QBE Insurance (Australia) Limited v Joyan
[2024] NSWPICMP 881
•20 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Joyan [2024] NSWPICMP 881 |
CLAIMANT: | Summer Joyan |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Cassidy |
MEDICAL ASSESSOR: | Hong |
MEDICAL ASSESSOR: | Jones |
DATE OF DECISION: | 20 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury (post-traumatic stress disorder) and whole person impairment (WPI) (not yet permanent) by Medical Assessor Robertson; insurer’s application for review under section 7.26; claimant in year 9 at time of accident; she was sitting in rear seat behind her mother when there was an impact from behind; both cars were driveable; emergency personnel were not called; claimant’s family drove on to a social engagement; claimant attended GP two days after accident and was diagnosed with soft tissue injuries only; Panel not satisfied claimant satisfied criterion A of a post-traumatic stress disorder which required the claimant to have “directly experienced a traumatic event”; the commentary gave the example of a “severe motor vehicle” accident; Held – Panel was of the view the most appropriate diagnosis was an adjustment disorder which was a threshold injury; WPI assessed at 5%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certifications of Medical Assessor Robertson dated 12 July 2023. 2. Certifies that: (a) the claimant’s psychological or psychiatric injury caused by the motor accident on 19 December 2020 is a threshold injury, and (b) the degree of permanent impairment resulting from the psychological or psychiatric injury is 5% which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Summer Joyan was involved in a motor accident on 19 December 2020. The claimant was 15 years of age at the time. She was a rear seat passenger in a car driven by her mother. Another car crashed into the back of their car and drove off.
The claimant says she injured her lower back, shoulder and neck in the accident and developed a psychological or psychiatric injury. Ms Joyan made a claim for statutory benefits with QBE, the third-party insurer of the other vehicle. In time, she also made a claim for damages against QBE.
Medical disputes about whether the claimant has any non-threshold injuries, and the degree of the claimant’s whole person impairment (WPI) have arisen in connection with that claim. Ms Joyan referred the disputes to the Personal Injury Commission (the Commission) for assessment.
On 12 July 2023 Medical Assessor Robertson determined Ms Joyan had sustained a non-threshold injury (post-traumatic stress disorder). He declined to assess WPI on the basis her impairment was not yet permanent but indicated it was likely to be greater than 10%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 9 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 16 July 2024 the President’s delegate convened this Review Panel (Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
General background to the scheme
Ms Joyan’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2023 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 4.12 of the MAI Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.2 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, the mental and behavioural provisions of the Guidelines are relevant.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “minor” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and a “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Guidelines may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[5] provide:
“[5.10] In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11]The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[5] The current version of the Guidelines is version 9, effective January 2023.
In other words, the Guidelines provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not (thereby excluding unrecognised psychiatric illnesses from the recovery of certain benefits and damages under s 1.6(3) of the MAI Act). This method would also include the means of determining whether an adjustment disorder or acute stress disorder was present (both of which are recognised psychiatric illnesses but which are threshold injuries in accordance with cl 4(2) of the Regulation).
ASSESSMENT UNDER REVIEW
Medical Assessor Robertson examined the claimant on 13 June 2023 by MS Teams and issued his certificate on 12 July 2023.
The claimant was 17-years-old at the time and in year 12. She said she was well before the accident.
Medical Assessor Robertson has a history of the claimant developing shoulder, back and neck pain after the accident which is now chronic. Ms Joyan said it had affected her schoolwork and she was given concessions concerning examinations. She had not returned to soccer and had physiotherapy and hydrotherapy.
The claimant caught Covid and has developed long Covid including “brain fog”, migraine and chronic fatigue. She is being treated by a neurologist for this and has been prescribed opiates and Fremanezumab (for headaches and migraines). She says these symptoms “have become the primary physical problem and effect significant impairment on her psychosocial functioning.”
Ms Joyan described nightmares, flashbacks, triggering situations, hypervigilance as a passenger, distress, worry and anxiety.
The claimant had counselling with a psychologist but found it unhelpful.
He considered she was consistent in her presentation and did not appear to be over-reporting symptoms.
Medical Assessor Robertson diagnosed post-traumatic stress disorder with reference to the criteria and says the accident “was the substantial and main causal factor.” He acknowledged long Covid as a secondary psychological injury.
He declined to assess WPI on the basis that there may be improvement in the neuro-psychiatric consequence of COVID in the next 12 to 18 months.
He provided an interim assessment of WPI in the sum of 15%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer takes issue with the Medical Assessor’s diagnosis of post-traumatic stress disorder on the basis the claimant was not exposed to actual or threatened death or suffered a serious injury and therefore criterion A from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) had not been met. The insurer says that the claimant may have sustained an acute stress disorder or adjustment disorder.
The insurer refers to the evidence from Dr McMahon and Ms Santoso that no treatment was required as the claimant was discharged by 15 February 2022 following seven sessions the last of which was on 18 November 2021.
