QBE Insurance (Australia) Limited v Ruiz-Diaz
[2023] NSWPICMP 103
•23 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Ruiz-Diaz [2023] NSWPICMP 103 |
| CLAIMANT: | Andrea Ruiz-Diaz |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Alexey Sidorov |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 23 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; Medical Assessor Enrico Parmegiani diagnosed a panic disorder which is not a minor injury; insurer submitted claimant had sought no treatment for any psychological injury, had not reported panic attacks to any treating practitioner since the accident and had sustained no psychiatric injury; report of claimant’s medico-legal psychiatrist (1) not available to original assessor, did not have history of panic attacks and diagnosed Somatic Symptoms Disorder (SSD); report of claimant’s medico-legal psychiatrist (2) accepted history of panic attacks and diagnosed panic disorder; insurer’s medico-legal psychiatrist diagnosed a Somatoform Symptom Disorder from Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM 4); Panel relied on summary of evidence from Ruiz-Diaz v QBE; Held – claimant satisfied criteria for SSD which is a psychiatric illness recognised by DSM 5 and not a minor injury; based on claimant’s history she would also satisfy criteria for a panic disorder but Panel of the view without corroborating evidence of panic attacks that diagnosis should not be made. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Enrico Parmegiani dated 26 October 2021. 2. Certifies that the claimant’s psychological or psychiatric injury is not a minor injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Claim and dispute summary
Ms Ruiz-Diaz was involved in a rear-end motor vehicle accident on
17 March 2020. She was a passenger in her husband’s Ford Transit single cab utility, which was run into by a truck.
Ms Ruiz-Diaz made a claim against QBE, the third-party insurer of the truck. QBE has accepted that the driver of the truck was at fault and caused the accident.
A medical dispute arose in connection with the claim as to whether or not Ms Ruiz-Diaz’s injuries are “minor” injuries within the statutory definition or not.
Ms Ruiz-Diaz referred that medical dispute to the Personal Injury Commission (the Commission) for determination. In relation to Ms Ruiz-Diaz’s psychiatric injury, Medical Assessor Enrico Parmegiani certified on 26 October 2021 that she was experiencing a panic disorder which was not a “minor” injury.
QBE was dissatisfied with that result and lodged an application seeking a review with the Commission. A delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the decision and the President has convened this Panel to conduct the Review.
Other assessment summary
Ms Ruiz-Diaz has been examined by other Medical Assessors with regards to her physical injuries as follows:
(a) 23 June 2021 – Medical Assessor Michael Steiner was asked to assess the claimant’s eyes to determine if she had injured her optic nerve. His finding was the claimant had not injured her optic nerve and therefore there was no need for him to determine the issue of minor / non-minor injury. Medical Assessor Steiner’s assessment was the subject of an application for Review which has been finalised. The President’s delegate determined there was no reasonable cause to suspect a material error in that assessment;
(b) 5 November 2021 – Medical Assessor Robert Payten was asked to assess an ear injury and the development of vestibulopathy. His finding was that the claimant’s ear injury and vestibulopathy were not caused by the accident and therefore there was no need for him to determine the issue of minor / non-minor injury. No application for review was lodged by either party in respect of this assessment, and
(c) 6 November 2021 – Medical Assessor Ian Cameron was asked to assess the claimant’s cervical and thoracic spine injury and a head injury, and he determined all injuries were minor injuries. An application for review of that decision was lodged by the claimant, the President’s delegate allowed the review and on 17 August 2022 a Panel comprising Member Cassidy with Medical Assessors Wan and Gibson determined the injuries they were asked to assess were minor injuries.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Ruiz-Diaz’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme of compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme of statutory benefits and compensation by way of lump sum damages 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, there are some disentitling provisions and limits to the amount and extent of the benefits available. Under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Minor injury
A minor injury is defined in s 1.6(1) of the MAI Act as a “minor psychological or psychiatric injury”.[1] Section 1.6(3) of the MAI Act says that an injury which is not a recognised psychiatric injury is a minor injury.
[1] The MAI Act, the Regulation and the Guidelines also provide for minor physical injuries, but due to the nature of the injuries the subject of these proceedings, it is not necessary to deal with them in these reasons.
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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides that an acute stress disorder or an adjustment disorder are minor injuries.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Ms Ruiz-Diaz’s claim the Guidelines provide:
“5.10 In assessing whether an injury is a minor 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), 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 minor injury.”
Dispute resolution
Part 7 of the MAI contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.[2]
[2] Sections 7.19, 7.20, 7.24 and 7.26.
The insurer’s application for review is made under s 7.26 of the MAI Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Panel.[3]
[3] Section 41(2)(b).
The Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
ASSESSMENT UNDER REVIEW
Medical Assessor Parmegiani was asked to assess psychological / psychiatric injury including depression and anxiety and post-concussion syndrome.
