QBE Insurance (Australia) Limited v Ruzicska
[2024] NSWPICMP 400
•21 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Ruzicska [2024] NSWPICMP 400 |
| CLAIMANT: | Normita Ruzicska |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Glen Smith |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 21 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute for motor accident in January 2021; T-bone collision; pre-accident psychiatric symptoms; examination by Medical Assessors; finding that claimant did not suffer aggravation of pre-existing psychological symptoms; AAI Ltd v Hoblos referred to; Jarvis v Allianz Australia Insurance Ltd applied; diagnosis of specific phobia not met; certain criteria required persistent avoidance over six months; claimant could otherwise drive in the local area; Held – the claimant did not sustain a psychological injury; threshold assessment revoked; no need to assess permanent impairment. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 26 October 2022 and certifies that there is no psychological injury caused by the subject accident, for the purposes of the Motor Accident Injuries Act 2017. Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel confirms the medical assessment certificate dated 26 October 2022 and certifies that there is no psychiatric impairment caused by the subject accident. |
REASONS
BACKGROUND
On 12 January 2021 Ms Normita Ruzicska (the claimant) suffered injury in a motor vehicle accident. The claimant was driving when her vehicle was T-boned by the insured vehicle which was attempting a right-hand turn.[1]
[1] Claimant’s bundle, p 24 and p 31.
QBE Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Ms Ruzicska any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Ms Ruzicska sustained a psychological injury which is classified as a “threshold injury” within the meaning of the MAI Act and whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.
Pursuant to Schedule 2, cl 2 of the MAI Act, these disputes are declared to be medical assessment matters.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act.
The disputes were referred to Medical Assessor Samuell who issued two Medical Assessment Certificates both dated 26 October 2022 (the medical assessment certificates) from an assessment undertaken on 5 October 2022. Medical Assessor Samuell concluded that the motor accident caused a specific phobia disorder.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[4] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
Statutory amendment
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original medical assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
REASONS OF MEDICAL ASSESSOR
The Medical Assessor diagnosed specific phobia caused by the motor accident which had resolved.[6]
[6] Claimant’s bundle, p 1.
The Medical Assessor noted under the heading “consistency”:
“Ms Ruzicska appeared to be reluctant to answer certain questions and, at times, provided inconsistent results. The comments and her responses were noted above.”
Under “diagnosis” the Medical Assessor concluded:
“Ms Ruzicska has a well-established history of chronic Schizophrenia and a Substance Use Disorder. More recently, she has been diagnosed with a Specific Phobia with driving. It was noted that there was a lengthy history of driver’s licence denial prior to the subject accident on the basis of her Schizophrenia, insightlessness (sic) and poor compliance with treatment. There was some evidence of a Specific Phobia that was documented in the contemporaneous records, and this was consistent with comments made by Ms Ruzicska at interview. Her narrative was noted to be unreliable. On the balance of probabilities, she did sustain a Specific Phobia as a result of the subject accident. The Specific Phobia is in remission.”
The Medical Assessor provided a further medical assessment certificate dated
26 October 2022 assessing the degree of permanent impairment.[7] That certificate stated that it relates to an assessment on 5 October 2022. The reasons are generally repetitive of the other certificate.[7] Claimant’s bundle, p 8.
The Medical Assessor noted the psychological condition had resolved and did not assess permanent impairment.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificates for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[8]
[8] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[9] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[9] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[10]
[10] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11]
[11] Rule 128 of the PIC Rules.
The parties filed bundles of documents for the Panel’s consideration.
The insurer forwarded a message in the portal on 28 November 2023 which provided:
“We refer to the above matter and to the directions dated 9 November 2023. Please see attached Insurer’s Bundle of Evidence.
Could the Commission please confirm whether the following Certificates issued in this matter will also be available to the Panel:
1. Certificate of Assessor Doron Samuell (WPI – Psychological) dated 26 October 2022 (APP – 10489341).
2. Certificate of Assessor David Gorman (Threshold Injury – Physical) dated 22 January 2023 (APP – 10496286).
3. Certificate of Assessor David Gorman (WPI – Physical) dated 22 January 2023 (APP – 10489341).
Notwithstanding the previous medical assessors issued multiple certificates, the insurer seeks confirmation that the Review Panel is reviewing the medical assessment of Assessor Samuell (WPI and threshold injury) in circumstances where Section 7.26 of the Act is concerned with ‘medical assessments’, rather than medical certificates. The insurer refers to paragraphs 4 – 6 of its review application submissions dated 28 November 2022 in this respect.”
