Sabbagh v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 179
•18 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Sabbagh v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 179 |
CLAIMANT: | Ahmad Sabbagh |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 18 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; Review Panel found previous motor accident in 2020 caused post-traumatic stress disorder (PTSD); subject accident in 2022 did not cause an exacerbation of the PTSD; claimant had some increased anxiety and pain symptoms but functioning had improved following the subject accident; Review Panel found subject accident caused an adjustment disorder with no other psychiatric diagnoses found; Lynch v AAI Limited, and David v Allianz Insurance Limited considered and applied; Held – motor accident caused an adjustment disorder which is a threshold injury; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Gerald Chew dated |
STATEMENT OF REASONS
BACKGROUND
Ahmad Sabbagh (the claimant) was involved in a motor accident on 23 July 2022. The claimant says he was stopped behind a vehicle at the traffic lights when another vehicle hit him from behind. This caused his vehicle to impact the vehicle in front. Airbags deployed and he had neck, back and arm pain. The ambulance arrived and he was taken to Ryde Hospital.
The claimant says he experienced an onset of psychological symptoms following the motor accident.
He made a claim for statutory benefits with Insurance Australia Limited t/as NRMA (the insurer), the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the claimant’s psychological injury is a threshold injury or not a threshold injury and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 5 October 2023, Medical Assessor Gerald Chew found the claimant’s psychological injury was caused by the motor accident and that it was a threshold injury.
The claimant lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s Delegate and this Panel was convened to conduct the review.
RELEVANT LEGISLATION
Threshold injury
Under the Motor Accidents Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages[1].
[1] The terminology for accidents that occurred before 1 April 2023 (such as the present) was “minor” injury and statutory benefits were only paid for up to 26 weeks.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, applies to the review. Part 5 deals with the assessment of threshold injury for psychiatric injuries.
The general provisions for medical assessment are contained in cl 5.6 of the Guidelines and are in the following terms:
“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.”
Specifically, in relation to threshold psychological or psychiatric injury assessments, cls 5.10-5.12 provide as follows:
“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.”
Causation of injury
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychological or psychiatric condition. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [2]
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
The provisions state:
“6.5 An assessment of the degree of permanent impairment is 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 is related to the accident in question is 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 the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biological 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 is necessary to verify both of the following”
1.The alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is 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 is a contributing cause, which is 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 is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s5E.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Chew was given a history that following the motor accident, in the context of increasing pain from the claimant’s physical injuries, the claimant developed some low mood and was scared of driving at night. The Medical Assessor found that the claimant has a good relationship with his wife, sees his family regularly and attends the mosque every Friday. The claimant continues to work as an electrician and maintains good relationship with work friends.
The Medical Assessor noted that the DSM-5 criteria for post-traumatic stress disorder or Major Depression were not met.
The Medical Assessor diagnosed an adjustment disorder caused by the motor accident which is a threshold injury.
ISSUES FOR DETERMINATION
Claimant’s original application submissions (28 June 2023)
The claimant stated that he had a previous motor accident in 15 May 2020. He sustained fractures to his left elbow, pelvis, sternum and collapsed lungs. He underwent surgery at Liverpool Hospital. At the time of the subject motor accident, these injuries had stabilised and the claimant was fit and performing his work and domestic duties.
The claimant says his pre-existing physical injuries were exacerbated following the subject motor accident of 23 July 2022.
In a Certificate of Capacity dated 25 March 2023 from the claimant’s general practitioner (GP) Dr Khaled Osman, the claimant was reported to develop anxiety symptoms in keeping with a post-traumatic stress disorder.
The claimant was referred for counselling to psychologist Mrs Sarah Hamidi whose clinical notes and reports diagnose the claimant as suffering from major depressive disorder and post-traumatic stress disorder as a result of the motor accident. It is asserted that Mrs Hamidi arrived at these diagnoses through assessment of the claimant’s psychiatric symptoms under the relevant DSM-5 criteria.
It is therefore submitted that the claimant’s psychiatric injuries are not threshold injuries and the claimant’s statutory benefits should continue beyond 26 weeks and his request for psychological treatment should be approved.[3]
[3] Medical Assessor Chew’s assessment of the treatment and care dispute was issued under a separate matter number/Certificate and is not the subject of the present Panel proceedings.