The claimant gave a history as follows:
(a) the claimant was working full time in the family’s air-conditioning business for no pay at the time of the accident and now works 10 hours a week on administrative duties;
(b) she had no previous psychiatric injuries and was generally well without a history of head injury;
(c) she had stopped physical treatment and had no psychiatric or psychological intervention as she could not afford it;
(d) she has been in constant pain, headaches and with visual problems due to nerve damage from her head trauma;
(e) the accident occurred when she was a passenger in her husband’s utility vehicle stopped at traffic lights. A large truck hit them from the rear pushing their car a short distance;
(f) she recalled hitting her head on the back of the wall of the cab of the utility and could not move because of pain and shock. Details were exchanged and they drove home not wanting to go to hospital because of COVID-19;
(g) she went to her general practitioner (GP) two days later but he was not sympathetic and she had X-rays, physiotherapy and CT scans. She said she had not been referred for specialist treatment and has remained in pain with difficulty sleeping and constant headaches, and
(h) the claimant says she is “persistently angry because of her ongoing pain”. When she thinks about the pain, she thinks about the accident. She has become more cautious when she drove, occasionally experiences flashback has feelings of worthlessness. She says she has experienced recurrent panic attacks and has attended the local hospital at least once thinking she was having a heart attack. She has reported this to her GP who has ignored her and her current GP has told her to wait and see what the specialists say.
In terms of her current symptoms, the claimant has physical pains and is anxious and irritable. She has “regular panic attacks”, ruminated on her pain, avoided driving and felt she was a burden to her family.
The claimant has had no treatment for mental health issues, thinks pain is the main problem and does not think that counselling or psychotropic medication would assist.
Medical Assessor Parmegiani notes at [16], “She described psychological symptoms that were understandable within the context of her experience, and which did not appear to be exaggerated or embellished”.
Medical Assessor Parmegiani determined that the accident was not significant enough to warrant a diagnosis of post-traumatic stress disorder and that the claimant’s main concerns are of chronic pain. Medical Assessor Parmegiani considered her reports of panic attacks “characterised by the sudden onset of increased heart rate, shortness of breath, tremor and dizziness and the fear that she was experiencing a myocardial infarct”. He says they have continued and occur “regularly”. He considered Ms Ruiz-Diaz satisfied the DSM-5 classification of panic disorder with a secondary adjustment disorder.
He notes the claimant had no previous psychiatric history, her symptoms have commenced since the accident, she has not had any treatment and that her current mental health state was caused by the accident, her symptoms of chronic pain and financial difficulty. He determined the adjustment disorder was a minor injury but the panic disorder was not.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submitted to the President’s delegate on 15 November 2021 that the Medical Assessor:
(a) failed to address and or put inconsistencies to the claimant including that the claimant’s history of recurrent, regular panic attacks are not supported by Dr Salib’s records;
(b) accepted the claimant’s history without question;
(c) noted the claimant had been referred to a psychologist in Concord for a report with no report provided;
(d) did not consider that the claimant has not asked the insurer to fund treatment, and that the claimant may have declined treatment;
(e) failed to provide adequate reasons – the Medical Assessor did not reference the diagnostic criteria for a DSM-5 panic disorder and explain how the claimant satisfied those criteria, and
(f) failed to engage in a substantive argument – none of the post-accident records contain any reference to a psychological diagnosis and the Medical Assessor failed to explain why he considered a psychiatric injury had been sustained in the accident despite an absence of complaints.
When the matter was allocated to the Panel and the parties advised, the insurer sent a message through the portal asserting a re-examination by the Review Panel would be necessary but that due to the absence of any psychiatric treatment or notes “the only relevant period for the Panel to consider is whether the claimant currently suffers from a recognisable DSM-5 psychiatric disorder”.
On 17 February 2023 the insurer provided further submissions and says:
(a) the claimant does not suffer and has not suffered from a “psychological disorder pursuant to the DSM-5” [3];
(b) the post-accident clinical records do not reveal a post-accident history of symptoms “sufficient to warrant a DSM-5 diagnosis” [4];
(c) Dr Koleda does not record any psychological symptoms and “it is reasonable to presume that the claimant would have raised” them with him if she did have such symptoms [5];
(d) there is no reference to psychological symptoms in the Round Corner Medical Centre records after the accident [6];
(e) there is no reference to psychological complaints in the records of Dr Salib who did record poor sleep and stress due to pain on 30 April and 29 May respectively [7];
(f) allied health recovery requests refer to lack of sleep due to pain without reference to psychological complaints [8];
(g) the claimant has complained of physical pain but there is no reference to severe panic attacks which the claimant told Medical Assessor Parmegiani she had been experiencing [9];
(h) the Panel had directed the claimant to upload any referrals for psychiatric or psychological treatment and none have been provided which is consistent with the clinical records which suggest no referral had been made [10];
(i) the claimant’s evidence of these panic attacks should not be accepted without corroboration [11];
(j) the claimant has had multiple stressors in her life [14];
(k) Medical Assessor Parmegiani did not address whether the claimant filled each of the criteria for adjustment disorder or panic disorder [15];
(l) Dr Vickery did not diagnose a panic disorder because there was no reference to panic attack symptoms in the post-accident records [16] and in any event he did not consider she met Criterion A or B [21];
(m) Dr Vickery did diagnose a somatoform chronic pain disorder which he says [18] is due to:
“… interaction of multiple biopsychosocial factors affecting how individuals identify and classify bodily sensations, perceive illness and seek medical attention within a particular cultural and social context and is a separate injury which is not directly due to a motor vehicle accident…”
(n) Dr Vickery says the claimant would not meet the diagnostic criteria set out in DSM-5 for adjustment disorder, persistent depressive disorder or major depressive disorder or any other mental disorder [19];
(o) Dr Vickery considered there were no psychiatric injuries related to the accident [22] which is consistent with the clinical records which do not refer to any psychological complaints or treatment after the accident and that the claimant “did not experience a psychological reaction following the subject accident that was above normal levels of expected distress” [23], and
(p) that Dr Vickery’s opinions should be considered over those of Dr Rastogi because he does not have the clinical records or the previous Review Panel’s decision.
