QBE Insurance (Australia) Limited v Tucker

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Tucker [2024] NSWPICMP 654
CLAIMANT:	Geoffrey Tucker
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Christopher Rickard- Bell
DATE OF DECISION:	16 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to whether psychological injury sustained is a threshold injury; considered the claimant’s history, clinical findings on examination, reports of treating practitioners and the DSM-5-TR diagnostic manual; Held – Medical Review Panel determined that the diagnosis of post-traumatic stress disorder was a non-threshold injury; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel certifies that the diagnosis of DSM-5-TR F 43.1 post-traumatic stress disorder is a non-threshold injury within the meaning of the MAI Act. 2. The Review Panel affirms the certificate of Medical Assessor Roberts dated 28 May 2023.

STATEMENT OF REASONS

INTRODUCTION

Geoffrey Tucker (Mr Tucker), the claimant, suffered injury in a motor vehicle accident (the accident) on 27 February 2021.
QBE Insurance (Australia) Ltd ABN 78 003 191 035 (QBE) insured the owner and driver of the motor vehicle for liability to pay Mr Tucker any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the accident.

Threshold injury dispute

The dispute is whether Mr Tuckers’ psychological injuries are a “threshold injury” within the meaning of the MAI act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters 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 and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
The disputes were referred to Medical Assessor Samson Roberts who issued a Medical Assessment Certificate dated 28 May 2023 (the certificate). The Medical Assessor concluded that the accident had caused post-traumatic stress disorder which was not a threshold injury for the purposes of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.

THRESHOLD INJURY – STATUTORY PROVISIONS

Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” was known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 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 was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
…
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 of the insurer.
5.6 The assessment of whether an injury caused by the accident was 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.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation was defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it was a contributing cause, which was more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

The certificate and reasons of Medical Assessor Roberts

The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Roberts for assessment:
(a) psychiatric condition – psychiatric condition, namely post-traumatic stress disorder.
The Medical Assessor took a psychosocial history and pre-accident history at [8] and recorded the history of the accident at [9]:
“Mr Tucker explained that he was employed driving B-double trucks between mining jobs. He had been driving for approximately 15 years and the subject accident was the first major accident in which he had been involved. At the time of the accident, he was driving alone in a Mercedes-Benz B-double on the way back from Sydney to Wagga Wagga. A utility vehicle came onto his side of the road and, although Mr Tucker attempted to slow the truck, the accident happened too quickly to permit him to avoid the impact. Mr Tucker’s vehicle came to a standstill on top of the utility. The other driver was killed instantly. Mr Tucker’s trailer tipped over and caught fire. Mr Tucker was able to climb out of the passenger side window.
The Coroner’s report revealed that the other driver had drugs in his blood. Mr Tucker was cleared of any wrongdoing and commended on his driving. The other driver was a local but Mr Tucker did not know him.”
Mr Tucker had told him he sustained an injury to his right shoulder in the motor accident which required physiotherapy. He also had cuts and bruises. His shoulder was still painful.
The Medical Assessor reported Mr Tucker’s ‘current symptoms’:
“Mr Tucker continues to experience flashbacks characterised by images entering his mind several times a week. The images include seeing the other driver the instant before he struck Mr Tucker’s truck and died. He also relives the sound of the impact and the instant darkness that confronted him on impact. When he goes to bed at night in his dark room, the images come into his head. He also has flashbacks of the pipes that the utility was carrying which speared through Mr Tucker’s truck cabin on impact.

Mr Tucker recalled that after the accident, he had recurrent thoughts about the prospect that there might have been something he could have done to prevent it. He is readily reminded of the accident. He becomes anxious when driving at night and he suffers nightmares two or three times a week.
…
Despite treatment, Mr Tucker has experienced no change in his symptoms over time. He has come to accept that the accident was not his fault but he still reflects on the fact that ‘someone died that night and (he) was there’ and it hurts him particularly that it was a young person who died. The images that come to his mind vary. There has been no change to his hypervigilance and he remains very aware of what is going on when he is driving. It was three months before he could drive his own car. He has attempted some truck driving and undertook one to two runs per week but could not persist. He found that it was ‘knocking (him) about too much’. He was very nervous behind the wheel and although he considered that he was driving safely, he was unable to relax.”

The Medical Assessor reported his clinical examination at [14]:
“Mr Tucker was assessed using audio visual technology. The quality of the connection was satisfactory. He presented as a casually attired moustached man with appearance reflective of his stated age. His level of personal care could not be assessed. He exhibited a restricted range of emotional expression and described a dysthymic mood. Anxiety was prominently described. He also gave an account of hypervigilance, intrusion symptoms and avoidance of driving at night. He did not report psychotic symptomatology.
At the very last moment, as the assessment was due to be wound up, the connection was lost. Given that no further questions were to be posed and the assessment had been completed, an attempt to reconnect was not made.”
The Medical Assessor considered the history presented by Mr Tucker reflected his involvement in a head-on motor vehicle accident in which the other driver was killed. He gave an account of hypervigilance, avoidance and intrusion symptoms characteristic of a diagnosis of post-traumatic stress disorder in accordance with Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Some mood symptoms were presented but these are satisfactorily explained by the diagnosis of post-traumatic stress disorder and a separate diagnosis is not required.
The Medical Assessor determined that Mr Tucker suffered a psychological injury, namely post-traumatic stress disorder, as a result of the injury and this was not a threshold injury.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
Part 5 of thePIC 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. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.