The Panel then issued a direction dated 28 November 2023;
“The Panel refers to the insurer's message conveyed in the portal on 28 November 2023.
Any material that the insurer wishes the Panel to consider should have been served with its bundle. If the insurer wishes to rely on any further material, then it should file an amended bundle forthwith which includes any other medical assessment certificates relied upon in the Review.
In relation to the scope of the Review, the Panel will not be issuing an interlocutory decision. The brief submissions filed by the insurer on this point will be considered noting that the issue was considered in detail in Allianz Australia Ltd v Ellul [2023] NSWPICMP 338 at [88] – [113].
By reason of this direction, that decision has now been brought to the parties’ attention.”
There was no response by the parties to this direction.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[12]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[12] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 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(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revisions (DSM-5TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13] In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[13] See s 3B(2) of the Civil Liability Act 2002.
[14] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Claimant’s submissions dated 17 February 2022[15]
[15] Claimant’s bundle, p 185.
These submissions address whether the claimant’s injuries exceeded the 10% threshold percent impairment.
In relation to a psychological injury the claimant referred generally to the “medical evidence obtained to date, both treating and medicolegal in nature” and submitted that the claimant had psychiatric injury by way of specific phobia disorder and post-traumatic stress disorder.
Claimant’s submissions dated 16 March 2022[16]
[16] Claimant’s bundle, p 194.
These submissions noted that the insurer had reversed its earlier decision that the claimant had sustained a non-minor injury, repeated its earlier submissions and requested that the medical dispute of whether the claimant had sustained a non-minor injury proceed with the assessment of permanent impairment.
Claimant’s submissions dated 16 December 2022[17]
[17] Claimant’s bundle, p 15.
These submissions opposed leave to review the medical assessment.
The claimant noted that Dr Rastogi made a diagnosis of specific phobia disorder and Professor Bright did not make a diagnosis. It was observed that the clinical notes of the general practitioner (GP) contained little detail as to the nature of complaints save as the history contained in the referral dated 21 May 2021.
The claimant observed that the report of Professor Bright concentrated on occupational capacity with an examination taking place on 19 May 2022. It was submitted that the Medical Assessor made a diagnosis of specific phobia in relation to driving which was based on the situation immediately post-accident. The claimant had conceded that she had improved noting that the motor accident occurred on 12 January 2021.
The claimant noted that the submissions that the insurer asserted were not referenced and dealt largely with pre-existing problems and it was clear that the Medical Assessor had regard to those matters.
The claimant submitted that she agreed with the insurer’s submission that the review related to the “assessment as a whole rather than the individual assessment”.
The claimant submitted that the Medical Assessor failed to give reasons as to why the psychiatric diagnosis has resolved and failed to conduct an assessment of permanent impairment.
Insurer’s internal review dated 7 March 2022[18]
[18] Claimant’s bundle, p 188.
The insurer noted the certificate of capacity dated 10 March 2021 diagnosed the psychological injury with an adjustment disorder with a pre-existing condition of schizophrenia. It also noted that Dr Rastogi diagnosed specific phobia disorder but did not address each criteria under DSM-V for that diagnosis.
The insurer accepted that there were ongoing psychological symptoms but that diagnosis had been inconsistent and there was insufficient medical information to arrive at the diagnosis of specific phobia disorder for the purposes of the MAI Act.
Insurer’s submissions dated 12 April 2022[19]
[19] Insurer’s bundle, p 21.
These submissions noted the various references to a pre-accident history of paranoid schizophrenia and various descriptions of psychological symptoms since the motor accident. The insurer noted that the claimant was being examined by Dr Bright in March 2022 and that any assessment of the medical dispute was premature.
Insurer’s submissions dated 29 September 2022[20]
[20] Insurer’s bundle, p 228.