Claimant’s submissions
The claimant submitted on 10 January 2022 that the provisions relating to psychiatric injury in chapter 6 of the Guidelines do not apply in this case because the current dispute is a dispute about minor injury and not whole person impairment [8] – [11].
The claimant says the insurer’s application for review is based on a false premise that the history of psychological symptoms given to Medical Assessor Parmegiani is inconsistent with the records of the GP [12].
The claimant says Dr Salib is a GP and not a mental health professional and his failure to record symptoms of psychological injury is because they “almost never appear in the contemporaneous records” because they take time to develop [13].
The claimant says she did tell Dr Salib of her psychological symptoms, but he ignored her and as a result she changed doctors. The claimant notes the insurer did not (at that time) rely on the reports of Dr Koleda [14].
The Medical Assessor did engage with the insurer’s argument [15] but was entitled to accept the claimant’s history which was not inconsistent with Dr Salib’s records [16].
There is no inconsistency because Dr Salib has no record of any psychological symptoms at all but there would be inconsistency if he had a record that the claimant denied psychological symptoms [18].
The claimant refutes the insurer’s suggestion that it would be unusual for a GP not to record such symptoms and says the Medical Assessor accepted the claimant as a reliable historian [22].
The claimant has not had psychological treatment and the reference to a psychologist was to a medico-legal appointment arranged by the claimant’s solicitors with
Dr Canaris on 11 November 2020. The report was received after the original application for assessment was lodged [24] – [27].
The claimant has not asked the insurer to fund psychological treatment because the insurer had denied liability for the claim on 24 June 2020 [28].
The claimant refutes the argument that the Medical Assessor errored by saying the claimant’s social life was diminished due to her injuries when her social life had been curtailed by COVID-19. The claimant says she had a reduced social life before lock down and afterwards [30] – [33].
The claimant says the Medical Assessor did provide adequate reasons [34] – [50].
Procedural matters
The Panel met on 15 November 2022 to discuss the matter and reported to the parties on 17 November 2022.
The Panel noted the diagnosis of panic disorder by Medical Assessor Parmegiani and said:
“The insurer has, in its submissions raised an issue about causation of the claimant’s panic attacks and submits that there is no treating medical or lay evidence which supports the claimant’s complaints of regular panic attacks. The Panel notes that its assessment is an assessment de novo and it will need to make a decision on both causation and diagnosis. The Panel would be assisted by additional documentation which will be discussed below and made the subject of directions.”
The Panel requested all records from Dr Koleda, records of the hospital attendance for a panic attack and details of the referral to the psychologist or psychiatrist in Concord as referred to in the Medical Assessor’s decision.
The Panel noted the insurer’s objection to the report of Dr Rastogi but allowed his report into evidence and invited the insurer to obtain evidence in response.
Responses from the parties
The insurer responded with a chronology of the claimant’s treatment, the records from Dr Koleda, a report from Dr Vickery and final submissions.
The claimant responded with the report of Dr Canaris and final submissions.
REVIEW OF THE EVIDENCE
The Panel notes the review of the documentation in the related proceedings commencing at paragraph 27 (with the review of the assessment in issue) and continuing at paragraph 36 (with the review of the evidence generally). The Panel has reviewed all the documentation but does not propose to refer to each and every document and considers that the review of the documentation in the related proceedings is a fair summary.
The Panel takes into particular consideration the following matters from the material relevant to the issues in dispute:[4]
[4] References in square brackets are to the paragraph numbers in the decision.
(a) Medical Assessor Cameron’s finding in November 2021 of no cognitive impairment detected on a mini mental state examination [32(a)] and his finding of “no definitive evidence of a significant head injury …[and] no objective signs of memory or cognitive impairment” [34(e)];
(b) before the accident, Dr Salib recorded in May 2019 an episode of chest tightness and dizziness related to asthma [40(c)];
(c) in December 2015, November 2016, and October 2017 the claimant was experiencing anxiety associated with her father’s diagnosis of cerebral atrophy and eventual death [41(g), (k) and (l)];
(d) Dr Salib, on 22 April 2020 treated the claimant for anterior central chest pain which had been intermittent for four days but which was made better by Panadol [39(e)] suggesting to the Panel a physical cause and not indicating a mental health issue;
(e) on 30 April 2020 the claimant attended complaining of anterior chest pain which was intermittent and felt in the afternoon and with sitting. Dr Salib records that the claimant’s chest was sore to touch [39(g)] which suggests to the Panel a physical cause and not a mental health issue;
(f) on 1 May 2020, Dr Salib records chest pain and tenderness worse by breathing due to the car accident and his examination suggests the claimant was markedly tender over the sternum and costal cartilages and the claimant was referred for MRI [39(h)] which again suggests to the Panel a physical cause for the chest pain;
(g) on 14 May 2020 Dr Salib advised that the claimant’s chest MRI was normal and he reassured the claimant advising “physiotherapy and modification of activities” [39(i)]. The Panel notes the reason for the MRI was stated as “MVA worsening anterior chest wall pain and tenderness” [44];
(h) on 29 May 2020, the claimant again attended for chest wall pain and tenderness and was referred to a pain specialist [39(j)];
(i) there were no complaints to her treating chiropractor Benjamin Trautman of the South Terrace Health centre of panic attacks but a reference to rib cage pain on 2 April 2020 [42(a)];
(j)
the claimant said to Medical Assessor Parmegiani that her doctor (Dr Salib) was “very blasé and brushed it off” and that she has not been referred to any specialist and that her GP has “just ignored her”. The records reveal that Dr Salib did refer the claimant to a neurologist Dr Schwartz [50],
Dr Phillip Myers an ophthalmologist [57] and to Dr Nazha for pain management [45]. In addition, the clamant has had three MRIs at the request of Dr Salib [43] and [44];
(k) the claimant gave a history to Medical Assessor Payten [74] of waking up two months after the accident with the room spinning and she almost vomited. This attack lasted three hours and she saw a doctor who was not Dr Salib and had two further severe attacks and told Dr Salib about them and when examined by the previous Panel the claimant reported six attacks of nausea associated with spinning [118(e)]. The Panel notes there is no mention of these attacks in the claimant’s GP notes, and
(l) the claimant scored 28/30 on a mini mental test administered by Medical Assessor Wan who detected no cognitive impairment [129] – [131].
