QBE Insurance (Australia) Limited v Taouk
[2024] NSWPICMP 474
•16 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Taouk [2024] NSWPICMP 474 |
| CLAIMANT: | Mansour Taouk |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Paul Friend |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 16 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); whether psychological injury is a threshold injury; Medical Assessor diagnosed a persistent depressive disorder with anxious distress caused by the motor accident, which is not a threshold injury; claimant re-examined for purposes of review; claimant diagnosed with adjustment disorder and acute stress disorder; section 1.6(3) of the MAI Act; part 1, clause 4(2) of the Motor Accident Injuries Regulation 2017; Held – the disorders are threshold injuries; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Alexey Sidorov dated The following injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act 2017: · acute stress disorder, and · adjustment disorder. |
STATEMENT OF REASONS
INTRODUCTION
Mansour Taouk (the claimant) alleges injury from a motor accident occurring on
23 March 2020 when he was the driver of a stationary motor vehicle when it was rear-ended by another vehicle.
He subsequently lodged a claim upon QBE Insurance (Australia) Limited, the insurer of the vehicle considered at fault (the insurer). The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury (previously known as “minor” injury) for the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
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.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
Medical Assessor Sidorov issued a certificate and reasons dated 13 March 2023, which certified the claimant as suffering a persistent depressive disorder with anxious distress caused by the motor accident, which was not a minor injury (now known as “threshold” injury) for the purpose of the MAI Act.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act. On 8 June 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
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.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel met via video conference on 10 April 2024 and determined that a re-examination of the claimant was required. A medical examination was arranged to take place on
27 May 2024 with Medical Assessor Friend and Medical Assessor Baker via Microsoft Teams. The examination took place as scheduled.
Directions were also issued on 11 April 2024 requiring the claimant to lodge a paginated and indexed bundle of documents relied upon. The insurer was directed to also lodge a bundle of documents in the event that any further documents were relied upon that did not form part of the application. In addition, the claimant was directed to answer the following questions:
(a) the claimant is to confirm whether he has been involved in a further motor accident since the subject accident. In this regard, it is noted that an MRI scan report of the whole spine dated 11 February 2021 of Dr Raleigh, notes a motor vehicle accident occurring 12 days earlier. This date does not correspond with the subject accident, and
(b) the claimant is to confirm whether the previous workers compensation claim involved any psychological component.
The claimant’s representatives provided a response on 9 May 2024. It explains that the claimant has not been involved in a subsequent motor accident. It further states:
“to clarify, the subject motor vehicle accident occurred on 3 December 2020. The claimant’s GP provided him with a referral to undergo a scan for the spine on 15 December 2020. In that referral, the GP referenced that the claimant was involved in a motor vehicle accident 12 days prior (being 3 December 2020). That references [sic] was also repeated by the radiologist in the report for that scan dated 11 February 2021…”
In addition, it is stated that the previous workers compensation claim was from around 2000 and involved, to the best of the claimant’s knowledge, dental injuries and an elbow injury.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 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:
“General provisions for assessment
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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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 assessment of threshold psychological or psychiatric 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 Revision (DSM-5-TR), 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.”
ASSESSMENT UNDER REVIEW
Medical Assessor Alexey Sidorov makes a diagnosis of a persistent depressive disorder with anxious distress arising from the injuries sustained in the motor accident on
3 December 2020.
It states that the claimant sustained a work injury in 2001 or 2002 when he had a fall and injured his teeth and left elbow but that these injuries fully resolved.
He had no ongoing physical or psychiatric conditions prior to the motor accident.
He suffered a rear-end collision estimating the other vehicle was travelling at 60kmph. The other vehicle was written off and airbags were activated in that vehicle.
He subsequently was driven to Canterbury Hospital where he had various assessments and investigations.
He developed neck and back pain and was initially prescribed Endone, had two blocks of eight sessions of physiotherapy and four sessions of exercise physiology.
He had to reduce his work to the current level of 4-10 hours per week as a plumber.
His current symptoms include an agonising pain like a needle in his back, disturbed sleep because of the pain and associated anxiety.