SUBMISSIONS

QBE’s submissions

QBE sought review of Medical Assessor Samson Roberts’ certificate of 28 May 2023, on the basis:
(a)    the Medical Assessor failed to engage with the substantive argument before him (Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244), and therefore made an error of law;
(b)    the Medical Assessor failed to disclose his path of reasoning (Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43) and,
(c)    the Medical Assessor’s certificate was incorrect in a material respect (Meeuwissen v Boden [2010] NSWCA 253).
In Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; (2013) 252 CLR 480 (Wingfoot) the High Court emphasised the need for a written statement of reasons given by a medical panel under the Accident Compensation Act 1985 (VIC) to explain ‘the actual path of reasoning’ (at [55]):
“The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
Dr Chow, had diagnosed post-traumatic stress disorder.
QBE does not dispute that, where properly diagnosed, post-traumatic stress disorder is a non- threshold injury.
The insurer submitted in its preliminary submissions that there was no evidence of “persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma): (criteria C of the DSM 5), and as a result, there is no valid diagnosis of post-traumatic stress disorder.
Medical Assessor Roberts failed to engage with that issue in his assessment, thus misunderstanding the substance of the dispute. As such, he had made an error of law (Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244).
Medical Assessor Roberts’ certificate was also incorrect in a material respect. At pPart 13 of his certificate, Medical Assessor Roberts says:
“He gave an account of hypervigilance, avoidance and intrusion symptoms characteristic of a diagnosis of Posttraumatic Stress Disorder in accordance with
DSM-5. Some mood symptoms were presented but these are satisfactorily explained by the diagnosis of Posttraumatic Stress Disorder and a separate diagnosis is not required”.
It was unclear how Medical Assessor Roberts determined Mr Tucker suffers from avoidance symptoms in respect of driving at night, when he recorded an entirely different history in the body of his certificate. As there is no exposition of his reasons, it can only be inferred that the Medical Assessor’s conclusion that Mr Tucker suffers from avoidance symptoms is incorrect.
QBE submitted that Mr Tucker accordingly does not meet the diagnostic criteria for post-traumatic stress disorder contained in the DSM 5, because he does not suffer from the symptoms of avoidance required to meet criteria C. As a result, there was insufficient evidence to confirm he suffers from a recognised psychiatric illness, and his injuries must therefore be assessed as threshold injuries.

Mr Tucker’s submissions

Mr Tucker submitted that Medical Assessor Roberts did not fail to engage with the issues in his assessment.
In determining that issue, Medical Assessor Roberts had to engage in the argument whether Mr Tucker fulfilled the DSM 5 criteria to diagnose post-traumatic stress disorder. Therefore, Mr Tucker submits that Medical Assessor Roberts has not made an error of law.
QBE submitted that the history taken by Medical Assessor Roberts is as follows: “When he is driving at night, Mr Tucker drives more slowly and is particularly cautious”.
Mr Tucker submitted that Medical Assessor Roberts’ reliance on the words “avoidance of driving at night” relates to his driving of the truck as set out at page 12 final paragraph and not to his driving of a car as Dr Roberts at page 12, final paragraph also took the following history: “It was three months before he could drive his own car.”
Mr Tucker was employed as a truck driver working night shifts and it was on night duty that the accident occurred.
Mr Tucker therefore submitted that Medical Assessor Roberts has not erred in disclosing his path of reasoning in his diagnosis of post-traumatic stress disorder.

MEDICAL EVIDENCE AND RELEVANT DOCUMENTS

Delegate’s decision on 25 August 2024

Jeremy Lum, the President’s Delegate published his decision on 25 August 2023 with the following submissions and reasons:
“The insurer submits that the Assessor failed to engage with the issue raised in the insurer’s submissions, namely that Dr Chow’s diagnosis of PTSD did not meet Criterion C of the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders fifth edition (DSM-5).
[9] It is further submitted that the Assessor also erred in his finding under Criterion C. The insurer says the Assessor found ‘avoidance’ symptoms at part 14 of the Certificate, namely ‘avoidance of driving at night’. However, it is submitted this finding is inconsistent with part 12 of the Certificate where the Assessor stated ‘When [Mr Tucker] is driving at night, [he] drives more slowly and is particularly cautious’. The insurer views the word ‘cautious’ as being consistent with symptoms of hypervigilance and not avoidance.
[10] Mr Tucker counters the insurer’s submission by asserting that the Assessor’s reliance on the words ‘avoidance of driving at night’ relates to Mr Tucker’s driving of the truck and not the driving of a car.
[11] While Mr Tucker’s explanation could be true, I have a sense of unease because the Assessor does not use the words ‘truck’ or ‘truck-driving’ when making the finding of ‘avoidance of driving at night’. My uncertainty is heightened by the Assessor stating that Mr Tucker does not appear to be driving his truck at all, following one or two unsuccessful runs per week (at bottom of paragraph 12).
[12] Accordingly, I accept the insurer’s submission regarding inconsistent findings, and this constitutes reasonable cause to suspect that the diagnosis made under the DSM-5 for the threshold injury dispute is incorrect in a material respect.”

