QBE Insurance (Australia) Limited v Jeong

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Jeong [2022] NSWPICMP 367
CLAIMANT:	Suyeon Jeong
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Chris Rikard-Bell
DATE OF DECISION:	6 September 2022
CATCHWORDS:	MOTOR ACCIDENTS – Assessment of minor injury under the Motor Accident Injuries Act 2017; the claimant suffered injury in the motor accident on 24 February 2021; the claimant suffered inter alia psychological injury; Assessor determined post-traumatic stress disorder and major depressive disorder caused by the accident; not minor injuries; Held – treatment in relation to depression in 2020 referred to in clinical notes not treatment provided to claimant; criteria for post-traumatic stress disorder not met; claimant suffering from major depressive disorder caused by the accident; claimant suffered non minor injury.
DETERMINATIONS MADE:	The Review Panel revokes the certificate of Medical Assessor Atsumi Fukui dated 21 February 2022 and determines that the following injury caused by the motor accident is not a minor injury: · Major Depressive Disorder.

STATEMENT OF REASONS

introduction

On 24 February 2021 Ms Suyeon Jeong (the claimant) was driving her car on the Northern Road, Glenmore Park when a truck with a trailer merged into her lane pushing her vehicle to the right lane (the accident). Her head and shoulder hit the right window of her car. Ms Jeong had to chase the truck driver before she caught up with him at traffic lights. She had a verbal exchange with him.
QBE Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Jeong under the Motor Accident Injuries Act 2017 (MAI Act).
Ms Jeong lodged an Application for personal injury benefits dated 12 March 2021 in which she listed the following injuries resulting from the accident:
·        injury to the neck;
·        injury to the shoulder;
·        injury to lower back;
·        injury to knee;
·        pins and needles in both legs;
·        pain over knuckles;
·        pain all over the body;
·        inability to sleep on the side, and
·        severe anxiety whilst driving.
Medical Assessor Atsumi Fukui issued a certificate dated 7 December 2021 in which she certified that post-traumatic stress disorder and major depressive disorder caused by the accident was not a minor injury for the purposes of the MAI Act.
As a result, Ms Jeong has an entitlement to ongoing statutory payments under the MAI Act.
The insurer has sought a review of the certificate of Medical Assessor Fukui.

BACKGROUND

Ms Jeong is 39 years of age. She is of Korean background, having arrived in Australia in 2006. She is married with three sons. Prior to the accident she worked for her family business completing duties such as stock management and courier driving. She was also working as a National Disability Insurance Scheme (NDIS) volunteer.
On 12 March 2021 Ms Jeong lodged an Application for Personal Injury Benefits.
On 7 June 2021 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that her injuries were minor injuries and that her entitlement to statutory benefits including treatment and care would cease on 25 August 2021.
On 15 June 2021 Ms Jeong sought an Internal Review of that decision.
On 6 July 2021 the insurer issued their Certificate of Determination – Internal Review and Statement of Reasons affirming their decision that Ms Jeong had sustained minor injuries in the accident and that her entitlement to statutory benefits would cease from 25 August 2021.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
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 minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].

ASSESSMENT UNDER REVIEW
[1] Section 7.20 of the MAI Act.

