QBE Insurance (Australia) Limited v Orehovec
[2024] NSWPICMP 544
•7 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Orehovec [2024] NSWPICMP 544 |
CLAIMANT: | Stephen Orehovec |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
MEDICAL ASSESSOR: | Doron Samuell |
DATE OF DECISION: | 7 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review; threshold injuries; claimant alleged he developed anxiety, depression and post-traumatic stress disorder as a result of the accident; claim form had physical injuries listed and “psychological injuries”; first documented complaint of psychological issues requiring treatment recorded in GP’s records three years after the accident; claimant had previous history of lumbar spine issues (including surgery), bladder cancer and thyroid cancer; claimant’s cancer recurred after accident and claimant had a kidney and his bladder removed; claimant now has a stoma and continues to receive immunotherapy treatment; Held –the accident could have caused a psychological injury but did not; gap of three years could not be adequately explained; claimant’s significant other conditions the cause of his current depression; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Sidorov dated 27 May 2023. 2. Certifies that Mr Orehovec does not have a psychological or psychiatric injury caused by the accident. |
STATEMENT OF REASONS
INTRODUCTION
Stephen Orehovec was involved in a motor accident on 24 February 2020. Mr Orehovec was driving with right of way when a car came out of a side road and hit his car.
Mr Orehovec says he injured his left shoulder, right knee and his neck and back in the accident and he made a claim for statutory benefits with QBE, the third-party insurer of the vehicle that he said caused his accident. He says he subsequently developed a psychiatric condition.
A medical dispute about whether the claimant’s injuries were threshold or not threshold injuries arose in the connection with the claimant and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 27 May 2023, Medical Assessor Sidorov determined that Mr Orehovec had a psychiatric injury (post-traumatic stress disorder, major depressive disorder and alcohol use disorder) and that these injuries were not a threshold injury.
The insurer has lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 11 August 2023, Ms Baba, 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 29 April 2024 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Orehovec’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act (including treatment and care and weekly income replacement benefits), 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 “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.[1]
[1] As the claimant’s accident occurred before 1 April 2023 the terminology at the time was of “minor” injury and his statutory benefits were only paid for 26 weeks. For all accident, the terminology changed on 1 April 2023 to “threshold” injury and for accidents after that date, statutory benefits became available for 52 weeks.
What is a threshold injury?
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury and s 1.6(3) provides that “a threshold psychological or psychiatric injury is (subject to this section) 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 Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[2] 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.”
[2] The current version of the Guidelines is version 9.2.
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).
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule 2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Sidorov’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Sidorov examined the claimant on 23 May 2023 and issued his reasons on 27 May 2023. He confirmed at [2] that the was asked to consider a psychiatric condition or psychological injury.
At [8] he notes the claimant was 60 years of age living with his wife, not working and in receipt of sickness benefits due to his shoulder and lower back injuries and a cancer diagnosis.
The claimant was a tiler working until the motor accident.
The claimant denied any previous mental health issues, that he smoked two to three cigarettes a day and drank eight beers per day which was significantly more than before the accident.
The claimant disclosed a 2004 workers compensation claim and back surgery three years ago (laminectomy) and a bladder cancer diagnosis 10 years previously with surgery 14 months ago to remove his bladder. He was apparently in remission.
The claimant recounted at [9] the history of the accident and that the other vehicle was at fault failing to yield at a right of way. He described it as a “big impact”, the airbags in the other car went off as did Mr Orehovec’s side airbags. Both cars were towed and
Mr Orehovec’s was repaired.
The Medical Assessor records at [10] that the claimant had immediate left shoulder pain with treatment including rotator cuff surgery and he developed right knee pain and intermittent low back pain. The claimant details psychological symptoms including nightmares, repetitive intrusive memories of the accident, mood variations, more irritability and anger and impairment concentration and disturbed sleep. He says as a result of being unable to work and having pain his mood has become depressed and he feels tired, fatigued and lacks motivation.
Medical Assessor Sidorov has a history of the claimant seeing his general practitioner (GP), being referred to see a psychologist who he saw for four sessions over four weeks before funding was stopped. There had been no referral to a psychiatrist. He noted the claimant had been prescribed Pristiq, Panadeine Forte and Voltaren.
At [11] Medical Assessor Sidorov notes that the progression of the claimant’s bladder cancer has been an added stressor to his situation.