His mood is depressed more days than not. His appetite is low most of the time. He continues to experience low self-esteem, low energy, difficulty with concentration and making decisions and has ongoing feelings of hopelessness.
He has negative ruminations about his future, often feels tense and anxious and has associated restlessness, finding it difficult to concentrate particularly at times of excessive anxiety.
He takes over-the-counter preparations to help him sleep. He is not currently receiving psychiatric or psychological treatment.
He showers each day but neglects to brushing his teeth and shave, just not motivated to do so.
He drives his vehicle when required and does not feel anxious doing so. He is more avoidant because of a lack of motivation.
He is unable to do any exercise or recreational activities due to his physical symptoms. He was previously an active and motivated person.
His previous relationship ended after the accident.
He has some impairment of memory and concentration and dwells on a lot of “negative things”.
SUBMISSIONS
Claimant’s submissions dated 8 July 2021
These submissions were provided in support of the claimant’s original application for determination of a whole person impairment dispute.
The claimant submits that the insurer failed to undertake an assessment in relation to the claimant’s psychological injuries. The submissions state the claimant has sustained a psychiatric injury in accordance with DSM-5. No submissions are made that refer to medical evidence in respect of an alleged psychological injury.
Insurer’s submissions dated 3 August 2021
These submissions formed part of the insurer’s original reply to an application for determination of a whole person impairment dispute.
Insofar as they deal with a psychological injury the insurer submits that the medical evidence does not assert any psychological injuries. This includes the initial claim form and associated certificate of capacity.
The insurer disputes that the motor accident caused the claimant to suffer a psychological injury.
Insurer’s submissions dated 6 April 2023
The insurer submits that the Medical Assessor failed to adequately address the available evidence including the submissions of the parties. For instance, the Medical Assessor incorrectly refers to police attending the scene, when the evidence demonstrates a late injury report was lodged at a police station after the accident occurred.
The insurer submits that there is nothing to indicate that the Medical Assessor gave due consideration to the lack of contemporaneous medical evidence that would substantiate a psychological injury arising from the accident.
The insurer submits that the various physical complaints involve causation issues, with the insurer submitting that the various physical complaints are related to unrelated degenerative pathologies.
Claimant’s submissions dated 13 May 2024
These submissions are in reply to the insurer’s application for review. The claimant submits that Medical Assessor Sidorov correctly and properly assessed and certified the claimant’s psychological injury as a non-threshold injury.
The claimant disputes the assertion the Medical Assessor failed to adequately address the relevant evidence and submissions. It is submitted that the body of the reasons provided by the Medical Assessor demonstrate that he provided his path of reasoning. It is submitted the Medical Assessor was not required to record every detail and refer to every individual record (D’Ament v Allianz Insurance Ltd [2018] NSWSC 1371).
It is submitted that no weight can be given to the insurer’s submissions regarding causation of physical injuries, as the author is not qualified to make a medical diagnosis.
It is further submitted that Medical Assessor Sidorov was well within his purview to undertake the subject independent assessment of the claimant and his findings were open for him to make. Accordingly, no error has been demonstrated by the insurer.
DOCUMENTATION
Commission Medical Assessment of Medical Assessor Home dated 7 June 2023
Medical Assessor Home certified the claimant as having suffered the following physical injuries as a result of the motor accident:
(a) cervical spine – whiplash associated disorder;
(b) thoracic spine – soft tissue injury;
(c) left hand injury – resolved;
(d) left index finger – resolved, and
(e) right leg muscular injury – resolved.
The above injuries were certified as being threshold injuries from the purposes of the MAI Act.
The clinical notes from the Marrickville Road Medical Centre from 1 May 2020 to
16 July 2023
The list of prescribed medications does not include any psychiatric medication.
The entry dated 11 May 2020 states he has left sided groin pain and a CT scan has revealed diverticulosis. He has pain in the sinus and bilateral elbow pain.
The entry dated 7 December 2020 states he was “reared” a few days ago. He has whiplash and mid and low back pain.
He was referred for an ultrasound scan of the forearm and elbow on the right side.
The entry dated 15 December 2020 states he has ongoing severe pain in the neck, also in the mid back and lower back pelvic area radiating to the upper thighs and into the coccyx.