Statement of Geoffrey Arnold Tucker, dated 17 June 2024

Mr Tucker provided in his own words, the history relating to the injury:
“On 27 February 2021 at approximately 1.40am, whilst in the course of my employment with Ron Finemore Transport Services Pty Ltd, I was driving the truck back from Sydney to Wagga Wagga. I had just passed Wagga Hill and there was a car driving in the opposite direction. Suddenly, that car crossed the center line and entered my lane forcing a head on collision. My vehicle came to a standstill on top of the other vehicle and the other driver was killed instantly. The trailer of my truck tipped over and caught fire. I was able to climb out of the passenger side window, exit the vehicle and walk up to the main road as the incident occurred in the valley.
Once I reached the main road, another truck driver who witnessed the incident called for the police, ambulance and fire services to attend the scene. Shortly after the call was made, the police and ambulance arrived, I was very stressed and shocked at the time and a member of the ambulance did a check on me while a police officer obtained a short statement. The fire services attempted to extinguish the fire in the meantime. The police and ambulance officer at the scene told me they could not believe I survived the incident and that if I had been trapped in the vehicle for a little longer, then I would not have made it out alive.”
He continued:
“As a result of the injuries and disabilities I sustained during the course of my employment, I have been treated with the following:
a. I consulted with Dr Pitipanage Fernando, GP at Glenrock Country Practice who then referred me to see Annie Woodhouse, psychologist once a week following the incident.
b. I continued to consult with Annie Woodhouse throughout the remainder of 2021 and 2022 until the insurer ceased my weekly payments. I am unable to afford to pay out of my own pocket as I am not earning any form of income and therefore have not been able to consult with a psychologist since 2022.
c. I found that my sessions with Annie Woodhouse were helpful as I was able to talk through my traumatic experience with her and the daily impact it is having on my life. I no longer have anyone to talk to about my accident and this has taken a big toll on my mental health. I believe my anxiety and depression have worsened.
d.I was also referred to undergo physiotherapy sessions which I attended for my right shoulder. These sessions also ceased in 2022. I haven’t had any other treatment for this injury.
e. I have been prescribed to take the following medication:
i. Amlodipine;
ii. Asterisk;
iii. Metformin
iv. Olanzapine 5mg BD;
v. Rosuvastatin;
vi. Gliclazide 10mg;
vii. Pantoprazole;
viii. Panamax;
ix. Nicotine patch; and
x. Laxatives.
In mid-2023, I moved from Wagga Wagga to Trundle where my wife resides as I was struggling to cope on my own. I have since consulted with various general practitioners at Trundle Medical Practice where necessary. I do not regularly obtain treatment from the GP’s as they cannot assist me with my psychological injury. I am unable to consult with any psychologist as I have not earned any form of income since my accident and cannot afford to pay myself.”
Mr Tucker outlined his ‘current circumstances’:
“As a result of the above, I have sustained the following injuries and suffer from the following disabilities:
a) I’m often in a low mood. I find that I am easily agitated and upset to the point where it makes me ill. My wife told me that she would never have married me if she met me the way I am now. Our relationship is nothing like it used to be and I would describe it as being ‘empty’. We fight a lot.
b) I’m often thinking about the accident. I go to sleep hoping that I won’t think about it and that I would dream of something else but it’s something that keeps on popping back into my head. Of course this doesn’t happen every night but it never goes away.
c) I regularly experience interrupted sleep and often wake up multiple times throughout the night due to my regular nightmares. As a result, my wife has had to move to a separate room as she found it distressing to see me in that situation and hear me yelling in my sleep.
d) As a result of my nightmares and restless sleep, I am always very sleepy and tired throughout the day and struggle to do many activities. Tiredness is a big problem for me.
e) When I think about the accident and how it occurred, I am thinking about the possibilities of what I might have been able to do at the time of the incident.
f) My wife often tells me that my train of thought and way of thinking is not the same as it previously was.
g) I do not shower as regularly as I used to. Often, my wife gets frustrated with me as I have been lacking in my hygiene and self-care. There are some days that I just don’t care.
h) My social life has been impacted as I do not go out to see anyone since moving with my wife. I often spend my days doing what I can around the house and yard. My days are often very lonely as my wife is working and I am left alone.
i) I have lost friends and essentially I would consider myself ‘housebound’. I don’t like going out and seeing people or having to talk to people, particular people I don’t know. I prefer to be at home.
j) I think about accident at least 5 to 6 times a week. The image of the young mans face before our vehicles collided remains vivid in my thoughts and this causes me to fall into further trail of thoughts about the young man’s family and friends and how they must be feeling.
k) I very rarely drive but when I do, I feel very nervous and on edge as I have to be even more focused on the road. I also do not drive when it is dark as it becomes very hard for me to see the road and the cars on the other side of the road.
l) Whenever I hear or see the sirens of police and ambulance cars, I become triggered, and it brings me back to the day of the accident. I am unable to escape the mentally disturbing thoughts of the accident and how a person died because of the accident. At times it causes me to become emotional.
m) I am not the same man I used to be.”

Medico-legal report of Dr Frank Chow, psychiatrist, dated 1 June 2022

Dr Chow completed a mental state examination, the results are as follows:
“Mr Tucker was a 67-year-old male who appeared his stated age. The assessment was conducted via video conference. He had short hair and a moustache. He was bespectacled. He was casually dressed and appeared neat and tidy. He was cooperative, but was slightly distressed when talking about his difficulties. There was some eye contact and a rapport was superficially established.
His speech was normal in rate, rhythm and tone. His affect was restricted. His mood was described as low. He reported ongoing low mood, sleeping disturbance, flashbacks, nightmares, avoidance behaviour, trigger of psychological symptoms, reduced interest in activities, low motivation, poor energy with feelings of guilt, worthlessness and hopelessness at times. There was no evidence of formal thought disorder, psychotic symptoms or melancholic features. He cognitively appeared grossly intact, but complained of concentration difficulties. He had some insight to his condition.
He is engaging with a psychologist and is maintained on psychotropic medication.”

Dr Chow provided the following summary and opinion:
“Mr Tucker is a 67-year-old male, living alone. He saw a psychologist a few times
5-6 years ago after his marriage broke down and he had recovered. He was working as a Truck Driver, full-time.
On 27 February 2021, while driving his truck, he had a head-on collision. The other driver, who was under the influence of drugs, was killed at the scene.
He sustained a number of physical injuries and has been engaging in physiotherapy for 1-1/2 years. Incidentally, from the scans done after the accident, he was found to have cardiac vessels blockages and abdominal aneurysm. He underwent a quadruple bypass in October 2021 and abdominal aneurysm surgery in March 2022.
I consider that he has been traumatised from the accident and suffers from an anxiety disorder. He has been attending his psychologist to help him through his anxiety after the accident. His psychological recovery has since been disrupted by his incidental cardiac condition and abdominal aneurysm and then the surgeries.
He stated that he still has pain from the injuries from the accident but there have been some improvement. He is now recovery from his recent aneurysm surgery. He reports experiencing sufficient symptomatology to warrant a diagnosis of post-traumatic stress disorder. He will need further psychological and psychiatric treatment for the accident related psychiatric injury especially after he recovered from his recent surgery.
He remains totally unfit for work. The prognosis is uncertain and it will depend on progress with further treatment.”

Medico-legal report of Dr Peter Whetton, psychiatrist, dated 7 July 2023

Dr Whitton examined Mr Tucker on 29 June 2023 and reported:
”Mr Geoffrey Tucker presented as a man of the stated years. He was balding and grey haired, wears a moustache and spectacles.
He was co-operative to examine and answered all questions put to him. There was some level of loss of composure as he related parts of his history. Speech otherwise was normal in form, rate, and rhythm. His affect was restricted and mood described in anxious and dysphoric terms. He gave the full complement of symptoms warranting a diagnosis of Post-Traumatic Stress Disorder.”
Dr Whetton provided the following summary and assessment:
“Mr Geoffrey Tucker is a 68 year-old man involved in a motor vehicle accident on 27 October 2021. This was a head-on collision where the other driver was killed. Mr Tucker had a real fear for his own safety and potential loss of his life. It was subsequent to this that he developed the symptoms of PTSD. These have persisted over time and although some diminution of the symptoms on examination on 29 June 2023 continues to warrant the diagnosis of Post-Traumatic Stress Disorder.”
Dr Whetton diagnosed a whole person impairment (WPI) of 7%.