The insurer noted that the claimant was seen by Dr Margaret Nguyen on 16 January 2021 and there was no record of the motor accident. The first reference was on 25 January 2022 [sic 2021]. It submitted that the absence of reference to initial complaint suggests that the claimant did not sustain any significant injuries.
The insurer referred to the past history of schizophrenia, drug induced psychosis, substance abuse and conversion disorder and noted the prescription of three forms of antipsychotic medications.
The insurer referenced prior psychological treatment which included non-compliance with medication and substance abuse in 2009, substance abuse in 2013 and a fragile mental state with a history of depression and schizophrenia in 2011. Reference was made to various reports including a referral from Dr Nguyen dated 12 October 2011 and Dr Malik dated
22 October 2013.The insurer submitted that the pre-accident history of chronic schizophrenia, substance abuse and traumatic stressors, coupled with a lack of post-accident reports of psychological symptoms indicated that the claimant’s ongoing symptoms were related to the pre-accident condition and not related to the motor accident.
Insurer’s submissions dated 28 November 2022[21]
[21] Insurer’s bundle, p 4.
These submissions were filed seeking leave to review the medical assessment certificate.
The insurer noted that Medical Assessor Samuell issued two certificates on 5 October 2022, one with respect to the minor injury dispute and the other with respect to the dispute concerning permanent impairment. It noted that whilst the review application with respect to the minor injury dispute, both certificates would need to be reviewed if the application was accepted on the basis “that the determination arises from the same medical assessment”.
The insurer submitted that the Medical Assessor failed to engage with material and identify consistencies and provided inadequate reasons concerning the DSM5 diagnosis.
The documents not referenced by the Medical Assessor were the insurer’s submissions dated 29 September 2022 and the report of Professor Bright, psychologist, dated
15 September 2022.The insurer referred to the history recorded by Professor Bright that the claimant drives a Subaru for a period of up to 100km and up to two hours in duration and was able to use the bus and train. This was inconsistent with the history recorded by Medical Assessor Samuell that the claimant only drove with a friend and locally by herself.
The insurer noted the findings of the Medical Assessor that the claimant had difficulty answering straightforward questions and was unable to provide specific responses about her pre-existing condition and submitted that where there is a medical controversy over a particular issue, a more expansive explanation was required.
The insurer referred to the DSM-5 criteria for a diagnosis of specific phobia and submitted that the Medical Assessor did not engage with those criteria. The insurer referred to the absence of enquiries by the Medical Assessor to each of the criteria constituting a diagnosis of specific phobia.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents for the Panel’s consideration.
Pre-accident medical records
The clinical records of Dr Nguyen show prescription of antipsychotic medication since 2007.[22]
[22] Insurer’s bundle, pp 267-298.
In 2011 Dr Nguyen noted that the claimant presented with schizophrenia with auditory hallucinations and paranoid delusions.[23]
[23] Insurer’s bundle, p 321.
A discharge report from hospital in October 2013 noted past diagnosis of schizophrenia, drug induced psychosis, substance abuse (amphetamines) and conversion disorder.[24]
[24] Insurer’s bundle, p 522.
In 2014 Dr Nguyen noted issues with accommodation which could further aggravate the claimant’s schizophrenia.[25] Similar problems were noted in May 2015.[26] In July 2015
Dr Nguyen noted chronic schizophrenia with illicit drug use.[27][25] Insurer’s bundle, p 345.
[26] Insurer’s bundle, p 397.
[27] Insurer’s bundle, p 398.
In August 2015, Dr Pusic, psychiatrist noted that the evidence showed the claimant suffered from chronic schizophrenia illness exacerbated by multiple drug abuse including amphetamines and was unable to support the claimant’s application for the return of a licence.[28]
[28] Insurer’s bundle, p 571.
In August 2019 Dr Nguyen noted the claimant was “emotionally stable with minimal dystonia” and requested advice whether the claimant was safe to drive.[29] The doctor also noted accommodation issues at that time which may aggravate the schizophrenic condition.[30]
[29] Insurer’s bundle, p 431.
[30] Insurer’s bundle, p 438.