MEDICO-LEGAL REPORTS
Dr Canaris (for the claimant)
The claimant’s lawyers obtained a report from Dr Canaris, psychiatrist dated
11 November 2020. He had very little documentation before him[5] and in particular did not have the GP notes.
[5] A report from Dr Schwartz, electrophysiological studies, nerve conduction studies, MRI of the brain and the cervical spine MRI.
The claimant gave a simple version of the accident and that she felt soreness in the back of her neck. She said she had been to the GP, had MRIs and physiotherapy but “nothing works” and she now has vertigo.
The claimant told Dr Canaris the insurer had declined her treatment, she had been advised to have Botox in her neck, had seen a neurologist but the insurer was not paying for her treatment. She expressed frustration at the pain and said, “it’s not in my head – I know that much”.
Ms Ruiz-Diaz said she lost weight at the beginning (5kg) but now cannot stop eating. She was not sleeping because of pain and had headaches every day. She had no energy, and her concentration is not good.
She said before the accident she was working “as a rep for her husband’s air conditioning business” but cannot do this work anymore and she relies on her children to do things around the home.
She says that her pain is “all I talk about”.
She was a bit depressed and upset about living with the pain.
She is anxious when driving and relives the accident sometimes but is not “particularly focused on it” and denies dreams or flashbacks.
She takes no medication and is not keen on seeing a psychologist.
Finances are tight.
The mental state examination was reported by Dr Canaris. He said there was “no evidence of dramatisation or exaggeration” and that:
“She had an irritable edge, and I had the impression of a woman who did not tolerate fools gladly. She was anxious and did not like the possibility of a psychiatric label. At the same time, her frustration with what seemed to be an emerging adversarial relationship with the insurer was palpable.
She summed up her situation saying, ‘I don't want money - I just want treatment’ and acknowledged that she wanted above all to get back in control of her life.”
Dr Canaris expressed the view (at point 4 on page 12 of his report) that the claimant had a somatic symptom disorder because:
(a) there was evidence of somatic symptoms causing distress and significant disruption to her daily life (Criterion A);
(b) she has excessive thoughts, feelings and behaviours related to her somatic symptoms (Criterion B), and
(c) her symptoms have been present for more than six months (Criterion C).
He did not believe the claimant had sustained a concussion and that her physical problems relate to her cervical spine and vestibular system.
He said (at point 7) that her somatic symptom disorder is not a minor psychological injury and is a recognised diagnosis in DSM 5.
Of significance to the Panel is that the claimant consulted Dr Canaris, who was a psychiatrist but there is no mention at all in this report of panic attacks which, according to her history she was experiencing at this time.
Dr Rastogi (for the claimant)
Dr Rastogi is a psychiatrist who was also asked to examine the claimant and report to her solicitors. The report is dated 13 October 2022. He had four documents[6] but did not have the claimant’s GP records.
[6] Medical Assessor Parmegiani’s decision, Dr Schwarz report, the claimant’s statement, and the determination by Medical Assessor Steiner.
He had a history that before the accident the claimant helped her husband in his business but was not paid and that after the accident she struggled to work and has left work. She and her husband are receiving Centrelink benefits, have had financial difficulties and have had to sell the family home.
The claimant told him about the accident, the immediate neck pain “like a ball of heat” at the base of her neck. She reported severe headaches and migraines which affected her sleep. She felt dizzy and nauseous, disoriented, confused and “out of it”. She had X-rays, physiotherapy and osteopathic treatment and her GP told her she would be ok. She described pain radiating from her neck to her left shoulder and into the front of her sternum. She is reported to have said “she had not been referred to specialists because the insurance company had declined to pay for it”.
She is reported to have said she had physiotherapy for six months which “alleviated the pain” but that further treatment was not supported by the insurance company.
She has developed chronic insomnia, she was said to be focussed on her pain and she struggled to cope. She is irritable and short-fused, miserable and has lost enjoyment in things.
She reported fear and anxiety and avoided driving.
She reported pain in her chest when in a car and is very aroused and hyper vigilant and has been “freaking out in the car” and is in constant discomfort. She says that on a few occasions she has had “excruciating pain in her chest suddenly” that she feared she was having a heart attack and has had emergency presentations (plural) to hospital. She has been investigated for cardiac issues but these have been normal. She has tightness in her chest and palpitations. She says she has reported these symptoms to her GP (the Panel notes from the history given at their re-examination this would be a reference to Dr Salib) who has ignored her and thus she has changed her GP (which would be a reference to Dr Koleda).