The claimant’s current symptoms are set out in [12]. The claimant has depressive symptoms, reduced motivation and energy, feeling of helplessness and hopelessness and so on.
After considering the claimant’s mental state, current functioning and the relevant documentation, Medical Assessor Sidorov diagnoses at [19] a post-traumatic stress disorder giving reasons why. He also says the claimant meets the criteria for a major depressive disorder also giving reasons and that he would meet the criteria for an alcohol user disorder.
At [20] Medical Assessor Sidorov has determined there is a temporal connection to the accident and no evidence of any other significant cause.
At [22] Medical Assessor Sidorov determines that all three of these disorders means the claimant has a non-threshold psychiatric injury.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits at [4] that the Medical Assessor failed to apply the correct test of causation, accepted an erroneous history and failed to provide a path of reasoning.
The insurer says at [9] there is no evidence of psychological injury or symptoms directly following the accident and at [11] that there is no timeline in respect of the commencement of symptomatology and that treatment only commenced a month or two before the claimant saw Medical Assessor Sidorov.
The insurer noted at [13] the Medical Assessor said there was a “temporal connection” but says at [14] he did not disclose any reasons for that finding.
The insurer notes at [16] the first referral for psychological services was dated three years after the accident at which stage the claimant was having marriage issues not associated with the accident. The insurer also says at [17] that there is nothing in the medical records about psychological symptoms until 1 November 2021 and at [19] that these records indicate a consumption of alcohol less than that reported to the Medical Assessor.
In terms of the lack of reasoning, the insurer again refers to the “temporal connection” point complaining that there are no further reasons in particular when there has been no psychological treatment sought until three years after the accident. The insurer points to a lack of evidence and certificates of capacity which fail to refer to any psychological symptoms.
Claimant’s submissions
The claimant submits at [4] that psychological injuries are secondary to a motor accident and “may take time to develop”. The claimant also says his application for personal injury benefits refers to “the onset of psychological injuries attributed to the accident” in the list of injuries at page 3.
The claimant also notes at [5] that the insurer had denied liability for benefits on
2 September 2020 and the claimant could not afford to access psychological treatment.
The claimant says at [6] that the referral to the psychologist in February 2023 refers to the claimant’s marriage problems but also refers to stress since the accident which is an indication of symptoms of depression and anxiety since the accident.
The claimant also refers at [7] to Dr Chaudri’s medical certificate of 15 May 2023 which referred to depression and anxiety, past history of a car accident and needs to be assessed for post-traumatic stress disorder.
The claimant submits at [9] that the evidence about alcohol abuse shows that his consumption has increased gradually since the accident and there is not inconsistency.
Procedural matters
The Panel met on 21 June 2024 and reported to the parties on 24 June 2024. The Panel advised the parties of the re-examination date and directed the parties to provide bundles of documents.
The insurer’s bundle was due on 28 June 2024 and was received on 25 June 2024 comprising 165 pages.
The claimant’s bundle was due on 2 July 2024 and was received on that day and comprises 39 pages.
The Panel notes in this matter the claimant alleges physical injuries and there is much documentation concerning the physical injuries. The Panel will not be referring to all of this medical evidence but only that material that is relevant to the matters in issue.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The application for personal injury benefits was completed on 5 May 2020 over two months after the accident. The claimant described the accident as follows “Driving down … Road towards Greystanes. Car came out of side road … and slam into my left side.”
The claimant’s description of injuries includes:
(a) handwritten “left shoulder, right knee”, and
(b) typed “lumbar spine, cervical spine, left hand and psychological injuries”.
Dr Dhaliwal completed the certificate of capacity (certificate of fitness) dated 5 May 2020.[5] He diagnosed a left shoulder injury and right knee injury and says the claimant was first seen on 3 March 2020.
[5] Page 13 of the claimant’s bundle.
The claimant provided a statement to the insurer’s investigators on 22 July 2020.[6] In that statement the claimant:
(a) sets out the circumstances of the accident and notes he was driving a 2013 orange Holden utility vehicle [17];
(b) he saw the approach of the other vehicle and that it had not stopped [13] and he tried to avoid the accident [14]. He said the car was hit from the left causing his steering to spin which hurt his left shoulder [15];
(c) he says his airbags did not deploy and he drove the vehicle home;
(d) he describes the driver as a “young Asian man in his early twenties” [17] who was sitting in the driver’s seat holding his mobile phone (with a map displayed) [18] and [20];
(e) the other car had to be towed and he thinks the driver’s airbag deployed [22];
(f) the day after the accident he woke up with left shoulder, right knee, lower back and neck pain radiating to his elbow. He also refers to pins and needles in his left hand and he “was still in complete psychological shock” [35], and
(g) he went to his GP [36] and was referred to Dr Dave [38].