Assessor Fukui assessed the claimant via video conference with the assistance of an interpreter. It was noted that Ms Jeong was a Korean lady with three sons who arrived in Australia from Korea in 2006. Her husband was already in Australia. Ms Jeong’s parents and siblings reside in Australia. Ms Jeong has an older sister and older brother.
She denied any past significant medical or psychiatric history which was accepted by Assessor Fukui. The only documentation reviewed for the assessment was from Dr Lee, gastroenterologist, dated 8 October 2021 and the Allied health recovery request (AHHR) of Dr Jung Sook Kim dated 31 March 2021 noting post traumatic stress disorder and depressive symptoms.
The dispute in relation to the psychiatric injury was referred to Medical Assessor Fukui who issued a certificate dated 7 December 2021. The injuries referred for assessment were described as follows:
· post-traumatic stress disorder, and
· major depressive disorder.
Assessor Fukui reported Ms Jeong met the Diagnostic & Statistical Manual of Mental Disorders (DSM-5) criteria for post-traumatic stress disorder as follows:
·        she experienced a traumatic event;
·        she experienced recurrent flashbacks and nightmares of the accident and related themes;
·        she avoided driving;
·        she experienced negative cognitions and mood with loss of self-confidence, felt life was not worth living and was unable to experience positive emotions;
·        she experienced hyper vigilance and irritability, sleep disturbance, poor concentration and forgetfulness;
·        the duration of the disturbance was greater than one month;
·        the disturbance caused clinically significant distress and impairment in her social, occupational, or other areas of functioning, and
·        the disturbance is not attributable to the physiological effects of a substance.
Assessor Fukui also found Ms Jeong’s symptoms met the criteria for major depressive disorder as follows:
·        she experienced depressed mood, loss of interest and pleasure, weight loss, insomnia, psychomotor agitation, loss of energy, feelings of worthlessness, poor concentration and focus and whilst not suicidal though life not worth living;
·        the symptoms caused clinically significant distress and impairment in her social, occupational and other important areas of functioning, and
·        the depressive episode is not attributable to the physiological effects of a substance or other medical condition.
Assessor Fukui accepted Ms Jeong had no past psychiatric history and was well and active prior to the accident. She found her symptoms were due to the accident.
Assessor Fukui concluded the following injuries caused by the accident were not minor injuries:
· post-traumatic stress disorder, and
· major depressive disorder.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of Assessor Fukui within 28 days of the date on which the certificate of Assessor Fukui was made available to the parties.
On 17 March 2022 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).
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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission)^[2]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[2] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[3].
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 15 June 2022 (the first Direction) requiring each party to file an indexed, paginated documents of documents. In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents marked AD11. In response to the Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD12 and AD13.
On 1 August 2020 the Panel agreed an examination was required.

MINOR INJURY- STATUTORY PROVISIONS

A minor injury is defined in s 1.6 of the MAI Act and a “minor psychological or psychiatric injury.” Section 1.6(3) of the MAI Act defines a “minor psychological injury” as:
“A minor psychological or psychiatric injury is (subject to this section) a psychological injury that is not a recognised psychiatric injury.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a minor psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act:
(a)Acute stress disorder; and
(b)adjustment disorder.”
The Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, Part 5 of the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A diagnosis for the purpose of a minor 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 minor 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.”
Clause 5.10 of the Guidelines provide:
“In assessing whether an injury is a minor psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.”
Clause 5.11 of the Guidelines provide:
“The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.”
Clause 5.12 of the Guidelines provide:
“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 minor injury.”

EVIDENCE BEFORE THE REVIEW PANEL

The police report

The Police report (E78719726) dated 19 March 2021 recorded the accident on 24 February 2021. The report indicated the two vehicles were travelling next to each other and that driver one started to merge into lane two of two and the dog trailer collided with the passenger side of vehicle two. The dog trailer pushed vehicle two out of her lane and onto the opposite side of the road. There were no other vehicles involved in the collision. Vehicle one continued driving and vehicle two followed before vehicle one pulled over a short time later. The two drivers exchanged details.

