QBE Insurance (Australia) Limited v Lewis
[2024] NSWPICMP 337
•21 May 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Lewis [2024] NSWPICMP 337 |
CLAIMANT: | Ronald Lewis |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Gerald Chew |
MEDICAL ASSESSOR: | Wayne Mason |
DATE OF DECISION: | 21 May 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical assessment dispute; Schedule 2 cl 2; psychological injury caused by motor accident; whether threshold injury; Held – adjustment disorder; threshold injury; Medical Assessment Certificate revoked and replaced. |
DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of threshold injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 3 June 2020 and certifies that: 1. The following injuries were not caused by the motor accident: (a) post-traumatic stress reaction and anxiety. 2. The following injury caused by the motor accident: · adjustment disorder, is a THRESHOLD INJURY for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Ronald Lewis, is a 72-year-old male who alleges he sustained injuries in a motor vehicle accident that occurred on 24 November 2020 at the intersection of Birnie Avenue and Parramatta Road in Lidcombe, NSW.
As a result of the subject accident, the claimant alleges he sustained injuries to his cervical spine and a psychological injury.
The insurer is liable to pay the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the Act) for the motor accident.
The issue presently in dispute is whether the claimant’s psychological injury is classified as a “threshold injury” within the meaning of the Act.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the Act, on review by a review panel.
BACKGROUND
In an Application for Personal Injury Benefits made on 11 December 2020, the claimant describes the accident on 24 November 2020 as occurring at the intersection of Birnie Avenue and Parramatta Road in Lidcombe. He says that as his van was travelling through the intersection when the insured vehicle ran a red light and hit his van which spun, rolled, flipped, and hit a power pole. He says he was helped from his vehicle by bystanders. He says that he suffers a bad case of flashbacks, insomnia, nightmares and post-traumatic stress reaction and anxiety.
On 15 March 2021, the insurer issued a post-26 weeks Liability Notice advising that statutory benefits would cease on 24 May 2021 on the basis that it had been determined that the claimant sustained minor physical and psychological injuries in the subject accident.
On 12 April 2021, the claimant’s solicitors sought an internal review of the insurer’s Post-26 Weeks Liability Notice dated 14 March 2021.
On 30 April 2021, the insurer’s determination that the claimant sustained minor injuries in the subject accident was upheld by way of Internal Review.
The claimant sought assessment of the issue of whether he sustained minor injuries in the accident.
ASSESSMENT UNDER REVIEW
By certificate and reasons dated 3 June 2020, Medical Assessor Samuell, determined that the claimant sustained a post-traumatic stress disorder injury which was not a threshold injury for the purposes of the Act. The Medical Assessor was satisfied that the accident was of sufficient severity to satisfy the trauma criteria for that disorder. He recorded that the claimant described re-experiencing phenomena, heightened arousal, avoidance, and mood disturbance over a protracted period.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Samuell was lodged within 28 days of the date on which the certificate was made available to the parties.
On 5 September 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 Panel. The delegate’s reasons were that the Medical Assessor failed to provide adequate reasons to justify his diagnosis of post-traumatic stress disorder and was satisfied that the certificate contained several unresolved inconsistencies and incomplete parts of reasoning.
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 (Commission). Accordingly, the President’s delegate referred the matter to this Panel to assess.
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. 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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
The Panel issued a Direction to the parties dated 14 July 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this direction the solicitor for the insurer filed a bundle of documents. The claimant failed to comply with this direction. In directions dated 30 August 2023, despite noting that no material had been provided by the claimant pursuant to directions with respect to the joint bundle, the claimant did abide by the direction requiring he attend re-examination on 20 November 2023 by MS Teams. The report of the re-examination undertaken is set out below.
No submissions or material has been received from the claimant as at the date of publishing these reasons.
EVIDENCE BEFORE THE REVIEW PANEL
On 25 November 2020, the claimant attended upon his general practitioner presenting with trauma (delayed) response post motor vehicle accident. He initially declined presentation to hospital (Liverpool) from the scene. He represented to his general practitioner that this was due to advice from his family. The motor accident was described as occurring at 12 noon when the claimant was driving at 30kmph and was T-boned by another car on his left side which was driving at 70kmph. The notes record his car spun rolled and hit the light pole. Airbags were not deployed. He was extricated by others. He had nil loss of consciousness/head injury. He has a complete recollection of the event. He had nil neck or head pain and nil neurological deficits. He had mid left thigh discomfort. His vitals were within normal limits.
On 27 November 2020, the claimant was referred by his general practitioner Dr Nicholas Britain to a psychologist, Jane Clark in Randwick, for opinion and management. In the letter referring the claimant, his general practitioner said that the claimant’s “vehicle was hit hard in an MVA by vehicle that was driven through a red light at the intersection. He was reported to be suffering flashbacks, nightmares, insomnia and feels unable to drive at present. I believe he has a post-traumatic stress reaction”.