[6] Page 19 of the claimant’s bundle.
The claimant gave a statement to his solicitors on 6 January 2023.[7] In that statement the claimant says:
[7] Page 29 of the claimant’s bundle
(a) he injured his lower back at work in 1998, he was advised to have surgery but did not have it [5];
(b) he experienced a flare up of lower back symptoms in 2015 and had surgery at the hands of Dr Abraszko and fully recovered [6];
(c) in 2014 he had a rotator cuff tear in his right shoulder after a car accident and had surgery from Dr Dave and with physiotherapy he fully recovered [7];
(d) in 2014 he was diagnosed with bladder cancer and was in remission at the time of the accident but he had ongoing Bacillus Calmette-Guerin (BCG) [8] which the Panel notes involves the delivery of immunotherapy drugs to the bladder through a catheter;
(e) in 2018 he had thyroid surgery [9];
(f) despite the above, he was healthy and engaged with activities of daily living [10];
(g) the accident has had “a determinantal impact on my life to date” [11];
(h) immediately after the accident he noticed a sharp pain in his left shoulder and right knee. He drove home but was in shock [13];
(i) he sustained psychological injuries including anxiety, depression and post-traumatic stress disorder [14];
(j) he saw his GP [15] and then Dr Dave [16] and had surgery;
(k) the claimant was in receipt of Centrelink benefits due to his bladder cancer but was working 50 hours a week, 6 days a week [18];
(l) he enjoyed his work [19] and watched baseball and rugby league and repaired and restored old cars [20];
(m) he lived a busy life, walked his dogs and went out with his wife and had holidays and spent time with friends [21];
(n) since the accident he has chronic pain radiating from his shoulder to his neck and down his left arm with pins and needles in the left hand [23];
(o) because of his right knee and left shoulder he has been unable to return to work and complete his “shift” [24];
(p) as a result of being unable to work and afford the mortgage payments he moved out of his house and into a retirement village [26] and has had difficulty working on his car [27];
(q) he has difficulties with self-care due to his physical injuries [28];
(r) he has difficulties getting dressed because of his physical injuries [29];
(s) he cannot help around the house or look after the garden due to his physical injuries [30];
(t) he cannot take the dog for a walk because of his physical injuries and relies on his wife and neighbour [31];
(u) because of his physical injuries he has difficulty driving which “makes me depressed to think that I can no longer engage” in his passion for cars [32];
(v) he has lost friends and cannot go out “because of my high pain levels and low mood” [33];
(w) he cannot afford to go on holidays, and he cannot play with his grandchildren [34];
(x) he cannot cook for family get togethers as he cannot stand for long periods [35];
(y) he has experienced “severe psychological symptoms that have impacted me greatly” [36];
(i)because he cannot work, he feels “lazy and unproductive” which lowers his mood further [36];
(ii) low tolerance and impatience [37], and
(iii)he has difficulty sleeping due to pain in his shoulder, “anxiety and intrusive thought of the accident” [37].
Treating medical records and reports
The insurer has provided records from Narellan Medical & Dental Centre where Dr Chaudhri practices.
The claimant attended the practice on 3 March 2020 complaining of a painful left shoulder and right knee. Panadeine Forte was prescribed. The claimant attended again on
4 March 2020 for review of his radiology and was advised to see a physiotherapist and a referral to Dr Dave, orthopaedic surgeon was given.
Dr Dave reported to Dr Chaudhri on 30 March 2020 noting the claimant complained of left shoulder and right knee pain. He requested an MRI of the shoulder and indicated a review was necessary. The MRI was performed on 14 May 2020.[8]
[8] Page 16 of the claimant’s bundle.
The claimant attended the Narellan practice again on 24 May 2020 for “pain management/ review”.
Dr Dave reported to Dr Chaudhri on 21 May 2020 diagnosing a “cuff and labral tear as well as AC joint pathology” in the left shoulder. He placed the claimant on the public waiting list pending the insurer’s approval.