In February 2020 the GP noted ongoing schizophrenia, questioned fitness for driving, that the claimant was compliant with medications but had undergone a recent stroke with mild hemiplegia.[31] At that time Dr Pusic opined that the claimant appeared to be under the influence of drugs.[32]
[31] Insurer’s bundle, p 450.
[32] Insurer’s bundle, p 614.
In March 2020, Dr Donna Biswas, psychiatrist, noted chronic schizophrenia which was currently well-controlled with medications and the claimant had good insight into her condition. The doctor certified the claimant fit to drive.[33]
[33] Insurer’s bundle, p 617.
In October 2020 the GP referred the claimant for assessment of her fitness for driving due to schizophrenia and recent stroke.[34]
[34] Insurer’s bundle, p 470.
In December 2020, Dr Dowla, neurologist, noted symptoms consistent with a stroke in October 2019 with hospitalisation and subsequent work rehabilitation and commencement of driving in May 2020 for only short distances. The doctor noted an intact neurological system to be able to drive safely and recommended care if drowsy, sleep deprived and not driving long distances particularly at night.[35]
[35] Insurer’s bundle, p 620.
Certificates post-dating the motor accident noted the claimant had paranoid schizophrenia as a pre-existing condition.[36]
[36] Claimant’s bundle, p 35.
Medical evidence
On 16 January 2021 the claimant attended Dr Nguyen who provided the “standard letter” and a medical certificate was given. On 25 January 2021 the clinical notes refer to the motor accident and on 28 January 2021 to the right anterior chest wall being tender.[37]
[37] Insurer’s bundle, p 299.
A certificate of capacity dated 10 March 2021 referred to various soft tissue injuries and opined that the claimant suffered “PTSD - increased anxiety, low mood, hypervigilance, flashbacks, avoidance since the MVA”.[38] This was repeated in subsequent certificates although variously described as an adjustment disorder or as “PTSD”.[39]
[38] Claimant’s bundle, p 30.
[39] See for example, claimant's bundle, p 45 and p 53.
The clinical note of the GP dated 10 March 2021 noted the motor accident, recorded the clinical symptoms consistent with the certificate and noted the claimant was compliant with her schizophrenia medication.[40]
[40] Claimant’s bundle, p 135.
Dr Samaranayake (GP) provided a referral dated 21 May 2021 when he described the claimant as:[41]
“Significantly affected … with increased anxiety and fear relating to the accident - intrusive thoughts relating to the accident making her fearful of driving … Feels traumatised by the event recurrent thoughts regarding the other driver blamed her for the accident - feel scared flashbacks frequently of the event, nightmares related to the event … Increased anxiety and hypervigilance.”
[41] Claimant’s bundle, p 120.
The claim form completed by the claimant and dated 10 February 2021 referred to the motor accident causing various physical injuries and “psychological injury”.[42]
[42] Claimant’s bundle, p 24.
On 21 June 2021 the GP noted there was no change with the claimant’s mental state.[43]
[43] Claimant’s bundle, p 140.
On 8 November 2021, Dr Dona Biswas, psychiatrist, noted that since the accident the claimant has been unable to drive as before and had flashbacks of the accident and the other driver shouting at her. As a result, the claimant had her partner drive most of the time.
The doctor noted that there was no exacerbation of the primary psychotic illness since the motor accident with the claimant being well managed with her medication and had not experienced any recent psychotic symptoms. Dr Biswas opined that the claimant was experiencing symptoms of post-traumatic stress disorder following the motor accident which was not present on prior examinations.
On 25 January 2022 Dr Biswas noted the claimant was unable to drive and had ceased going out of the house except for appointments and essential tasks with sleep disturbed by nightmares of the accident.[44]
[44] Claimant’s bundle, p 183
Qualified opinions
Dr Richa Rastogi was qualified by the claimant’s solicitors and provided a report dated
17 January 2022.[45] The doctor noted a history of paranoid schizophrenia diagnosed in 2001 characterised by paranoid ideation, passivity, and auditory hallucinations.[45] Claimant’s bundle, p 172.
Dr Rastogi diagnosed specific phobia disorder associated with displayed avoidance for driving, increased anxiety with arousal triggered by driving and hypervigilance and intrusive memories. The doctor noted that the claimant had received minimal psychological treatment and required ongoing treatment to assess prognosis and outcomes.
