QBE Insurance (Australia) Limited v Steele
[2024] NSWPICMP 467
•24 May 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Steele [2024] NSWPICMP 467 |
CLAIMANT: | Matthew Steele |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Wayne Mason |
MEDICAL ASSESSOR: | Samson Roberts |
DATE OF DECISION: | 24 May 2024 |
REISSUED: | 15 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Threshold injury; psychiatric injury; whether alcohol use disorder and post-traumatic stress disorder were injuries caused by the motor accident; whether injuries caused by motor accident are threshold injuries; Held – alcohol disorder not caused by accident; post-traumatic stress disorder caused by accident and constitutes a non-threshold injury; Medical Assessment Certificate revoked. |
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 The Review Panel revokes the certificate dated 8 May 2022 and certifies that: 1. The following injury was not caused by the motor accident: (a) alcohol use disorder. 2. The following injury caused by the motor accident: (a) post-traumatic stress disorder is not a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Matthew Steele, is a 35-year-old man who was involved in a motor vehicle accident on 16 September 2020. He claims that his vehicle was impacted on the front of the passenger’s side, as another vehicle’s tyres “blew out” and the insured driver lost control of the vehicle causing the collision.
The claimant has referred an injury which he claims he sustained in the subject motor vehicle accident, being a psychiatric condition (alcohol use disorder and post-traumatic stress disorder) for an assessment as to whether the injury is a threshold injury for the purposes of s 1.6 of the Motor Accident Injuries Act 2017 (MAI Act).
The insurer (QBE) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
On 30 April 2021, the insurer issued a Post-26 Weeks Liability Notice advising that liability for statutory benefits was denied after 16 March 2021, on the basis that it had been determined the claimant had sustained minor (viz. threshold) injuries in the subject accident.
On 13 May 2021, the claimant lodged a request for internal review of the insurer’s determination dated 30 April 2021. On 7 June 2021, the insurer’s determination that the claimant sustained only minor injuries in the subject accident was upheld by way of internal review.
On 13 October 2021, the claimant filed lodged a medical dispute in respect of a medical assessment matter with the Personal Injury Commission (the Commission). A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor. In this case that matter that arises for determination further to Schedule 2, cl 2 (e) is “whether the injury caused by the motor accident is a threshold injury for the purposes of the [MAI] Act”.
By certificate and reasons dated 2 May 2022, Medical Assessor Barrett "certifying that the claimant’s psychological symptoms meet the criteria for a diagnosis of post-traumatic stress disorder, being an injury which falls outside the definition of ‘minor’” for the purposes of the MAI Act.
The insurer filed an application with the Commission seeking a Review Panel review of a single medical assessment of the certificate of Medical Assessor Barrett.
On 26 July 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
The delegate found that:
"[t]he insurer submits that Assessor Barrett failed to respond to a clearly articulated argument with respect to causation of the injury and failed to provide a sufficient path of reasoning in respect to her findings as to causation. I am satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application, in particular, on the basis of the submissions summarised above.”
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.
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess.
Section 41(2) 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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
By a direction issued by the Panel dated 29 May 2023, the claimant and the insurer were required to provide any material in their possession which went to the injury said to have arisen out of the claimant’s second motor vehicle accident. The claimant was also required to provide any further clinical notes from Dr Saker, his general practitioner, and any psychologist upon whom he had attended.
The parties did not comply with this direction; no further material was supplied.
The claimant was re-examined, the details of which are recorded below.
ASSESSMENT UNDER REVIEW
Medical Assessor Barrett diagnosed post-traumatic stress disorder (now mild) which is a non-minor injury, and alcohol use disorder which had resolved.
The Medical Assessor noted in full the submissions made by the insurer.
She noted the claimant was born in the St George area of Sydney, grew up in Revesby and moved with his family to Lake Macquarie in 2000 when he was 13 years of age. His parents separated when he was three or four years of age. He has a younger sister. He also has two younger half siblings from his father's subsequent relationship. He was very active in sports, was bored easily in school and may have had ADHD but a change of diet improved his condition.
