QBE Insurance (Australia) Limited v Ejaz
[2023] NSWPICMP 431
•30 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Ejaz [2023] NSWPICMP 431 |
| CLAIMANT: | Sabir Ejaz |
| INSURER: | QBE (Insurance) Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Michael Li Ying Hong |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 30 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; rear end collision; psychiatric injury; new assessment of all matters; pre-existing medical and psychiatric issues; clinical examination shows no psychomotor slowing or abnormal movement; complex medical history; DSM5 diagnostic criteria; adjustment disorder is a threshold injury; clause 2; division 7.5; Rules 127-130 of the Personal Injury Commission Rules 2021; Held – certificate of Medical Assessor Enrico Parmegiani revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Enrico Parmegiani dated 2 February 2022 and issues a new certificate determining that the following injuries were caused by the motor accident: · Adjustment Disorder is a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Sabir Ejaz (the Claimant) was injured in a motor vehicle accident on 10 July 2018 when the insured vehicle collided with the rear of his vehicle causing him injury. The claimant was
56-years-old at the time of the accident and is now aged 61. The present dispute between the parties is whether the psychiatric injury sustained by the claimant is a threshold injury.
ASSESSMENT SUBJECT TO REVIEW
Medical Assessor Enrico Parmegiani provided a certificate dated 2 February 2022. The Medical Assessor found the claimant had sustained post-traumatic stress disorder which is not classified as a minor injury (now referred to as a threshold injury).
The President’s delegate referred the medical assessment to the Review Panel as they were satisfied there was a reasonable cause to suspect that the medical assessment was incorrect in the material way having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
As to the threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the Motor Accident Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The applicant insurer has sought a review of a certificate of Medical Assessor Parmegiani and submits that the medical material does not support a finding that the claimant sustained a threshold injury.
SUMMARY OF DOCUMENTATION CONSIDERED
All Review Panels confirmed that they had received and considered the following documentation:
· certificate issued by Medical Assessor Enrico Parmegiani dated 2 February 2022;
· Application for Review and attached documentation;
· Reply and attached documentation;
· Insurer’s review application Submissions and Schedule of documents;
· Response to the insurer’s application for review lodged by the claimant;
· the late documents provided by the insurer including further submissions and annexures, certificate of capacity and certificate of Medical Assessor Alan Holme dated 19 December 2022, and
· late documents lodged by the claimant including the claimant’s statement dated 18 July 2021.
ISSUES
The insurer’s application for the review of Medical Assessor Parmegiani’s certificate is based on a submission that it is incorrect in the material respect in that it fails to engage with substantive arguments/evidence provided, fails to identify inconsistencies, fails to put these to the claimant and fails to provide adequate reasons.
The claimant’s reply is based primarily on a submission that the assessor was entitled to accept the claimant’s complaints of psychological injury and used his clinical skill and experience in making a psychological diagnosis.
Following the President’s delegate determination that there was a reasonable cause to suspect the medical assessment was incorrect in the material respect a panel determined that a further assessment was required and considered all the medical material and submissions lodged in this matter.
RE-EXAMINATION
A re-examination was scheduled for the 23 June 2023, but this was abandoned due to the claimant’s technical difficulties in participating in a video assessment. The re-examination was re-scheduled and took place on 7 August 2023 by MS Teams. The examination report is as follows:
Mr Ejaz has a complicated medical history. He was born in Pakistan and came to Australia in 1989. He was the sixth of seven siblings. There was no developmental trauma identified.
He had difficulty remembering his past psychiatric history, which is not surprising given the number of accidents in which he has been involved. He thought that before the subject accident on 10 July 2018 he was “okay” and has no recollection as to whether or not he had taken any psychiatric medication prior to this accident.
The Panel discussed at length his medical records. He confirmed he had consulted a psychiatrist, Dr Ashrat Ali, in 2002, but does not recollection why.
He was involved in a car accident in 2005 and states he did not suffer any physical or psychiatric injury.
The Panel discussed the notes relating to work stress in 2011. He advised he has no recollection of it.