The insurer says Medical Assessor Robertson did not engage with the insurer’s submissions or the evidence. The insurer submits the Medical Assessor has not provided a detailed line of reasoning in respect of the diagnosis.
Claimant’s submissions
The claimant says the Medical Assessor says he has read and considered the documents. The claimant notes that at paragraph 25 the Medical Assessor referred to Ms Joyan’s varying presentation and was satisfied she sustained a posttraumatic stress disorder. The claimant also says the Medical Assessor has a detailed history about the accident.
The claimant submits that the Medical Assessor has considered the evidence, conducted an examination and provided “more than adequate” reasons.
Procedural matters
The Panel issued directions to the parties on 31 July 2024:
(a) the insurer was asked to confirm that the bundle of 161 documents filed was a bundle of all the documents the insurer relied on, and
(b) the claimant was asked to upload an indexed and paginated bundle of documents by 30 August 2024 and additional document including her Higher School Certificate (HSC) results and offers of university places and any university results.
The Panel was advised by the insurer that the Panel had all of the documents relied on by the insurer. The claimant uploaded a bundle of documents.
The Panel met on 24 September 2024 and reported to the parties on the same day. The Panel advised that the Panel would determine whether the claimant sustained a psychological or psychiatric injury and then make a diagnosis of that injury and decide whether it was a threshold injury or not. The Panel would then proceed to determine the degree of the claimant’s WPI.
The Panel requested from the insurer a copy of the claim form, the police report, statements from witnesses and photographs of the family’s damaged vehicle. The Panel also requested copies of the claimant’s tertiary results.
The claimant responded advising that “as a result of her injuries and disabilities, the claimant has been unable to commence her university studies to date and is merely working part time at Woolworths.”
The insurer provided a copy of the claim form but no other documents.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form was signed by the claimant and dated 13 January 2021. She describes the accident as follows:
“I was passenger in my Mum’s car. The car was waiting at the traffic lights when the other car hit mum’s car from the back (more towards the right of the bumper) with high speed. I was in the back passenger seat behind the driver. I was very shocked and pushed very hard.”
Ms Joyan describes her injuries as:
“I have pain in cervical spine, lower back region, lying down stiffness, sitting for a while my back starts to hurt, headache and neck pain.”
The claimant’s mother provided a statement for her daughter dated 6 September 2022 which was signed by the claimant.
At [8] there is a list of seven injuries including a sleeping disorder and psychological injury (post-traumatic stress disorder, anxiety and depression).
At [9] there is a list of 24 disabilities and impairments including anxiety and depression, post-traumatic stress disorder, flashbacks, nightmares, difficulty concentrating, loss of confidence and motivation and hypervigilance as a passenger.
The claimant’s treatment is documented including attendances on Dr Thomas, referrals to Dr Dalton and Dr Rao, physiotherapy with Mr Toose and Ms Mina and the counselling from Ms Mina. The statement also says at [23] that the claimant has seen Ms Tadros at Resilience Centre in Epping for treatment. The Panel notes that no records have been provided from Ms Tadros of the Resilience Centre.
The claimant says at [34]-[39] that:
(a) she would have started working as a casual in February 2021 but has been unable to do so since the accident;
(b) her physical and psychological injuries have affected her grades and her future employment options, and
(c) before the accident the claimant wanted to be an astronaut or professional soccer player. Now she is considering being a journalist.
The claimant has provided her Australian Tertiary Admission Rank (ATAR) result from 2023 which was 75.35 and her HSC results which included one band 6, one band 5 and three band 4s. The claimant studied advanced English, standard mathematics, modern history, society and culture and Aboriginal studies. It appears that she may also have studied extension courses during 2022 in both maths and English but did not go on to complete them in 2023.
Ms Joyan received three offers for university degree courses, a bachelor of Global Indigenous Studies at the University of Newcastle, a Bachelor of Science / Arts at Western Sydney University and a Bachelor of Marine Biology and Climate Change at the University of Technology Sydney.
Treating medical records and reports
Dr Dalton, sports physician provided a report to the claimant’s general practitioner (GP) dated 1 March 2021. He noted the claimant complained of back and neck soreness after the accident and that “most of her symptoms settled” but that she still had some lower back pain and upper back pain with sitting for prolonged periods.
He has a history of her pre-accident soccer activity but that she has not done much in the way of exercise since. He examined her and found no guarding or spasm and full movement of the shoulders and cervical spine. In the lumbar spine she had mildly reduced lumbopelvic control and poor core stability.
He expressed the view the claimant did not have a significant injury other than, a “minor strain” but that she has issues with her posture and lack of exercise. He suggested she needed an exercise-based physiotherapy program.
Mr Toose, physiotherapist wrote to Dr Dalton on 20 May 2021 concerning the claimant’s back pain following the car accident. He noted the claimant’s pain was mild at first but she has become more guarded and stiff. He said Ms Joyan responded well to treatment and he applied to the insurer for a course of further treatment.