Dr Annie Woodhouse (PHD), psychologist, 17 March 2021

Dr Woodhouse wrote the following report on 17 March 2021:
“Mr Tucker attended an initial appointment with me, a treating Psychologist, 03/03/21. Mr Tucker was accompanied by his financee who he described as being very supportive.
As you are obviously aware, Mr Tucker was involved in a fatal truck accident 27/02/21. At the initial appointment, Mr Tucker described the crash in detail.
During this consulation, he was obviously distressed by what had happened. He tells me that although he drove his ute home from the yard following hospital and
police requirements, he has not felt confident to drive since then. His fiancee describes him as demonstrating hypervigilant behaviour as a passenger. Mr Tucker speaks of flashbacks and of his mind racing as he tries to understand what the other driver did and all aspects of the accident.
Post Traumatic Stress Disorder (PTSD) is a condition which can follow trauma but is NOT diagnosed until at least 90 days after an incident. Only a small percentage of people experiencing trauma go on to develop PTSD. At this stage, Mr Tucker shows a natural distress following a trauma. To ensure that Mr Tucker is given the best chance to move forward positively (and NOT develop PTSD) it is very important that he feel supported and encouraged by his support networks; his employer, his healthcare providers and his friends and family.”
On 16 July 2021, she reported the following:
“Geoff attended an appointment this afternoon. Earlier in the week, Geoff underwent some cardiac diagnostics/investigations. Although he went through the procedure well, he is very anxious and worrying about the results (which he does not yet have). It is natural to be concerned about this sort of procedure, especially with his operation in a short time. However, Geoff seems to be very anxious and this seems to be impacting how he is interpreting and responding to other things.
As mentioned previously, he feels he is being pressured to drive trucks again in the near future. This is despite many assurances that this is not the case. In my opinion, Geoff is struggling with not being able to contribute in his normal capacity at work. I am working with Geoff to help him accept that his current medical condition requires he does not resume his previous job duties at this time. I have emphasised to Geoff that he will not be able to ascertain his capacity following his surgery and recover, until that time.”
On 27 July 2021, Dr Woodhouse reported:
“Geoff attended an appointment this morning. He informed me that the police had visited him yesterday to inform him that both he and RFT had been cleared of any wrong doing in the accident and that the case is now closed. Geoff appeared much calmer and appears to have got a sense of closure from this.
Geoff also informed me that as a result of the pre-surgery investigations, it has been found that he needs open heart surgery for a by-pass. This will occur before his other surgery and will be performed in St Vincents in Sydney. Understandably, Geoff is nervous about such major surgery but he seems accepting and ready for the surgery.”
On 13 January 2022, Dr Woodhouse wrote to Dr Dusanka:
“Firstly, in the email you state that Mr Tucker has been seeing me for Psychological therapy since April 2021.
Mr Tucker first saw me in relation to this compensatable manner 3/3/21 and the first report was sent to RFT on 5/3/21. A report was then sent following each meeting with Mr Tucker.
The history Mr Tucker provided at the initial appointment was that he had been involved in a fatal accident. Understandably, consequent appointments focussed on managing emotions and behaviour that Mr Tucker was experiencing following this serious incident. As time went on, and as a result of scans following this accident, Mr Tucker was diagnosed with a femoral aneurysm. Obviously, this is a serious condition and requires surgery. As a result of the preparation for surgery, Mr Tucker was diagnosed with a serious heart condition, which also required surgery.
In relation to your request for clinical notes, it is the policy of this practice, that clinical notes are not provided unless required by law. That being said, I a happy to answer any questions posed around treatment and/or Mr Tucker's mental health state.
In regard to an estimated time of discharge for Mr Tucker in relation to psychological therapy, at this stage, it is difficult to give a date. Mr Tucker is still awaiting the surgery for the femoral aneurysm and I feel that he would benefit from ongoing support until that surgery has been done. How much psychological support Mr Tucker needs after the surgery is unknown until the surgery is done and Mr Tucker's health and capacity is assessed.”

General practice clinical records of Glenrock Country Practice

On 5 September 2022, Dr Woodhouse wrote:
“Anxiety/Depression
Back driving truck. Managing but anxious at night. Has decided to sell house and retire. Feels RTW has been good for his confidence but not enjoying driving anymore. Worked through options for selling and finishing work. Says he feels good after surgery, finds breathing much easier. Still smoking.”
On 23 January 2023, Dr Woodhouse wrote:
“Flat affect. Tired. Finding driving difficult. House still not on market, will talk to wife about plans today. Finding change very difficult. Sold ute yesterday, aware it was a good decision but found that hard. Still smoking. Feels physically well, tired at times. Discussed feeling anxious while still working and the plan to start new phase of life.”
On 20 February 2023, Dr Woodhouse wrote the following:
“Anxiety
Has decided on retirement date (10/03). Has told other drivers and will tell boss tomorrow. Says he is very anxious
driving. Says he is able to manage it but not liking feeling nervous all the time. He and wife have plans to take trips with caravan, live out of home in Trundle. Preparing his house for sale. Worked through closure.”

Application for Personal Injury Benefits dated 14 April 2021

Mr Tucker outlined the injuries he received as a result of the accident:
“All my injuries were cut to my right elbow and cuts to my right and left legs My right shoulder has muscle damage that I am still getting treatment for.”