He completed year 11 and commenced a Certificate II in IT at TAFE. This was not completed, and he worked in retail sports at 17 years of age, then in sales and subcontracting youth work. He has worked full-time in a distribution centre since 2019.
He lives alone in rental accommodation. His longest relationship was for three years which ended in 2013 because he believed his partner’s parents were overly involved. He has no children. There is no past forensic or insurance history. His mother gambled on poker machines and his sister suffered from anxiety.
He does not use cigarettes or illicit drugs and consumes alcohol every few weeks or months. There is no past psychiatric history.
Pre-accident activities of daily living (ADLs) and social activities were unremarkable.
The subject motor accident consisted of being unable to avoid T-boning another vehicle which had blown a tyre on the M1 motorway while he was travelling at 110kmph. He was wearing a seatbelt; airbags did not deploy, and he ended up on the grass. Neither police nor ambulance were called. Both vehicles were towed to the end of the freeway. His car was subsequently written off. He was collected by his mother and driven home.
He reported his spine is "fused" at C6/7. His pain varies from 4/10 to 7/10 with an average of approximately 5/10. This is worse with longer work hours and prevents him from exercising, skateboard riding and training at the gym. He has put on approximately 15kg of weight. He had physiotherapy for one year and now continues self-directed exercise. He uses ibuprofen and paracetamol sparingly.
Psychological symptoms consisted of intrusive thoughts and a visual image of the scene just prior to the impact occurring multiple times per day. He avoided freeway driving but can drive on other roads. He kept engaging in “what if” type thoughts. He worries about his neck injury in future. He has difficulty sleeping. He said he has had a few panic attacks when driving and on 1 occasion at work. He described a sad mood that felt better at work. Appetite was normal, energy reduced, and his concentration was impaired when he thought about the accident. There had been only some fleeting suicidal thoughts. He was irritable and overreactive at work. Alcohol use increased to manage mood and intrusive thoughts.
He saw psychiatrist Dr Stuart Saker who prescribed moclobemide, but side-effects prevented him from taking it after two days. He has been using Cannabidiol (CBD) oil 0.5mg per night since late 2021 prescribed by Dr Saker. There was also another antidepressant. Funding for psychological treatment was declined by the insurer. He ceased excessive alcohol use six months earlier on the advice of Dr Saker and he now has three or four standard drinks once weekly. A bladder issue is being investigated. He did not provide the report of the subsequent motor vehicle accident in September 2021.
He noted some improvement with better sleep, fewer intrusive images, less irritability, and the recent ability to drive on the highway a few times. He was currently working for the same employer on a full-time basis.
Medical Assessor Barrett diagnosed post-traumatic stress disorder and an alcohol use disorder which was now in remission.
Regarding current functioning, he continues to live independently in his own home. He performs all chores, does his laundry, showers regularly and wears clean clothes daily. He goes out with friends weekly for drinks or to watch football. He can drive locally without any difficulty but is anxious when he drives on the highway which he has done five or six times. Has not lost friendships. An early prospective relationship did not proceed because of his partner's trust issues. He gets along well with his family. There were no difficulties with concentration, and he is working full-time.
MATERIAL BEFORE THE PANEL
In the claimant’s Application for Personal Injury Benefits dated 18 September 2020, he did not assert any psychological injury received as a result of the motor vehicle accident.
On 17 September 2020, one day following the accident, the claimant presented to Dr Peter Mock general practitioner (GP) at Glendale Medical and complained of a cervical sprain. The claimant did not complain of any psychological symptoms.
The claimant presented to his GP on 21 September 2020 and was advised that his brain was “getting better”. No mention was made of any psychological symptoms.