Dr Rastogi assessed permanent impairment at 11% with no deduction for the pre-existing schizophrenia condition as the condition was described as stable.[46]
[46] Claimant’s bundle, p 179.
Dr Bright, psychologist, was qualified by the insurer and provided a report dated
15 September 2022.[47] The doctor noted that the claimant had a driver’s licence, reported that she can drive up to 100km over a timeframe of between 90 minutes and two hours and was able to use the bus and train.[47] Insurer’s bundle, p 231.
The claimant reported recent use of illicit drugs including marijuana and ice. Testing was reported to show general reasoning below the average range with other scores either being average or below average. The doctor opined that the claimant had minimal vocational capacity although the presentation was inconsistent, and the English language ability appeared to be significantly stronger than was reflected in the assessment results.
EXAMINATION
Ms Ruzicska was examined by both Medical Assessors on 6 June 2024 who provided the following findings:
“Who attended the assessment
Ms Ruzicska attended the assessment via MS Teams alone from her daughter’s house (with her son-in-law and a friend in another room downstairs). An interpreter, Ms Melba Marginson, appointed by the Commission attended via three-way video conference.
History
Psychosocial history and pre-accident history
Identifying Details
Ms Ruzicska is a 59-year-old woman, living alone in a unit in an aged care facility in Willmott, where she has lived for nearly four years. She has been in an “on and off” relationship with her boyfriend, René. She has three children (two daughters and one son) and seven grandchildren. She stated that she has received the disability support pension (DSP) since around 2001 due to her longstanding psychotic illness. She stated that she often stays with her daughter at Marsden Park. Her partner receives Centrelink carer allowance payments as her carer.
Personal History
Ms Ruzicska reported that she was born in the Philippines, and she came to Australia at age 20. She denied a history of traumatic events such as physical, emotional or sexual abuse in childhood. She stated that she had difficulty concentrating at school, ‘I can’t understand when I’m listening’, but despite that, she completed high school in the Philippines and she studied for an accounting course in college, also in the Philippines. She stated that she was married in 1984 and she was responsible for home duties and caring for her children. Her husband passed away in 1993 from pancreatic cancer.
Previous drug and alcohol use history
Ms Ruzicska was somewhat vague regarding her history of illicit substance use but on direct questioning she reported that she first smoked crystal methamphetamine (MA, ‘ICE’) in around 2004, ‘with a boyfriend’. She stated that since she first used MA, her longest period of abstinence from MA was for around one year, ‘when I went to America in 2010’. Ms Ruzicska reported that she had been charged with various drug-related offences and in around 2011 she was incarcerated at Mulawa, Silverwater Correctional Centre, for around two months. Ms Ruzicska stated that from around 2011 until around five months ago, she smoked MA around once per week, mostly with her boyfriend and another friend. She stated initially that she ceased MA use five months ago but then she noted, “or three months ago, I stopped and used again, my head was talking non-stop”. She stated that she was charged with driving under the influence of MA and lost her licence for one year on 20 May 2024. She stated that she has never injected MA. Ms Ruzicska reported that she had received counselling, ‘because I wanted to stop’ and in May 2024, she completed a course at the New Beginning Centre in Mt Druitt, weekly for 10 weeks. She stated that admission for detoxification and rehabilitation was recommended and she is considering entering a rehabilitation facility in Penrith.
Regarding other illicit substance use, Ms Ruzicska stated that she sometimes smokes cannabis, ‘if I have pain’ and she said that she last smoked cannabis ‘eight months ago, I don’t remember’. She stated that she consumes alcohol only occasionally, ‘when there is a party, I don’t remember’. She stated that she smokes a cigarette occasionally.
Family History
Ms Ruzicska reported that her father ‘was drinking a lot’ and he passed away two years ago, aged in his 80s. He worked as a farmer. Her mother (aged 81) worked as a teacher and resides in the USA. She has six brothers. An older brother passed away from cancer in 2008.