Her pain is said to be debilitating and that she was due to see a neurosurgeon but this has not been approved. She reported blurred vision and has had ophthalmic tests and specialist review which she relates to a concussion in the accident which has been denied.
On mental state examination:
“She described her mood as angry and frustrated, disappointed, and anxious. Her affect was reactive. She was troubled by pain and functional limitations. She reported ongoing anxiety with panic symptoms. She denied any active suicidal ideation. She denied having any psychotic symptoms. She was orientated to time, place, and person.”
Dr Rastogi diagnosed the claimant with adjustment disorder and a panic disorder giving reasons for the various criterion from DSM-5.
He was of the view she had not had adequate treatment and would benefit from a pain management course, psychological counselling and psychiatrist for medication management.
Dr Vickery (for the insurer)
The insurer has had the claimant examined by Dr Vickery psychiatrist and his report dated 20 January 2023 has been provided to the Panel.[7] He examined the claimant via telehealth on 11 January 2023.
[7] Document AD6 in the Commission’s file.
He had all of the medical assessments including the Review Panel’s determination of the claimant’s physical injuries dated 17 August 2022.
He has a history of the claimant having no psychiatric history or family history.
Ms Ruiz-Diaz reported:
(a) constant neck pain;
(b) bouts of heart palpitations and chest pain which have been investigated by a cardiologist;
(c) she has not been sleeping well going to sleep at 3 or 4.00am and waking at 7.00am;
(d) she is in constant pain because she does not take her medications as she does not want to rely on them, and
(e) she has had vertigo, bitemporal headaches, forgetfulness and difficulty with concentration.
She has had a number of significant stressors including the deaths of her mother, father-in-law and mother-in-law during 2022. Her husband is more severely injured than she and they have sold their house due to financial difficulties.
Dr Vickery noted behaviour and mood were appropriate, history and presentation were consistent, and she gave a coherent and chronological history.
She was frustrated when discussing her pain and restricted functionality, but she was not depressed, delusional or with formal though disorder and no incapacitating cognitive impairment.
Dr Vickery provides extensive reasons why he disagrees with the diagnosis of a panic disorder made by Medical Assessor Parmegiani.
Dr Vickery provides a diagnosis of somatoform chronic pain disorder – which he references to DSM 4 “where there is incapacitating pain perception associated with significant disruption to daily life and loss of function without any apparent medical basis”.
Dr Vickery references at page 14 of his report the SIRA Permanent Impairment Guidelines (1 March 2021) and quotes those Guidelines, “Somatoform Disorders … are excluded from the assessment of Whole Person Impairment. The PIRS must not be used to measure impairment due to somatoform disorders”.
He says at [9] that the claimant does not have a psychiatric condition directly caused by the accident and that a somatoform chronic pain disorder is a somatoform related disorder and does not attract a whole person impairment percentage.
RE-EXAMINATION FINDINGS
Ms Ruiz-Diaz attended the assessment via audio-visual link from her home. Ms Ruiz-Diaz was examined by Medical Assessors Sidorov and Hong on behalf of the Panel. The assessment took approximately 1 hour and 15 minutes.
Psychosocial history and pre-accident history
Ms Ruiz-Diaz is a 51-year-old woman. She resides in north-west Sydney, in rental accommodation with her husband and two children, aged 15 and 22. She is unemployed and in the process of applying for Centrelink benefits.
Ms Ruiz-Diaz was born in Uruguay and came to Australia at the age of three with her parents. She has resided in Australia ever since. She has two sisters and one brother. She denied any history of trauma or abuse in her childhood. She completed high school, with no academic or conduct problems. She attended university but did not complete her degree. She explained that she started working as she purchased a house with her husband. When she was younger, she worked as an office manager. She also worked as a cleaner. Before the accident, she ran an air-conditioning business with her husband.
Ms Ruiz-Diaz denied any problems with her mental health before the accident. She denied any periods of significant depression or disabling anxiety. There was also no history of mania or psychosis. She denied any family history of mental illness.
Ms Ruiz-Diaz denied smoking tobacco cigarettes, drinking alcohol or using illicit drugs. She also denied gambling.
Ms Ruiz-Diaz denied any previous insurance claim relating to any injuries. She also denied any history of civil litigation or criminal charges. Ms Ruiz-Diaz underwent gastric sleeve surgery 13 or 14 years ago.
She was diagnosed with bronchiectasis two to three years ago and uses Symbicort for her bronchiectasis.
History of the motor accident
Ms Ruiz-Diaz stated that the subject accident occurred on 17 March 2020. Her husband was driving a small truck and she was a front seat passenger. She was wearing a seatbelt. She stated that they were stopped at a traffic intersection and were waiting for the traffic to pass to turn left. She stated that she recalled her husband moved the truck forward very slowly, but then stopped. She stated that, while stationary, a larger truck collided with the rear of their smaller truck. She stated that she did not see it coming and felt stunned as a result of the collision. She hit her head on the back of the seat and the glass window, which is behind the head rest. She stated that there were no airbags installed as it is an old vehicle. She felt dazed but was not sure if she lost consciousness.
Ms Ruiz-Diaz stated that she experienced immediate pain in her head and neck, as well as her left shoulder and chest. She stated that the chest pain must have occurred due to the seatbelt injury. She stated that the driver who hit them came out of his vehicle and apologised to them and asked them if they were okay.