Medical Discharge from Wagga Wagga Base Hospital dated 27 February 2021

Mr Tucker was admitted to Wagga Wagga Base Hospital, who produced the following discharge information:
“66M High speed MVA
- haemodynamically stable
I
M
- pt driving truck at 97km/h
- going over a hill
- car on other side of the road drifted and hit pt's truck
-truck rolled over
- able to extract self from vehicle
- pt was wearing a seatbelt
- unsure of amt of damage to truck
- no LOC
I
- bruising to R elbow and L leg
- swelling R foot
- bruising R cheek
s
T 36.1 C
HR 84
RR 18
BP 151/97
O2 sats 100% RA
T
A
nil
M
B
DM T2
Hyperlipidaemla
Claustrophobia
Anxiety
Hernias
0
unknown
PRIMARY SURVEY
A - patent
B - SPO2 100%, RR20, equal air entry,
C BP 151/97, HR 82
D - GCS 15,
E - Injuries as above
FAST negative (unaccredited)
SECONDARY SURVEY
Head to toe examination
- head NAD
- face - bruising with swelling on R side of cheek
- neck - no C spine tenderness
- chest - NAD
- abdomen - NAD
- upper limbs - bruising R elbow
- lower limbs - bruising L shin and swelling R foot
- pelvis- no tenderness
- spine - no bruising, no haematomas or swellings, no midline tenderness
- PR not done
IMPRESSION
High speed MVA
Ix
CXR, XR pelvis, SR R foot
Trauma bloods - done
BAC for Police
Urine drug screen for Police - done
*Pt refusing CT pan scan due to claustrophobia
Explained consequences and risks related to trauma and decision to refuse CT scan
Mx
ADT
Trauma consult
progress:
Pt refusing CT pan scan
lipase 212
no abdominal pain
pt keen to go home
explained risks of not having PAN scan. still refused
de home
Panadol / Nurofen at home
If concerns of any pain anywhere/ worried review in ed Immediately.”

THE REVIEW PANEL

At the first Medical Review Panel (MRP) meeting on 18 July 2024, the Panel agreed that a medical examination would be necessary to address the parties’ submissions.
Medical Assessor John Baker and Medical Assessor Christopher Rickard-Bell examined Mr Tucker on behalf of the Panel on 19 August 2024 via audio-visual Teams.

THE PARTIES SUBMISSIONS

The Medical Assessors noted both parties’ submissions.

Insurer’s submissions

QBE submitted that Medical Assessor Roberts failed to engage with the issue raised in the their submissions, namely that Dr Chow’s diagnosis of post-traumatic stress disorder did not meet Criterion C of the diagnostic criteria for post-traumatic stress disorder under the DSM-5.
It was further submitted that Medical Assessor Roberts also erred in his finding under Criterion C. QBE submitted that the Medical Assessor found “avoidance” symptoms at
Part 14 of the certificate, namely “avoidance of driving at night”. However, it was submitted this finding was inconsistent with Part 12 of the certificate where the Medical Assessor stated “When [Mr Tucker] is driving at night, [he] drives more slowly and is particularly cautious”. QBE views the word “cautious” as being consistent with symptoms of hypervigilance and not avoidance.

Claimant’s submissions

Mr Tucker submitted that Medical Assessor Roberts’ reliance on the words “avoidance of driving at night” relates to his driving of the truck as set out at page 12 final paragraph and not to his driving of a car as Dr Roberts at page 12, final paragraph also took the following history:
“It was three months before he could drive his own car.”
Mr Tucker submitted he was employed as a truck driving working night shifts and it was on night duty that the accident occurred.

THE MEDICAL EXAMINATION

Re-examination

On 19 August 2024, Mr Tucker was examined by Medical Assessor Baker and Medical Assessor Rickard-Bell using MS Teams in a teleconference. Mr Tucker was at home and was unaccompanied.

Psychosocial history and pre-accident history

Mr Tucker is a 69-year-old man who reported he had sold his house in Wagga Wagga and moved to live with his wife since the assessment under review. Mr Tucker’s father was aged 61 years when he died from a heart attack. Mr Tucker’s mother was 70 years when she died from pneumonia.
Mr Tucker is the second child of a five-sibling family. All of his siblings are alive and reported as well. He had an elder sister aged 71 years, and three younger brothers aged 67, 64 and 60 years. He reported he was closest to his sister with whom he would talk often prior to the motor accident on 27 February 2021.
Mr Tucker was born in Temora District Hospital. He was raised in Ardlethan, New South Wales. His father worked for the Australian Army. After discharge from service, his father worked for NSW Railways. Mr Tucker attended Ardlethan, Area school and was educated to completion of Form 3 (year 9). He said he did not complete his leaving certificate prior to entering the workforce.
On leaving school Mr Tucker commenced work in the mines. He did not learn a trade. He developed speciality skills in the mining industry for both open cut and underground, blasting operations. This dangerous work as a blaster became Mr Tucker’s primary career path. His secondary career path was as a “truck driver”. Mr Tucker said that during mining industry down turns and when he was out of “contact” with a mine, he would “take to the road, trucking.” He said his trucking career was enjoyable, and he had developed skills which enabled him to drive heavy vehicles with multiple combinations of trailers (B-Doubles). He said he had never driven a road train.
Prior to the accident, Mr Tucker had been married twice. He said that he had no children by these two prior unions. Mr Tucker said he was in a stable relationship since 2018 with his then fiancée. He married his third wife in 2022. Mr Tucker moved to live with his third wife prior to this re-examination as he had no means to maintain the mortgage on his house in Wagga Wagga. He had no children by his current union.
Mr Tucker reported that he had previously lodged a psychological injury claim whilst working for a different employer. He said that on about 26 September 2015 he pulled into Marulan Heavy Vehicle Checking Station. His truck was assessed as “unroadworthy”. He attended his general practitioner on 30 September 2015 and reported that due to the faulty state of the heavy vehicle’s brakes, he could have died or killed some-one. He was referred to a psychologist, Dr Anne Woodhouse for cognitive behavioural therapy. The Glenrock Country Practice record on 14 December 2015 documented that Mr Tucker saw a “Psych (independent psychiatrist) in Sydney and RMS told him they are doing an investigation…” His general practitioner documented him, as suffering from symptoms of “anxiety and depression”.
On about 2 September 2017, his second wife separated from him two weeks prior to this attendance. He was diagnosed by the general practitioner as having and adjustment disorder with depressed mood. His was prescribed Sertraline 50mgh (a selective serotonin re-uptake inhibitor) and after having a panic attack he ceased this medication and continued cognitive behavioural therapy with his psychologist, Dr Woodhouse. Mr Tucker said at this re-examination that he last attended this psychologist about three years prior to the accident. He continued his career as a driver.
Mr Tucker reported that in 2000, he was working in East Timor. He was an employee of an Australian company contracted to work in East Timor. He was called to assist with a savage, restoration and a project of a bridge that had been damaged during an incident where “militia” had damaged the bridge during conflict in the region. Mr Tucker said he was not involved in any conflict himself. He was working as an employee and whilst lifting a heavy piece of bridging steel he sustained an injury to his right leg and right ankle. His medical condition was stabilised prior to him leaving the country. He required an open reduction to fix the fractures affecting his right leg and ankle. He was rehabilitated and returned to his career as a truck driver. He said he had not suffered from any psychological injury due to this work injury. Mr Tucker said his last worker’s compensation claim was in relation to industrial deafness associated with his work in the mines. Industrial deafness did not impair Mr Tucker’s capacity to work as a truck driver.
Mr Tucker said he was also diagnosed with diabetes, hypercholesterolaemia and chronic obstructive pulmonary disease. He was treated by his general medical practitioner for these conditions.
Mr Tucker said he was a tobacco smoker but he had time during his career where he had not smoked. He had just relapsed smoking and was again at Marulan just a few minutes before the motor accident. he now smokes about 15 cigarettes per day. He said he did not drink alcohol to excess. He would drink up to three small bottles of beer over the weekend. He would not use illicit substances. He did not gamble. He was not allergic to any substances or medications.