Claimant’s review application submissions (2 November 2023)
The claimant argued to the President’s Delegate that Medical Assessor Chew’s assessment is incorrect in a material respect on two main grounds.
First, that the Medical Assessor did not provide a path of reasoning for his reasons for the diagnosis “Adjustment disorder. He does not meet DSM-5 criteria for post-traumatic stress disorder or Major Depression”. It is asserted that the Medical Assessor did not explain exactly how the claimant did not meet the DSM-5 criteria for post-traumatic stress disorder and major depression. Or, how the claimant satisfied the DSM-5 criteria for the diagnosis of adjustment disorder.
Second, the Medical Assessor was silent on the diagnoses of post-traumatic stress disorder and major depression previously expressed by the claimant’s GP and treating psychologist. In this regard, the claimant relies on the principle established in Lynch v AAI Limited t/as AAMI [2022] NSWPICMP6 (Lynch) which adopted the reasoning in David v Allianz Insurance Limited [2021] NSWPICMP 2022 (David).
The claimant asserts that as per Lynch and David, a past psychiatric diagnosis (but following the motor accident) made under the DSM-5 does not have to be made by a Medical Assessor and can be made by a treating doctor, and while that psychiatric diagnosis may change over time, “it would be an absurd interpretation to conclude that… there has been a change of status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed (or the psychiatric diagnosis had changed)”.[4]
[4] Lynch at [71] to [72].
It is submitted that Medical Assessor Chew has not addressed the principle established in Lynch or indicated why the principle should not be followed.
Insurer’s original reply submissions (5 July 2023)
The insurer submits that there was no evidence of psychological symptoms until
16 February 2023, when the claimant saw his GP Dr Osman, some seven months after the motor accident.
The insurer further says that Category A for post-traumatic stress disorder in the DSM-5 criteria includes severe motor vehicle accidents. The insurer notes that the ambulance recorded a low speed motor vehicle accident with minimal damage.
The insurer argues that the claimant does not meet the DSM-5 criteria for a diagnosis of post-traumatic stress disorder and therefore his psychiatric injury is a threshold injury.
Insurer’s review reply submissions (22 November 2023)
The insurer submits that Medical Assessor Chew provided a path of reasoning under the DSM-5 for the diagnoses considered. The insurer refers to passages in the Certificate reasons and says it is evident in the Medical Assessor’s history taking, clinical examination and the reported symptoms that the claimant does not meet the diagnostic criteria for major depressive disorder.
It is further submitted that the Medical Assessor has correctly considered the claimant’s history, the medical records, his examination and provided sufficient reasons for a diagnosis of adjustment disorder.
REVIEW OF THE EVIDENCE
General observations
On 24 September 2024, the Panel issued a direction noting that the original application and reply contained indexed and paginated bundles with documents A1-A18 and R1-R3 respectively. In the event that the file was incomplete, the Panel requested the parties provide all documents they relied upon in the review. The claimant provided further documents A1-A2. The insurer did not seek to rely on any further documents.
The Panel has read the documentation however will only refer specifically to the material that are relevant to the matters to be determined in the threshold injury dispute.
Claim form and early documentation
The claimant was born in 1993 and was 29 years of age at the time of the accident.
The ambulance report provided a description of the motor accident. Low speed + minimal damage with claimant seated in driver seat appearing well-perfused, alert, oriented, calm, upright without assistance + reporting lower middle back pain and accident exacerbated injury. The claimant self-extricated and was ambulant without assistance.
The Application for Personal Injury Benefits form noted the claimant had an accident and had two passengers in the car. There were three vehicles involved in the accident with front and rear collision. He worked as a cabinet maker. General practitioner letter to solicitor 25 March 2023, noted the subject accident caused post-traumatic stress disorder and referred to psychologist.
Certificate of capacity by Dr Osman noted the claimant’s physical injuries from poly trauma, referred to psychologist but no psychological symptoms were recorded, certified as having work capacity eight hours, four days per week, including March 2023.
GP letter to psychologist 16/2/23 noted post-traumatic stress disorder, and anxiety symptoms.
General Practitioner – Dr Khaled Osman
Various Certificates of Capacity dated from 30 July 2022 referred to low back pain, left elbow pain with likely exacerbation of old injury and lumbar spine disc bulging at multiple levels from CT scan report. There was no mention of psychological symptoms.