Previous psychiatric history
Regarding her previous psychiatric history, Ms Ruzicska said that she ‘felt sick with depression, I didn’t know, I was quiet’. She was diagnosed with schizophrenia in around 2001 and she was admitted on at least two occasions to the Bungarribee Psychiatric Unit at the Blacktown Hospital. She was most recently admitted to hospital in around 2007. She stated that in 2001, ‘I was staring at the sun, I could see the people, my head would not stop talking, I was dreaming but awake’. She saw a psychiatrist, Dr Pusic, until around 2018 but she noted, ‘I forget’. She stated that she saw another psychiatrist, Dr Biswas, and she was prescribed aripiprazole 10mg tablets (antipsychotic medication). She stated that this has most recent been prescribed by her general practitioner, Dr Nguyen.
Medical History
Ms Ruzicska stated that she had a ‘stroke’ in 2019 and she was admitted initially to the Blacktown Hospital and then to Mt Druitt Hospital for rehabilitation. She was recently diagnosed with thyroid disease.
History of the motor accident
Ms Ruzicska said that on 12 January 2021, a sunny day, she was driving alone and wearing a seatbelt, in her own Toyota Corolla (2001 model) at around 11:00am, ‘I saw the car from the left, he was turning to the right, I had to force my brake’. She stated that she was driving at around 50km/hr. She stated that the front of her car hit the driver side of the other vehicle and no airbags were deployed. She stated that she stayed in the car but the other driver exited their vehicle, approached her window and said to her, ‘it was your fault’. She spoke with Ms Ruzicska at the window and they exchanged licence details. Ms Ruzicska said, ‘it was not my fault’ and the other driver drove away. She sat there for 10 to 20 minutes and then she drove from the scene of the accident to her home. She stated that no Police or ambulance attended the scene. Ms Ruzicska stated that her vehicle was subsequently repaired.
History of symptoms and treatment following the motor accident
Ms Ruzicska reported that she experienced pain in her right arm, shoulder and back, immediately after the accident, when driving home. She told her friend about the pain. She saw Dr Nguyen, GP, the next day or the day after. She stated that Dr Nguyen recommended physiotherapy treatment.
From a psychiatric perspective, Ms Ruzicska stated that after the accident she ‘became scared of driving, I didn’t feel like to drive’. She stated that she continued to drive in the local area, for example, to the nearby shops. She stated that at times she felt too anxious to drive and she would sometimes ask her friend to drive her. She stated that when travelling with someone else, ‘I was looking at the back of the car’. She stated, ‘I was flashing back to the accident, what if something happens again?’ She stated that when driving to the shops, ‘I was okay, it’s not there’. She sometimes drove past the scene of the accident but she noted ‘there is another way to drive’ and she often took that route instead. She stated that in the month after the accident, she recalled the accident and she worried that she would be involved in another accident. Ms Ruzicska stated that when watching the news, she would feel anxious if hearing about other motor accidents. She stated that she felt particularly anxious for around one month after the accident but then her anxiety reduced substantially. She stated that she had ‘flashbacks, even now it happens from time to time, when passing by the scene of the accident’.
Ms Ruzicska stated that she did not receive any specific medication or other treatment for the psychiatric ramifications of the accident. She said that she continued to see
Dr Biswas, psychiatrist, every six to 12 months. There has been no change in the aripiprazole dose and she has not seen a psychologist for treatment. On direct questioning, Ms Ruzicska eventually admitted that she ceased taking aripiprazole at some stage in 2023 but she could not clearly recall precisely when she ceased the medication.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Ruzicska denied involvement in any other motor accidents since the accident in January 2021.
She stated that she was diagnosed with hyperthyroidism around one month ago and she is undergoing treatment for this condition.
Current symptoms
Ms Ruzicska reported that she feels ‘generally okay’ in mood and she enjoys staying with her grandchildren, noting, ‘it keeps me busy, I’m happy’. She sleeps from around 11:00pm or midnight and she wakes between 4:00am and 6:00am. She stated that she sometimes experiences pain in the right shoulder and back which wakes her up. She denied dreams or nightmares of the accident. She described her energy as ‘okay, sometimes it is not good because I am getting old’. She does not sleep during the day. Her appetite is reasonable but she reported problems with eating due to her dentures. She has gained 6kg in weight since the accident and she attributed this to ‘getting older’. Ms Ruzicska reported ideas of reference from the television and music, that programs are specifically about her.