Certificates of capacity dated 21 September 2020, 28 September 2020, 6 October 2020 and 16 October 2020 which certified the claimant unfit for work from 21 September 2020 to 23 October 2020 due to cervical hyperextension. The claimant’s GP did not record any diagnosis of a psychological injury related to the subject accident.
The claimant thereafter attended his GP on numerous occasions between 28 September 2020 and 16 October 2020 and did not report any psychological symptoms.
In a letter addressed to the claimant’s GP, dated 20 October 2020, Dr. Warren van der Vlught, physiotherapist at Toronto Health, noted that the claimant commenced physiotherapy treatment on 18 September 2020 and was then essentially pain-free with no loss of movement in the neck or mid back. The physiotherapist was happy for the claimant to return to his pre-injury duties.
On 23 October 2020, the claimant’s GP certified the claimant fit to return to normal duties as he had recovered from the cervical sprain. The claimant did not report any psychological symptoms to his GP on this occasion.
At the claimant’s consultations with his GP of 12 November 2020 and 8 December 2020, he made no mention of any psychological symptoms.
In his attendance upon his GP on 10 May 2021 the claimant complained that he was anxious, there no stress at work, he had financial problems, and he gets flashbacks which can affect sleep and occasional dreams about the accident. The GP diagnosed the claimant with an adjustment disorder with anxiety. He complained that he felt stressed about pain and dealing with third-party concerns regarding long term disability.
On 1 June 2021, the claimant requested a referral to a psychiatrist.
On 30 August 2021, the claimant complained of a reaction to moclobemide; causing moderate agitation.
Treating psychiatrist Dr Stuart Saker provided a report dated 25 August 2021. He diagnosed both post-traumatic stress disorder and alcohol use disorder.
On 30 September 2021, the claimant reported to his GP that he had been involved in a second motor vehicle accident. He reported concussion and post traumatic amnesia for a few hours. He reported that he felt slightly hazy for the next days but was almost getting back to normal. He reported he had been sweating excessively.
On 5 October 2021, the claimant reported that his concussion had resolved completely.
Treating psychiatrist Dr Stuart Saker provided a report dated 23 February 2022 in which he noted the claimant continues to benefit from CBD oil. He noted the claimant continues to work full-time. He confirmed the diagnosis of post-traumatic stress disorder and alcohol use disorder.
SUBMISSIONS
Insurer’s submissions
The insurer submits that the available evidence supports the finding that the claimant did not sustain any psychological injury as a result of the motor vehicle accident, or alternatively if he did sustain an injury, it was a threshold injury.
It submits that there was no complaint of psychological injury until after the issue of its post 26 weeks liability notice on 30 April 2021, which undermines the veracity of the claimant’s claim of injury. It submits that as at this date the claimant’s accident injuries had resolved and he was certified as fit for normal duties.
The insurer issued its post 26 weeks liability notice on 30 April 2021 denying liability after 16 March 2021 on the basis of the claimant’s sustained only minor physical injuries in the subject accident. Ten days after this notice was issued, the claimant presented to his GP and complained of psychological symptoms as a result of the subject accident for the first time. The claimant relies upon this timing of the first report of psychological symptoms in the context of the chronology of events as significant and relevant, to the assessment of the claimants alleged psychiatric injuries.
On 10 May 2021, the claimant’s general practitioner recorded that the reasons for the claimant’s visit was adjustment disorder with anxiety. The general practitioner noted that the claimant “[felt] stressed about pain/dealing with third-party/concerns about long-term disability”. The insurer submits that within this record there are no psychological symptoms reported which could make the diagnostic criteria for psychiatric injury. It notes that the claimants GP did not diagnose the claimant with any recognise psychiatric injury in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) on this occasion. Rather it submits that the symptoms reported on 10 May 2021 would be considered a threshold psychological injury, at most.