He has right upper dental pain and a filling came out due to the trauma. He had tensing of the jaw at the time of the accident.
The symptoms interfere with sleep and activities of daily living (ADL). He is unable to sit, stand, lie in a certain position for a certain period of time. He is unfit for work and needs an MRI scan.
He was prescribed Endone 5mg twice daily as required.
The entry dated 27 January 2021 states he has ongoing pain and discomfort with stiffness and limitation of movements. The pain is in the neck, the mid back, low back and it radiates to the right lower limb.
The pain interferes with sleep and ADLs and his ability to work. He has developed a rash possibly due to Endone.
The entry dated 7 April 2021 states he is feeling tired and has had some improvement with physiotherapy but still has back pain and stiffness which interfere with sleep and ADLs.
Endone was changed from one tablet twice daily to one tablet twice daily as required.
The entry dated 13 July 2021 states he has ongoing pain, discomfort and stiffness. He was referred to Dr Rastogi and was initiated on Champix.
Subsequent entries are undated.
The entry for Consult 22 states he has ongoing upper and mid back pain associated with low back pain and has pelvic pain. It interferes with sleep and ADLs and his work. He should continue with analgesia and physiotherapy.
The entry for Consult 30 states he has ongoing upper back pain/neck pain associated with limitation of movements. This interferes with sleep and ADLs but he is managing to get to work.
The list of appointments earlier in the file appears to indicate that Consult 30 occurred on
21 October 2022.
The entry for Consult 31 was telehealth consultation by telephone.
He has ongoing back pain/neck pain associated with limitation of movements.
This is interfering with sleep and ADLs but he is managing to get to work.
He has commenced exercise physiology sessions and is feeling some improvement.
The entry for Consult 33 states is a telehealth telephone consultation. It repeats that he has ongoing pain and discomfort associated with limitation of movements. These interfere with sleep and ADLs and his work.
He is having physiotherapy twice each week with some improvement.
The entry for Consult 34 states he has left sided inguinal pain for a few weeks. He had a small bulging mass on the left, not present on the right. The clinical diagnosis is a left direct inguinal hernia.
He was referred for an ultrasound scan.
It appears from the earlier list of appointments that Consult 34 occurred on 11 January 2023.
The entry for Consult 40, which was a telehealth telephone consultation states he has ongoing inguinal pain on and off and is awaiting a hernia repair.
A date for Consult 40 cannot be found in the earlier list of appointments.
Dr Gulati, ultrasound scan report of right elbow dated 16 September 2020
The report states there are features suggestive of mild tendinosis of the common extensor tendon origin.
Discharge Referral – Canterbury Hospital 3 December 2020
This states the claimant suffered a rear-end collision from a vehicle travelling at 60kmph. The airbags deployed in the other vehicle but not in his vehicle.
He was wearing a seatbelt and self-extracted.
He stated that his body was “all over the place”. He must have turned in his seat before hitting his buttocks on the door. There is a 50% sensory deficit in the C5/C6 distribution and a 50% deficit in the L1/L5 distribution on the right.
The CT scan of the whole spine is reported as showing no acute fracture, dislocation or malalignment.
There is facet joint arthrosis bilaterally most severe on the left at C4/5 where there is associated neural exit foraminal stenosis.
There is incomplete closure of the posterior elements of S1 likely to be congenital.
He was advised to take paracetamol 1mg every six hours and oxycodone 5mg every six hours for severe pain as required.
Dr Raleigh, MRI scan report of whole spine dated 10 February 2021
The report states the scan reveals moderate L5/S1 disc degeneration with small posterior annular fissure. There is no bone or ligament trauma, spinal cord or nerve compression detected.
Report of Dr Jeffrey Brennan, neurosurgeon dated 15 June 2021
Dr Brennan states there were no hard neurological findings. The MRI scan showed a minor disc protrusion at C5/6 extending in the right C6 nerve root foramen. There is no role for surgery. The MRI images are normal for age. It recommends physical therapy, exercise physiology and perhaps consulting a rehabilitation physician.
