QBE Insurance (Australia) Limited v Sangar
[2023] NSWPICMP 385
•10 August 2023
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Sangar [2023] NSWPICMP 385 |
CLAIMANT: | Dushyant Sangar |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Gerald Chew |
MEDICAL ASSESSOR: | Thomas Newlyn |
DATE OF DECISION: | 10 August 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; whether degree of permanent impairment is greater than 10%; persistent depressive disorder with major depressive episode of anxious distress; section 44(1); medical assessment was incorrect in a material respect; pre-accident history of physical and psychological complaints; depressive symptoms triggered by pain; unrelated health concerns impacting on psychological conditions; family and development history; effects of physical injuries; mental state examination; current function; causation and reasons; adjustments for effects of treatment; Held – Medical Assessment Certificate revoked; permanent impairment greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 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 Compensation Act is as follows: The Review Panel revokes the certificate of Medical Assessor Wayne Mason dated 7 April 2022 and issues a new certificate that the following injuries were caused by the motor accident and give rise to an impairment which is greater than 10% and is 22%. · Persistent Depressive Disorder with Major Depressive Episode and Anxious Distress. |
STATEMENT OF REASONS
INTRODUCTION
Dushyant Sangar (the claimant) was injured in a motor vehicle accident on 31 March 2016 when the insured vehicle collided with the rear of the claimant’s vehicle causing him injury.
The claimant was 59-years-old at the time of the accident and he is now aged 66 years and 11 months.
The present dispute between the parties is whether the claimant sustained a psychiatric injury and whether the degree of permanent impairment as a result is greater than 10%. This constitutes a medical dispute within the meaning of the Motor Accident Compensation Act.
Section 44(1)(c) of the MAC Act provides that Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) of the MAC Act for the assessment of permanent impairment. 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.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 63 of the MAC Act, on review by a review panel.
ASSESSMENT SUBJECT TO REVIEW
Medical Assessor Wayne Mason provided a certificate dated 7 April 2022. The Medical Assessor found the claimant had sustained chronic treatment resistant Major Depressive Disorder and a degree of permanent impairment caused by the motor accident of 24%. 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 a certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel as they were satisfied there was a reasonable cause to suspect that the medical assessment was incorrect in the material in respect to having regard to the particulars set out in the application.
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 the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The applicant insurer has sought a review of a certificate of Medical Assessor Mason and submits that the medical evidence does not support a finding that the claimant sustained a whole person impairment greater than 10% as a result of the subject accident.
ISSUES
Applicant’s submissions
The insurer’s application provides some 1,200 pages of material in support of their submissions. The submissions fall into three categories. Firstly, that the claimant had a significant pre-accident history of physical and psychological complaints which must be considered when determining the level of impairment, if any, attributable to the subject accident.
Secondly, that the claimant’s depressive symptoms appear to be triggered by pain and its associated restrictions in circumstances where any injury sustained in this motor vehicle did not give rise to any pain or associated restrictions and accordingly could not have triggered any psychological response. The insurer supported this submission with extensive pre-accident material in respect to the claimant’s physical medical condition and symptoms.
Thirdly, the insurer submitted that the claimant suffers from a number of other unrelated health concerns which would likely impact on his psychological condition and accordingly it was not the sequelae of the motor vehicle accident that is causing any psychological problems but rather matters and concerns which are unrelated to it.
The respondent claimant submits that the material supports his contention that prior to the accident the claimant was in good health both physically and psychologically and that the assessor questioned the claimant about all prior medical matters and considered them in the report.
The respondent also noted that a correct chronology of all treatment and medications since the accident together with the examination relating to the claimant’s mental state support a contention that the claimant’s psychological injury has arisen consequent on the motor vehicle accident and is severe and debilitating. That is, following the accident the claimant developed somatic symptoms, which intensified, and which culminated in an entirely consistent Major Depressive Disorder. Further, that any complaint by the insurer that any “multiple inconsistencies” were not put to the claimant are of no material significance or otherwise explained by the difficulty the claimant has with his recollection.
Following the proper officer’s referral of this matter to the panel and noting that the
insurer was given leave to rely on late documents including a report of Dr George dated 1 September 2022, the panel considered that a re-examination of the claimant is required and this was undertaken on 21 July 2023. In particular, and noting the submissions of the insurer, the review panel was mindful of the alleged inconsistencies highlighted by the insurer and that these would be put to the claimant specifically so as to address issues of consistency and the concerns raised by the insurer in its submissions that the claimant responded to the totality of the material including material relating to both pre and post non-accident related conditions.
MEDICAL EVIDENCE
The claimant migrated to Australia from India in 1992. The insurer has sought to rely on a significant amount of medical material going back to 1996 relating to all physical and psychological complaints which pre-date the accident. This material is summarized in the insurer’s submission and the material considered by the panel.