The claimant attended on Dr Chaudhri on 29 June 2020 for knee pain, Dr Michel for left shoulder pain in September 2020 and Dr Anderson on May 2021 for shoulder pain. There are other attendances where various prescriptions were written including for Panadeine Forte but it is not clear whether this is for his musculo skeletal issues or his other medical problems.
Dr Dave reported to Dr Chaudhri that the claimant had his surgery and was doing well and that he was “comfortable and there are no neurovascular deficits”.
On 25 June and then 25 July 2021 the claimant attended the practice for review of his injuries (left shoulder and right knee).
In all of the records from this practice, there is no mention of any psychological symptoms. There is some mention of sleep problems, but all of these are in the context of the claimant’s physical injuries.
Dr Chaudri referred the claimant to Ms Leto on 14 February 2023. The terms of that referral are:
“Suffer from depression for the last two years anxiety at times. Marriage problem. Had MVA 3 years ago stressed since that time. [Kessler Psychological Distress Scale] 32/50 not suicidal at present. Put on Pristiq 2 days ago referred to you under mental GP Care plan for [Cognitive Behavioural Therapy].”
The referral includes details of past history including:
(a) hypothyroid;
(b) impingement centre canal stenosis L4/5;
(c) multilevel disc disease;
(d) 2014 bladder cancer;
(e) 2018 thyroid cancer;
(f) 2018 L3/4 and L4/5 laminectomy, and
(g) 28 May 2020 motor vehicle accident and rotator cuff tear.
Dr Chaudhri wrote a “Medical Certificate” dated 15 May 2023 which certifies that the claimant:
“[Suffers] from depression and anxiety as reviewed by me on 14 February 2023. Puton medication Pristiq MR 50 mg daily referred to psychologist for psychotherapy under GP mental care plan. As he had a history of Motor Vehicle Accident in 2020 needs to be assessed by psychiatrist / psychologist for ? PTSD.”
Notes have been provided by Ms Leto of Mindways Psychological Services. There are three attendances as follows:
(a) 20 February 2023 – “Jan 2020 car accident, shoulder and neck, knee, can’t work had to sell house and downsize retirement village”. He reports being always tired and waking three to four times due to pain and his relationship with his wife has declined. She has a history of cancer noting his bladder and kidney has been removed and he is on sickness benefits. His appetite was said to have declined, he was engaging in no physical activated and had a “short fuse”. He reported freaking out, paranoid, panic slow down at the intersection or similar. He was reported to drink 10 beers a day. COVID-19 made him worse. Self-esteem was gone, denied suicidal thoughts and on most days he feels the same as any other day. He had no joys, and his social supports were described as his wife and his dog. He has few friends.
(b) 6 March 2023 – he had reduced his alcohol intake to six, he was practising deep breathing. His dog was good company, but he had sold his car which was upsetting but they needed the money. He said he had shaved for the first time in 7 days. There is a reference to an orthopaedic surgeon and that he may need further surgery. He complained of not sleeping properly.
(c) 27 March 2023 – tears in shoulder and more surgery was likely which was impacting his sleep. He says he thinks about the accident everyday. He has reduced his alcohol and is drinking half strength beers. He had an adjustment difficulty in accepting his lifestyle changes “cancer – could handle and cope, accident = loss of everything”.
OTHER ASSESSMENTS
Medical Assessor Woo undertook an assessment of the claimant’s physical injuries on
1 July 2021. He confirms at [2] he was asked to assess a left shoulder, cervical spine, lumbar spine and right knee injury. He also notes at [3] he was asked to assess left shoulder arthroscopic repair.
Medical Assessor Woo documents at [9] the claimant’s previous back injury in 1998 which resulted in a workers compensation claim settled in 2003. He had surgery in mid-2018 and had recovered 85%. He has also had bladder cancer (in remission) and a thyroidectomy.
He found the treatment in dispute (left shoulder arthroscopy) not related to the injuries sustained in the accident and not reasonable and necessary. He found all of the claimant’s injuries were threshold injuries.
Medical Assessor Woo undertook a further assessment of the claimant’s physical injuries issuing a certificate on 6 May 2023.
At [10] Medical Assessor Woo has a history of the claimant hitting his right knee on the steering column and a burning sensation in the left shoulder which became pain the next day. At [11] the Medical Assessor says the claimant had right knee, lower back and neck pain in addition to the left shoulder and left hand pain. He documents being referred to
Dr Dave who recommended left shoulder surgery which was declined the day before it was due to take place.