The doctor also states the claimant may benefit from targeted pain management strategies with a right S1 peri-radicular block or other medications.
The WorkCover Certificates of Capacity
The certificate dated 9 November 2021 states the injuries arising from the motor accident on 3 December 2020 are cervical spine, thoracic spine and lumbosacral spine strain. He also has a broken right upper tooth.
It states this is related to work because it is a motor vehicle accident.
Subsequent WorkCover Certificates provide the same diagnosis and attribute it to the motor accident on 3 December 2020.
The WorkCover Certificate of Capacity dated 10 November 2023 states the work-related illness is bilateral hernias where the left is larger. This was caused by repetitive lifting.
All WorkCover Certificates from 10 November 2023 onwards refer to work-related injury of bilateral hernias, the left being larger.
WorkCover Certificates of Capacity make no mention of psychiatric conditions.
Report of Dr Evan Dryson, occupational physician dated 5 September 2023
Reporting on the subject motor accident injuries, Dr Dryson states that there is asymmetric loss of range of motion of the cervical spine and in the lumbar spine. The reduced brachioradialis reflex on the right with no alteration of sensation in C5 and 6 dermatomes on the right in addition to weakness of right elbow flexion and extension indicates that the definition of radiculopathy is met despite no evidence of C6 nerve root compression on MRI scan.
There is asymmetric loss of range of motion of both shoulders but there is no radiological investigation.
It is likely that the reduced range of movement is due to referred pain from the cervical spine.
Dr Dryson assessed a 24% whole person impairment for the injuries to the cervical and lumbar spine and the shoulders.
Report of Dr Ben Teoh, psychiatrist, dated 23 June 2023
Dr Teoh diagnoses a major depressive disorder, arising from the injuries sustained in the motor accident on 3 December 2020.
Mr Taouk reported that he was irritable and that his relationship broke up six months after the motor accident. He is preoccupied with negative thoughts and said he was argumentative.
He was socially withdrawn, has little contact with anybody, has lost weight and interest in his usual activities and is not attending the gym.
He has been in a daze and his whole lifestyle has changed.
Dr Teoh assessed a whole person impairment of 15% for the condition of major depressive disorder arising from the injuries sustained in the motor accident on 3 December 2020.
Canterbury Hospital
The discharge referral from Canterbury Hospital dated 26 October 2017 documents the claimant presented stating he was walking along the edge of concrete, felt dizzy but had no loss of consciousness. He had a small graze to the middle of his forehead but no active bleeding.
He apparently fell at that time.
The Discharge Referral from Canterbury Hospital for the presentation on 1 December 2016 states that he presented with a foreign body sensation in the left eye. He was grinding metal and plastic today with eye covers. He did not feel anything in his left eye when grinding but after work he was sweating and the sweat went into his left eye which left him feeling that there was something inside the eye.
There appears to be a scratch mark in the same place as he indicated there was a foreign body. It was possible the foreign body was wiped away when he had sweat coming into his eye.
The Discharge Referral from Canterbury Hospital for the presentation on 30 December 2015 states he suffered a clinical rib fracture whilst playing rugby on 25 December 2015. The chest X-ray showed no visible fractures.
The Discharge Referral for the presentation to Canterbury Hospital on 11 November 2014 states he suffered an injury to his right little toe. He put a circular saw on the floor but the guard was not in position and the rotating blade cut over his right shoe with two puncture marks on the lateral and superior surfaces of the right little toe.
The Discharge Referral from Canterbury Hospital for the presentation on 26 July 2012 states he has a pimple on his lower lip which is now swelling.
The Discharge Referral for the presentation to Canterbury Hospital on 7 August 2001 states he fell onto his fist and fractured the fifth metacarpal bone.
He suffered a fractured jaw two months ago, apparently after having a blackout following consuming alcohol and hitting his head.
The Discharge Referral for the presentation to Canterbury Hospital on 19 January 1999 states that he injured his left toe using a jackhammer. The left big toe is slightly swollen, red and bruised.
The Discharge Referral from Canterbury Hospital for the presentation on 29 July 1997 states that he fell forward over the handlebars of his bicycle going downhill whilst not wearing a helmet.