RE-EXAMINATION
Mr Sangar was examined by Medical Assessors Newlyn and Chew on 21 July 2023 by using Teams video conferencing. The examination report is as follows:
Preamble
Mr Sangar is 66 years and 11 months old. He is 165cm tall and weighs 54.5 kilograms and advises that he in contrast to his weight in mid-June 2022 of 65 kilograms. He is right handed.
He was asked specifically about his general practitioner records from 1996 to 31 March 2016 being the date of the motor vehicle accident. In particular he was asked about the frequent mention of anxiety and physical concerns. He stated that he was not anxious about his health before this accident. His physical concerns related mainly to the flu, throat and reflux problems. He was being treated for elevated cholesterol and reflux and had undergone a rhinoplasty in January 2016 and an inguinal bilateral hernia repair in 2017. He had completed his honours in engineering in 1980 and, after migrating to Australia in 1992 as a skilled migrant, worked for Procter and Gamble from 1996 until March 2018. He resigned in July 2019 noting:
“I can’t work. I can’t focus or concentrate. I tried to do voluntary work at Vinnies but I couldn’t complete the questionnaire. I get agitated and say vague things.”
He currently receives a superannuation pension.
His family history and developmental history are unremarkable. His father having died when he was nine years old. He is married and lives with his wife. He does not take alcohol, drugs or cigarettes. He has no history of legal or gambling problems.
He denies any significant mental health problems before a motor vehicle accident in 2007 after which he had anxiety but claims to have resolved by 2009. He denied any mental health effects following a motor vehicle accident in 2010. He states:
“I was not hindered in my performance from 2010 to 2016. I don’t think I was anxious. I held 2 general manager positions.”
He asserts that he had no issues with his pre-accident functioning.
THE ACCIDENT OF 31 MARCH 2016
The claimant was injured when the vehicle he was driving was hit from behind. He attended his general practitioner that day. He was diagnosed with an injury to his neck and right shoulder. Following the accident he was prescribed Valium and referred to Dr Kathleen Casey, a clinical psychologist, as a consequence of the onset of panic attack. He was referred to Dr Bisht a consultant psychiatrist and was prescribed multiple psychotropic medicines as well as pain modulating medicine. He states that he had concerns as to side effects of the medications and stopped taking them. He continued to attend psychologists to deal with his conditions particularly his anxiety. He also underwent physiotherapy and exercise programs. He continues to receive treatment from his general practitioner and psychiatrist. He no longer receives psychological counselling.
MENTAL STATE EXAMINATION
The claimant is a thin man of Indian heritage with male pattern baldness. He states:
“I showered 3 days ago. I didn’t get a reminder today”.
Psychomotor agitation was observed. He was co-operative throughout the interview but had problems focusing on the questions posed. He often wandered into byways of memory. He maintained good eye contact. He appeared anxious and was occasionally tearful. He displayed an anxious depressed affect consistent with his thought content. He displayed impaired concentration showed by the clinical observation during the two hours of assessment.
CURRENT FUNCTIONING
Mr Sangar reports significant personality change since the 31 March 2016 motor vehicle accident.
He described his daily routine as unplanned. He observes that he is prompted to shower. Has a reduced appetite. He lacks motivation. He suffers insomnia. He describes himself as “idle and empty headed”. He states:
“I don’t enjoy anything.”
He says he does not socialise. He feels like crying twice a day. He does not wish to drive unless forced to. He has difficulty concentrating. He withdrew from his job in 2018, resigned in 2019 and has not returned to the workforce since.
CONSISTENCY
There was consistency between the history of the current psychiatric symptoms, presentation at the assessment interview and findings on examination. The specific inconsistencies highlighted by the insurer were put to Mr Sangar who focused his replies on his pre-accident work success and positive social functioning. He denied any pre-existing mental health treatment between 2010 and 2016. The Panel noted the mental diagnosis of an Adjustment Disorder after the 2007 motor vehicle accident with no evidence of a diagnosed mental health disorder either before or after the 2017 motor vehicle accident or after the 2010 motor vehicle accident. His assertion of the remission of his Adjustment Disorder caused by the 2007 motor vehicle accident was accepted by the Panel, who noted no evidence provided to refute this assertion.
PERMANENCY OF IMPAIRMENT
Mr Sangar’s mental health impairment is permanent because his symptoms are persistent and pervasive. His impairment is unlikely to change by more than 3% with or without further mental health treatment.
DIAGNOSIS AND REASONS
The Panel considered the question of psychiatric diagnosis.
At the 21 July 2023 Review Panel assessment Mr Sangar met the DSM-5-TR criteria set for diagnosing F34.1 Persistent Depressive Disorder with Major Depressive Episode with Anxious Distress. After the 31 March 2016 motor vehicle accident Mr Sangar developed mental health symptoms as reported that progressed slowly from an Adjustment Disorder diagnosed by Dr Graham George in 2018 to a Major Depressive Disorder diagnosed by Dr Enrico Parmegiani in 2021. In a 2022 review Dr George changed his diagnosis to Somatic Symptom Disorder. In the April 2022 certificate of Medical Assessor Mason diagnosed Major Depressive Disorder. The Panel did not agree with the diagnosis of post-traumatic stress disorder or Somatic Symptom Disorder preferring Persistent Depressive Disorder with Major Depressive Episode with Anxious Distress as the current diagnosis.
