QBE Insurance (Australia) Limited v Omeissah
[2024] NSWPICMP 632
•6 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Omeissah [2024] NSWPICMP 632 |
CLAIMANT: | Christopher Omeissah |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Gerald Chew |
MEDICAL ASSESSOR: | Doron Samuell |
DATE OF DECISION: | 6 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of a medical assessment of a single Medical Assessor; determination as to whether the injured person has suffered a threshold injury for the purposes of the Act; psychological injury; claimant presents with a heightened risk perception of driving since the motor accident; symptoms are not such that they meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria of a psychiatric disorder; Held – no psychiatric disorder diagnosed as a result of the motor accident; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Roberts dated 26 March 2023. 2. Certifies that Mr Omeissah has not sustained a psychological injury caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
Mr Christopher Omeissah (the claimant) alleges injury from a motor accident occurring on
15 January 2021 when he was the driver of a Lexus Coupe when a truck with a container merged into his lane colliding with the door of the claimant’s vehicle. He was 27 years of age at the date of the accident.
He subsequently lodged a claim upon QBE Insurance (Australia) Limited, the insurer of the truck considered at fault (the insurer). The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury (previously known as “minor” injury) for the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
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 threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
Medical Assessor Samson Roberts issued a certificate and reasons dated 26 March 2023, which certified the claimant as suffering a specific phobia – driving caused by the motor accident, which was not a minor injury (now known as “threshold” injury) for the purpose of the MAI Act.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act. On 22 May 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel met via video conference on 14 February 2024 and determined that a re-examination of the claimant was required. A medical examination was arranged to take place on 2 August 2024 with Medical Assessor Chew and Medical Assessor Samuell via Microsoft Teams. The examination took place as scheduled.
The Panel reconvened via videolink for a second teleconference on 16 August 2024.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold 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 threshold 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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
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.
5.12 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 threshold injury.”
ASSESSMENT UNDER REVIEW
Medical Assessor Roberts documented a history from the claimant that did not include any prior mental health issues. Medical Assessor Roberts reports: “he did not consider himself an anxious person. He was readily able to resume driving.”
The claimant is noted to describe the accident as a “bit of a shock” because of the size of the other vehicle and his car was very low. The claimant stated that he had some apprehension and would find himself sweating when driving next to trucks and he felt anxious.
The apprehension around trucks remained and the claimant is reported to avoid trucks and buses. When around large vehicles, the claimant’s mind goes back to the accident. The claimant does not pull over in such circumstances but does steer away. The claimant also purchased a much larger car after the accident.
On account of the history provided and following examination, Medical Assessor Roberts diagnosed a specific phobia – driving and therefore certified such injury as not a minor injury (now known as threshold injury).
DOCUMENTATION
The Panel has considered all documentation provided by the parties in respect the review application.
NSW Police report dated 22 February 2021
The crash summary details are recorded as: “Veh 1 was travelling in a easterly direction along City west link in lane 1 approx 300m before james st lilyfield, travelling at approx. 50kph when Veh 2 merged from lane 2 colliding with the rear offside of Veh 1. Driver 1 in unlicensed.” [sic].
NSW Ambulance
The report records the claimant standing next to his car with a history of his vehicle having been hit by a truck that had veered into his lane. The claimant had self extricated and was noted to be alert, orientated. He complained of upper back pain.
Application for Personal Injury Benefits dated 19 January 2021
The claimant lists alleged injuries as “discal injury to neck, discal injury to back, left ribs, psychiatric disorder (anxiety, PTSD, depression)”.
Certificate of capacity dated 28 January 2019 completed by, general practitioner (GP),
Dr Tsang
The certificate lists a number of physical injuries. Also recorded is “psychological anxiety next to truck on driving.”
Referral to Zeina Boutros, psychologist by Dr Tsang dated 28 January 2021
The referral notes the claimant had a physical recovery from soft tissue injuries “…but now developed anxiety and phobia to trucks while driving”.
Allied Health Recovery Request dated 10 June 2021
The request is for eight psychological treatment consultations from Zeina Boutros of Zen Psychology Services. The clinical assessment diagnosis is listed as “anxiety; Phobia and Post Traumatic Stress Disorder (PTSD) as per treating doctor’s referral”.