Current and proposed treatment
Ms Ruzicska reported that she sees the psychiatrist, Dr Biswas, around every six to 12 months. She is no longer taking any psychotropic medication.
Current Medications
Amlodipine 10mg daily (hypertension).
Carbimazole 5mg daily (hyperthyroidism).
Clinical Examination
Mental State examination
Ms Ruzicska was punctual and she attended the examination via video conference. She was neatly dressed and well groomed, wearing make-up and earrings. She was cooperative and polite and there was no agitation. She reported that her mood is ‘okay’ and her affect was reactive. There was no evident blunting of affect. There was difficulty with articulation and stuttering that she attributed to problems with her dentures. She sometimes provided tangential replies to questions and the question needed to be repeated. She stated, ‘when I am listening to music, the lyrics have meaning for me, sometimes’, describing ideas of reference. She stated, ‘people would share things to my mind, telling my head, I’ve lost control, your son has been kidnapped, it wasn’t true, it was only in my mind’. She stated, ‘only sometimes, when I’m watching the tv, the news will keep saying to me in my head’. She denied suicidal ideation.
Current functioning
Ms Ruzicska reported that she showers daily. She cooks meals for herself, and she does her own washing. Her partner assists her with cleaning, ‘heavy things’, three or four days per week and he also helps her with the groceries. Ms Ruzicska reported that she enjoys spending time with her daughter and grandchildren. She stated that her partner ‘always comes to see me, nearly every day’ and now functions as her carer. She previously enjoyed dancing and she noted, ‘before Covid, I don’t go dancing now, I’m getting old’. Ms Ruzicska stated that she drives alone to the local shops. She stated that often, her friend and her partner travel with her. She drives alone to her daughter’s house around 10 minutes away but she denied longer trips. Ms Ruzicska stated that her relationship is ‘on and off, it’s alright’. She stated that she only rarely sees her other children, ‘they don’t talk to me, because I was burping very loud, it was embarrassing’. Ms Ruzicska stated that she watches television but she has difficulty reading. She has received the DSP for over 20 years.
Comments of consistencyMs Ruzicska told the Panel that she can only drive in the local area due to anxiety but when she saw Professor Bright in September 2022, he noted that she could drive for between 90 minutes and two hours and for a distance of 100km. When asked directly regarding this discrepancy, Ms Ruzicska stated, ‘I don’t think so, I didn’t say that’.
Diagnosis and reasons
Ms Ruzicska provided a history consistent with the following diagnosis according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022):
1. Stimulant use disorder, pre-existing. No aggravation since the accident. She has used MA before and after the subject accident and her usage has not changed due to the subject accident.
2. Schizophrenia, pre-existing. No aggravation since the accident but she has ceased her antipsychotic medication in 2023.
Justification of Diagnosis
Ms Ruzicska reported a longstanding history of crystal methamphetamine (MA) use which has been characterised by more than two features of the list in criterion A as follows:
§ There has been recurrent MA use in situations in which it is physically hazardous, such as driving (criterion A8).
§ There has been continued stimulant use despite persistent social or interpersonal problems, such as being incarcerated for drug-related charges (criterion A6).
§ Ms Ruzicska’s stimulant use has continued despite knowledge of having a recurrent psychological problem that has been exacerbated by the stimulant use, such as the history of psychosis (criterion A9).
§ A great deal of time is spent in activities necessary to obtain the stimulant, use the stimulant and recover from the effects (criterion A3).
▪ There has been a history of repeated unsuccessful attempts to cease stimulant use (criterion A2).
The stimulant disorder has been present since at least the early 2000s, according to her history and therefore pre-dates the motor accident. There was no evidence of a worsening of stimulant use after the motor accident, with Ms Ruzicska reporting that her use of stimulants was generally unchanged after the accident.