The only mention of psychiatric conditions in the supplied reports are the Certificate of Medical Assessor Alexey Sidorov dated 13 March 2023 and the report of Dr Ben Teoh dated 23 June 2023.
There is no mention in the clinical notes from Marrickville Road Medical Centre of any psychiatric/psychological symptoms arising from the injuries sustained in the motor accident on 3 December 2020.
Other documents
The supplied documents contain the results of an MRI scan of the thoracic and lumbar spine of Mansour Tawk date of birth in 1976 and a subsequent report by Dr Vijay Maniam for a Mansour Tawk date of birth in 1975 which states he sustained an injury to the thoracolumbar spine on 15 January 2019.
It is unknown whether this is the same person but Mr Taouk has a different date of birth, being in 1980.
RE-EXAMINATION
The examination was conducted by video teleconference by Medical Assessors Paul Friend and John Baker and Mr Mansour Taouk.
No other people were present.
Psychosocial history and pre-accident history
Mr Taouk was born and had lived all his life in Sydney.
He completed school to the end of Year 12 and subsequently a plumbing apprenticeship which he completed over about six years.
He started working as a plumber. He was initially a sole trader but then went into partnership with another person in a company and was working in that company at the time of the motor accident.
The company had five employees but there could be between 30 and 60 people working as subcontractors depending on the various jobs that the company was doing at the time.
Mr Taouk following the motor accident, was unable to do the same level of work and had to downsize. He left the partnership and formed a new company by himself. He has two employees who do the physical work. He does office work it appears for about four hours each week and also makes and receives telephone calls.
He has an office which is in a factory where he also has his tools and the various items of equipment that he owns.
Mr Taouk was in a relationship from late 2017 or early 2018. He lived with his partner.
That relationship ended a few months after the motor accident. He returned to live at home with his parents and his younger brother who is aged 32 or 33 years because he needed assistance from them. He has been living at home for 2½-3 years.
Mr Taouk denied being involved in any previous motor accidents.
He recalled a workplace injury in 2000 when he was working as an apprentice. Pipes apparently rolled off the back of a truck, one bounced up and hit him on the face. He sustained a minor fracture of his jaw and caused him to lose a couple of teeth which subsequently required implants. He also needed physiotherapy because he had a lot of tension in his jaw.
He did not have his jaw wired.
Mr Taouk was a casual smoker prior to the motor accident but now smokes a packet of cigarettes each day.
He has a few drinks on special occasions such as family celebrations or as at Easter or Christmas but he does not become intoxicated.
He does not use illegal substances.
He has about one cup of coffee each day and may drink a cup of tea if he wakes during the night.
History of the motor accident
The motor accident occurred when Mr Taouk was at work in the process of trying to buy his lunch.
He was stationary, waiting for a vehicle to pull out of a parking spot so he could park and buy his lunch.
A young male using a mobile telephone whilst driving collided with the rear of his vehicle.
Mr Taouk’s vehicle struck the vehicle that he was waiting to exit from the parking spot. His vehicle was pushed up onto the footpath, hard up against the front fence of a house.
The driver causing the collision and others helped Mr Taouk out of the vehicle. He remembers sitting on the fence.
Mr Taouk feels that he was concussed and struggled to remember exactly what happened.
His business partner was following behind him and also his brother. They both came to assist him.
History of symptoms and treatment following the motor accident
An ambulance arrived but Mr Taouk declined for them to take him to hospital. He instead had his business partner and his brother drive him to Canterbury Hospital.
He remembers having various investigations and observations including a scan of his head.
He remembers he had numbness in his right shoulder and numbness and pain in his right leg.
It was suggested that he remain in hospital overnight but he felt it was better to go home. He had not eaten breakfast or lunch on that day.
It appears that he had no treatment until after he had an MRI scan which he believes was a full body scan from his neck to his toes but perhaps it was a whole of spine scan.
This may have been the whole of spine MRI scan dated 10 February 2021 which is reported as showing moderate L5/S1 disc degeneration with a small posterior annular fissure.
A subsequent report by Dr Jeffrey Brennan dated 15 January 2021 states that the MRI scan showed a minor disc protrusion at C5/6 and that there was no role for surgery.