Police and ambulance did not attend the scene. Their vehicle was able to be driven. She explained that it was during COVID-19 time, and their elderly mother-in-law was living with them. As they were worried about contracting the COVID-19 infection and passing it on to her, they just drove home.
History of symptoms and treatment following the motor accident
Ms Ruiz-Diaz stated that she continued to experience pain in her neck, shoulder and chest, as well as suffering from severe headaches.
Ms Ruiz-Diaz consulted with her GP over the phone after a few days. She went to the GP practice three to four days later. She stated that her husband was more seriously injured than she was, suffering fractures.
She says she was sent for various tests, including X-rays and MRI scan. She explained that bulging discs were found in her neck, with nerve impingement. She stated that she has “never in my life experienced pain as severe as the pain,” that she experienced after the subject accident. She was referred for sessions of physiotherapy by her GP and attended three times per week, however, did not find that effective. The Panel notes in the history given to Dr Rastogi the claimant said physiotherapy alleviated her pain. She was also prescribed analgesia, including Voltaren, however, did not find that effective either. The Panel notes the claimant told Dr Canaris she takes no medication and told Dr Vickery she does not like taking medication because she does not want to be dependant on it.
She stated that QBE stopped funding treatment after six months. She saw a neurologist who recommended Botox injections into her neck to relieve the pain, however, the insurer refused to pay for this treatment, and she could not afford it as both she and her husband were injured and unable to continue working in their business, which has caused them significant financial stress. She also described that sometime later she had an episode of vertigo and, at the time, would see white lights. She went to an optometrist thinking there was a problem with her eyes and was then sent to see an ophthalmologist who then found that there is a problem with the movement of her eyes which is apparently a cause of her migraines. She stated that treatment for this was refused by the insurer.
She described the development of intermittent, sudden bouts of chest pain, with associated anxiety at these times. She has a real fear of dying as she is worried that she is having an actual heart attack. She also described that, at the time, she experiences numb sensations in her fingers and also feels that she is being smothered by something sitting on her and it is difficult to breathe. She stated that these symptoms start suddenly without any warning and can last anywhere up to two to three hours. She continues to persistently worry that she is having a heart attack and that one time she will have a genuine heart attack but will not get help as it will be discounted as a panic attack. She has presented to her GP who has done various tests, including an ECG, to rule out any physical causes. She also presented to the emergency department in hospital as she was in acute distress but was told that it was psychological and there are no physical causes. The Panel has asked for the records relevant to this admission but has not been provided with them.
She reported ongoing problems with her pain saying “it destroyed my life”. She stated that normally she is the type of person that would move a lot and she used to take her son to various physical activities, however, as she is unable to do it now. She has become angry and irritable. She denied a pervasive low mood but says that she worries about her pain, which stops her from doing what she wants to do in her life.
To add to her pain issues, the claimant said because of financial problems which she says were caused by the accident, the house was repossessed, and they were forced to move into rental accommodation. She stated that her sleep is disturbed as she lays awake for hours in an anxious state. This is associated with her ongoing pain, including headaches as she is unable to get comfortable. The Panel notes the other histories suggest it is the claimant’s physical symptoms only which cause the difficulty sleeping.
She is also anxious about having further panic attacks, as well as her ongoing pain issues worrying that they will never be resolved, and she will be like this forever. She stated that her weight has fluctuated, and she has gained 7 to 8kg as she has been unable to exercise. In terms of her energy levels, she stated that she has been always tired and lethargic since the accident.
Ms Ruiz-Diaz says she has also developed a degree of apprehension when her husband is driving and checks what cars behind her are doing but did not report any other symptoms consistent with a post-traumatic stress disorder.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Ruiz-Diaz stated that her mother died unexpectedly in December 2022. She stated that it was due to a misdiagnosis by the hospital which made Ms Ruiz-Diaz very upset and she lodged an official complaint with the hospital.
She also experienced two other personal losses last year, including her mother-in-law in early 2022.
Although Ms Ruiz-Diaz described feeling very upset about the death of her mother, she denied any significant development of any significant depression arising from that.
History of symptoms and treatment following the motor accident
Ms Ruiz-Diaz stated that she was not happy with the care she received by Dr Salib. She then attended her previous family GP, Dr Koleda, who had since retired, and she has been seeing Dr Ng for about one year. The Panel has no records from Dr Ng.
She mentioned that she has been referred to Dr Rastogi, a psychiatrist. She stated that, even though she saw her for treatment, this was arranged by her solicitor, however, she did not receive any specific treatment from Dr Rastogi. Ms Ruiz-Diaz stated she does not want to take any medications for her symptoms.
Current symptoms
Ms Ruiz-Diaz stated that she continues to experience constant pain in her head, neck and shoulders.
She also continues to experience anxiety associated with chest pain, sensations of shortness of breath and smothering, as well as tingling sensations and numbness in her fingers, with an associated fear of dying. She has ongoing fear of these recurrent symptoms occurring, particularly worried that she will have a heart attack and die and will not get the appropriate medical treatment.
Current and proposed treatment
Ms Ruiz-Diaz was not currently undergoing any psychiatric or psychological treatment, and there was no such treatment proposed.
Mental state examination
Ms Ruiz-Diaz presented as a woman appearing of stated age. She was appropriately dressed. There was no apparent self-neglect. She was cooperative and pleasant. She got up during the assessment and walked around for a short time, explaining that it was to relieve her pain. There was no evidence of psychomotor disturbance or abnormal movements. Her affect was anxious and dysphoric. She described her mood as “pretty calm, but I’m in pain”. There was no evidence of formal thought disorder. She denied any thoughts of self-harm, suicidal ideations, or harm to others. There were no psychotic features present, such as delusions or hallucinations. She was oriented to time, place and person. She had good insight and a good degree of rational judgment.