Referral document dated 16 February 2023 – Referral to psychologist Ms Sarah Hamidi for counselling due to the claimant’s anxiety symptoms with a question mark about post-traumatic stress disorder.
Report of Dr Khaled Osman dated 25 March 2023 was provided in response to questions asked by the claimant’s representatives. Dr Osman states that the claimant developed anxiety symptoms in keeping with post-traumatic stress disorder and as a result, was referred to psychologist Mrs Sarah Hamidi for counselling.
Treating Psychologist – Ms Sarah Hamidi
Medical report dated 14 April 2023 – Ms Hamidi stated that the claimant’s reported psychiatric symptoms are consistent with major depressive disorder and generalised anxiety disorder, and post-traumatic stress disorder. This was based on a number of tests administered including:
· Structured Clinical Interview for DSM-5.
· The Depression Anxiety Stress Scales (DASS-21) with the claimant’s responses revealing “extremely severe” range of “depression and stress” and for “anxiety”.
· The Kessler-10 (K10) test was also administered with the claimant scoring 36 which indicates that “he is likely to have a severe disorder”.
· The Trauma Symptom Checklist - 40 (TSC-40) with the claimant yielding an overall score of 71 and rating very high in three of the six subscales, notably Anxiety (18), Depression (19), and Sleep Disturbance.
· The Trauma Symptom Inventory (TSI) with the claimant’s results assessed as valid and confirmed a high “D” score which reflected his depressed mood and depressed cognitions.
Ms Hamidi further stated that “the claimant’s Depression/Anxiety, PTSD and Chronic Pain are evidence of a non-minor injury as defined by s 1.6 of the motor Accident Injuries Act 2017 and Part 5 of the Motor Accident Guidelines. The psychological conditions of Depression and PTSD have been confirmed by GP Dr K Osman (16/02/2023).”
Ms Hamidi reproduced the DSM-5 criteria for major depressive disorder.
Ms Hamidi also stated that the claimant’s symptoms (including re-experiencing the trauma, avoiding reminders of the event, negative changes in thoughts and mood after the trauma, feeling ‘on edge’ and overly aroused) are consistent with that of a post-traumatic stress disorder with the criteria in DSM-5 reproduced by Ms Hamidi.
In addition, Ms Hamidi found that the claimant’s responses in the DASS-21 are consistent with a generalized anxiety disorder.
Panel comment: The Panel noted Ms Hamidi’s comments in relation to DSM-5-TR diagnostic criteria for post-traumatic stress disorder, generalized anxiety disorder and major depressive disorder. The Panel agrees DSM-5-TR diagnostic criteria was met for the claimant’s psychological injury caused by the first accident, but not by the second accident, specifically, the DSM-5-TR post-traumatic stress disorder criterion A event description was fulfilled by the nature of the first accident, but not by the second accident. The Panel noted that Ms Hamidi had seen the claimant after the first accident, and had further sessions after the second accident, but she did not differentiate the psychological effects of the two accidents. During the assessment, the Panel took care to delineate the psychological impact of the two accidents on the claimant.
Clinical notes of Dr Khaled Osman
Certificates of capacity noted the claimant’s physical injuries but there was no mention of his psychological symptoms.
Clinical notes of Sarah Hamidi
Entry 27 February 2023 – initial consultation, initial MVA 15 June 2020 – “was in coma for 2 days, and second MVA 23 July 2022 – was driving – back injury – someone hit him from the back, went to hospital straight.”
Entry dated 3 April 2023 – June 2020, she wrote: “better after 6 months and back to electrical; back to driving and all normal working at the current company May 2022 – was working for over 40 hours – duties Kitchen joinery 23/07/2023 accident for few days then back to work 20 hours then after 2 months 30 hours and still 30 hours Pain comes and goes – if work more then pain. No driving – okay as a passenger – feels okay. Feels anxious when driving himself especially at night. During day feels anxious but continues to drive only locally – at night cannot drive – became confuse (sic) then ceased.”