He had physiotherapy approved after this MRI scan. However, because this was in the midst of the COVID-19 pandemic, the physiotherapy occurred, in his words, “in dribs and drabs”. It appears he had at least eight sessions of physiotherapy but it started and stopped. He may have had a further eight sessions, but again, if so, it was not regular.
Mr Taouk initially had pain in his neck and back, had a broken tooth in his right upper jaw behind the canine teeth and had a whiplash injury.
He had an injury to a finger but cannot remember whether it was his left or right hand or which finger.
He was initially prescribed Endone which he ceased because of its addictive qualities. He was later prescribed Panadeine Forte.
It appears that most of the pain gradually improved. He had ongoing pain between both scapulae which he said was a bulging disc.
He developed pain in his hips, had stiffness in his neck and said he had sciatic pain in his leg.
It was difficult to determine when these physical conditions became apparent but he attributes the hip and lower limb pain to his altered posture as a result of the bulging disc between his scapulae.
Mr Taouk at the time of the motor accident was very fit, going to the gym as well as working. He was unable to attend the gym or do any physical activity after the motor accident because of the pain. He lost weight, had a loss of appetite and “was not in the right place”.
He would regularly wake at 2.00am and 4.00am because of the pains in his back. He typically went to bed at 9.30 to 10.00pm.
He attributed the pain, which wakes him, to sleeping in an awkward position.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Taouk has not been involved in any subsequent motor accidents or sustained any work injuries.
He was diagnosed as having gastro-oesophageal reflux and prescribed pantoprazole which he takes regularly.
He had a colonoscopy because he developed stomach pains. This apparently showed polyps.
He developed bilateral inguinal hernias it appears in either late 2022 or early 2023. The entry for Consult 34 which as far as can be determined occurred on 11 January 2023, states he had a left indirect inguinal hernia and was referred for an ultrasound scan.
The report by Dr Frances Doull of an ultrasound scan of the groins dated 16 January 2023 states there is a left-sided pantaloon hernia and the neck of the indirect hernia is 1.5cm and the neck of the direct hernia is 1.3cm.
Mr Taouk was scheduled to have the hernias repaired on Wednesday 29 May 2024. He was scheduled to have a gastroscopy or endoscopy prior to that surgery.
Current symptoms
Mr Taouk’s current symptoms are the pain between both scapulae, on the left and right in his lower groin, presumably bilateral inguinal hernias, pain in his hips and back and headaches which he described as pulsating around his temples.
He also has neck stiffness.
He wakes regularly at 2.00 and 4.00am each night because of the pain in his back and elsewhere.
Mr Taouk is frustrated that nothing has been definitively done to relieve the pain or treat the cause of it. He has wondered why he has not had injections into his back or been offered surgery.
He is frustrated because he has lost his physical fitness, overall losing 9kg of weight, cannot exercise by running or attending a gym, cannot lift and cannot do his previous level of work.
He at this stage stated that “this is all bullshit”. He did not understand why nothing had been done. He did not understand why he kept seeing the same doctors who kept asking the same questions including at this examination.
He repeated that he “wanted things done”.
Current and proposed treatment
Mr Taouk’s current medication is pantoprazole for gastro-oesophageal reflux.
He minimises his medication and long ago ceased taking Endone and Panadeine Forte.
He pays to see a chiropractor who is a friend every one to two weeks.
He is scheduled to have an endoscopy and bilateral inguinal hernias repaired on
29 May 2024.
He may have been referred to a psychiatrist or psychologist but did not attend and feels that closer to the time of the motor accident he was not ready for that type of treatment, but now looking back feels it may have been helpful to talk to somebody.
Mental state examination
Mr Taouk was on time, alert and orientated. He struggled to describe his symptoms other than the pain.
He struggled to remember what had occurred four years ago.
He was generally frustrated, sullen and angry throughout the examination.
He stated at one point that he was embarrassed about his current state.
He described ongoing pain between both scapulae which would wake him at 2.00 and 4.00am each night and made him feel tired the next day. He had ongoing pain in his hips and lower limbs which he attributed to the alteration to his posture. He had throbbing headaches in both temples.