The claimant had an MRI of her lumbar spine on 27 September 2021 which identified no abnormality, no disc pathology, stenosis or neural impingement.
Dr Rao, neurosurgeon and spine surgeon wrote to the claimant’s GP on 20 October 2021. He has a history of constant pain in the neck and lower back since the accident. The lumbar spine was of most concern to the claimant but there were no neurological symptoms noted and the pain was said to be worse on sitting for prolonged periods and with bending. In the cervical spine her pain was worse when she was studying.
Neck range of motion was full, with some pain, there was tenderness across the lower back and sacroiliac joint. He considered there was sacroiliac joint dysfunction more on the right that the left and requested physiotherapy from Ms Mina, and possibly an injection if the physiotherapy did not improve her condition.
On 13 September 2021, Mr Toose wrote again the Dr Dalton noting the claimant’s flexibility and function had improved but she still had some moderate back pain. The claimant was frustrated and concerned something is wrong. The claimant was keen to return to sport when Covid restrictions had eased, and Mr Toose apparently assured her there was nothing seriously or structurally wrong with her and that she should be able to return to her activities.
Ms Mina, physiotherapist wrote to Dr Thomas on 10 December 2021. Ms Mina has a history of lumbar spine pain since the car accident with previous physiotherapy giving her only temporary relief. Ms Mina said the claimant’s symptoms were consistent with right sacroiliac joint dysfunction and treatment commenced.
Ms Mina wrote again on 12 April 2022. The claimant had progressed and was lifting 10kg, sitting, standing and walking for 30 minutes. There were no neurological impairments recorded but pain at the end of the range of movements. The claimant had been given an at-home stretching and exercise program.
On 22 April 2022, Dr Thomas referred the claimant to Professor Watson for ongoing headaches since the accident and due to her Covid disease.
Psychologist’s notes
Notes have been provided from Ms Santoso of the Hills Psychological Health Practice, the claimant’s first treating psychologist.
An Allied Health Recovery Request form (AHRR) was completed by seeking 12 weekly counselling session. She says:
“The accident occurred over 8 months ago. Summer has reported that the psychological impact of the accident are having a greater impact on her more than ever. Summer and her family are noticing the changes in Summer’s mood, school performance, overall personaility and are concerned for her.”
On 24 August 2021, the claimant first attended as a 15-year-old, year 10 student.
She was said to be obsessed with sport but had stopped playing soccer after the accident due to back pain. Her family situation was noted, and her issues were said to be “less motivation with lockdown and concerned with Afghan issues”.
Ms Santoso has a history of the accident and treatment and that lockdown had made her physical progress stagnate. The claimant said it was harder to study now and she has difficulty concentrating on schoolwork and was moodier. The claimant said her maths and english had declined and that while she used to get A grades she is now getting B grades. She was hypervigilant if she was a passenger. She reported sleep difficulties, and her mother and sister have reported she cries out in her sleep. Ms Santoso records:
“Summer does not report preoccupation with accident or reliving accident in waking moments. Has not engaged in any psychological strategies to manage the pain”.
On 15 September 2021 the claimant reported about a loss of motivation to complete school tasks but there had been less screaming at night. She was still in pain. The claimant reported feeling irritated and frustrated and more tense with the family.
On 28 September 2021 the claimant’s mother said that Summer was more defensive and still screaming in her sleep “like she was in pain or annoyed”. The claimant was agitated and snappy, her mother thought due to pain. The claimant said she felt better with her mood and had gone to the park with her family.
On 21 October 2021, the claimant was generally better. She was sleeping well (“usually min. 8 hours”), said she was feeling rested, and her school results were a bit better. Claimant’s mother reported two instances of the claimant calling out at night.
There was further improvement on 4 November 2021 and the claimant was “feeling pretty good” although school was said to be “a bit boring”. She was going out with friends, walking and eating out. She was not as hypervigilant and was learning to drive. Her family had not commented on her irritability.
On 18 November 2021 the claimant’s school formal was on the next day. The notes record the claimant had some pain but “no nightmares, no intrusions, no preoccupation, hypervigilance less to almost no longer existing” and strategies to manage pain were discussed. The claimant said, “she has no further concerns” and would continue to practice her pain management strategies.
On 15 February 2022 Ms Santoso reported to the insurer (page 155 of the insurer’s bundle) that the claimant had completed the sessions and that Ms Joyan had been discharged from her care.
There are no updated records or reports from Ms Santoso, Ms Tadros another psychologist the claimant may have seen or any evidence of further treatment to the claimant’s physical injuries since 2022.
Medico-legal reports
There are no medico-legal reports relied on by the claimant.
Dr McMahon, psychologist provided a report to the insurer on 16 September 2021. He does not appear to have seen the claimant but has conducted a review of Ms Santosa’s notes. He expressed the view that Ms Joyan did not meet the criteria for a non-threshold mental disorder. He says she had ongoing pain and had received appropriate psychological treatment to date.