The claimant’s current symptoms are recorded at [13] as constant left shoulder pain and restricted movements, lower back pain with numbness in both legs which he never had after his surgery. He had right knee pain on walking and mild neck pain and stiffness. At [14] it is recorded he takes Panadeine Forte every day.
After examining the claimant, at [19] Medical Assessor Woo diagnosed symptoms of a neck injury without radiculopathy and noted there was no investigation. He also diagnosed symptoms of a back pain aggravating a previous back condition. He diagnosed at [20] soft tissue injuries only which he finds at [22] are “minor” injuries. He also found at [23] the left shoulder was injured but it was a soft tissue injury and there is no evidence of an acute rotator cuff or labral tear and that the need for surgery was based on pre-existing changes and is not reasonable and necessary.
While the Panel notes Medical Assessor Woo was undertaking a physical assessment, there is no indication of any psychological or psychiatric symptoms in the report.
In his further assessment of 6 May 2023, Medical Assessor Woo re-examined the same injuries. He noted at [8] that since the previous assessment the claimant’s cancer had recurred and he had surgical removal of bladder and right kidney, was having chemotherapy and was using a stomal bag. He also noted at [10] that the claimant had left shoulder surgery through the public system and continues to have left shoulder pain.
The claimant complained at [12] of the same left shoulder symptoms, radiating pain from the neck into the left shoulder and down to all of the fingers in his left hand, lower back pain shooting to the left leg and down to the toes with pins and needles. The claimant complained of intermittent right knee pain.
On examination there was no sign of radiculopathy in either the upper or the lower limbs and the claimant’s left shoulder function had deteriorated. At [19] it is noted that the claimant was frustrated with his current symptoms and said he “feels ‘very depressed’.”
Medical Assessor Woo maintained there was no evidence of the complete or partial rupture of any tissue, no fractures and no radiculopathy. He found at [26] that all injuries were soft tissue and therefore threshold injuries.
At this examination there is the suggestion of psychological symptoms and Medical Assessor Woo noted the claimant was self-funding his psychological treatment.
RE-EXAMINATION FINDINGS
The claimant attended a re-examination with Medical Assessors Rikard-Bell and Samuell. The re-examination took place by way of video-link on 5 July 2024.
Personal history
Mr Orehovec described a happy but strict childhood and there was a reasonable relationship with good stability with both parents. His father worked as an engineer and he worked with him for many years, as well as with his brother, who is a tiler. Mr Orehovec has a sister who is a librarian and another sister who is a pharmacy assistant. Mr Orehovec denied any early adverse events in his childhood. He has been gainfully employed throughout his adult life and worked as a boilermaker for 30 years, then as a tiler for the past 10 years with his brother after returning to TAFE to up-skill his qualifications.
Mr Stephen Orehovec is a 62-year-old man currently residing with his partner who is 77 years of age. His partner has two adult children with whom there is occasional contact.
Mr Orehovec has three children from previous relationships in his 20s, but there has been no contact for decades. He denied this was a stress for him but he did report marital stress.
Mental state examination
Mr Orehovec presented as a man of medium to large build with grey hair, wearing a warm red tracksuit top with a white t-shirt. His manner was sullen, and he seemed reserved. He had difficulty engaging with the interview process initially, then became more interactive as time went on. His speech was normal in tone and volume. There was no abnormality of perception. Mr Orehovec’s affect was depressed with little reactivity. There was a slight smile occasionally, but he appeared very restricted and low in mood. His cognitive function appeared normal, and his thoughts were logical. There were no delusional ideas.
Mr Orehovec’s psychological insight appeared restricted and he described no adverse emotional impact at all from the bladder cancer diagnosis in 2014, the recurrence of the disease after the accident, the surgery and loss of his kidney and bladder and the lifelong need for a bladder bag. Mr Orehovec also denied that his recent open heart surgery was a major stress for him, and further he denied any stress associated with not having contact with his children.
He described to us his main problem being the fact that he is unable to work due to the shoulder injuries which he says were caused by the motor vehicle accident. Mr Orehovec wishes he had never been involved in the motor vehicle accident and wishes he was not in pain.