Treating medical records

Ms Jeong had a history of recurrent chronic epigastric symptoms and of chronic lumbar back pain.
On 26 April 2019 Dr Harry Pope noted chronic recurrent abdominal pain with several endoscopies.
On 6 June 2019 Dr Choi noted recent gastroscopy indicated no pathology however chronic lumbar back pain was noted.
On 14 June 2019 Dr Obinwanor noted acute on chronic neuropathic/radicular lower back pain since 2012.
On 21 June 2019 Dr Naqvi noted chronic lumbar back pain with pain going down the left buttock and leg.
On 26 June 2019 Dr Choi referred to a recent gastroscopy and chronic lumbar dysfunction with radiculopathy.
On 1 July 2019 Dr Galvin reported Ms Jeong sought spinal injection.
On 2 July 2019 Dr Callow reported disc/facet degeneration L3/4, L4/5 and L5/S1.
On 19 July 2019 and 14 August 2019 Dr Choi noted chronic lumbar dysfunction with radiculopathy.
On 21 August 2019 Dr Barna noted abdominal pain and on 2 September 2019 Dr Kalanzi reported abdominal discomfort.
On 19 September 2021 Dr Choi referred to chronic lumbar dysfunction with radiculopathy and on 2 January 2021 Dr Armstrong reported mild spinal canal stenosis L4/5.
On 14 February 2020 Dr Choi reported Ms Jeong presented with a history of vegetative symptoms of depression for several months in the context of environmental triggers. Ms Jeong was referred to Psycleaders by Dr Choi.
On 16 April 2020 chronic (year-long) radicular low back pain was noted by Dr Obinwanor.
On 27 April 2020 Dr Armstrong reported back pain.
On 10 August 2020 Ms Jeong saw Dr Truong with her son. He reported she denied any history of anxiety.
On 29 September 2020 Dr Armstrong reported dizzy spells and on 1 October 2020 she reported dizziness and chest tightness.
On 6 October 2020 Dr Rayamajhi saw Ms Jeong for multiple issues including the right shoulder and the lower back. The dizziness was reportedly better.
On 14 November 2020 Dr Armstrong noted shoulder pain and on 25 January 2021 she reported gastro-oesophageal reflux disease (GORD).
On 5 February 2021 Dr Armstrong noted abdominal pain and lower back pain.
On 18 February 2021 Dr Armstrong recorded low back pain was radiating down the leg.
On 22 February 2021 Dr Armstrong referred to chronic back pain and irritable bowel syndrome symptoms.
Ms Jeong consulted Dr Armstrong on 26 February 2021 when she reported:
“MVA 2 days ago
no injuries
feeling stressed and anxious
feel palpitations and sweats when drive car
poor sleep
no pain.”
On 3 March 2021 the motor vehicle accident was noted as the reason for the consultation.
On 10 March 2021 Dr Armstrong noted Ms Jeong was very anxious with panic symptoms.
On 19 March 2021 there was a referral to a psychologist by Dr Armstrong.
On 31 March 2021 Dr Armstrong referred Ms Jeong to Dr Jung Sook Kim at JSK Mental Health Centre. In the AHRR she provided a diagnosis of “symptoms of PTSD, Major Depressive Disorder.” She provided the following history:
“Ms Jeong reported that she developed various symptoms after the accident including feelings of hopeless ness and helplessness, sleeping problems, fatigue and tiredness, persistent headaches, indigestion, palpitations, breathing difficulties, avoidance behaviour, poor appetite, irritability, difficulties coping, agitation, unable to relax due to intrusive thoughts, decline in motivation and confidence, concentration problems, recurrent memories and flashbacks of the accident, feelings of shame and guilt, confusion, decline in short term memory and problem solving, and unclear mind.”
On 5 April 2021 Dr Okoroma-Ariguzo reported Ms Jeong had been seeing a psychologist, she could not control her emotions and was sad, angry and irritated.
On 13 April 2021 Jiho Han, physiotherapist completed a AHRR and reported Ms Jeong showed a high level of stress and anxiety which may impact on progression of her treatment.
On 16 April 2021 Ms Jeong was referred by J Medical & Cosmetic Centre to Dr Semi Park in respect of three broken teeth due to her habit of crunching her jaws. A referral in similar terms was made to Dr Sang Won Oh on 2 June 2021.
On 22 April 2021 Dr Wijetunga and Dr Antoun of Medical Assist Network discussed the claimant with Dr Armstrong who reported Ms Jeong had developed anxiety and been referred to a Korean speaking psychologist. As of 5 April 2021, Ms Jeong was reportedly depressed, anxious and angry. Dr Wijetunga and Dr Antoun spoke to Dr Armstrong again on 18 May 2021 when she reported the claimant had anxiety and had not been able to return to driving. On 5 July 2021 Dr Wijetunga and Dr Antoun reported Ms Jeong had changed general practitioner to Dr Hajeong Lee. Whilst Dr Lee focused on the claimant’s physical condition, he also reported Ms Jeong had too many worried and was unable to sleep. Ms Jeong was discharged from the Doctor Support Program.
A Certificate of Capacity dated 22 June 2021 noted mild to moderate right and left side C5/6, C6/7 pathology and no radiculopathy.
A medical certificate of Dr Hajeong Lee dated 3 July 2021 indicated the claimant required transport to attend treatment.
The report of Dr Jun Kim, neurosurgeon, dated 27 July 2021 the subject of an Application to Admit Late Documents noted symptoms of lower back pain and pain in the left leg.
The report of Dr John Lee, gastroenterologist, dated 8 October 2021 noted throat, neck and stomach pain. Dr Lee stated, “I think most of her symptoms are due to anxiety”.
A Certificate of Capacity dated 3 November 2021 was noted to be a duplicate of the previous certificate.
A Certificate of Capacity dated 12 November 2021 noted L5 perineural CT guided injection.