The claimant is noted to be suffering a number of psychological symptoms including low energy, loss of interest, panic, difficulty with focus and fear of driving.
Insurer questionnaire completed by Dr Tsang
The claimant is noted to be suffering from anxiety driving if in proximity to trucks.
Report of Dr Akkerman, psychiatrist, dated 11 March 2014
This report was received by lawyers acting on behalf of the claimant in respect of an earlier motor accident occurring on 14 August 2013. That accident involved the claimant being a front seat passenger in a vehicle that was hit from behind.
Dr Akkerman diagnosed a specific phobia for traffic as a result of that accident. Prognosis was noted as guarded. The claimant is recorded as giving a history of symptoms that centre around anxiety in a car.
A whole person impairment assessment was given by Dr Akkerman at 17%.
Medical assessment certificate of Medical Assessor Truskett dated 10 March 2022
Medical Assessor Truskett certified that injuries to the cervical and thoracic spine were “minor” injuries for the purposes of the MAI Act.
SUBMISSIONS
Claimant’s submissions dated 24 June 2021
These submissions were lodged in support of the original application for determination of the threshold dispute.
In respect of the claimed psychological injury, the claimant simply submits that a “psychiatric disorder” was sustained in accordance with the DSM-5. It is submitted that the insurer’s decision to find a threshold injury in contravention of cls 5.10 and 5.11 of the Guidelines.
Insurer’s submissions dated 24 August 2021
These submissions were originally lodged in support of the claimant’s original application for determination of the threshold dispute.
Insofar as they are relevant to the alleged psychological injury, the insurer refers to the report of Dr Akkerman who diagnosed a specific phobia for traffic as a result of a previous motor accident.
The insurer notes the motor accident was minor in nature, with the claimant being able to exit his vehicle and exchange details with the other driver. The claimant’s vehicle was observed to have minimal damage.
Insurer’s submissions dated 26 April 2023
The insurer submits that Medical Assessor Roberts failed to adequately engage with the objective evidence regarding a previous motor accident occurring in 2013 and the consequential diagnosis of specific phobia for traffic.
It is submitted that Medical Assessor Roberts failed to raise with the claimant a discrepancy in the history provided in respect of the earlier motor accident as provided to the Medical Assessor and to Dr Akkerman.
The insurer submits that the diagnosis of specific phobia – driving, was not made in accordance with the diagnostic criteria of the DSM-5 and therefore he failed to comply with cl 5.11 of the Guidelines.
Claimant’s submissions dated 17 May 2023
These submissions are in reply to the insurer’s application for review.
The claimant rejects the suggestion that Medical Assessor Roberts failed to engage with the objective evidence regarding the prior motor accident.
The suggestion that the Medical Assessor failed to diagnose the claimant in accordance with the DSM-5 is also rejected by the claimant.
RE-EXAMINATION
The claimant was located at his workplace in Summer Hill unaccompanied in a private office.
Psychosocial history and pre-accident history
The claimant is a 29-year-old man who lives in Hunters Hill. He is engaged to be married in four weeks. He has been in this relationship for four years and has no dependent children.
He is the owner and founder of an aged care and disability business. The business has been fully operational for around 12 months however he described five years of planning prior. He employs 110 staff, 20 in the head office and the rest at various sites including in the Central Coast and Newcastle. He said that the business is going “really well” and he was pleased as they managed to “scale very quickly”. He described working 60-70 hours per week on his business.
He was born and raised in Sydney. He moved to Hunters Hill around four months ago. His parents migrated from Lebanon. He is the second eldest four siblings. He has one nephew and another on the way. He was raised Roman Catholic and continues to attend Church on Sundays. He completed year 12 at school and was educated at St Patrick’s in Strathfield. He completed a Law and Business degree at UTS in 2017/18. He worked for a number of big firms including Macquarie Bank and KPMG and then in the Tech industry before starting his own business.
He knew of no family history of mental health issues in his immediate family however said that there were some drug and alcohol issues in his maternal uncles.
He said that he has not drunk alcohol for over two years and does not use recreational drugs.