Panel Comment: The Panel noted Ms Hamadi does not differentiate the psychological effects of the two accidents. The claimant also provided a somewhat different psychological history to the Panel, in relation to his psychological symptoms and functioning after the second accident. Therefore, the Panel concluded the claimant does not have post-traumatic stress disorder from the second accident, as it is overall a minor accident and does not fulfil DSM-5-TR post-traumatic stress disorder Criterion A event description, and there is no evidence of an aggravation as a result of the second accident of his pre-existing post-traumatic stress disorder or driving phobia, as he functioned better after the second accident.
He does not have generalised anxiety disorder, as his anxieties are never generalised and only related to driving and pain, which is consistent with an adjustment disorder. As DSM-5-TR Criterion A for generalised anxiety disorder was not fulfilled, generalised anxiety disorder cannot be diagnosed.
He does not have major depressive disorder, as his depressive symptoms were never pervasive, and he does not endorse neuro-vegetative symptoms of depression. DSM-5-TR Criterion A for major depressive disorder was not fulfilled, as his depressive symptoms were never present most of the day and nearly every day, and did not cause a significant loss of interest.
RE-EXAMINATION FINDINGS
The Panel determined that the claimant be re-examined by both Medical Assessors Baker and Hong on 21 February 2025. The re-examination report is below:
Who attended the assessment
Video assessment.
Drs Baker and Hong were in their offices.
Mr Sabbagh was in his work van and parked in a secure area. He was working on the day of the assessment.
History
1. Psychosocial history and pre-accident history
Mr Sabbagh was born in Syria and came to Australia when he was 24 years old, in 2016. All his family of origin are in Australia now. He grew up with his parents and was the third of five siblings, with 1 brother.
In terms of general medical history, he does not have cardiac, thyroid or liver disease.
He does not have drug or alcohol problems.
He is not aware of a family history of mental illness.
He does not have a forensic history.
Past psychiatric history:
Mr Sabbagh reported the first car accident was on 15 May 2020, when he was driving home and he took a Horsley drive after finishing work at night. He has a patchy memory of that accident and was admitted to Liverpool Hospital for 28 days, including intensive care unit. He suffered fractures to his ankle, and pelvis, and had a collapsed lung. Mr Sabbagh needed two surgeries, one on his left elbow and another for his lung. He said that after that accident, he developed a psychological condition and started seeing Dr Sarah Hamadi, psychologist and had three sessions. He did not take any psychiatric medication. He recalled having nightmares and sleep problems.
Mr Sabbagh was doing electrical work, but after the first accident, he said it became too much and he could not do it, due to a combination of physical impairment, as he could not pull the big tables, and psychologically, he could not handle it, which is likely due to the ongoing effect of high anxiety and trauma-related cognitive impairment. Mr Sabbagh had returned to work, and eventually worked full-time for Denplex Joinery, which is a business with his brother-in-law, and in essence, he was working as a trade assistant. He described handing his brother-in-law some tools, which did not involve heavy lifting.
After the first accident, he could not drive and recalled that he had to be picked up. The same phobic anxiety persisted for more than a year, and he recalled he was too scared to drive and could not drive at night time at all. Gradually, his anxiety symptoms improved and he started driving again. However, it was only a few months after he started driving again when he had a second accident (the subject accident).
2. History of the motor accident
On 23 July 2022, Mr Sabbagh recalled he was driving with two passengers in Ryde. He stopped at a traffic light, and a couple of seconds later, he was rear-ended by a 4WD and pushed forward. He then collided with the car in front. The side airbags in his car deployed on impact, and he waited in the car until the ambulance arrived. There was no loss of consciousness.
Mr Sabbagh attended Ryde Hospital and had investigations. He was told he had a back disc problem. He started having distressing thoughts about both car accidents.
He had one surgery since the second accident, in September 2024 to his left elbow, but developed an infection.
3. History of symptoms and treatment following the motor accident
Mr Sabbagh said that after the second accident, he did not drive for three weeks. He needed someone to pick him up. He had severe back pain initially and driving was difficult. He started driving again. Now, he can drive on highways, but only for one hour at most per day due to back pain. He can drive at night now, but for 10 minutes. His driving capacity has improved after the second accident.
After the second accident, Mr Sabbagh said he took about two months off work and then returned to working. Between the two accidents, he was working about 20 to 25 hours a week.