On 12 May 2021, the claimant’s GP completed a questionnaire for the insurer. The doctor noted that the claimant current symptoms included “cervical/thoracic pain. Adjustment disorder with anxiety. Pain often use injury aggravation. PTSD. Dreams about accident. Intrusive thoughts. Nightmares.” The insurer submits that these diagnoses are not supported by the relevant criteria sufficient to satisfy the definition of post-traumatic stress disorder in accordance with DSM-5.
On 2 June 2021, the claimant’s reasons for the visit to his general practitioner was recorded as adjustment disorder with anxiety. Again, the insurer submits that adjustment is an anxiety and not a recognised psychiatric illnesses in accordance with DSM-5. Therefore, it submits that the claimant’s injury is a threshold psychological injury pursuant to s 1.6 of the MAI Act and regulation 4 of the Regulations.
A report of Dr Stuart Saker, treating psychiatrist, dated 25 August 2021 recorded:
“He feels like he gets angry quicker. He has been irritable at work. He had flashbacks about the accident ‘1000 times’. He relives the accident while he is driving. This went on for 6 months. After the accident he drove to Sydney and saw a BMW X5 on fire. He avoided travelling to Sydney. He was avoiding driving. He now needs to see you and his physiotherapist and is driving more. He feels he has had one panic attack at least. He has had an eye twitch since the accident. He has not been suicidal. He has not been psychotic or manic.”
The insurer submits that Dr Saker has not provided any reasoning for his diagnosis of post-traumatic stress disorder and alcohol use disorder, and causation of those diagnoses, other than the claimant’s unreliable self-report.
The insurer is critical of Dr Saker’s assessment of the claimant using the Social and Occupational Functioning Assessment Scale (SOFAS), which gave a score of 60/100, which indicated “moderate symptoms or any moderate difficulty in social, occupational or school functioning”. Dr Saker diagnosed the claimant with post-traumatic stress disorder and alcohol use disorder. It submits that SOFAS is not a prescribed method for assessing any psychological illness within DSM-5. Consequently, it submits that the opinion of Dr Saker that the claimant suffers from post-traumatic stress disorder and alcohol use disorder is not evidence of a diagnosable psychological injury in the context of the applicable legislative framework which requires any such psychological injury to be diagnosed with DSM-5 and not SOFAS.
The insurer therefore submits that the claimant has not been diagnosed with a psychological injury in accordance with the DSM-5, and therefore, there is no evidence that he suffers from a non-threshold injury.
It refers to the fact that the claimant was involved in a subsequent motor vehicle accident on 26 September 2021.
The insurer submits that the subsequent motor vehicle accident was of sufficient severity to cause the claimant to become unconscious, cause him to feel ‘hazy’, and sweat excessively. The insurer submits that the subsequent accident may have caused the claimant to develop psychological symptoms, which must be considered when determining causation of any current alleged psychological condition.
On 5 October 2021 the claimant’s GP recorded “concussion resolved completely despite having quite physical day yesterday. Motor vehicle accident.” The insurer notes that no psychological complaints were recorded by the GP.
It relies upon a certificate of capacity dated 5 October 2021 noted that the claimant was involved in a motor vehicle accident on 26 September 2021, where he “struck ?tree front of car to miss kangaroo/had loss of memory after striking head.” The claimant suffered a concussion, left knee graze, left chest contusion and right forehead bruising as a result of the accident. He was certified fit for pre-injury work from 6 October 2021.
Claimant’s submissions
In brief submissions, the claimant relies upon the report of Dr Saker dated 25 August 2021 diagnosing him with post-traumatic stress disorder and alcohol abuse disorder with specific reference to the DSM-5 guidelines. He submits that this is clear evidence of a non-threshold injury per the MAI Act.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Wayne Mason and Medical Assessor Samson Roberts on 2 August 2023 by MS Teams. The Assessors took detailed notes and produced a contemporaneous examination report upon which the following is meticulously based.