History of the motor vehicle accident
On 29 February 2020 Mr Orehovec was the driver (without passengers) of his own car and wearing a seatbelt when there was a collision with the left side of his vehicle while driving through a T-intersection. Mr Orehovec stated he was driving a vehicle that was special to him at the time. He says his side airbags deployed and the airbags in the other vehicle deployed. Mr Orehovec was stunned for a short while then he got out of the vehicle to check on the other driver who was a Korean student. There was no further contact with the other driver after the accident.
Tow-trucks, police and ambulance vehicles arrived in 15 and 12 minutes respectively. Neither of the drivers were transported to hospital. The other driver’s car was towed but
Mr Orehovec drove his own vehicle home. Mr Orehovec noted left shoulder pain and right knee pain at the time and an aggravation of pre-existing lower back problems.
Symptoms and treatment after the accident
Mr Orehovec consulted his GP after the accident and then Dr Dave, orthopaedic surgeon. The surgeon performed an arthroscopy and repair of the left shoulder which was unsuccessful. There have been ongoing problems with the left shoulder and treatment with physiotherapy, but Mr Orehovec says there has been no improvement. There was an aggravation of lower back pain, and his right knee has occasionally been problematic, however there is no longer an issue with his right knee and there are no restrictions.
The lower back pain can fluctuate between 5-6/10 with some symptoms down the left leg, but the lower back does not prevent him from doing most activities. The major problem is with his left shoulder which he described as 6 or more out of 10 and there is pain in the left shoulder down to the left elbow. If he moves his shoulder, he said he is in quite severe pain which restricts him from working. Mr Orehovec does walk and will push through the pain, but it is distressing for him.
Mr Orehovec was unable to return to work after the accident and he ceased work with his brother, as he was unable to lift heavy tiles. His brother did not want him as there was a risk of the tiles breaking if he was unable to lift them.
Mr Orehovec had hoped his shoulder would have improved after treatment with physiotherapy and surgery, however they have not.
Past medical history
Mr Orehovec said he injured his back in 1998 when lifting a gas bottle and refused surgery at the time. He said he made a workers’ compensation claim which was settled in 2004 and
Mr Orehovec later underwent back surgery in 2018 with a laminectomy which was successful.
In 2014 Mr Orehovec said he had a minor motor vehicle accident that caused an injury to his right shoulder, and he underwent an arthroscopy shortly after that which successfully resolved the problem.
Mr Orehovec told the Medical Assessors he had a thyroid tumour was removed in 2018.
Mr Orehovec was diagnosed with cancer in 2014. It was treated but recurred after the accident. He has had chemotherapy and surgical removal of his bladder and a kidney in March 2022 with insertion of a stoma. He has also had coronary bypass surgery in December 2023 which has been successful.
There is no family history of psychiatric illness. There are no significant drug or alcohol issues apart from 2-3 beers several times per week before the motor vehicle accident. Currently Mr Orehovec will drink between 6-8 beers per day which is equal to 10-12 standard drinks per day. Mr Orehovec stated alcohol use increased after he ceased work after the accident.
Mr Orehovec disclosed no history of anxiety, depression or need for treatment from mental health care providers before the accident. He thought he had possibly one drink-driving offence of low to mid-range when aged in his early 20s.
Current symptoms
The claimant’s current medication is Pristiq 50 mg which was commenced in February 2023 by his GP, as well as Voltaren and Panadeine Forte.
Mr Orehovec reported that he has had difficulties with sleep and explained that while he can initiate sleep, he will wake up with pain in the right shoulder.
He says there have been some nightmares and flashbacks about the accident, but they do not appear distressing, and he stated there are dreams about Asians. There were no intensive intrusive recollections reported causing distress.
His appetite is normal, but he has gained weight due, he says, to his inactivity.
Mr Orehovec again stated the main problem is the pain in his shoulder and lack of sleep due to the pain. He often gets up between 6:30 and 7:30am and will watch television then buys the newspaper or occasionally talks to a friend on the phone.
He says no longer goes dancing with his partner due to his physical symptoms which has caused stress in the relationship. Mr Orehovec feels very sad and useless and his mood is low. There has been suicidal thinking but no suicidal intention.
He cannot enjoy his vintage cars any longer and sold them, although he occasionally reads about vintage cars.