4. Details of any relevant injuries or conditions sustained since the motor accident
Mr Sabbagh has not had further car accidents or sustained other psychological injuries.
5. Current symptoms
Mr Sabbagh lost 10–12 kg after the first accident. His weight has not changed after the second accident. He eats two meals a day, which he considers “normal.”
He has more anxiety and more back pain after the second accident.
Mr Sabbagh's anxiety symptoms are triggered by driving and pain, and he identified no other triggers.
He reported chronically disrupted sleep and overthinking. He has bad dreams one to two times per week.
Mr Sabbagh does not feel sad and has not experienced pervasive depression since the second accident.
He reported having anger problems. He said he made his wife cry because he gets angry, though he does not act out physically. He has had irritability problems before the second accident.
Mr Sabbagh said his focus is worse than before but thinks it could be age-related. He said sometimes it is a problem. He can read rebuild plans, but reading is not as easy as before.
He does not have suicidal ideation.
6. Current and proposed treatment
Mr Sabbagh consulted Sarah Hamadi, psychologist again after the second accident and had 5 sessions, and treatment approval was discontinued. He has not had other treatment. He has never taken psychotropic medications and does not take any medication for any condition now.
Clinical Examination
7. Mental State examination
Mr Sabbagh was in his work uniform and was neatly attired, and had a light beard. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity. He spoke spontaneously and readily. He was not thought disordered and the provided history was easy to follow. He did not have any delusional ideas or psychotic symptoms. He did not report any suicidal thought or plans. He was insightful into his condition. His judgement was normal.
8. Current functioning
Mr Sabbagh is 31 years old and living with his wife, who works for the education department. They have no dependents.
Mr Sabbagh said he has been married since 2022 and described his marital relationship as good.
He does not recall having any routine recreational activities and said he did not belong to any club, and did not have any hobbies before the first accident and this has not changed over time.
Mr Sabbagh's wife commented to him, he has no friends, and he explained that he has no money to go out and socialize. He has work acquaintances but does not socialize with them outside of work. He said he had many friends in Syria, but they are overseas. In Australia, he had two to three friends when he first arrived, but he has not had contact with them for a long time.
Mr Sabbagh said he visits his mother and siblings, and his relationship with them is good. He sees his extended family two times per week.
Mr Sabbagh helps at home, goes shopping on weekends, and does not cook but cleans up at home. He lives in a townhouse.
Mr Sabbagh has been supervising at work for the past two weeks as a subcontractor. He has performed similar work for a while and has been managing. He is self-employed as a subcontractor.
9. Employment history:
Mr Sabbagh reportedly grew up in Syria, and because of the compulsory national service, he ran away to Lebanon before entering military service. He lived there for two years before coming to Australia. In Syria, he went to university to study, so he could work as an electrician, and he also studied accounting to help him in his small business. After settling in Australia, he studied English.
In 2022, Mr Sabbagh went to college to study electrical technology certificate 3. After the second accident, he continued with his study of electrical technology and then completed his studies in the same year.
After the second accident, Mr Sabbagh went back to work with his brother-in-law doing the trade assistant work for a while, and then in the last 12 months, at the time of the re-examination he had been doing supervisor subcontractor work for different companies. He said at most he has probably done 25 to 30 hours per week after the second accident, which was a little more than before the second accident. Between the two accidents, he was working about 20 to 25 hours a week.
In the last two weeks, Mr Sabbagh started a new job as a subcontractor for Oyza One Electrical and said that he worked three days a week, more than 20 hours a week. He had worked for the same company between 2016 and 2021. He does not work on the tools, but he supervises other workers doing electrical work.
DETERMINATIONS
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.[5]
[5] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[6]
[6] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessors Baker and Hong and adopts the findings in their entirety.
The Panel reconvened on 14 March 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis, causation and reasons
What was the psychological diagnosis following the first accident on 15 May 2020?
The claimant had no psychiatric problems before the first accident. After the first accident, which was a major accident, he required prolonged admission, ICU care, and two surgeries, he developed post-traumatic stress disorder and driving phobia. He improved, although his psychological injury did not completely remit.
The Panel noted Ms Hamidi’s comments in relation to DSM-5-TR diagnostic criteria for post-traumatic stress disorder. The Panel agrees DSM-5-TR diagnostic criteria was met for the claimant’s psychological injury caused by the first accident, specifically, the DSM
post-traumatic stress disorder criterion A event description was fulfilled by the nature of the first accident.