Work Focus Australia

On 6 May 2021 Ms Jeong was assessed by Rita Kadaoghlanian, rehabilitation consultant on behalf of Work Focus Australia. She reported the claimant described herself as an active person pre-accident who was scuba diver, walked, read, socialised with friends, volunteered at NDIS and went on day trips with her family.
Since the accident Ms Jeong no longer participates in these activities due to low mood, lack of motivation, feeling avoidant and high levels of anxiety on leaving home. She reported no longer feeling happy and feeling sad every day. Ms Jeong described difficulty in concentrating on tasks, difficulty staying asleep at night and significant stomach pain. In the first six weeks post-accident she experienced nightmares and flashbacks. She also described anxiety when driving or when travelling as a passenger. Ms Jeong described feeling high heart rate, being vigilant of her surroundings and feeling afraid when cars drive close. She has not been able to drive through the street where she had the accident due to feelings of fear and anxiety.

Ms Kadaoghlanian reported Ms Jeong became teary frequently throughout the assessment, but she did not display any memory, attention or concentration impairments at the time of the assessment.
Ms Jeong underwent an activities of daily living (ADL) assessment on 6 May 2021 conducted by Rachel Feeney on behalf of Work Focus Australia. She reported Ms Jeong was unable to live independently without regular support from her family and a cleaning service. Ms Feeney reported Ms Jeong was currently:
·        experiencing a loss of motivation to complete basic self-care tasks such as showering;
·        experiencing heightened anxiety when driving or travelling in a vehicle and is now heavily reliant on her husband to transport her to and from appointments;
·        heavily reliant on her family for assistance to complete ADL’s;
·        experiencing adverse mental health affects which was having a direct effect on her ability to complete personal and domestic ADL’s, and
·        experiencing adverse mental health effects from her accident which she believed were having an effect on her family relationships.
Medical Assessor Cameron issued a certificate dated 24 May 2021. He found the following injury caused by the accident was a minor injury for the purposes of the MAI Act:
·        lumbar spine – soft tissue injury;
·        cervical spine – soft tissue injury;
·        right shoulder – soft tissue injury, and
·        left shoulder – possible soft tissue injury.

SUBMISSIONS
Insurer’s submissions

The insurer provided minor injury submissions dated 4 August 2021.
The insurer notes the Application for personal injury benefits refers to “severe anxiety whilst driving”, the certificate of capacity of Dr Armstrong dated 19 March 2021 provides a diagnosis of anxiety and on 13 April 2021 Jiho Han, physiotherapist competed an AHRR with reported that the “claimant showed a high level of stress and anxiety which could impact on the progression of her treatment”.
The insurer submits that anxiety is not a diagnosable condition and is therefore classified as a minor psychological injury.
The insurer submits the AHRR’s completed by Dr Jung Sook Kim, psychologist for the period 31 March 2021 to 10 June 2021 provided a diagnosis of “symptoms of PTSD with major depressive disorder”. The insurer submits this is not a positive diagnosis of post-traumatic stress disorder but rather a list of symptoms.
Further the insurer submits the claimant does not meet the criteria for major depressive disorder under DSM-5 which requires a “clinically significant distress or impairment in social, occupational, or other areas of functioning”.
The insurer provided further submissions dated 21 December 2021 addressing in the main the question to be determined by the Delegate of the President.
The insurer submitted the records disclosed the presence of significant psychological symptoms approximately one year prior to the accident. The insurer refers to the consultation note of 14 February 2020 which states:
‘Presents for several months history, vegetative symptoms of depression, in context of recent environmental triggers, denies suicidal ideation, would like to receive counselling’.
Further, the insurer notes the referral of the same date for psychological therapy is because of “vegetative symptoms of depressed mood, fragmented sleep”.
The insurer also notes whilst Assessor Fukui acknowledged receipt of the records of Our Home Medical Penrith she did not discuss, analyse or otherwise review these documents in her certificate and suggests that Assessor Fukui failed to consider those records at all.
The insurer submits Assessor Fukui merely accepted the claimant’s self-report in finding there were no inconsistencies. However, the insurer notes Assessor Fukui took a history that following the accident the claimant “started chasing the truck” but also took a history that she was “scared to drive her car home”. The insurer also notes Assessor Fukui took a history that the claimant “stopped driving following the accident”.