In 2012 he submitted a compensation claim but does not recall telling his general practitioner (GP) not to write anything about the car accident in 2012. He said he suffered a left shoulder injury but does not recall receiving any psychological or psychiatric treatment. The Panel discussed that he saw Dr Ali in the same year but that there was no specific treatment required.
His GP notes of 2017 were discussed noting that he was sleeping more and feeling tired but he has no recollection of this.
On 7 May 2017 Mr Ejaz had an accident when the vehicle he was driving collided with the rear of his wife’s car. He said he developed neck and left arm pain but does not recall any psychiatric problems.
Other relevant medical history includes a diagnosis of diabetes, high cholesterol and cardiac stent inserted in 2007 and 2015.
He does not have drug or alcohol problems.
THE ACCIDENT
Mr Ejaz gave a history of the accident of 10 July 2018 noting that the vehicle he was driving home from work was rear ended and pushed into the car in front. He was picked up by his wife and taken to a medical centre and reported neck, shoulder and low back problems.
He reported that he was in shock and could not move for about a minute. Since then he feels nervous when driving but has since returned to driving. He also advised that he does not feel comfortable when there are crowds or heavy traffic.
Mr Ejaz was asked about the accident of 23 December 2020 and he advised he has no recollection of this accident.
On 23 July 2021 he recalled that he was returning home from work and a car changing lanes collided with him from the right. Following this he said that he had more anxiety and is more careful in traffic and said that he already had driving anxiety and this accident added to it.
He was asked specifically about his mental health prior to the accident of 2021 and he reported that he had driving anxiety and the imagery of the 2018 accident would sometimes cause him to wake up with a suffocating feeling.
He reported he avoids going into lifts following an incident some years ago when he was stuck in a lift and the door would not open. He was specifically asked if this anxiety is related to the car accident and he advised that he does not know.
CURRENT SYMPTOMS
The claimant reported his anxiety as the main problem.
He described feeling flat at times, he said his concentration has become a problem and he is forgetful. He denied any suicidal thoughts.
He noted that he has gained weight because he is being less active due to pain.
He reported sleeping four to six hours only and often has worrying thoughts and sometimes gets angry but he does not act out.
CURRENT PROPOSED TREATMENT
Mr Ejaz took Cymbalta in 2021 and does not remember taking any other psychotropics. He consulted a psychologist in Liverpool in 2019. He had never had a psychiatric admission.
He said he does not mind more treatment but does not want to take psychiatric medication.
CLINICAL EXAMINATION
The Panel asked Mr Ejaz for additional information he thought may be relevant. He discussed he has been managing alright by himself and that if things get bad in the future he will seek more treatment. There was no psychomotor slowing or abnormal movements. He engaged well with the assessment process.
CURRENT FUNCTIONING
Mr Ejaz is aged 61 and lives with his wife who works in childcare and two daughters and a son. The children are all adults. At the time of the accident he worked for Wilson Security and they had a contract at a depot in Port Botany. He worked at the gatehouse. After the accident, he was off work for about three weeks and then taken some time off intermittently since then. The contract was stopped about a year after the accident.
He continued working for Wilson Security at Coles warehouse in Campbelltown as a full-time security guard. He has not worked in full-time employment since 2021.
He is currently working as a casual security officer and works more than 30 hours per week.
There was no inconsistency identified. He had difficulties recalling his full psychiatric history as he agrees he has a complex history.
REVIEW OF DOCUMENTATION
The certificate of Medical Assessor Home of 13 December 2022 assessed 4% whole person impairment (WPI) for the claimant’s physical injuries.
The report of Dr Andrew Mcintosh, biomechanical engineer, dated 5 September 2022 concluded that it was plausible that the incident resulted in an exacerbation of symptoms of the claimant’s pre-existing injuries/conditions although it was unlikely the incident resulted in any structural injury or aggravation of pre-existing structural injuries involving the cervical and lumbar spine.