He had a stiff neck.
Mr Taouk described feeling stressed and angry and fed up with the lack of progress and was depressed about his current lifestyle. The lack of sleep as described made it very difficult for him to function and he felt that the less sleep he had, the worse he felt.
He did not describe any other psychiatric/psychological symptoms.
Current functioning
Mr Taouk returned home because he needed assistance from his family. He cannot do any cleaning, laundry, hanging clothes on the clothesline, vacuuming or mopping. He struggles to put on his shoes.
He finds it difficult to get out of bed after waking twice during the night and sometimes just lies in bed. He stated at this point thinking at those times “what’s the point of getting up, because I can’t do any work”. He also stated at this point just staring at the television in his room, rather than watching it.
He was upset and distressed that he could no longer go snow skiing, deep sea fishing, play touch football, go to a gym or any of his other hobbies.
He needed assistance from his brother with lifting, including lifting of groceries and other items.
He did attend some family celebrations because he had to attend but otherwise did not go to parties because he felt he had nothing to talk about as he was not working.
He can drive if his back is not in pain.
As stated previously, his relationship ended. He ended it because it appears he felt diminished as a person with the loss of his physical abilities, loss of weight and fitness, and not being in the right place.
He reported he generally has good relationships with his immediate family although he finds it difficult having lived away from home for nine years to now live at home.
He feels embarrassed about his current situation. He had previously purchased a house and renovated it which he now rents.
He reported at this stage that his father had a recurrence of cancer which had adversely affected the whole family but was not more specific.
Mr Taouk has, as stated previously, formed his own company in which he has two employees. It is difficult to remember work related items, tasks and activities and he takes more notes. He describes his head as all over the place. He stated his focus was on minimising the pain and not doing anything that would exacerbate the pain.
He at this point stated that he was very upset that friends were going to Japan next year and he could not go. He described the pain as relentless.
Mr Taouk goes to his office for 1-2 hours about twice each week and makes and receives telephone calls in addition to this time. He business relies on a few old clients with which he maintains to maintain a cash flow to pay his mortgage and overheads.
The company appears to do work for NDIS clients and elderly people.
He is waiting to have the hernia surgery. He will reassess his situation after he has recovered from the hernia surgery. He hopes that he can more, at that time.
He is hoping to find other treatments for his back pain. He again emphasised that any treatment by chiropractors or physiotherapists only gave him temporary relief which added to his existing frustration.
Comments on consistency
Mr Taouk was consistent throughout the examination, particularly regarding his level of frustration and at times anger and was very focused on his physical pain.
Mr Taouk described few psychiatric/psychological symptoms. He did not describe the minimum necessary psychiatric/psychological symptoms necessary for a diagnosis of either persistent depressive disorder with anxious distress or major depressive disorder at this assessment.
His account was not consistent with the reports of Medical Assessor Alexey Sidorov dated
13 March 2023 which made a diagnosis of persistent depressive disorder with anxious distress. Medical Assessor Alexey Sidorov described him as having depression more days than not, a low appetite, low self-esteem, low energy and ongoing feelings of hopelessness as well as negative ruminations about the future.
His account was not consistent with the report of Dr Ben Teoh, psychiatrist, dated
23 June 2023 who made a diagnosis of major depressive disorder and assigned a whole person impairment of 15%.
Mr Taouk’s reported symptoms were more consistent with the clinical notes of the Marrickville Road Medical Centre which described various physical symptoms but no psychiatric/psychological symptoms.
DIAGNOSIS AND REASONS
The Medical Assessors considered all of the information including the supplied reports and the information provided by Mr Taouk and concluded that his symptoms from after the motor accident to the present time which included feeling stressed, angry, somewhat diminished as a person and embarrassed about his loss of physical prowess and physical abilities, feeling that he now had in the mornings that there was no point in getting up, were most consistent with a diagnosis of an adjustment disorder with mixed anxiety and depressed mood.
The Panel particularly noted that he was not hopeless and had plans for the future. The Panel noted that prior to the motor accident he was functioning day-to-day, in a relationship and had no difficulties in his day-to-day life.