Differential Diagnosis
Dr Samuell and Dr Rastogi, psychiatrists, made the diagnosis of specific phobia in relation to the motor accident in January 2021 but did not clearly specify the criteria which were met. Ms Ruzicska provided a history of marked anxiety regarding driving for around one month after the motor accident. Therefore, criterion A for the diagnosis of specific phobia was met. She did not, however, describe immediate fear or anxiety when driving (as required for criterion B), because she could drive in the local area without the marked anxiety and there was no ongoing active avoidance or endurance of driving with intense fear or anxiety (as required for criterion C). Furthermore, criterion E was not met because the fear, anxiety and avoidance were not persistent, generally subsiding after around one month (as opposed to six months or more as noted in criterion E). For these reasons, the Panel concludes that the full criteria for the diagnosis of specific phobia were not met. Ms Ruzicska’s psychiatric symptoms in relation to the motor accident in January 2021 are best understood as subsyndromal symptoms of specific phobia not satisfying the full criteria for diagnosis.
The Panel considered the diagnosis of posttraumatic stress disorder (PTSD) as diagnosed by Dr Biswas but criterion A for this condition was not met because the accident did not involve actual or threatened death, serious injury or sexual violence as required by criterion A. The accident resulted in minor vehicle damage and she drove from the scene without calling for emergency services. Furthermore, there were no persistent intrusion symptoms for greater than one month as required for criterion B of the diagnosis of PTSD. The criteria were therefore not met for this condition.
The Panel noted the reported longstanding diagnosis of schizophrenia but in the presence of ongoing recurrent stimulant use, this diagnosis cannot be made (according to criterion E). The diagnoses of stimulant intoxication, with brief psychosis during periods of stimulant use or stimulant-induced psychotic disorder remain differential diagnoses which would be longstanding and not related to the motor accident. Due to the lack of clarity in Ms Ruzicska’s provided timeframes of stimulant use it was not possible to definitively conclude which of these diagnoses would be most appropriate. Nevertheless, the symptoms of psychosis are not related to the accident. Specifically, there was no evidence of a worsening of psychosis after the accident, either provided in the history by Ms Ruzicska or in the available documentation. There was no change in aripiprazole dose and she ceased the medication in 2023 without a clear worsening of her symptoms. She had only seen Dr Biswas around every six to 12 months.
Causation and reasons
The Panel concludes that Ms Ruzicska developed marked anxiety after the motor accident in January 2021 but the full diagnostic criteria for specific phobia were not met and therefore there has been no diagnosable psychiatric condition related to the motor accident. Ms Ruzicska presented with persistent simulant use disorder and a longstanding psychotic illness that were not related to the motor accident.
Degree of permanent impairment Psychiatric Impairment Rating Scale
Ms Ruzicska has not suffered a psychiatric injury in relation to the motor accident in January 2021 and therefore no permanent impairment assessment is appropriate.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[48] and Insurance Australia Ltd v Marsh.[49]
[48] [2021] NSWCA 287 at [40], [41] and [45].
[49] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[50] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[50] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[51] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[51] at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.
We accept the parties’ joint submission that both medical disputes are before the Panel. The authorities concerning the extent of the review were summarised in Allianz Australia Ltd v Ellul[52] which supports the joint submission. We adopt those reasons.
[52] [2023] NSWPICMP 338 at [88] – [113].
We adopt the reasoning in AAI Ltd v Hoblos[53] that the psychological effects are evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
[53] [2023] NSWPICMP 210 at [141] – [181] (Hoblos).
Since the reasons were published in Hoblos, the Supreme Court has held that a psychological injury was established if the motor accident aggravated, accelerated, or exacerbated a psychological condition.[54]
[54] Todev v AAI Limited t/as GIO [2023] NSWSC 836 (Todev) at [50]-[53].
The Panel is reliant on the clinical expertise of the Medical Assessors who undertook the recent examination process. We have considered the parties’ submissions concerning various diagnosis and the medical evidence which is summarised earlier in these Reasons.
In not accepting that the claimant has established a psychiatric injury, we have considered the psychological symptoms, the significance of the motor accident, the various clinical record and the clinical experience of the Medical Assessors who undertook the examination.
For the reasons provided by the Medical Assessors, we are otherwise not satisfied that the pre-existing psychological conditions were exacerbated or aggravated by the motor accident.
CONCLUSION
The medical assessment certificate for threshold injury is revoked. The new certificate is attached at the commencement of these Reasons. As there is no finding of injury there is no need to undertake an assessment of permanent impairment.[55] That medical assessment certificate is confirmed.
[55] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.
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