The claimant’s psychological symptoms from the first accident fulfills all of the DSM-5-TR diagnostic criteria for post-traumatic stress disorder. The first incident is consistent with a criterion A stressor, as it was an objectively major traumatic event with ICU admission. He has developed flashbacks and nightmares, persistent avoidance of situations and anxiety when exposed to reminders of the accident, and avoided driving initially. He has persistent negative cognitions, low moods and fear. He has physiological hyper-arousal with disturbed sleep, concentration, general over-reactiveness with driving. His symptoms have persisted longer than four weeks and are associated with functional impairment. Finally, there were no medical or psychiatric conditions that better explains his trauma symptoms.
Was the post-traumatic stress disorder aggravated by the second “subject” accident on 23 July 2022?
The claimant only returned to driving a few months when he had the second accident. The second accident was relatively minor event, but he suffered more physical problems, especially back pain. He also became more anxious, because he had two accidents within a couple of years.
The claimant did not return to driving for about three weeks after the second accident, and this is related to physical injury. He was not avoidant of driving at the re-examination. Now, he can drive an hour a day before his back pain becomes severe. He can drive on the highway, and he can now tolerate driving at night time for ten minutes, which is better than before the second accident.
As mentioned, the Panel’s history found that following the subject motor accident, the claimant became more anxious however his functioning has been better since, with the claimant’s general functioning in work, home life and relationships, and the completion of his Electrical Technology Certificate 3 in 2022, the year of the subject motor accident.
The Panel was of the view that increased symptoms of anxiety or pain did not cause an aggravation or exacerbation of the pre-existing post-traumatic stress disorder.
The Panel did not find any evidence of deteriorated psychological functioning at any time after the second accident and, as noted previously, AMA 4 refers to functional deterioration as a requirement in determining an aggravation or worsening. Hence, the Panel was not satisfied that there was evidence of an aggravation of pre-existing post-traumatic stress disorder or driving phobia at any time after the second accident, because his psychological ability to function was better since his second accident.
What was the psychiatric injury caused by the subject motor accident?
The claimant provided a somewhat different and more detailed psychological history to the Panel than that in Ms Hamidi’s file, in relation to his psychological symptoms and functioning after the second accident. The Panel concluded the claimant does not have post-traumatic stress disorder from the second accident, as it is overall a minor accident, does not fulfil DSM-5-TR PTSD criterion A event description. As found above, the claimant did not develop a worsening or aggravation of his pre-existing post-traumatic stress disorder from the first accident, as the claimant in fact, has functioned better after the second accident.
The claimant’s mood and anxiety symptoms after the second subject motor accident is best conceptualised as an adjustment disorder.
As mentioned above, the claimant had pre-existing psychological conditions which were not aggravated by the subject accident. He developed anxiety and depressive symptoms, and memories related to both car accidents. Since the second accident he had no additional psychological symptoms and his symptoms are consistent with an adjustment disorder caused by the subject accident. This is a threshold injury as defined by the Act.
In reference to the DSM-5-TR diagnostic criteria for an adjustment disorder:
Criterion A: The claimant developed emotional and behavioural symptoms in response to identifiable stressors, occurring within three months of the onset of the stressor, being the second accident.
Criterion B: His psychological symptoms are clinically significant, as evidenced by marked distress that is out of proportion to the severity or intensity of the stressor. He had increased anxieties and sought helps from a psychologist. The Panel has considered the external context and the cultural factors that might influence his symptom severity and presentation.
Criterion C: This is not merely an exacerbation of an underlying condition and does not meet criterion for another disorder, for the reason also expressed in this statement, that is, there is no aggravation of a previous psychiatric diagnosis.
Criterion D: His symptoms do not represent normal bereavement reaction
Criterion E: Once the stressor (the subject accident and its consequence) is terminated, the Panel would expect his symptoms to resolve within six months, however, his psychological symptoms have not resolved after six months, as the physical injuries and chronic pain arising from the subject accident perpetuated his psychological distress.
The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the MAI Act and the Regulation.
Did the claimant suffer from any other psychiatric diagnoses related to the subject motor accident?