He now had impairment in his social and occupational functioning in large measure because of his physical symptoms but also his current mental state appeared to have some impact in that he felt very frustrated at the lack of progress.
Mr Taouk’s sleep disturbance was related to his pain and most of his impairment day-to-day was related predominantly to the pain that he was experiencing.
The DSM-5 Criteria for adjustment disorder and how Mr Taouk meets them are:
(a) The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
Mr Taouk’s symptoms developed soon after the motor accident in which his vehicle was forced off the road and hard up against a fence.
(b) These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
Marked distress that is out of proportion to the severity or intensity of the stressor taking into account the external context and the cultural factors that might influence symptom severity and presentation.
Mr Taouk feels stressed, angry, somewhat diminished as a person and embarrassed about his loss of physical prowess and physical abilities. He feels that there is no point getting up in the mornings feeling that he now had in the mornings that there was no point in getting up. He feels frustrated with the lack of treatment to improve his symptoms, particularly the physical symptoms.
Significant impairment in social and occupational functioningMr Taouk’s relationship at the time of the motor accident ended a few months after the motor accident. He attends some family celebrations because which he obliged to attend but otherwise does not go to parties because he feels that he has nothing to talk about as he was not working.
Mr Taouk no longer does physical work, because of his physical conditions arising from the injuries sustained in the motor accident.
He goes into his office for 1-2 hours twice each week and makes and receives telephone calls outside those hours. It is difficult to remember work related matters, tasks and activities that he needs to complete. He takes more notes. The limited hours of work are attributable to the psychiatric and physical conditions arising from the injuries sustained in the motor accident. He describes his head as “all over the place”. He focusses on minimising the pain and avoiding doing anything that will exacerbate the pain.(c) The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
Mr Taouk described some depressive symptoms. It is difficult to motivate himself to get out of bed in the morning, feeling that there was no point in doing so. He described feeling diminished as a person because of the loss of physical abilities and strength and no longer being able to do various recreational activities.
He did not describe the range of depressive symptoms described in the reports of Dr Teoh and Medical Assessor Sidorov.Mr Taouk described symptoms consistent with increased anxiety, including feeling stressed, angry and frustrated about the lack of progress in treating his physical injuries. He repeatedly stated that he “wanted things done”.
Mr Taouk did not describe a wider range of anxiety symptoms or trauma-specific symptoms which would be seen with a diagnosis of posttraumatic stress disorder.
The sleep disturbance was related to his pain. He attributed most of the impairment in day-to-day functioning to the pain that he was experiencing.(d) The symptoms do not represent normal bereavement.
Mr Taouk has suffered various losses including his previous income and work role, his physical abilities and strength and feels diminished as a person. No one died in the motor accident. Mr Taouk cannot be said to be in a state of bereavement within the usual meaning of the word.
(e) Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months.
CAUSATION AND REASONS
The condition of adjustment disorder with mixed anxiety and depressed mood arises from the injuries sustained in the motor accident. Mr Taouk had no impairment of his day-to-day functioning prior to the motor accident on 3 December 2020.
He left the business partnership, after the motor accident, because he could no longer physically work to the same level. He is working at a lesser level predominantly because of his physical symptoms.
He has not been involved in any subsequent motor accidents.
He developed bilateral inguinal hernias in either late 2022 or early 2023 but this, although perhaps related to his work history, is separate from the motor accident and he does not attribute the hernias as causing his current mental state.
There is no other cause, on the evidence, for the condition of adjustment disorder with mixed anxiety and depressed mood other than the motor accident on 3 December 2020.
The condition of an adjustment disorder according to s 1.6(3) of the Act is not a recognised psychiatric injury because it is not a recognised psychiatric illness.
As set out above, Part 1 cl 4(2) of the Regulation provides that an acute stress disorder and an adjustment disorder are threshold injuries for the purposes of the MAI Act.
Mr Taouk’s injuries of an adjustment disorder with mixed anxiety and depressed mood is therefore a threshold injury.
For these reasons, the Panel revokes the Medical Certificate issued by Medical Assessor Alexey Sidorov dated 13 March 2023.
0
1
0