Current functioning
Ms Ruiz-Diaz denied any problems with her personal hygiene. She stated that her daughter helps with washing her hair as she is unable to make certain movements without exacerbating her pain. She showers daily.
She is able to drive, but with some apprehension that she will be hit by someone and get into another accident.
She stays at home and watches television generally and, as she is unable to partake in her previous physical activities, she socialises less as she is often not in the mood due to being in pain.
She stated that she is less intimate with her husband as they are both in pain, secondary to the subject accident.
She stated that she used to have a good memory but feels that it is not as good as in the past and has become forgetful of things at times, including appointments and peoples’ names. She finds it harder to concentrate. She stated that she previously could read a whole book in one night, but now struggles to focus on what she is reading. The Panel notes the results of the mini-mental tests administered by Medical Assessor Cameron and the previous review Panel suggest the claimant may not have significant issues with her concentration.
Ms Ruiz-Diaz stated that, prior to the subject accident, she and her husband ran an air-conditioning business, however, it is now about to close due to them both not being able to work in the business. The Panel notes that other histories provided by the claimant suggest the business has already closed.
Comments of consistency
While there were some inconsistencies in her history, Ms Ruiz-Diaz was pleasant and co-operative and appeared to be doing her best to tell her story without signs of malingering present in her presentation.
Ms Ruiz-Diaz was asked why she thought Dr Salib’s records contained no evidence of her panic attacks. She stated that she reported it to him, but he did not record it.
Ms Ruiz-Diaz was asked why she thought Dr Koleda’s records contained no evidence of her panic attacks. She stated that she also reported them to Dr Koleda. She was not sure why there were no report of her panic attacks in the records.
Ms Ruiz-Diaz confirmed she has not asked the insurer to fund treatment for her panic attacks, because her GP has taken the medical approach to record her attacks as chest pain, rather than considering the possibility that they may have a psychological cause. She confirmed throughout the examination that she has been frustrated with the insurer’s constant refusal of her requests for treatment.
CONSIDERATION OF THE ISSUES
Does Ms Ruiz-Diaz have a psychiatric condition caused by the accident?
It is the clinical judgment of the medical members of the Panel that Ms Ruiz-Diaz has a psychiatric condition and that it is caused by the accident.
The Panel notes the claimant has had no previous recorded psychiatric symptoms and her symptoms have arisen following the motor accident on 17 March 2020.
The insurer submits that the absence of any record of mental health symptoms in the treating doctors’ notes suggests that she has no psychiatric disorder. The medical members of the Panel note that the absence of recorded complaints does not mean there is no injury. Ms Ruiz-Diaz has been reluctant to seek treatment for her psychological symptoms and has focussed instead on pursuing an answer from a physical or medical perspective. This is, in the Panel’s view part of her mental health condition.
Does Ms Ruiz-Diaz have a panic disorder?
Based on the account presented by Ms Ruiz-Diaz the Panel is of the view the claimant would meet the diagnostic criteria for a panic disorder, as set out in the DSM-5. This is based on her history of recurrent, unexpected panic attacks, characterised by an abrupt, unexpected surge of intense anxiety associated with sensations of shortness of breath, a smothering chest pain and discomfort and paraesthesia, that is, feeling numbness and tingling sensations in her fingers and the fear of dying (Criterion A).
Ms Ruiz-Diaz says she has been having these attacks since the time of the accident which is a period of time of more than six months (Criterion B). She has ongoing worry about additional panic attacks and their consequences, specifically about having a heart attack and dying. She has developed a clear change in behaviour related to the panic attacks, her sleep has become disturbed and she has become less social.
There is no evidence that the panic attacks are attributable to the physiological effects of any substance or a medical condition (Criterion C) because a physical cause for these attacks have been ruled out, according to the claimant. These attacks are not better explained by any other mental disorder in the clinical judgment of the medical members of the Panel (Criterion D).
However, the Panel is not satisfied that a diagnosis of panic disorder should be made at this time based on the review of the medical evidence before it because:
(a) there are inconsistencies in the claimant’s histories (for example her history to Dr Rastogi that she has not been referred to specialists when the medical records clearly indicate that she has);
(b) the claimant was asked to provide the hospital records where she presented for panic attacks but has not done so;
(c) there is no mention of psychological symptoms in the records of Dr Salib and no mention of panic attacks although there were physical symptoms of chest pain reported which he has investigated noting physical reasons for the chest pain. The Panel would expect there to be some mention of mental health issues in the notes at some stage during the time after the accident if the claimant had been experiencing panic attacks as she alleges;
(d) there is no mention of psychological symptoms or panic attacks in the records of Dr Koleda and the Panel would expect there to be some mention of them, as this was the reason given for leaving Dr Salib’s practice;
(e) there is no reference to psychological symptoms or panic attacks in the comprehensive notes of the treating chiropractor or any of the specialists the claimant has been referred to, and
(f) six months after the accident, when the claimant attended upon Dr Canaris a medico-legal psychiatrist to consider her mental state, the claimant did not report any panic attack episodes. The Panel would have expected her to make such a report.
Does Ms Ruiz-Diaz have a somatic symptom disorder?