In a mental state examination undertaken by his general practitioner, Dr Brittain on
17 December 2020, the claimant was described as having a casual appearance and general behaviour and sleep disturbance. The patient plan recorded that he was looking to improve his coping skills and be referred to a psychologist. He obtained a score of 15 pursuant to an assessment to determine the level of anxiety or depressive disorder he was suffering, which score was in the upper range of “low or no risk”.
The general practitioner recorded on 29 January 2021 that the claimant still suffered from flashbacks, nightmares and was tired. He was unable to see his psychologist due to a respiratory illness.
On 26 March 2021, the claimant’s general practitioner noted that the claimant’s post-traumatic stress disorder had improved, with only occasional anxiety, flashbacks to the accident only. He recorded that the claimant did not see the psychologist because he did not need to. He recorded that the claimant’s sleep was reasonable.
In a record of attendance dated 30 April 2021, the claimant’s general practitioner recorded that the claimant still suffered some anxiety and was somewhat better in traffic.
In a record of attendance dated 20 October 2022, the claimant’s general practitioner recorded that the claimant felt much better. He had one more session with his psychologist, Ms Clark. He feels that will be enough.
In a certificate of capacity dated 1 February 2021, it was recorded that he was taking Circadin for insomnia and his psychologist was treating him for trauma. He had no capacity for work between 4 December 2020 and 1 January 2021.
In a certificate of capacity dated 1 March 2021, he declared that he had four hours a day, five days a week for one week and had worked three hours a day for the previous three weeks.
In a certificate of capacity dated 26 March 2021, the claimant declared that he had worked four hours a day, five days a week for the last four weeks.
In a certificate of capacity dated 2 May 2021, the claimant declared that he had worked four hours a day, five days a week for the last four weeks.
SUBMISSIONS
The claimant submits that since the subject accident, he has experienced psychological trauma including suffering from flashbacks, nightmares, insomnia and is unable to drive as a result of his fear. He submits that Dr Nicolas Brittain, his general practitioner, diagnosed the claimant with post-traumatic stress disorder.
The insurer submits that the available evidence supports the finding that the claimant sustained only a minor psychological injury in the subject accident. It relies upon the claimant’s certificates of capacity which provided diagnosis of adjustment reaction with anxious mood. It notes that these certificates record that there has been an improvement in the claimant’s anxiety levels. It acknowledges that whilst Dr Brittain provides a diagnosis of post-traumatic stress reaction in a referral dated 27 November 2020, this is not a recognised psychiatric illness within the DSM-V. Therefore, it submits that the evidence supports a finding the claimant’s symptoms do not meet the criteria for a recognised psychiatric illness other than, perhaps, an adjustment disorder, which is a threshold injury.
RE-EXAMINATION ON REVIEW
The claimant attended examination on 20 November 2023 conducted by the Medical Assessors on the Panel.
A detailed examination report was prepared immediately following that examination based on notes taken during that examination. That examination report is as follows.
FINDINGS ON RE-EXAMINATION
The Panel examined to the claimant at 3pm on 20 November 2023 via Microsoft Teams.
The claimant was unaccompanied for the interview. His sister-in-law was present prior to commencement of the interview as she had assisted with connection to the telehealth appointment.
The claimant is a 74-year-old man who lives in Matraville with his second wife of 27 years. He has two daughters – one in Sydney and one in the South Coast. He has four grandchildren. He lost his son in 2010 who died by way of drowning during a peacekeeping mission in the Solomon Islands.
He is currently working part-time as a courier for the same company that he worked prior to the accident, Go Logistics. He drives a one-tonne van and delivers parcels. He works approximately 16 hours per week over 4 days generally 2.5 hours in the morning and 1.5 hours in the afternoon.
The subject motor accident
When asked to describe the motor accident, he reported that on 24 November 2020 he was driving in the Homebush area in a one-tonne courier van. He had stopped at a red light and when it turned green had started moving and was travelling at approximately 30kmph slowly accelerating. A one-tonne courier van ran a red light at approximately 70kmph and hit the left rear of his vehicle. This caused the vehicle to spin around then roll and hit a power-pole. The vehicle ended up on the driver’s side. The airbag was not deployed. He was seat-belted in. Two bystanders came to assist. After a struggle he was able to free himself from the seatbelt and stand up and was assisted out of the passenger side of the vehicle.
He said that she was in “shock” when it happened. He said that he feared serious injury as he was rolling and his family flashed through his mind. He had been fearful that he might die.
He did not leave the scene by ambulance as he wanted to attend Prince of Wales Hospital (POWH) where his wife works as an administrative officer. He said that he called his wife to talk to her. His company then provided an Uber for him to take home. He travelled from home with his wife to POWH.
His vehicle was written off and towed from the scene.
Symptoms
He stayed overnight at POWH and was discharged the next day with the only diagnosis being a “minor cervical injury”. He saw a chiropractor for one session about two weeks later but did not find this helpful.