Mr Orehovec feels rather hopeless and helpless and stated if his shoulder pain improved, he could return to work. He feels sad, miserable and overwhelmed and believes he requires further surgery on his left shoulder due to a rotator cuff tear. In addition, his brother stated he was a burden and could not carry him therefore he ceased working. Mr Orehovec is angry that he has been injured and he is angry that he is unable to work due to restrictions with his shoulder.
Mr Orehovec has poor motivation and poor enjoyment. He does not follow the football except for occasionally and he said the State of Origin is the only football he is interested in. Mr Orehovec’s memory of the accident appeared to be more anger and resentment in relation to physical damage than fear of being harmed. He is particularly angry about his vehicle being damaged in the accident as it was a 2013 model.
Mr Orehovec described some panic symptoms particularly as a passenger in a vehicle and he can only drive short distances for fear of further accident. In addition, he is hypervigilant in the car. Mr Orehovec’s main fear is that the pain will not subside, and he will not work in the future.
Supplementary history provided on 2 August 2024
The Medical Assessors wished to clarify some of the claimant’s history and conducted a further short re-examination by telephone on 2 August 2024. Mr Orehovec was again co-operative throughout the short call.
The Panel confirmed with Mr Orehovec that he was first prescribed Pristiq in February 2023 and this coincides with the first time his GP reported psychological symptoms after the accident. Mr Orehovec thought that he became depressed eight weeks after the accident when he believed he would not be able to work again in his occupation.
Mr Orehovec did not dispute the accuracy of his GP records. When he was asked to explain why it was that depressive symptoms were not recorded by his doctors until February 2023, he said that during 2020 and 2021 he was seeking pain relief and treatment for his shoulder so he could return to work.
DIAGNOSIS OF PSYCHOLOGICAL CONDITION
It is the clinical judgment of the medical members of the Panel that Mr Orehovec satisfied the criteria DSM-5TR for major depressive disorder as outlined below:
Depressed mood and loss of interest or pleasure with:
Low Mood
Mr Orehovek presented with a low mood and describes feelings of sadness.
Markedly diminished interest or pleasure in activities
Mr Orehovec no longer dances, has a diminished social life and cannot work on his cars.
Weight gain
The claimant reports weight gain since the accident due to inactivity from his physical injuries and conditions.
Difficulties with sleep
The claimant says he has difficulty sleeping due to his physical injuries and conditions and not his psychological injuries.
Psychomotor agitation
The claimant did not demonstrate this behaviour at the re-examination.
Fatigue or loss of energy
Mr Orehovec has poor motivation and is inactive he says because of his physical injuries and conditions.
Feelings of worthlessness
Mr Orehovec repeatedly said he felt helpless and hopeless and worthless associated with his inability to work.
Reduced concentration
The claimant did not demonstrate this behaviour at the re-examination. He engaged with the Medical Assessors for over an hour without difficulty.
Significant impairment of functioning
The claimant’s physical injuries and conditions have caused a significant impairment to his functioning. He says he cannot work because of his accident-related physical symptoms.
Not due to substance use or other medical condition
While others have indicated the claimant had an alcohol use disorder, the Medical Assessors are not satisfied that the evidence supports this diagnosis.
While Medical Assessor Sidorov diagnosed a post-traumatic stress disorder, the Panel is not satisfied that the claimant satisfied the criteria for that disorder as nightmares are not a significant feature and there were no intensive intrusive recollections.
Not schizophrenia or schizoaffective disorder
The claimant does not suffer from these disorders.
No episodes of mania or hypomania
While the claimant has indicated he has had panic symptoms and hypervigilance there have been no reported episodes of mania or hypomania.
As explained above, it is the clinical judgment of the medical members of the Panel that there were no current features consistent with a post-traumatic stress disorder resulting from the accident. The Panel was also not satisfied that, on the limited information before the Panel that the claimant presents with an alcohol use disorder resulting from the accident.
CAUSATION OF PSYCHOLGOCIAL INJURY
What is the test of causation?
In a medical assessment matter referred to a Panel under Schedule 2(2)(e) of the MAI Act about “whether the injury caused by the motor accident is a threshold injury”, the Panel must first determine the injury caused by the accident before deciding whether it is a threshold or non-threshold injury.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804, Kinchela. Justice Walton set aside the decision of a Medical Review Panel in a “minor injury” dispute and a question of causation in respect of an amputated toe. It was found that the Review Panel had denied the claimant procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to those articles. In relation to causation, at [40], his Honour said:
“The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
The relevant Guidelines referred to by Justice Walton are the Motor Accident Guidelines, a single volume of 9 Parts governing all aspects of the motor accident scheme including premium determination, treatment and care, permanent impairment and threshold injury.