History
The claimant lives alone in rental accommodation in the Lake Macquarie area. He is employed full-time as a storeman at the Baiada poultry distribution centre. His role consists of loading trucks using forklifts and ride-on pallet jacks. He works Monday to Friday from 2.00pm until 10.00pm with two 30-minute breaks. He is not in a relationship.
Psychosocial history
The claimant was born in St George Private Hospital; he described a normal birth and development. His parents separated when he was three years of age. His 56-year-old father was employed in IT. He has had two subsequent relationships producing three further children aged between 15 and 24 years. His mother works as a caretaker on a Hunter Valley property. She has been in a new relationship for 10 years and has not had further children. He said while it was “not your typical 2 parent household” he did get along well with family members and had a good safe childhood in which he suffered no form of abuse.
He grew up in Revesby and attended Panania North primary school. His mother moved to Lake Macquarie when he was 12 years of age and he attended Lake Macquarie High School until halfway through year 11. He left school and started a TAFE Certificate II in IT; he said he was doing well, getting distinctions and high distinctions, but did not complete it. He then worked in sports stores doing storeman duties and data entry before working for a sports store in Toronto for 12 years. He said he eventually became a manager. He was also doing music programs on a volunteer basis to assist youth workers. He stopped working at the sports store in 2018 to create music but when it did not prove profitable, he commenced work in 2019 at Baiada. He said it was initially a manual labouring job, but he gradually moved up to a forklift driving position. He was off work for two months following the subject motor accident because of physical injury.
When asked about relationships he said he was in a three-year relationship with a girlfriend; they lived together for one year in 2011. He said it ended because her parents were too involved. He said since then there have been plenty of relationships which were not live-in, but they did spend time together at each other's homes. He said since the motor accident a woman was "throwing herself at him" but he did not feel comfortable to commence a relationship because of fears of inadequate sexual performance.
Leisure activities prior to the motor accident consisted of riding his skateboard, regularly practising a form of jujitsu as a martial art, and going out with friends for barbecues, football games and live music events.
Past insurance claims consisted of a claim for a motor vehicle which spontaneously caught fire following a transmission change. The value of the vehicle was paid by the insurer. He said there was a recent ankle injury at work, but it consisted only of treatment and time off. The claimant denied any history of problems with the law.
He denied any past psychiatric history. When asked about family psychiatric history he said his sister suffers from anxiety and his mother had lost her share of a house inheritance by gambling on poker machines while living in Revesby. Regarding medical history, he said he had been sporty his entire life and had not suffered any major medical conditions. He said he has gained weight because he cannot do his martial art training. He has not undergone surgery. Current medications consist of ibuprofen for neck and back pain approximately on a weekly basis. He had also been using CBD oil nightly (Althea CBD 0.5 mil sublingually at night) but due to expense has recently reduced this to two or three times per week.
When asked about substance use, he said he does not smoke cigarettes and does not use recreational drugs. He uses alcohol on the weekends consisting of three longneck bottles of beer on a Friday and 200ml of Jack Daniels on a Saturday. Regarding gambling he likes to take a multi on the football.
History of motor vehicle accident
On 16 September 2020, the claimant was driving a 2005 Honda Accord and was on his way to Sydney on the M1 to do some shopping for his birthday. He had reached the Mount White area and was travelling in the far right lane of the three lane southbound carriageway. He said there was a grassy area in the middle of the motorway. He was travelling at 110kmph and was wearing a seatbelt. He noticed the driver of the car slightly ahead in the centre lane pointing towards something. He saw a car in the far left lane begin to wobble and then it veered across the freeway from the far left lane towards him. He later learned that it had blown a front tyre.
The claimant said he tried to veer to his right towards the grassy centre of the motorway in order to avoid the car but did not have time to do so. The left front corner of his car collided with the rear of the driver's side of the other vehicle, and he went off at a diagonal onto the grass. He remembered going through some low shrubs and then was able to stop. The other vehicle came to a halt in the far right lane.