He reported that after the accident he was more irritable than usual. He said that he was more cautious and worried about driving. He experienced nightmares related to the accident for a few weeks after the accident. He did not experience flashbacks but did have memories of the accident, particularly when triggered by other accidents or driving back through the scene which he has done on numerous occasions. He continues to be more anxious while driving than he was prior to the motor accident. He reported interrupted sleep because of worry but also because of pain from his neck and also need to go to the toilet. He does not report a pervasive depressed mood. He reports that his appetite and weight have remained unchanged. He has felt at times that life is not worth living but has had no active suicidal ideation. He cites his family as protective.
He says that he has lost confidence in himself and socialises less. He does enjoy time with his family, children, and grandchildren. He sees his Sydney based grandchildren every few weeks. He sees his South Coast based family approximately six times a year.
He previously went out dancing and to dinners with friends weekly. He now goes out approximately monthly.
Treatment
He has attended his general practitioner regarding psychological symptoms. He attended approximately seven sessions with a psychologist in Randwick around two years ago which he found helpful. He has not taken any psychotropic medication. He has not seen a psychiatrist. No further mental health treatment is planned.
Current and proposed treatment
There is no current or proposed psychological or psychiatric treatment.
Current medications
Medications consist of aspirin 100 mg daily, bisoprolol 2.5 mg daily, leflunomide 10 mg and rosuvastatin 40 mg nocte. He has not used psychotropic medication.
Past psychiatric history
He denied a history of any prior psychiatric treatment. He described distress and grief following the death of his son in 2010 from which he gradually recovered over two or three years.
Medical history
The claimant has rheumatoid arthritis. He sees a rheumatologist at POWH. He has attended physiotherapy and been prescribed medication.
The claimant has ischaemic heart disease. He had a myocardial infarction in 2018 and required coronary stenting. He sees his cardiologist annually and is prescribed various preventative medications.
Personal history
He was born in Chile and migrated to Australia in April 1970 age 21. He is an Australian citizen. He was attracted to move to Australia as he had an uncle who worked in the Australian Embassy in Santiago. He enjoyed Australia, found work, friendships and met his wife.
Both of his parents have passed away. His father died from a stroke. His mother died from bowel cancer. He has one brother in Australia. He has three brothers and a sister in Chile.
There is no known family history of mental illness.
He completed secondary school in Chile. He has no tertiary education. He worked in various jobs including rigging, a brewery, and Unilever prior to working as a courier in 1990. He has worked as a courier since.
He reports occasional alcohol intake one glass on Saturday/ Sunday. He has never used cannabis or recreational drugs. He is an ex-smoker.
Prior to the accident he worked 22-24 hours per week over three days.
He reported that he was able to concentrate and enjoy watching drama and documentary programs on television with his wife.
He shares the domestic duties with his wife. He showers daily and attends to activities of daily living (ADLs).
Mental state examination
He appeared reasonably and appropriately groomed. He engaged freely and easily. He reported a more worried mood. He had appropriate reactivity of affect. His speech was of normal rate, rhythm, volume and prosody. There was no formal thought disorder. There were no delusions and no hallucinations. His cognition was grossly intact. There had been occasional thoughts of being better off dead but no suicidal ideation or plan.
Diagnosis and reasons for diagnosis
The claimant suffers from an adjustment disorder with mixed anxiety and depressed mood. He meets DSM-5 criteria for this condition as follows:
(a) Criterion A. He suffers from emotional symptoms in response to an identifiable stressor (the accident).
(b) Criterion B. The symptoms are clinically significant and cause him distress.
(c) Criterion C. The disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing disorder.
(d) Criterion D. The symptoms do not represent normal bereavement.
(e) Criterion E. The symptoms persist in the context of ongoing pain from the accident.
He does not meet DSM-V criteria for post-traumatic stress disorder. While the accident fulfils criterion A, he does not experience the necessary features to fulfil Criterion B, C, D or E.
Causation
The adjustment disorder is caused by the motor accident. The motor accident was serious and there is no other temporally related stressor which can explain the symptoms. The symptoms are perpetuated by ongoing cervical pain.
THRESHOLD INJURY (formerly minor injury)
The Motor Accident Injuries Amendment Act 2022 (the Amendment Act) was assented on
28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a threshold injury was not amended.
“Injury” is defined in s 1.4 (b) of the Act to mean personal or bodily injury and includes relevantly psychological or psychiatric injury.
Threshold injury is defined by s 1.6(1)(b) of the Act, which provides that for the purposes of the Act, a threshold injury is a psychological or psychiatric injury that is not a recognised psychiatric illness. Section 1.6 (4) of the Act provides that the Motor Accident Injuries Regulation 2017 (Regulation) may preclude to specified injury from being a threshold injury for the purposes of the Act. Part 1 cl 4 (2)(b) of the Regulation provides that an adjustment disorder is a threshold psychological or psychiatric injury for the purposes of the Act.
CONCLUSION
Accordingly, the adjustment disorder which the Panel finds that the claimant suffered as a result of the motor accident is a threshold injury.
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