The subject accident on 27 February 2021.

Mr Tucker was asked to describe his routine week working for the transport company as heavy combination truck driver prior to the accident. Mr Tucker said he found work as a truck driver from this company for about three years prior the motor accident. His routine was to drive from about 4.00pm to 11.00pm between Wagga Wagga to Wyong, NSW. He would stop in Wyong and over night in his sleeping cabin attached to his truck. At about 5.00am he would have his truck queued unloading. He would return from Wyong back to Wagga Wagga the following evening in keeping with the company’s assigned schedules. He said he enjoyed working in this type of format as he had “plenty of time for rest and sleep”.
Mr Tucker said on the day of the accident he was returning from Wyong. Mr Tucker said he had stopped a Marulan Heavy Vehicle Checking Station. He had met up with one of the company’s co-workers. Mr Tucker said that the two drivers had agreed to stay in touch by their UHF radios as they entered Wagga Wagga to finish their trips. The other driver’s cargo was of a nature that the vehicle this driver was driving could only travel at 90kmph. Mr Tucker said he would be first home as his truck was speed limited to 100kmph.
Mr Tucker said that he was late out of Wyong on the evening shift when the subject accident on 27 February 2021 happened. He provided the following history:
(a)    Mr Tucker had driven trucks without incident for over 40 years.
(b)    Mr Tucker was driving a B-Double multiple combination rig. His truck weighed 29 tonnes when unloaded and 56 tonnes when fully loaded. He was fully loaded on this return trip.
(c)    Mr Tucker was using his usually controls to maintain his speed at about 97kmph.
(d)    Mr Tucker said he saw the headlights of a car coming in the opposite direction. He said he saw the face of the driver of the car, just before the driver crossed into his lane and crashed at about 86kmph into his prime mover head on.
(e)    Mr Tucker said he was told the other driver was affected by drugs when he collided into Mr Tucker’s truck.
(f)    Mr Tucker said when he saw the other driver’s face, he knew he could not stop in time. He said he locked up his brakes in the truck. He said his truck rolled.
(g)    Mr Tucker said his prime mover came to rest on top of the car that had crashed into it.
(h)    Mr Tucker said he was fearful that he could be in an explosion as there was a fire around the car that his prime mover had crushed.
(i)    Mr Tucker said he climbed out of the passenger side of his prime mover. He said after escaping from his vehicle, he found his fire extinguisher and attempted to stop the fire. He said he exhausted his fire extinguisher, and he decided to climb up to the road and seek the help of his friend who was driving the slower truck.
(j)    Mr Tucker’s friend provided another fire extinguisher. Mr Tucker returned to extinguish the fire but failed again. He returned and attempted for a third time before being transferred to Wagga Wagga Base Hospital.
Mr Tucker said he attended the Wagga Wagga Base Hospital and was assessed for injury associated with “high speed” motor accidents. He said the NSW Police Office provided him with the estimated sped of the driver who drove into his truck. He said the police officer stated the other river was going about 86kmph. The impact speed was estimated at about 195kmph.
Mr Tucker said he was then informed that the other driver’s house was set on fire and that the driver owed money due to his illicit drug use. Mr Tucker said he came to the understanding the other driver had “committed suicide by driving into my truck!” When Mr Tucker provided this new information, he became very emotionally distressed and said he was angry with the driver and that the driver “should have left me out of this”.
Mr Tucker reported that he developed the following symptoms of post-traumatic stress disorder:
(a)    he was exposed to and directly experienced a high-speed collision for which he could not avoid.
(b)    He repeatedly had ongoing involuntary and intrusive memories of the other driver crossing the road into Mr Tucker’s lane and not attempting to move away from his truck.
(c)    He experiences repeated and ongoing dissociative reactions of “seeing the face of the other driver, like it was just before impact” and of the other driver’s car into Mr Tucker’s truck. He became distressed and tearful when remembering this intrusive dissociative symptom.
(d)    He reports that he makes repeated and active efforts to avoid thinking about the young man who died in the accident. He became tearful and distressed throughout the assessment. He repeatedly stated, “he (the other driver) was a young man”. Mr Tucker at other times would say just before becoming overwhelmed with angry emotions, “He should have kept me out of it!”
(e)    He said he found living in Wagga Wagga too hard for him and so he left the city and now lives with his wife, as he wanted to avoid thinking or any memory of the motor accident.
(f)    He said he suffered from persistent negative emotions of fear when driving a truck at night. He said his fear was too great and he abandoned truck driving as he could not trust other road users as he had in the past.
(g)    He reported persistent inability to experience positive emotions with his wife. He said she would complain about him and say, “If I (claimant’s wife) had known that you had changed to this, I would never have married you!”
(h)    He reported that he is always hypervigilant whilst driving and he no longer was medically fit to drive a truck. He said he was also very cautious whilst driving a car.
(i)    He reports ongoing and poor sleep, without any refreshment or recovery from sleep since the motor accident.
(j)    He reported that his concentration was poor and he lacked interest in his prior activities he would have spent with his wife.
Mr Tucker reported that while he was investigated for motor accident physical injuries at Wagga wagga Base Hospital, he had multiple cardiac and vascular abnormalities found incidentally. He said he was referred for “open heart surgery”. The treatment of these physical abnormalities and soft tissue injury from the motor accident took priority. He successfully recovered from four coronary artery bypass grafts and a repair of an aortic aneurism. The surgical treatment was performed in Sydney.
Mr Tucker reported that he attended his general practitioner for treatment after the accident for his poor mental health. He said he was referred to his psychologist, Dr Woodhouse. She commenced trauma focused cognitive behavioural therapy and psychological treatment for posttraumatic stress disorder.
Mr Tucker reported that he tried a quick return to his career, similar to how he had recovered from his physical injuries sustained in 2020. He said that after the accident he was “Not the same man.” He said he had trouble concentrating and focusing on controlling his truck. He said he had trouble “coping with cars coming to close to his truck”. He said he “lost trust in other drivers.” He said he was unable to be calm and he was always “watching out” for the “bad driver”. He became too distressed and decided to “hand in my licence”. Mr Tucker said, “I could not cope any more with the fear of another crash.”
Mr Tucker said he informed his general practitioner about his increasing psychological symptoms. He was prescribed Olanzapine 5mg at night to assist with his prominent dissociative symptoms of repeatedly seeing the face of the other driver whilst driving his truck at night. He said he remained on olanzapine at the re-examination and continued his psychological treatment with his psychologist until moving to his wife’s home recently.