The report of Dr Synnott dated 14 July 2022 stated that one could not be confident in the accuracy of the claimant’s history and ultimately determined that he could not determine a psychological injury from the subject accident.
The personal injury benefits form dated 7 May 2017 noted shock, pain and suffering from the accident whilst acknowledging pre-existing injuries for neck, back and shoulders from which the claimant had recovered.
GP RECORDS
The claimant was taken through the GP records and particularly the notes of 2012 in which identified depressive symptoms, anxiety, agitation and insomnia.
The claimant was also taken to the notes following the 23 July 2021 accident but noted that he could not recall all the details of this collision. The claimant was evasive and vague in his responses to the questions and providing general information in respect to the circumstances of this accident.
The claimant’s physical injuries arising out of the accident of 10 November 2018 did give rise to a finding by Medical Assessor Alan Home of 4% WPI. Similarly, Dr Mastroianni in the report dated 14 February 2019 concluded he had a disc herniation in his cervical spine related to the accident and left rotator cuff tear.
Dr Dave in a report dated 28 February 2020 noted shooting back pain and right-side thigh numbness.
The claimant was questioned extensively in respect to the previous accidents and he history he has given as well as the findings of the Dispute Resolution Service Panel Decision 20 September 2020 concluding his cervical and left shoulder injuries are minor injuries.
The Panel notes the GP records and prescription history between July 2004 and February 2019 with no psychotropic medication. No alcohol problems.
Dr Richa Rastogi independent medical examiner psychiatrist reported on 16 July 2021. She wrote he does not enjoy pleasurable activities anymore. He does not enjoy initiating conversations. She also noted there is no previous history of depression or anxiety, which is incorrect as he has had consultation with Dr Ali, psychiatrist previously. Dr Rastogi diagnosed a major depressive disorder and listed the DSM-5 features, and she provided a WPI assessment.
FINDING
The Panel noted the claimant has had compensation claims related to four motor vehicle accidents. The Panel also noted Mr Ejaz has a complicated history. There did not appear to be major psychiatric problems immediately before the 2018 accident and after that accident he developed driving anxiety and intermittent depression. The overall history is consistent with an adjustment disorder and he has not developed another psychiatric disorder any time after 2018 as a result of the subject accident. He has anxiety related to being inside lifts, but this is unrelated to the car accident.
To diagnose post-traumatic stress disorder all of the DSM-5 diagnostic criteria have to be fulfilled. Criterion C has never been fulfilled as Mr Ejaz has not developed persistent effortful avoidant behaviour related to the subject accident. Therefore, Mr Ejaz does not have post-traumatic stress disorder.
Mr Ejaz does not have Major depressive disorder. The DSM-5 diagnosis needs either pervasively depressed mood or the loss of pleasures in almost all activities. He does not have these cardinal features and therefore, he does not have MDD. Dr Rastogi wrote “Depressed mood, nearly every day, as indicated by either subjective report”, which seemed to be a partial cut-and-paste statement from the DSM-5, and not supported by the claimant’s own history. She also wrote “Markedly diminished interest or pleasure in all, or almost all, activities”, without explaining what she meant and what normally activities he had or he has lost interest in. The Panel did not take the same history from the claimant, as he reported his depressed mood is not always there, and he can enjoy activities with the family and has not lost interests in almost all activities. The Panel also noted his psychiatric trajectory is not consistent with a major depressive disorder.
He does not have driving phobia as he continues to drive.
Based on the available information and the Panel’s assessment, Mr Ejaz has developed an adjustment disorder which is a threshold injury.
In terms of causation, he encountered many stressors before and after the subject accident and after the subject accident he developed persisting driving anxiety and intermittent variable depressive symptoms which have not completely resolved over time and this psychological injury is reasonably attributable to the subject accident.
The assessment of whether an injury is a threshold injury is not a direct measure of symptoms or disabilities. A finding that an injury is a threshold injury indicates there was an injury caused by the motor accident and that symptoms continue.
CONCLUSION – threshold injury
The following injuries are threshold injuries – adjustment disorder.
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