The claimant said his airbag did not deploy. He was able to get out of his vehicle and he checked on the other driver who said he was okay. The claimant said he "freaked out" for a moment because he could not find his phone. It had been dislodged from the centre console and ended up jammed between the dashboard and the windscreen. He said fortuitously highway staff were driving past, arrived five minutes later and took both drivers to the end of the freeway in an official sports utility vehicle. He said his car was written off. He waited for his mother to collect him and at that point he was fine. Two hours later he developed neck pain.
History of symptoms and treatment
He woke up the next day feeling stiff with neck and thoracic back pain and went to his GP Dr Peter McGeoch who advised him to go to physiotherapy which he did the next day. He said at that point he could not turn his neck to the left or right. He had cervical and upper thoracic back pain and was unable to work for two months because of the physical symptoms.
He explained his grandmother had died in August and he had been able to borrow her car. He said he had the first flashback as he was driving to physiotherapy in the car. He said it made him panic and want to accelerate but he made himself slow down. When asked to describe what he meant by a flashback he said he has a visual image of the hand of the driver in the centre lane pointing and then the car coming across the freeway and the collision. He said he would see it like a movie in his head. He explained he was essentially reliving the motor accident on a daily basis during that first week. He said every time he closed his eyes he saw the accident. He also experienced nightmares which consisted of a reliving of various aspects of the motor accident. These were occurring every night or every second night.
The claimant said it seemed like a puzzle that he kept trying to solve. He said he was a very rational person who did not like to be affected by emotion. He kept thinking "what if I had done this", or "what if have not done that", in order to prevent it. After two weeks he said he did feel safer, but the flashbacks had not gone away. He said it still pops into his head and can be triggered by random events and at times he has to pull over to calm himself down.
He explained he has had random panic attacks where his heart feels like it will explode out of his chest. He said in one of these panic attacks he was uncontrollably crying and he could not understand that. He said he can be completely fine all day at work and then suddenly his whole body is screaming "get out" as if he needs to escape from the situation. He said this does not make sense to him. When it first happened after his initial Covid vaccine he thought he was having a heart attack. He said during early 2021 he attended various hospitals and named Maitland, Newcastle and John Hunter Hospital. He said he insisted they perform ECGs and EKGs [sic] and chest X-rays. They kept saying nothing was wrong with him and eventually Maitland Hospital diagnosed panic attacks.
The claimant said during the first 18 months he struggled to sleep without alcohol. He was drinking between 500 and 600ml of Jack Daniel each night. He said he realised it was not healthy, but he could not get to sleep without it. He spoke to his GP who referred him to psychiatrist Dr Stuart Saker who initially prescribed the antidepressant moclobemide which caused side-effects consisting of bloating and shaking. He was unable to continue with it so spoke with Dr Saker who suggested medicinal CBD and prescribed Althea 0.5 mil sublingually at night. He said at $400 per bottle it was expensive, but he did use it every night for about nine months; it did put his mind at ease and reduced the pain in his neck and back. He explained the C6/7 nerve was “crushed” and he had been referred to a surgeon for an assessment, but his physiotherapist had advised against it, so he did not go. Dr Saker also suggested cessation of alcohol, which he was largely able to do.
The claimant said he enjoyed being with friends in the past but following the motor accident he avoided friends and family until more recently, largely because he did not want to talk about the accident. He said people asking him about what happened would stir up the visual images. He also noted prior to the accident he did as much overtime at work as he could get but is now not able to manage that.