Other assessments
Medical Assessor Grainge on 25 August 2023 issued a certificate concerning the claimant’s alleged sleep disorder. He has a history of the accident – a rear end collision at traffic lights. The other vehicle drove off and her mother’s car was driveable.
He has a history at [11] that a few weeks to a month after the accident the claimant’s sleep was delayed and she was waking several times during the night due to physical injuries (stiff back) and possible psychological issues (night terrors). After some psychological treatment her sleep pattern “returned towards normal”. At [13] he notes some delay in getting to sleep which the claimant attributed to “her head being busy and not being able to switch off from her daytime activities.” She was said not to wake during the night but sometimes woke not feeling refreshed. She knighted nightmares.
At [23] he considered the sleep disorder was caused by the motor vehicle accident but has resolved.
He found this was a threshold injury (with limited reasoning as to why) and as a result there was no impairment.
Medical Assessor Truskett on 12 July 2023 issued a certificate in relation to the claimant’s physical injury. He found all of the injuries were threshold injuries and that the claimant had a 0% WPI.
He has a consistent history of the accident, a rear end collision in a 7-seater vehicle with the claimant sitting behind the driver when they were hit from behind. They were pushed forward but there was no vehicle in front. Airbags did not deploy and both vehicles were driveable. The claimant did not hit her head and was not knocked out. She got out of the car unaided. Police and ambulance did not attend.
The claimant and her mother continued to a social event but came home early. The claimant saw her doctor, symptoms persisted, and she was referred to Dr Dalton and had physiotherapy and was referred to Dr Dau (neurosurgeon).
The claimant had no time off school.
Medical Assessor Truskett has a history of the claimant developing long-Covid.
The Medical Assessor undertook an examination and found the claimant sustained injury to her neck, both shoulders and lower back in the accident. He diagnosed these as soft tissue and noted there was no radiculopathy in the upper or lower limbs and no evidence of the complete or partial rupture of tissue. He assessed WPI at 0%.
RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS HONG AND JONES
The examination
On 6 December 2024, we assessed Ms Joyan via audio-visual link through the MS Teams platform organised by the Commission.
The purpose of the assessment was outlined, as were the limits of confidentiality. Ms Joyan stated that she understood this preamble.
Introduction
Ms Joyan is a 19-year-old woman living in the family home in Beecroft, where she has lived for 10 or 11 years. She lives there with her mother and father. Her father works in IT and her mother is a counsellor. She also lives with her elder sister, elder brother and younger twin sister. Her eldest sibling works in a law firm, her brother works in recruitment, and her twin sister is studying media communications at university.
Ms Joyan works part-time as an assistant manager of services at a local Woolworths supermarket. She spontaneously reported that she was unable to attend university this year because of back pain and headaches. She reported that while she was at school, following the subject accident, she was unable to study properly as she could not sit for long periods of time. She also experienced “a little bit of anxiety.” She wants to study cyber security and does not believe her ATAR mark of approximately 75 will be sufficient. She had a place at university studying marine biology however she decided that this was not the career she wished to follow, and she deferred for a year.
Ms Joyan works at the local Woolworths at Beecroft, which is about five minutes by car from home. She works regular hours, four days per week, from Sunday to Wednesday. Two of her shifts are eight and half hours and the other two shifts are for five and a quarter hours. This equates to approximately 27.5 hours per week. Her role at work includes preparing online order deliveries for Uber drivers. She reported that there is a high physical demand at work, and she tends to get headaches.
Ms Joyan reported she is not currently in a relationship and has not had a significant relationship previously.
History of the motor accident
Ms Joyan recounted that on 19 December 2020 she was sitting in the rear passenger seat behind the driver and her mother was driving and her twin sister was in the front passenger seat. The car was stationary at a red light, and she remembers being hit from behind by another vehicle without warning. Both drivers got out of the car. She said the other driver offered her mother cash, however her mother declared that she wanted to call the police, and the other driver got back into his car and drove away. The accident occurred in the Parramatta area.
No ambulance or police attended the scene. No airbags deployed (front, back or sides) and no windows were broken.
Ms Joyan said the car was driveable and the family continued on their journey to a social event although it was said that they returned home early. Ultimately the car was fixed. The family currently has a different car.
History of symptoms and treatment following the accident
On the day of the accident and subsequently, Ms Joyan experienced pain in her shoulders and in her head. She remembers that her head was jerked forward during the accident. She also experienced pain in her back. She said she also had problems with her hips, where she experiences a mildly locked sensation and needs to “pop” the hips from the sitting position.
Since the accident, Ms Joyan has experienced lower back pain and also regular headaches, approximately two to three times per week. She said Panadol and Nurofen often do not assist her headaches and when this is the case, she tries to sleep to obtain relief. Her back pain also travels into her neck when she gets a headache.