Mental state exanimation

Mr Tucker presented as an irritable, agitated and tearful man. He looked older than his stated age. He was dishevelled in his presentation. His hair was uncut. His beard ungroomed. Rapport was slow to establish. He spoke about his general distrust of others that was made worse by the accident. He became spontaneously angry when he spoke about the repeated thoughts of the other driver committing suicide by driving in to his truck. He said, “he should have left me out of it!” he said he had intrusive distressing images of the other driver’s face in front of him many times each week. He said it was worse when he was attempting to return to his driving career and drive a truck at night. He lost trust in himself as a safe driver. He stopped truck driving and restricted his car driving to avoid future harm to himself.
Mr Tucker did not have delusional or psychotic symptoms. The dissociative experiences of the other driver’s head is not a psychotic symptoms. The dissociative experiences such as that described by Mr Tucker are part of a more severe posttraumatic stress disorder. Mr Tucker explained the use of Olanzapine was only partially helpful. He had poor concentration with difficulty sustaining any interest in any complex task. He was insightful into his condition. His judgment was normal. He did not report suicidal thoughts or plans to harm himself.

Changes in functioning

Mr Tucker reported the following changes in his psychological functioning since the accident on 27 February 2021.

Self-care and personal hygiene.

Mr Tucker reported that he was able to live independently. He had lived independently since the accident. He chose to move to his wife’s home as he no longer enjoyed living in Wagga Wagga and wanted to avoid memories of the motor accident. He said his lack of an income resulted in him not affording a mortgage and it was better finically to sell his house. He said he was less interested in his self-care and personal hygiene. He said he could cook simple foods for himself however he was not as interested in his nutrition as he was prior to the motor accident. He attributed his reduced self-care and personal hygiene to his loss of interest in himself since not having an income and becoming reliant on his wife.

Social and recreational activities

Mr Tucker reported he had stopped attending cafes and socialising with his wife and her friendship circle. He reported he would talk with his elder sister less. He reported that he was not interested in celebrations or attending social events with his wife as he was prior to the motor accident. He reported having no friends and having lost all contact with his past co-workers, who no longer communicated with him.

Travel

Mr Tucker said he had could drive but was overwhelmed by fear should he drive for too long or travel to far. He said he had lost trust in other road users. He said he was hypervigilant whilst driving a car. He said he was medically unfit and unable to drive a truck at night.

Social functioning

Mr Tucker reported he had become less interested and more irritable in his relationship with his wife. He said she would say things such as, “If I had known that you had changed to this, I would never have married you!” Mr Tucker reported loss of his self-esteem. He feels angry towards the other driver. He blames the other driver for not “keeping him out of it!” Mr Tucker said, “It’s hard for me. I’m so angry. I get frustrated.” He explained he avoids any memories or reminders of the motor accident as he becomes overwhelmed with emotions that disrupt his marriage and ability to experience loving feelings towards his wife.

Concentration, persistence and pace

Mr Tucker reported he was making mistakes whilst attempting to return to his driving career. He said whilst driving his truck he found his concentration, disrupted by intrusive dissociative experiences of “seeing the driver’s face”. He reported that he would ruminate and overthink what has happened, and he would be unable to relax whilst attempting the long drive between Wyong and Wagga Wagga. He said he was not interested in watching television with his wife as he could not concentrate for the duration of the programs she liked.

Adaptation.

Mr Tucker reported that he had failed to return to work. He said he had driven for over 40 years as a truck driver. He said he was unable to trust other drivers on the road. He said he become frustrated and irritable as he felt he was unable to do anything else.

Consistency of presentation

Mr Tucker initially presented, as an apprehensive and withdrawn man. He commenced the re-examination by saying repeatedly, “You don’t understand how hard it is for me.” He said he could not trust others since the motor accident. He would make rushed answers in attempts not to have to remember the specific details of the psychological injury. Mr Tucker required rapport to be repeatedly rebuilt throughout the re-examination. When Mr Tucker became tearful, frustrated or agitated he required time to settle his emotions. He was consistent in his reports at the time of this re-examination and was consistent with reports documented by the prior Medical Assessor.