Injuries or conditions sustained since the subject motor accident
The claimant said he was involved in a second motor accident in approximately September 2021. In fact, he reported it to his GP on 30 September of that year who listed symptoms as concussion and post traumatic amnesia. The claimant said he remembered a dream that a kangaroo had jumped out in front of him, and he swerved to miss it. When he woke up next day, he saw his car had suffered front-end damage. He said he had concussion symptoms consisting of light sensitivity and going in and out of consciousness. He said he remembered watching TV in bed until he fell asleep. He reported the event to the insurer but said he could not remember certain details. When asked about the damage he said it was a BMW vehicle and there was damage to the front bumper and the bonnet; he estimates the damage at approximately $20,000. He did make a claim in which he was the at fault driver. He stated the motor accident had no impact on him except for concussion symptoms. He denied it exacerbated symptoms from the subject motor accident in September 2020. He said he was using medicinal CBD oil at that time but denies his state of consciousness was affected by it. The claimant claimed the Althea CBD oil contained no Delta-9-tetrahydrocannabinol (also known as THC). He supported this assertion with the fact that he had been drug tested several times at work and had never tested positive for THC. (Manufacturer information available online suggests Althea contains CBD and THC in a ratio of 2:1.)
The claimant stated he has not been involved in any other motor accidents since then and there have been no other distressing or traumatic events in his life.
Current symptoms
When asked about current symptoms he said flashbacks occur approximately twice monthly on a random basis. There is no particular cue or trigger, although he described recently being triggered by an oncoming aggressive driver insisting on right of way in a narrow street. He continues to suffer from panic attacks every two or three weeks which can be caused by high stress. He said he has needed to go home from work on four or five occasions because of the panic attacks. He also mentioned difficulty with bladder control. He said he has always been a person who has been able to control his emotions but since the accident this has not been the case and he becomes disproportionately angry with small triggers. He said his friends have noticed this. His sleep has normalised to some degree. Nightmares are less frequent and less intense. He said if he does wake through the night he ruminates on the accident and cannot switch his mind off.
He said he experiences a sense of urinary urgency and when he is really stressed, he is “unable to turn the tap off”. He said he is on a waiting list to see a urologist. He also described difficulties with premature ejaculation. In addition, he said he has a left eye twitch (tic) which can occur regularly and then not happen for months. These latter physical symptoms may have their origin in the anxiety arising from the motor accident.
Current and proposed treatment
The claimant is not receiving any current treatment. He continues to use medicinal cannabis although much less frequently, perhaps only twice weekly, because of cost. This continues to be prescribed by Dr Saker but last contact was about 1 year ago and he is not attending ongoing consultations. He has not consulted a psychologist for trauma-related cognitive behaviour therapy or anxiety management and is not taking any psychotropic medication, which is evidence based best practice for treatment of post-traumatic stress disorder. He said he prefers to use “natural” CBD oil. He said he tries to keep himself busy, so he does not think about the accident.
Mental state examination
The claimant is a 35-year-old right-hand dominant man whose appearance is consistent with his stated age. He was located alone in his home in the Lake Macquarie region. He was identified by his photograph on NSW driver's licence. The interview commenced at 9 am and concluded at 10.40am.
The claimant was an appropriate and cooperative interviewee who provided information willingly and without prompting. He was seated in a chair and was warmly dressed in casual clothing with a blanket over his legs. He was slightly balding, had a short beard and was drinking water from a bottle throughout the interview. He had a clear sensorium and denied the use of any substances prior to the interview.
He became distressed on only 1 occasion throughout the interview when he described a recent encounter with another driver who behaved aggressively towards him on a narrow street. Apart from that there was no evidence of anxiety or depression throughout the entire interview. His speech was normal in rate, tone, and volume. There was no evidence of impaired concentration. His memory for autobiographical details was accurate except for his memory for the second motor accident. He responded clearly and openly when asked to explain inconsistencies without difficulty or distress.
The claimant was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Consistency of presentation
The claimant was asked to explain why the GP record contained no report of psychiatric symptoms during the six months immediately following the subject motor accident considering he reported the immediate onset of symptoms of flashbacks and panic attacks to the Panel. He explained this on the basis of being ashamed to tell his GP what was happening to him. He also stated he was attending the emergency departments of various hospitals for diagnosis of these conditions. The Panel notes it has no documentation supporting this assertion.