Claimant’s submissions

The claimant provided submissions dated 2 March 2022.
The claimant refers to the consultation note dated 14 February 2020 from Our Medical Home Penrith. The claimant asserts her general practitioner referred her son to Jun Mo Jeong, psychologist for a family consultation as her son was being bullied at school. The claimant states she did not have any psychological symptoms and did not undergo any psychological therapy between 14 February 2020 and the accident on 24 February 2021.

THE MEDICAL EXAMINATION

The claimant was assessed by video conference. She was unaccompanied.
The Korean interpreter, Mookil Choi (National Accreditation for Translators and Interpreters number CTN9CGA7D) was present for the duration of the video conference.
Ms Suyeon Jeong is a 40-year-old Korean lady who is married. Her husband, aged 43, works as a boilermaker. There are three sons to the relationship. One son, aged 19, left home in August 2021 and has ceased his education, however, did not complete Year 12. There is a 13-year-old son in Year 8 who is progressing well and a 9-year-old son who is in Year 4 and progressing well.

Clinical examination

Ms Jeong presented as a pleasant looking Korean lady who appeared quite distressed. Her eye contact was erratic and for much of the interview half of her face was obscured. At other times during the interview her face was showing. Ms Jeong was neatly dressed. At times Ms Jeong would pause and was unable to provide clear answers, however at other times she was able to clearly articulate her concerns. Midway through the interview, Ms Jeong became distressed and needed a break when she seemed to appear anxious and she was hyperventilating. Her speech was normal in tone and volume. There was no abnormality of perception, although she describes odd feelings about seeing the face of the opposing driver from the accident and a feeling of a presence.
There were odd ideas in relation to the water in her area being contaminated, however she has been using bottled water and these ideations have improved. There were no clear hallucinations or delusions elicited. Ms Jeong’s affect was anxious and depressed. She was often tearful and distressed throughout the interview and she appeared to be struggling to cope. Her cognitive function was normal and her thoughts were logical. At times there was a poverty of thought but at other times her thoughts were logical and sequential. Ms Jeong believes that had the motor accident not occurred, her recurrent problems would not be as bad. It appeared Ms Jeong was suffering from lip ulcers.
On 24 February 2021 Ms Jeong was involved in the accident. She found it difficult to talk about the accident, nevertheless, she explained she had finished her voluntary work and was travelling along The Northern Road. Without warning and without any indication a truck merged into her lane and her vehicle was hit by the trailer from the truck forcing her to the opposite side of the road across the midline. Ms Jeong was nearly pushed into the path of an oncoming vehicle, and she stated she saw the eyes of the opposing driver coming towards her with some fear. Other vehicles encouraged Ms Jeong to chase the driver of the truck and eventually she was able to connect with him. Her husband arrived at the scene and Ms Jeong was very emotional at the time. Her husband and the other driver exchanged details and the car was driven home.
After Ms Jeong arrived home, she was overwhelmed with anxiety. Her hands were trembling, and her heart was racing.
Two days later she visited her general practitioner for help. Ms Jeong suffered physical injuries after the accident with lower back pain, difficulty using the toilet due to pain and neck and shoulder pain which has fluctuated. Overall, there has been some improvement with pain, however she does wear a belt around her waist which provides some support to her back. In addition, there are recurrent problems with her shoulder at times.
Ms Jeong has had lower back pain in the past and she believed the lower back pain was contributed to by contaminated water at home, as they were unable to drink normal tap water. Eventually they replaced the tap water with clean water and the pain, diarrhoea and abdominal symptoms improved. Ms Jeong’s stomach was swollen which she believes was due to the contaminated water. There were filters applied and they were able to be provided with clean water. It did appear that Ms Jeong’s concerns in relation to the water were unusual, although it was not possible to clarify this any further. There were further tests in 2020 and 2022 indicating the water was “not drinkable”.
Ms Jeong’s house is apparently not connected to the town water supply. The family, at times, have had water delivered by tanker. Ms Jeong appeared to be saying that the delivered water was contaminated before and after the motor accident, until filters were installed. It was not possible to further clarify this point.
There was a referral to a psychologist on 14 February 2020 by Dr Choi. I asked Ms Jeong about this referral which was in relation to depression and vegetative symptoms. She stated the referral was in relation to her son who was experiencing difficulties with bullying and poor treatment at school. The psychological treatment at the time was helpful and did not relate to any difficulties with Ms Jeong. There was psychological treatment in relation to the water contamination issues as the general practitioner was concerned this might be causing distress, however Ms Jeong was unsure what the psychologist had concluded in relation to this issue. Ms Jeong was unable to provide any feedback on when this treatment took place.