A somatic symptom disorder requires there to be present positive physical symptoms and signs of injury along with abnormal thoughts, feelings and behaviours in response to those symptoms. It is the abnormality of thought, feelings and behaviours which is the mental health aspect of the medical (physical) problem.
Somatic symptoms disorders are discussed at pages 309 – 315 of DSM-5. Ms Ruiz-Diaz meets the diagnostic criteria for a somatic symptom disorder with predominant pain, as set out at page 311 of DSM-5 for the reasons set out in the table below.
Criteria
Claimant’s evidence establishing the criteria
A – one or more somatic symptoms that are distressing or result in significant disruption of daily life
Ms Ruiz-Diaz experiences physical pain in her head, shoulders and neck. While all of these physical symptoms relate to injuries that the Review Panel has found are minor injuries (within the statutory definition), they are ongoing, distressing to Ms Ruiz-Diaz and significantly disrupt her daily life. As explained above, it has affected her ability to work and care for herself.
B - excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
1. disproportionate and persistent thoughts about the seriousness of one’s symptoms
2. persistently high level of anxiety about health or symptoms
3. excessive time and energy devoted to these symptoms or health concerns
The claimant’s response to her “minor” physical injuries has been disproportionate to the findings of the physical examinations and investigations. She is dismissive of her doctors saying they have ignored her or not listened to her when Dr Salib for example has referred her to three specialists and for three imaging studies.
In the examination conducted by the Medical Assessors Ms Ruiz-Diaz displayed a persistently high level of anxiety about the symptoms she experiences and she devotes an excessive time and energy ruminating about her symptoms.
C – although any one somatic symptom may not be continuously present, the state of being symptomatic is consistent
The claimant says, and the documentation confirms, she has complained about her physical symptoms arising from this accident consistently and since the time of the accident and despite the treatment provided to her.
Ms Ruiz-Diaz also experiences a degree of anxiety whilst driving or being driven by her husband, however, it is the Panel’s view she did not report any other symptoms consistent with a post-traumatic stress disorder.
The medical members of the Panel note the deaths in the claimant’s family over the last year. While the claimant has experienced grief over the loss of her loved ones, the examination conducted by the Medical Assessors did not reveal an abnormal grief reaction or that her reaction and response to these deaths have been the cause of any other psychiatric disorder.
The Panel notes Dr Vickery’s opinion that a “Somatoform Chronic Pain Disorder” is caused by “multiple biopsychosocial facts” affecting how persons react to illness and injury and that this is a “separate injury which is not directly due to a motor vehicle accident”.
The Panel does not agree with Dr Vickery’s opinion. The claimant was physically injured in the motor accident. While the nature of her physical injuries appear to be minor, the extent of her disabilities resulting from that accident and her perception of the injuries is that these injuries were significant. These thoughts, feelings and beliefs are not normal. It is the Panel’s view that Ms Ruiz-Diaz’s somatic symptom disorder has been caused by the subject accident. There are no other identifiable causes to account for the symptoms and there is a temporal relationship between her development of the symptoms and the motor accident.
Is a somatic symptom disorder a minor injury?
The Panel notes Dr Canaris (for the claimant) diagnosed a somatic symptom disorder, and that Dr Vickery (for the insurer) diagnoses a somatoform chronic pain disorder.
Dr Vickery’s diagnosis was made in accordance with the previous version of the Mental Disorders Manual (DSM-4).
The Panel notes one of the differences between DSM-4 and DSM-5 is that somatoform disorders are now referred to as somatic symptom and related disorders. As page 309 of DSM-5 explains:
“The DSM-IV term ‘somatoform disorders’ was confusing and is replaced by ‘somatic symptom and related disorders’. In DSM-IV there was great deal of overlap across the somatoform disorders and a lack of clarity about the boundaries of diagnosis. Although individuals with these disorders primarily present in medical rather than mental health settings, nonpsychiatric physicians found the DSM-IV somatofrom diagnoses difficult to understand and use.”
The Panel cannot consider DSM-4 as cl 5.11 of the Guidelines (in the chapter of the Guidelines confined to minor injury assessment) prescribes that only DSM-5 must be used. The Panel has applied the criteria in DSM-5 in Ms Ruiz-Diaz’ case and concluded she has a somatic symptom and related disorder.
The Panel also notes that Dr Vickery misunderstood the nature of the dispute before him, as he provided his views about whole person impairment and referred to a version of the Guidelines to suggest the claimant cannot have an impairment.
The relevant Guidelines in this matter (Version 9 published November 2022) provides at 6.123 that the psychiatric impairment rating scale (PIRS) “must not be used to measure impairment due to somatoform disorders or pain”. This clause is found in Chapter 6 of the Guidelines and is only relevant to a dispute about permanent impairment, not a dispute about “minor injury”.
There is nothing in the MAI Act, the Regulation or the minor injury Chapter of the Guidelines that says a somatoform disorder (as provided for in DSM-4) or a somatic symptom disorder (as it is now in DSM-5) is or is not a minor injury.
A somatic symptom disorder is a psychiatric injury recognised by DSM-5 and is not a minor injury for the purposes of the MAI Act.
CONCLUSION
While the Panel has come to the same conclusion as Medical Assessor Enrico Parmegiani, that is that the claimant has an injury that is not a minor injury, the Panel’s reasons for this are different based on a different psychiatric diagnosis. Therefore, the Panel is of the view the certificate should be revoked and a fresh certificate issued.
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