While Part 5 of the Guidelines addresses the assessment of whether an injury is a threshold injury, there is no definition of, or guidance in that Part for the assessment of “causation” in determining what injury (threshold or non-threshold) was caused by the accident. There are however, provisions concerning causation in Part 6 of the Guidelines[9] which is concerned with the assessment of permanent impairment.
[9] Clauses 6.5-6.7.
Justice Wright in Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 Briggs (no 2) said in a judicial review application concerning a medical review of “minor” injury:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
The test of causation set out in Part 6 of the Guidelines involves both a medical decision and a non-medical decision as follows:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(i)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(ii) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
The Panel will therefore consider the issue of causation in accordance with the framework laid out in cl 6.6 of the Guidelines.
Could the accident have caused or contributed to a psychological injury?
The Panel acknowledges the serious medical conditions and other issues facing the claimant at the time of the accident. The Panel is of the view however that the motor accident could cause or materially contribute to the development of a psychiatric condition such as the claimant’s major depressive disorder.
The accident caused physical injuries which have resulted in surgery and treatment and limited improvement in the claimant’s condition. The claimant was unable to return to work after the accident and before his cancer re-emerged. In those circumstances a depressive disorder could be caused by the motor accident.
The question remains whether the accident did in fact cause or materially contribute to the development of the claimant’s major depressive disorder.
Did the accident cause a psychological injury?
Mr Orehovec disclosed in his claim form two months after the accident that he had “psychological injuries”. This supports his assertion on 2 August 2024 that he had psychological difficulties at that time but is insufficient to support a psychiatric diagnosis.
The Panel notes the time (two years) between the date of accident and the return of Mr Orehovec’s cancer and the emergence of his cardiac condition. In that period of time the claimant’s inability to work appears to be due to the physical injuries sustained in the accident.
The claimant’s GP first recorded psychological symptoms in February 2023 and the claimant was promptly referred to a psychologist Ms Leto at that time, three years after the accident and the Panel has records of three or four attendances only. The claimant’s explanation for the absence of psychological complaints until then was that in 2020 and 2021 he was seeking pain relief and treatment for his shoulders so he could return to work. The Panel does not accept this explanation because after the unsuccessful decompression shoulder surgery on 20 May 2021, with no return to work possible, there was no reported depression to his GP or specialist for a further two years.
Mr Orehovec had a consistent history of seeking appropriate medical care for his numerous accident-related complaints and other conditions such as cancer and heart problems. Mr Orehovec’s GP was responsive to his physical complaints and when psychological symptoms arose, he promptly referred the claimant for treatment. If the claimant’s psychological symptoms were, as he suggested, significantly impacting his health and functioning, the Panel would expect the claimant to have complained of them at some stage in the three years after the accident and for them to be reported. The absence of reported symptoms supports, in the Panel’s view, a finding that there was no psychological injury caused by the accident or that any contribution by the accident to the development of the claimant’s current psychological condition was negligible.
The Panel also notes that in 2021 when assessed by Medical Assessor Woo, the claimant made no reference to any psychological symptoms, and Mr Orehovec was not referred at that time for medical assessment of any psychological or psychiatric injury. This supports the Panel’s finding that there was no psychological condition caused by the accident.
After the accident, Mr Orehovec’s cancer has returned, and he has had major surgery. He has a stoma and wears a urinary bag and has continuing drug treatment for his condition. This condition would, in the Medical Assessor’s view suggest the claimant was unlikely to work which has been a major concern for him. There was also open-heart surgery in December 2023 which the Medical Assessors note would have prevented the claimant from working for some months. The Panel also notes the claimant’s marriage was under stress and he is estranged from his children. Mr Orehovec downplayed these conditions and said they had no effect on his mood. The Panel does not accept this. It is the clinical judgment of the medical members of the Panel that it is these other factors that are the cause of the claimant’s depression or that any contribution by the accident to the development of this condition is negligible.
CONCLUSION
The Panel has found Mr Orehovec does not have a psychological injury caused by the accident.
As the Panel has come to a different conclusion to Medical Assessor Sidorov, it follows therefore that his certificate must be revoked.
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