PANEL CONCLUSION

Diagnosis

The Panel considered the diagnosis of post-traumatic stress disorder. The Panel spent time with Mr Tucker to enable him to explain his full symptoms that he had experienced since the motor accident. Mr Tucker reported that he actively attempts to avoid thinking about distressing memories or thoughts that contain direct content about the accident. This avoidance, described cognitive features of remembering and thinking is described in criterion C of DSM-5-TR F43.10 post-traumatic stress disorder. The current guidelines require a threshold injury to be assessed using DSM-5-TR and no other diagnostic manuals, as DSM-5-TR is the most current diagnostic manual available.
The Panel weighed not only the documented diagnosis of the Medical Assessor but also other diagnosis including adjustment disorders and acute stress disorder that are also listed with the DSM-5-TR. The Panel found that the severity of the trauma that Mr Tucker directly experienced met criterion A. of DSM-5-TR F43.10 post-traumatic stress disorder. The confirmation of this criterion excludes adjustment disorder as a diagnostic possibility when fully understanding the severity of the psychological injury sustained by Mr Tucker.
The Panel notes the accident occurred in February 2021. The re-examination was in August 2024. The time limit criterion within the Acute Stress disorder diagnosis has expired and so this diagnosis is excluded for this reason.
The Panel reviewed the clinical records and documents forwarded with this re-examination and in conjunction with these records and the findings at the re-examination together with the clinical judgement of Medical Assessor Rickard-Bell and Medical Assessor Baker and the best diagnosis that explains Mr Tucker’s psychological injury sustained in this accident is DSM-5-TR F43.1 post-traumatic stress disorder.

Criterion A: exposure and directly experiencing the traumatic events by Mr Tucker:
(a) the criterion is met by Mr Tucker being the driver of a large B-Double heavy multiple combination truck, where he witnessed the driver of another car change lanes in front of him and drive head on into his prime mover, resulting in the death of the other driver and Mr Tucker’s prime mover landing and crushing the other driver’s car. The estimated impact speed of collision was about 195kmph.
Criterion B: presence of intrusive symptoms associated with the motor accident and beginning after the motor accident had occurred:
(a) the criterion is met by the repetitive dissociative experience reported by Mr Tucker of seeing the other driver’s face, as he had experienced immediately prior to impact at the time of the motor accident. Mr Tucker experienced this intrusive dissociative symptom many times whilst attempting to return to his driving career as a night driver of B-Doubles. His medical practitioner had treated the symptom with Olanzapine 5mg without the symptom becoming fully remitted. Mr Tucker reports the experience was as if he was in the truck involved in the motor accident when it occurs. He restricted his driving because of this dissociative symptom.
Criterion C: persistent avoidance with active effort to avoid distressing memories and thoughts about details of the motor accident.
(a) the criterion is met by Mr Tucker placing effort into moving and avoiding Wagga Wagga where the motor accident occurred. This criterion is also met by Mr Tucker attempting to avoid thinking or remembering distressing thoughts and memories with him using the cognitive skill of diversion, where he repeatedly states, “This is hard for me!” and delays replying with the expectations the questioner will move away from the emotionally distressing details of the motor accident. Mr Tucker reported that he does not wish to “talk about it” because “it’s not good for me”.
Criterion D: negative alterations in cognitions and mood associated with the motor accident. Beginning or worsening after the motor accident as reported by Mr Tucker as:
(a)    persistent inability to experience positive emotions that include the inability to experience loving feelings he had towards his fiancée (now wife) prior to the motor accident, that are not present after the motor accident.
(b)    Markedly diminished interest in publicly socialising or participating in social and recreational events with his wife and her friendship circle.
(c)    Persistent feeling that other road users cannot be trusted.
Criterion E: marked alterations in arousal and reactivity associated with the motor accident. Beginning or worsening after the motor accident as evidenced by Mr Tucker’s:
(a)    increased and enduring irritable behaviour towards his wife and others without or with little provocation.
(b)    Hypervigilance whilst driving trucks and cars.
(c)    Poor concentration with difficulty commencing and completing complex tasks.
(d)    Sleep disturbance with Mr Tucker having disrupted sleep waking from sleep and lack of restorative sleep.
Criterion F: duration of the disturbance is more than one month:
(a) this criterion is met by the duration of the disturbance causing the psychological injury is many years since the accident that occurred in February 2021.
Criterion G: the disturbance causes clinically significant distress and impairment in Mr Tucker social functioning with his wife, occupational functions as a multicombination heavy vehicle commercial driver.
Criterion H: the disturbance is not attributable to the physiological effects of a substance or another medical condition.

Causation

Mr Tucker had not suffered from post-traumatic stress disorder prior to this accident on 27 February 2021. Whilst Mr Tucker had suffered from prior psychological condition each condition had resolved without Mr Tucker losing his capacity to continue his career or reform new relationships with new partners. The pre-existing psychological conditions noted in the medical record had resolved prior to this accident.
Mr Tucker had prior physical injuries including surgery to his right leg prior to the accident. he again recovered from this work injury and returned to his career as a truck driver.
Mr Tucker enjoyed his role working for this employer as a B-Double truck driver. He had driven for the company without injury or problems for about three years prior to the accident. He had over a 40-year career without a truck driving accident prior to this accident.
Mr Tucker sustained symptoms consistent with a diagnosis of DSM-5-TR F 43.1 post-traumatic stress disorder due to the accident. He suffered a psychological injury because of the accident on 27 February 2021.
The diagnosed psychological injury is DSM-5-TR F 43.1 post-traumatic stress disorder. This diagnosis could cause the psychological injury sustained in the accident. The diagnosis could clinically and medically persist due to psychological impairments in social and occupational functioning that commenced at the time of the accident or were exacerbated by the motor accident and continued without remission until this re-examination.
The Panel determines that the accident caused the psychological injury, DSM-5-TR F 43.1 post-traumatic stress disorder.
The Panel found no other explanation for the diagnosed psychological injury.
The Panel determines that Mr Tucker suffers from DSM-5-TR F 43.1 post-traumatic stress disorder because of the psychological injury sustained in the accident DSM-5-TR F 43.1 post-traumatic stress disorder.

Threshold injury

The Panel certifies that the diagnosis of DSM-5-TR F 43.1 post-traumatic stress disorder is a non-threshold injury within the meaning of the MAI Act.
The Panel affirms the certificate of Medical Assessor Roberts dated 28 May 2023.

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Citations

QBE Insurance (Australia) Limited v Tucker [2024] NSWPICMP 654

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

4

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

[2024] NSWPICMP 654

16 September 2024