The claimant was not able to explain why he had failed to report the second motor accident to Medical Assessor Barrett in the initial interview, other than to state he did not think it was significant.
In general terms, the claimant’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis made by the Panel. However, his history of injury in the second motor accident is not consistent, in the sense that he states it did not cause an exacerbation of his pre-existing symptoms. Nevertheless, the Panel is satisfied that the claimant’s psychiatric injury was caused or materially contributed to by the subject motor accident. The motor accident does not have to be a sole cause, if it is a contributing cause, which is more than negligible. Based on the material reviewed and the re-examination undertaken, we are satisfied that the first motor accident was a contributing cause of the claimant’s psychiatric injury, which is more than negligible, for the reasons which follow.
Causation and reasons
On 16 September 2020, the claimant was involved in a potentially life-threatening motor accident on the south bound carriageway of the M1 motorway when another vehicle blew a tyre, veered across three lanes, and he was unable to avoid a collision with that vehicle at 110 kph. Fortunately, he ended up in the grassy central area of the motorway.
The Panel is satisfied that the motor accident was of sufficient severity and seriousness to give rise to the symptoms he described. The Panel is satisfied the subject motor accident was the cause of his psychological condition.
The Panel note a subsequent motor accident in September 2021, almost one year later. The claimant stated he has no memory of this accident although said the insurer has honoured his claim as an at fault driver. The claimant stated this motor accident did not cause an exacerbation of his symptoms. While the Panel is of the view this would be extremely unlikely, there is no evidence to the contrary. However, the Panel notes that the claimant has failed to provide requested updated GP medical records. Nevertheless, the severity of the first accident was sufficiently serious to account for the psychological symptoms of which the claimant did complain to his general practitioner, albeit six months following the subject accident. Although the insurer urges that Panel to find that these reports to the general practitioner disingenuous, as they followed the post 26-week liability notice, we are nevertheless satisfied that the claimant’s explanation for not reporting these symptoms to his general practitioner are credible and consistent with his presentation upon re-examination.
Diagnosis and reasons
Based on the re-examination undertaken of the claimant, satisfies DSM-5 diagnostic criteria for post-traumatic stress disorder as noted below.
(a) Criterion A. The claimant was involved in a life-threatening high-speed motor accident.
(b) Criterion B. The claimant reported the presence of intrusion symptoms consisting of recurrent involuntary distressing memories, distressing dreams, and flashbacks. He suffered psychological distress and exposure to distressing cues and marked physiological reactions.
(c) Criterion D. The claimant reported alterations in cognition and mood consisting of repeated “what if” questions, diminished interest in activities with significant others and feelings of detachment and estrangement from others.
(d) Criterion E. The claimant described marked alterations in arousal and reactivity consisting of panic attacks, irritability, problems with concentration and sleep disturbance.
(e) Criterion F. The duration of the disturbance has been more than one month.
(f) Criterion G. The disturbance caused clinically significant distress and impairment.
(g) Criterion H. The disturbance is not attributable to the physiological effects of a substance.
The Panel notes the symptoms have persisted for more than three months and thus do not meet DSM-5 criteria for an acute stress disorder. However, currently the symptoms are intermittent with only occasional flashbacks, panic attacks and irritability in social situations.
The Panel is not satisfied, based on the material before it, that full criteria for alcohol use disorder have ever been met. His use of alcohol was predominantly to assist with poor sleep occasioned by the disturbance caused by post-traumatic stress disorder, which we are satisfied he suffered. The claimant’s use of alcohol ceased for this purpose when he was prescribed medicinal CBD oil by Dr Saker following the claimant’s referral to him for treatment.
Conclusion
The Panel is satisfied that the claimant has sustained a recognised psychiatric illness diagnosed using the DSM-5, being post-traumatic stress disorder arising from the subject motor accident, which satisfies the requirements stipulated by s 1.6(3) of the MAI and cl 5.11 of the Guidelines, as a non-threshold injury.
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