment the Panel finds the accident gives rise to a WPI of 7%.
Treatment effects
There was no evidence that treatment had had an appreciable effect on WPI and so the Panel did not make a deduction.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Michael Robertson dated 16 February 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which is 7%:
· post-traumatic stress disorder.
0
2
0