There have been no previous motor vehicle accidents, workers’ compensation claims or legal issues.
There is no history of drug or alcohol issues. Her current medication is Duloxetine 60mg and Diazepam 2mg as required.
Currently Ms Jeong has difficulty sleeping. She goes to bed between 10.00pm and 11.00pm and will achieve three to four hours’ sleep per night. She wakes up thinking about the accident and she has nightmares and flashbacks about the face and eyes of the other driver at times. Ms Jeong has intrusive images throughout the day and feels like she is in a movie.
The Panel noted Ms Jeong informed Rita Kadaoghlanian, psychologist, on 6 May 2021 that the nightmares and flashbacks ceased after six weeks.
Ms Jeong’s appetite was decreased and there may have been some reduction in weight, although this was unclear as she has not weighed herself. Ms Jeong’s mood is low and intense and there is stiffness in her muscles. She has lost interest in activities, and she has lost interest in her children noting she does not enjoy spending time with them or doing activities previously enjoyed. Ms Jeong does not feel there is a great deal of point in doing activities. Her children are disappointed in her. One son left home in August 2021 as Ms Jeong yelled at him and told him to leave.
There have been some suicidal thoughts, however no intention or plans. Ms Jeong feels hopeless about the future, and she is miserable as her life has been ruined.
She has never been admitted to hospital for mental illness.
Ms Jeong denied any specific hallucinations although she said sometimes, she feels a presence of someone who may have been driving. She thinks about the other driver at times including the truck driver and the driver of the oncoming vehicle. At this point of the interview, Ms Jeong needed a 5-to-10-minute break as her anxiety levels and distress increased.
Ms Jeong was highly anxious and has panic attacks on a regular basis. She is forgetful, for example, on four occasions there were instances where a fire could have occurred at home. On one occasion in July 2022, Ms Jeong left a pot on the stove which burnt and caused smoke to fill the house.
Ms Jeong avoids driving wherever possible and she is unable to attend social events as the Korean community is not nearby. Ms Jeong’s main fear is that she will be further injured.
She feels she cannot be present for her husband and children.
Ms Jeong finds it difficult to dress and wash herself on a regular basis. She does not like to cook, and she needs reminding to wash.
The relationship with her husband is under a lot of stress and they argue a great deal.
In addition, the relationship with one son has broken down and he has now left home. Ms Jeong has not been able to speak to her son as he does not answer her calls.
Ms Jeong does not leave the home and does not attend any social events. She does not have friends nearby and she no longer enjoys activities such as going to the water, scuba diving, walking, camping or swimming.
Ms Jeong can drive in the local area or on short drives only as she is too anxious to travel further distances.
Ms Jeong concentrated throughout the examination, except when she became distressed and needed a break because of her anxiety and stress. She does not like to read or watch movies and she will sit and be quiet throughout the day.
Currently Ms Jeong wakes at different times, although she does wake up in time to assist the children before school. She may go grocery shopping once per month; however, her husband normally does the shopping. In the morning, Ms Jeong drives her children to the bus stop, however this may take up to 30 minutes as she avoids traffic. Normally it is a six-minute journey and Ms Jeong explained, “I’d stop the car”. In the afternoon the children come home by bus.
On weekends, Ms Jeong normally stays home and there are no outings during the week. There are consultations with the general practitioners and the psychologist on a regular basis either by video or by telephone.
Ms Jeong wished that she was well and that she could go back to her life before the accident.
She is happy to continue treatment with the psychologist and happy to continue with the general practitioner, as well as the medication.

Pre-accident functioning

Prior to the accident, Ms Jeong worked as a stock manager one to two days per week in her brother-in-law’s company. In addition, she was a volunteer NDIS worker with elderly patients for up to five hours per day, three days per week. Ms Jeong would sometimes cut their hair as her hairdressing skills were quite good. Prior to the accident, Ms Jeong stated she enjoyed scuba diving, walking, family outings and camping. She denied there was any depression or anxiety symptoms that significantly impacted her functioning.

Personal history

Ms Jeong is one of three siblings. She finished school and part of her university degree in Korea. Ms Jeong married in Korea and her husband left for Australia in 2003. Ms Jeong joined her husband in Australia in 2006. Her first son was born in Korea and the subsequent two sons were born in Australia. All children developed normally, however there were issues with bullying with the eldest son which were brief and dealt with.