With respect to treatment, Ms Joyan reported she saw a few physiotherapists for some time and also underwent some hydrotherapy. She remembers seeing a psychologist in the year after the accident and she estimated this was for six or eight sessions. She said the psychologist tended to talk about matters in her own personal life and Ms Joyan did not feel she got a lot out of the sessions. She was not prescribed any psychiatric medications, nor did she see a psychiatrist for treatment.
Ms Joyan has not undergone any surgery or had any injections related to her physical injuries, however at one point a doctor (Dr Rao) suggested that she should have cortisone injections.
With respect to her physiotherapy, whilst undertaking it, Ms Joyan felt somewhat better, however once her physiotherapy was ceased, she felt like her pain returned. She said the insurance company stopped paying for the physiotherapist.
Ms Joyan was asked how her back pain had progressed over time and she said it was “up and down.” She said some days are good and some days are bad. When she undertakes physical activity, for example at work, her back hurts more. She reported she used to like playing soccer but has not got back into this. At times she goes jogging, however recently she ceased doing this as it brought back some pain.
Ms Joyan reported that her main problem is that she has issues with sleep. Since the accident she has periods of good sleep and periods of bad sleep. She may go for two months when her sleep is okay, and she sleeps through, and then she may have a period of two or three months where her sleep is particularly bad. She said it takes her a long time to fall asleep despite observing sleep hygiene measures. She then will wake up multiple times in the night and find it hard to go back to sleep during the period of poor sleep. Ms Joyan reported that for a while she was experiencing nightmares and waking up screaming, normally during a period of bad sleep. She reported she sometimes remembers the nightmares and they may have themes of her driving and having bad accidents. She has one recurring nightmare where her mother is in the driver’s seat and she is in the back, the car is travelling down a steep hill and her mother disappears, there is no one driving the vehicle, and they have an accident.
Ms Joyan has not been able to find a reason why she has periods of good sleep and periods of bad sleep. It is not associated with her physical injuries or level of pain. She has noticed that when she has periods of bad sleep, she feels more fatigued and more anxious. It also contributes to her irritability. She reported she can sometimes sleep in the daytime if tired, but usually she is unable to. She reported her sleep problems commenced soon after the accident, and she remembers they occurred before she went to see the psychologist.
We asked Ms Joyan if there were any other mental health or psychological problems emanating from the motor vehicle accident and Ms Joyan reported that she was “a little bit more anxious.” She also said that her family tells her that she is more easily agitated and more easily frustrated. She said this is worse when her sleep is bad. She can feel the agitation but likes to think that she does not take it out on her family.
When asked, Ms Joyan reported that she had no other major mental health problems. We enquired about her attitude towards driving and she said that since the accident she has acquired her driver’s licence and is currently on her green P’s. She recalled that she found it difficult to learn to drive and that her father had to push her to fulfill the correct number of hours (120). She found herself always worried about having an accident. She said now she still gets “a little anxiety” when she drives. She also commented that she sweats a lot because of nervousness and often drives with the air-conditioner on “full blast.” She reported she does not drive when she does not have to. She is also not one to generally use public transport and she will otherwise have her mother, father or sister drive her. She commented that she drives to Woolworths by herself due to her early starts.
We enquired as to the presence of any flashbacks or re-experiencing phenomena, and she reported sometimes when she is driving she has what she said were “flashes in [her] mind” where she remembers being hit.
We asked her about her mood over time, apart from the irritability and agitation, and she commented that sometimes because of her headaches and pain she does not go out socially as much as her friends do.
The accident occurred in school holidays and Ms Joyan does not remember having any time off school. With respect to her school performance, she said her grades overall deteriorated. She described herself as nearly a straight A student prior to the accident, however her marks dropped off after that. She was in between year 9 and 10 at the time of the accident. Despite studying no Higher School Certificate subjects or undertaking any assessments at the time, the claimant said she was expected to have attained an ATAR above ninety before the accident. The Panel has not been provided with her school reports.
Psychiatric history
Ms Joyan denied any history of mental health problems, including any history of anxiety, depression, Attention-deficit/hyperactivity disorder (ADHD) or Obsessive-compulsive disorder (OCD). She has never seen a psychologist or a counsellor previously, nor has she been prescribed psychiatric medications or seen a psychiatrist. She denied any family history of mental health problems.
Medical history
Ms Joyan reported she had her appendix removed when she was in year 7. She has had no other surgical history. She has no significant medical diagnoses and has not taken regular medications over the years. She denied any medication allergies.
Substance use history
Ms Joyan denied any recreational drug use or any alcohol ingestion whatsoever. She does not smoke tobacco, nor does she gamble. She does not ingest any significant amount of caffeine. She has never been addicted to prescription medications.
Forensic history
There is no criminal history and no history of work-related injury or worker’s compensation. Ms Joyan has not experienced any other motor vehicle accidents, nor been involved in any other compensation or litigation processes.