CAUSATION AND REASONS
The Panel reviewed the insurer’s submission and schedule of medical evidence prepared by the insurer. The Panel considered the assertions made by Mr Sangar and the findings on examination. Although there are notations in Dr Singh’s records of mental health symptoms there is no evidence of a diagnosed mental health disorder before this accident. DSM-5-TR states:
“…symptoms without disability do not add up to disorder until a ‘threshold for disability’ is reached”.
Mr Sangar showed no obvious disability in the years before March 2016.
The accident does not have to be a sole cause as long as it is a contributing cause that is more than negligible. Mr Sangar’s Persistent Depressive Disorder symptoms began soon after the 31 March 2016 motor vehicle accident with a slow progression of impairment documented by his treating clinicians.
DEGREE OF PERMANENT IMPAIRMENT
Following the Guidelines and Guidance Note 19 in the Psychiatric Impairment Rating Scale does not assess impairment from pain.
Psychiatric diagnoses:
Persistent Depressive Disorder with Major Depressive Episode with Anxious Distress
Psychiatric treatment described:
Psychiatric consultation
Psychological counselling has ended
TMS is in hiatus
Psychotropic medicine prescribed
AREA OF FUNCTION
Class
Reason for Decision
1. Self-Care and Personal Hygiene
3
Moderate impairment. He does not live independently. A family member is always present to ensure minimal hygiene and nutrition. He is prompted to shower and to eat. He had not showered for 3 days. He lost 10.5 kg since mid-2022. He has minimal involvement in household chores.
2. Social and Recreational Activities
3
Moderate impairment. He reported attending family functions because of an obligation to do so. He had been the one to plan family functions but no longer did so. He reported anxiety at family gatherings and preferred to avoid them. He had stopped his regular walks with his wife. He did not eat with the family. He travelled to the Gold Coast to meet his son-in-law’s family only because he was expected to do so. He no longer went to restaurants.
3. Travel
2
Mild impairment. Although he disliked driving he could drive alone as far as Parramatta. However, his wife and daughter were the ones who usually drove him to appointments and took him to the shopping centre so that he would not be at home alone. He had travelled with his family to the Gold Coast because of family obligations.
4. Social Functioning
2
Mild impairment. He reports his family see him as a liability. He no longer sleeps with his wife because of his sleep disorder. He said he ‘snaps’ at his daughters. He has lost contact with friends. There have been no separations of physical aggression.
5. Concentration, Persistence and Pace
3
Moderate impairment. He reported could only read a page of a magazine before losing focus. He found his mind wandered. His focus during the assessment was poor and he needed frequent redirection. He said he could not focus on TV programs or watch a movie. He did not persist with tasks and was not motivated to complete them.
6. Adaptation
5
Totally impaired. With his persistent depression and lack of motivation he cannot work. His does not contribute to household functioning.
List classes in ascending order:
2
2
3
3
3
5
Median Class Value:
3
Aggregate Score:
18
Percentage Whole Person Impairment:
22%
ADJUSTMENTS FOR EFFECTS OF TREATMENT OR LACK OF TREATMENT
No adjustment is needed with no measurable treatment effect from the treatment interventions provided since the 31 March 2016 motor vehicle accident.
APPORTIONMENT
After the remission of his 2007 Diagnostic Disorder Mr Sangar did not meet DSM-5-TR diagnostic criteria for the diagnosis of a clinical psychiatric disorder despite the presence of some mental health symptoms, the significance of which he disputed.
SUMMARY OF PERMANENT IMPAIRMENT
A Current % whole person impairment
22%
B Pre-existing/subsequent percentage whole person impairment
0%
C Adjustments percentage for effects of treatment
0%
Final percentage permanent impairment (A-B+C)
22%
CONCLUSION
Degree of permanent impairment caused by the 31 March 2016 motor vehicle accident is 22%.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel comprised of two specialist medical practitioners not required to choose between competing medical opinions is required to form its own opinions (QBE Insurance Australia Limited v Keen 2021 NSW CA287 at [40]). This is of particular relevance in the present matter where there are conflicting opinions provided by the various doctors qualified by the parties.
The claimant’s consistent history, and the material provided in this matter, was that he was not suffering from a diagnosed psychiatric disorder at the time of the accident.
We are satisfied the impairment is permanent because it is unlikely to change substantially with or without medical treatment and he is not likely to remit.
CONCLUSION
Mr Sangar’s Persistent Depressive Disorder with Major Depressive Episode and Anxious Distress give rise to a whole person impairment of greater than 10%.
0
0
0