He was involved in a motor accident in 2013. He could not recall details of this accident very well. He said that this accident was less significant as he wasn’t driving and was rear ended. He recalled having lower back issues and treatment for same which resolved after a few years. He did not recall psychological issues. The panel put to him information as per the report of Dr Akkerman in 2014 where he reported some increased anxiety regarding driving. He said that he did not recall but thought that this was likely accurate however that his issues resolved over time.
History of the motor accident
The claimant said he was seat-belted and the driver of his car a Lexus RC F coupe heading towards the city at approximately 7:30am along the Bay run when a large truck who was merging into the left lane merged into him first making contact with the rear right side of his car “sandwiching” him into the kerb which caused his car to move left and off the side of the road.
The driver of the truck opened his driver’s door and he got out of the car. A tow-truck was called which towed the vehicle. Emergency services were called and he met them around the corner. He was taken by ambulance to Royal Prince Alfred (RPA) Hospital where he stayed for a number of hours and was not admitted overnight.
History of symptoms and conditions following the motor accident
He developed some pain in the right side of his neck and shoulder.
From a psychological perspective he reported a change in his risk perception while driving.
He was able to drive a small Audi SUV rental car for nine months while his Lexus RC F coupe was being repaired and was able to drive the Lexus for a period when he got it back from repair. He said that the repair was substandard and because of this and his altered perception of risk, he changed to a large vehicle – a BMW X6 SUV which helped to reduce his anxiety while driving.
He attended less than five sessions with a psychologist around 2-3 months after the accident but did not find this helpful.
Injuries or conditions since the subject motor accident
He has been diagnosed with Wolf-Parkinson-White syndrome and has been hospitalised three times in the last year with palpitations. He has had extensive investigations with cardiology and has an appointment coming up to discuss management.
Current symptoms
The claimant has ongoing pain in his neck and shoulders on his right side. This continues to improve however causes some “niggles” and restricts some gym workouts but doesn’t restrict his activities significantly otherwise.
The claimant reports some ongoing altered risk perception with regards to driving on the roads. He does not like to drive or travel in small cars. He reports that he feels ‘stressed and uneasy’ when driving alongside a big truck.
Current and proposed treatment
The claimant said he was engaged with his physiotherapist monthly and chiropractor every fortnight for his ongoing physical symptoms.
He is not seeing a psychologist or other mental health practitioner and there are no plans for any psychological or psychiatric treatment.
He does not take any medications.
Mental state examination
He appeared his stated age and was well presented with no abnormal psychomotor activity. He engaged freely and easily and frequently referred to the interviewer Medical Assessor Chew by his first name while answering questions. His speech was articulate and otherwise unremarkable. His mood was euthymic. His affect was appropriately reactive. He had no evidence of psychosis. He was oriented to time, place and person and his cognition was intact. He concentrated for the duration of the interview. He had no thoughts of harm to self or others. He was future focussed.
Current functioning
The claimant reports that he spends most of his time working. He attends the gym three times a week doing cardio and light weights. He has a good intimate relationship and is getting married in a month. There is a large wedding planned with 500 guests followed by a honeymoon to Europe for three weeks. He is very close to his family and his partner’s family and sees them regularly. He maintains a few friendships.
Consistency of presentation
His history and presentation were internally consistent. There was an inconsistency between his current recollection of the 2013 accident and what he reported to Dr Akkerman in 2014 which was explored with him.
Diagnosis
The claimant presents with a heightened risk perception of driving since the subject accident. There is evidence that his risk perception was also heightened for a time after the 2013 accident which may have predisposed him to his current status.
He is however able to continue to function at a high level in all functional domains including continuing to be able to drive daily.
He has not met the criteria for any DSM-5 psychiatric illness since the subject accident.
He has not met the criteria for a specific phobia driving, in particular, he does not meet Criterion A as the fear or anxiety is not “Marked” or Criterion C as driving is not actively avoided or endured with intense fear or anxiety, and he does not meet Criterion F as there has not been significant impairment of function.
The Panel makes no psychiatric diagnosis and there is no psychiatric injury as a result of the subject accident.
CONCLUSION
The Panel has found that the claimant has not sustained a psychological injury caused by the motor accident.
As the Panel has come to a different conclusion to Medical Assessor Roberts, it follows therefore that his certificate must be revoked.
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