Relevant injuries or conditions that may have developed after the accident
The Panel enquired of Ms Joyan about her experience with long COVID, as mentioned in the documents. The understanding was that this was following a holiday in Hawaii in early 2022. She had six weeks of acute illness including respiratory symptoms and feeling sick. During this time a “brain fog” commenced. This slowly improved over time. She also experienced fatigue and joint pain for a period after the acute infection over the next few months. On prompting she remembered seeing a specialist (no further details were recalled) who trialled a medication on her through the Long COVID Clinic. She was on this medication for a month and a half or so and it did not assist her, so it was ceased. With respect to her brain fog, she described it that she was unable to think properly, and that thinking would take an extra effort. She said this was particularly bad for the first six weeks after being infected but then it improved slowly following that. She reported she has yearly check-ups at the Long COVID Clinic, however this is mainly for research purposes.
Mental state examination
Ms Joyan was a young woman with an appearance consistent with her Afghani heritage. She had long, straight, black hair which she wore out, and she was wearing a black Woolworths work polo shirt. She wore no make-up and there were gross no signs of neglect. She made good eye-contact and had neat, short fingernails. She was assessed via audio-visual link.
She was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal and there was no evidence of formal thought disorder or delusional thought processes. She answered questions in an open and frank manner. She denied any thoughts of self-harm or thoughts of harm to others.
When asked about her current mood, she said on the day of the assessment she felt, “alright” and described her mood as “in the middle.” Her affect (expressed emotion) was reactive, congruent and appropriate and Ms Joyan came across as a very genuine historian. She denied any perceptual abnormalities consistent with psychosis. Her cognition, insight and judgement appeared intact in the context of the assessment. Rapport was excellent and Ms Joyan spoke openly and freely. The assessment had a duration of fifty-five minutes.
Current functioning
Ms Joyan’s friendships have mostly originated from her school relationships. She has a small group of close friends, being three other young women. When they get together, they will normally meet at her place or go to another friend’s place which is close-by. They will get in food and watch a movie. She does not go to any parties and no longer partakes of any sport.
She was asked her how she passed time and she reported she watches television, usually television shows because they are short and they enable her to get up and walk around or prepare herself some food. She also likes to spend time colouring-in which helps keep her calm. She also is an avid reader but sometimes this brings on headaches. She likes to read novels. She also said she likes to sunbake when the weather is good.
Ms Joyan reported no problems with respect to self-care and personal hygiene such as showering, dressing and grooming. She no longer undertakes any household duties including cooking, housework or cleaning. Previously her job was tending to the dishwasher and vacuuming, however both of these activities make her back pain worse.
Ms Joyan gets on well with her parents and siblings, although there was some degree of irritability (mentioned above). She has more of a tendency to go into her room and spend time by herself and she feels that she is not as close as she used to be with her family.
With respect to work, Ms Joyan is working regular part-time hours, approximately 27.5 hours per week.
Ms Joyan’s family is of Islamic faith. She reported she tries to pray every day and before the accident she would usually attend mosque on a Friday. She has tried to go there since the accident but was unable to sustain driving there (her mosque is in Auburn). She reported she does fast for Ramadan and the family gets together for Eid. Due to the numbers, Ms Joyan reported they have two separate functions and estimates that between thirty and forty people come from each of her mother’s and her father’s side of the family.
Ms Joyan has other family members in Australia from both her mother and father’s sides. This includes aunts, uncles, cousins and grandparents. All of her family members came from Kabul, however they migrated at slightly different times. Her family migrated as refugees.
Recent symptoms
Ms Joyan’s sleep has been discussed elsewhere. She described her appetite as up and down and can vary from her being able to eat a whole pizza to only wanting to eat two slices. Despite a variable appetite she tries to eat healthily. Ms Joyan reported her current weight is about 53kg and her height is 161cm. Ms Joyan’s energy levels are decreased when she has not slept well the night before.
We asked about her memory and concentration, and she reported she has some problems in this area, for example she is quite forgetful and has made a few mistakes at work. She has got herself in a small amount of trouble with her employer. Examples she offered were that she at times forgets to bring the tote bags with online shopping to the front of the store so they can be picked-up. She also at times has not filled out a weekly cash register journal. She also occasionally gets change wrong with customers and recounted one incident when she gave a customer two-hundred dollars in excess.
We enquired of Ms Joyan if she thought she had any unmet treatment needs and she said she believed she should be receiving physiotherapy for her back. She would also like to have treatment for her sleep because this is the main problem affecting her. She reported that she did attend a sleep study in the middle of 2023, however this found no major problem. She believes the ultimate opinion was that it was a psychological issue. Ms Joyan also reported that she would like to see a psychologist, particularly to assist with her sleep as she believes it likely stems from anxiety.