CONCLUSION

The Panel finds Ms Suyeon Jeong is a 40-year-old Korean lady who was raised in Korea as the youngest of three siblings. She completed school in Korea and she denied any previous mental health issues or serious illnesses before arriving in Australia. Ms Jeong married her husband in Korea and he moved to Australia in 2003. Ms Jeong joined her husband in Australia in 2006. There are three children to the relationship, aged 19, 13 and 9. Ms Jeong’s children seem to be functioning well except for the eldest child who has had no contact with the family over the past 12 months. Ms Jeong claimed she had settled well in Australia, and she was working part-time in her brother-in-law’s company, as well as regularly volunteering for the NDIS over the past four years.
There appeared to be some somatic concerns which were noted by Dr Pope on 26 April 2019 with recurrent abdominal pain. On 6 June 2019 there was an endoscopy which was reported as normal. There were further concerns in relation to abdominal pain and a referral to a psychologist on 14 February 2020 by Dr Choi in relation to depression, although Ms Jeong stated that this was in relation to treatment for her son who was being bullied and not for treatment for herself. The abdominal pain was noted by Dr Armstrong on 5 February 2021 as well as lower back pain and some irritable bowel symptoms on 22 February 2021. Despite the preceding abdominal pain and lower back symptoms, Ms Jeong claimed she was well prior to the accident, and she enjoyed a vigorous, vibrant social and personal life.
The claimant’s assertion that the clinical entry of Dr Choi of 14 February 2020 related to her son’s psychological symptoms and treatment is consistent with the clinical notes which otherwise make no mention of any pre-accident psychological symptoms, even though the claimant attended her general practitioner regularly.
On 24 February 2021 Ms Jeong was involved in the accident. She stated the accident was frightening as there was almost a head-on collision when she was pushed across the midline. After the accident, Ms Jeong consulted with Dr Armstrong who noted she was stressed and anxious on 26 February 2021 and again on 3 March 2021. On 19 March 2021 she was referred to the psychologist. On 27 February 2021 the Police report noted the accident occurred on 24 February 2021. On 3 July 2021 Dr Lee provided a certificate noting Ms Jeong required transport to attend consultations. On 16 April 2021 there was concern in relation to her teeth and a referral to Dr Park was made. On 8 October 2021 Dr Lee, gastroenterologist, noted the abdominal symptoms were related to anxiety. There may have been some anxiety symptoms as noted by Dr Armstrong on 28 September 2020 with dizzy spells and on 1 October 2020 chest tightness was noted. On 7 February 2021 and 18 February 2021 there was pain in her buttocks and ankles. Ms Jeong may be overly focussed on somatic symptoms.
It was the Panel’s view that Ms Suyeon Jeong is currently suffering from a Major Depressive Disorder caused by the accident. Ms Jeong had the following DSM-5 features of Major Depressive Disorder:
A.    Low mood and loss of interest or pleasure with:
·Anhedonia
·Suicidal thinking
·Weight loss
·Disturbed sleep
·Fatigue
·Poor concentration
·Thoughts of death
B.    Significant impairment of functioning
C.   Not due to substance use or other medical condition
D.   Not schizophrenia or schizoaffective disorder
E.    No episodes of mania or hypomania.
It was the Panels view that the predominant symptoms are now relating to a depressive condition and that the criteria for post-traumatic stress disorder are not met, even though there are some prominent features of anxiety and experiencing nightmares relevant to the motor accident. She is particularly troubled by having little interest or energy to involve herself with her family and with her inability to manage her anxiety levels.
The Panel decided that it should revoke the certificate of Dr Fukui and issue a new certificate with a of diagnosis of Major Depressive Disorder.
It is worth noting there has been the development of unusual ideas such as fear of contaminated water and some unusual visual experiences, such as seeing the faces of the other drivers in the accident and sometimes a feeling of a presence. However, it was not possible to make a conclusion about a possible differential diagnosis of a psychosis as cultural language factors were thought to be important as well as the Ms Jeong’s stressful experience during the interview.
In conclusion, the Panel determined that the Major Depression is a non-minor injury according to the Act and, there was no pre-existing psychiatric condition at the time of the accident, although there may have been an earlier episode of depression.

[2022] NSWPICMP 367

6 September 2022