Personal and developmental history
Ms Joyan was born in St Leonards in Sydney and spent the first eight years of her life in the Hills District of Sydney. She denied any perinatal complications and any major illnesses as a youngster. She walked and talked at developmentally appropriate times and commenced her early schooling without incident. Her first primary school was Castle Hill Primary School and then she spent one term at Roselea Primary School in year 2 and for the rest of primary school she attended Beecroft Primary School. She attended high school at Cheltenham Girls High School which she described as “alright.”
CONSIDERATION OF THE ISSUES
What is the diagnosis and causation of any injury?
Ms Joyan was involved in a motor vehicle accident where she was a rear seat passenger and the vehicle she was travelling in sustained a rear impact whilst it was stationary at traffic lights. The claimant says she developed a number of physical injuries following this motor vehicle accident which interfered with her day-to-day functioning.
Ms Joyan has also developed some psychological symptoms, including depressed mood and feelings of anxiety, that in the Medical Assessors’ opinion, were related to the motor vehicle accident and the subsequent physical injuries. The anxiety symptoms developed not long after the subject accident, although she did not enter psychological treatment until much later. She had long COVID infection, which has not caused a psychological injury, but which did affect her level of physical activity and her cognition (she described a period of brain fog).
The Medical Assessors are satisfied that Ms Joyan’s current psychological injury is caused by the subject accident.
The Panel is satisfied that Ms Joyan meets the diagnostic criteria for an Adjustment Disorder under DSM-5 for the following reasons:
(a) Ms Joyan developed emotional behavioural symptoms in response to the accident, but there is no documented report of them within three months of the date of the accident. The claimant made a timely report of her physical injuries to her doctor two days after the accident and in her claim from lodged within a month of the accident. The claimant was first referred for counselling by her GP Dr Thomas on 23 August 2021 due to anxiety and depression which appears to be related to the lack of progress in the recovery of her physical injuries and ongoing physical complaints and symptoms and the claimant certainly appears to have sought that counselling with three months of developing an awareness that her symptoms were not improving;
(b) her symptoms have at times caused marked distress, arguably out of proportion to the severity or intensity of the accident, and caused significant impairment at times in social, occupational or other important areas of function (criterion B).
(c) It is the clinical judgement of the medical members of the Panel that Ms Joyan’s symptoms do not meet the criteria for post-traumatic stress disorder (see below) or any another mental disorder and are not an exacerbation of a pre-existing mental disorder (criterion C);
(d) her symptoms do not represent normal bereavement (criterion D) noting no other person was killed or seriously injured in the accident;
(e) her symptoms persist. She has ongoing physical symptoms which perpetuate her mental health problems (satisfying criterion E). Her symptoms have been the subject of specialist opinion in 2021 and did improve (according to Dr Dalton). There is no bony or structural injury (according to Dr Dalton, Dr Rao and Medical Assessor Truskett) and the claimant does not report any ongoing treatment, and
(f) Ms Joyan’s symptoms would be best described as mixed anxiety and depressed mood (a DSM specifier).
Ms Joyan’s symptoms appear to have taken on a chronic course and in the Medical Assessors’ opinion there is unlikely to be any substantial change in her level of permanent impairment in the upcoming 12 months. The Medical Assessors’ opinion is that Ms Joyan has a permanent psychiatric impairment.
Does the claimant have a post-traumatic stress disorder?
Although Ms Joyan developed some post-traumatic symptoms from the subject accident, such as nightmares involving car accidents and some avoidance of driving, it is the clinical judgement of the Medical Assessors that she has never fulfilled all the diagnostic criteria for post-traumatic stress disorder, in particular criterion A which relates to the severity of the accident and requires “exposure to actual or threatened death, serious injury ...”
The diagnostic features of the disorder are explained in the commentary and Criterion A concerns exposure to one or more traumatic events and says:
“The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war … threatened or actual physical assault … threatened or actual sexual violence …, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents [emphasis added].”
While the Medical Assessors accept that the claimant was involved in a motor vehicle accident and was injured, she does not report she saw what was going to happen (understandable as she was a rear seat passenger). She felt and experienced what did happen which included a rear end impact or push and her head going forward. But her mother got out of the car, as did the driver of the other car and both vehicles drove away. The family continued to a social event.
No airbags deployed and no windows were broken. No police or emergency services came to the scene, no person was required to be extricated by the fire brigade and there is no evidence of anyone else in the car being injured or taken to hospital. The claimant went to a doctor a day or two after the accident. The claimant sustained what have been diagnosed as soft tissue injuries. No bones were broken and there were no lacerations or abrasions and therefore no exposure to the sight or smell of blood.
The claimant had no time off school after the accident.
The Medical Assessors are of the view that the motor accident was not a “severe motor vehicle accident” and was not a traumatic event. Criterion A required the claimant to be exposed to actual or threatened death or serious injury and she was not.
CONSIDERATION OF THE ISSUES
Is the claimant’s injury a threshold injury?
The Medical Assessors on the Panel have diagnosed the claimant with an Adjustment Disorder which is a psychiatric illness recognised in the DSM-5-TR as required by s 1.6(1)(b) of the MAI Act.
In accordance with cl 4(2) of the Regulation an Adjustment Disorder is a threshold injury. Therefore, the claimant, as she presented on the day of the re-examination to Medical Assessors Hong and Jones is assessed as having a threshold injury.
Has the claimant ever had a non-threshold injury?
A Review Panels in David v Allianz Australia Insurance Ltd[6] and Lynch v AAI Limited t/as AAMI[7] held that whether the claimant has a threshold or non-threshold injury on the day of any re-examination by a Panel is only one part of the assessment. The Panels found in those two cases that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.
[6] 2021 NSWPICMP 227.
[7] 2022 NSWPICMP 6.
The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.
On the basis of the Medical Assessors’ diagnosis and in particular the commentary on Criterion A for a post-traumatic stress disorder, the Panel is of the view the claimant has not met the criteria for a post-traumatic stress disorder at any time since the accident.
The Medical Assessors have carefully perused the material in particular the treating notes from Ms Santosa and it is their clinical judgement that at no time since the accident has the claimant met the criteria for any other disorder in the DSM-5-TR.
What is the degree of the claimant’s whole person impairment?
While the claimant has been found to have a threshold injury, the claimant has physical injuries (also assessed as threshold). While the claimant has no current entitlement to damages, the Panel is of the view that an assessment of WPI should be made should the claimant be assessed as having a threshold injury.
The Panel notes the Medical Assessors’ diagnosis of a chronic adjustment disorder with mixed anxiety and depressed mood and that she is currently having no psychiatric or psychological treatment at the present time.
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
1
Minor deficit attributable to the normal variation in the general population.
Ms Joyan is independent with respect to her self-care and personal hygiene such as showering, dressing and grooming. There were no signs of neglect at assessment. She presents to work four days per week in a customer service assistant manager role. Utilising clinical judgement, there is no significant impairment in this category.
2. Social and Recreational Activities
2
Mild impairment
Although Ms Joyan says she has reduced her social and recreational pursuits somewhat, this may be as a result of her work duties. She says she continues to socialise with a small group of close friends, either at their house or her home. She will watch television at home, and enjoys sunbaking on occasions, colouring-in and likes reading. Sometimes reading will cause her to have headaches. There are physical reasons for a reduction in recreational activities (for example, Ms Joyan previously was an avid soccer player), however these are not taken into account in this assessment. Utilising clinical judgement, she has a class 2, mild impairment.
3. Travel
2
Mild impairment
Although Ms Joyan is able to drive independently (for example, she drives to and from work on a regular basis), she reported that she experiences anxiety when driving and has a tendency to avoid driving if possible. She does not tend to use public transport. Utilising clinical judgement, there is a class 2, mild impairment here.
4. Social Functioning
2
Mild impairment
Ms Joyan maintains a close group of long-term friendships. She also maintains relationships with her parents and siblings, however reported there is some degree of irritability at times, and she has a tendency to keep to herself more and does not feel as close with them as she used to. She is not currently in a relationship and has not had a substantial relationship at her young age. She reported that she is less sociable than she previously was. Utilising clinical judgement, there is a class 2, mild impairment.
5. Concentration, Persistence and Pace
2
Mild impairment
Ms Joyan concentrated well for the assessment. She reported examples of cognitive fatigue at some times, such as when reading. She maintains her assistant manager role at her local Woolworths, working approximately twenty-seven hours per week on a regular basis, which is an intellectually demanding task. She did report occasional errors at work due to forgetfulness. Overall, utilising clinical judgement, the Panel’s opinion was that Ms Joyan’s reported level of functioning and presentation at assessment was consistent with a class 2, mild impairment.
6. Adaptation
2
Mild impairment
Ms Joyan is currently working in an assistant manager role in a supermarket and maintains permanent part-time work, approximately twenty-seven hours per week. Utilising clinical judgement, her overall adaptive functioning is consistent with a class 2, mild impairment.
The classes of impairment for the six areas of function are in ascending order 1, 2, 2, 2, 2, 2 which results in a median class value of 2 and an aggregate of 11 which converts to a WPI of 5%.
Adjustments
There is no evidence for any adjustment for pre-existing or subsequent impairment. The effects of long COVID, subsequent to the accident, appear to have resolved.
Ms Joyan is not currently undergoing any psychiatric or psychological treatment, therefore no adjustment is warranted for the effect of treatment.
CONCLUSION
Therefore, the final whole person impairment resulting from Ms Joyan’s psychological or psychiatric injury caused by the accident is 5%.
The Panel has also found the claimant has a threshold injury.
As the claimant has come to a different conclusion to Medical Assessor Robertson, it follows that his certificate must be revoked, and a fresh certificate issued.
The Review Panel
Personal Injury Commission
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