The Panel noted Ms Hamidi’s comments in relation to DSM-5-TR diagnostic criteria for generalized anxiety disorder and major depressive disorder.
Whilst the Panel confirmed the claimant had developed post-traumatic stress disorder from the first accident, there was never evidence to support a diagnosis of major depressive disorder or generalized anxiety disorder, and it follows, there is no aggravation of major depressive disorder or generalised anxiety disorder, since those diagnoses did not ever satisfy the DSM-5-TR criteria.
He does not have a generalised anxiety disorder, as his anxieties are never generalised and only related to driving and pain, which is consistent with an adjustment disorder. As DSM-5 TR Criterion A for generalised anxiety disorder was not fulfilled, generalised anxiety disorder cannot be diagnosed.
He does not have major depressive disorder, as his depressive symptoms were never pervasive, and he does not endorse neuro-vegetative symptoms of depression. DSM-5-TR Criterion A for major depressive disorder was not fulfilled, as his depressive symptoms were never present most of the day and nearly every day, and did not cause a significant loss of interest.
Lynch consideration
The Panel notes the claimant’s submission regarding the application of the principle in Lynch to the circumstances of the present case.
In Lynch, the Panel adopted the reasoning in David which looked at the timing of when radiculopathy can occur in the context of a non-minor injury. The Panel in David concluded that radiculopathy was satisfied if it was present at any time.
Lynch differed from David as it involved a medical dispute about whether a psychiatric injury was a minor injury. However, as will be illustrated below, the application of the principle results in the same outcome.
In Lynch, the motor accident occurred in June 2019 and the Review Panel found that the claimant’s depressive symptoms in the second half of 2019 satisfied the DSM-5-TR criteria for major depressive disorder. However, at the time of the Panel’s re-examination, this condition was found to be in remission.
At paragraphs 72 and 73 of Lynch, the Panel stated:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been a change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.
This interpretation is otherwise consistent with the past tense used in sections 3.11, 3.28 and 4.4 which refer to the only injuries resulting from the motor accident ‘were’ minor injuries.”
While a Review Panel’s decision is not binding on other Review Panels, the Panel cannot see any reason to depart from the reasoning in Lynch.
The Panel carefully considered the clinical notes of the claimant’s GP Dr Osman, the clinical notes of treating psychologist Ms Hamidi, and particularly the report of Ms Hamidi dated
14 April 2023. The clinical notes of Dr Osman indicate that the claimant reported anxiety symptoms following the subject motor accident with Dr Osman querying the diagnosis of post-traumatic stress disorder in his letter to psychologist Ms Hamidi.
Ms Hamidi, on examination, diagnosed the claimant as suffering from major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder. The Panel, however, noted that Ms Hamadi’s diagnostic criteria involved various self-reporting tools and scales that are not consistent with the assessment methodology prescribed by the Guidelines. The Guidelines require the assessment of whether a psychiatric illness is present “must be made using the DSM-5”.[7] While Ms Hamadi refers to the DSM-5 at the end of her report, this appears to be in response to questions raised by the claimant’s solicitor and does not address the full criteria when diagnosing the three psychiatric disorders she considered to be related to the subject motor accident.
[7] Cl 5.11 of the Guidelines.
An example of this is shown on page 7 of her report dated 14 April 2023 where Ms Hamadi reproduces the DSM-5 criteria for major depressive disorder but does not apply the criteria to her clinical findings with respect to the claimant’s reported psychiatric symptoms. Another example is with respect to post-traumatic stress disorder, with Ms Hamadi referring only to select criteria without any analysis of, or correlation with, the claimant’s reported symptoms.
The Panel also noted that Ms Hamidi had seen the claimant after the first accident, with further sessions after the second accident, but she did not differentiate between the psychological effects of the two accidents when making her diagnoses. During the assessment, the Panel took care to delineate the psychological impact of the two accidents on the claimant.
Hence, the Panel cannot accept that the claimant suffered from the psychiatric diagnoses found by Ms Hamidi at the time of her assessment.
CONCLUSION
The Panel did not find any material contribution from the subject motor accident to an aggravation of the claimant’s pre-accident post-traumatic stress disorder, which was noted to be improving, or the development of a psychiatric condition other than an adjustment disorder, as found above and described in the Panel re-examination report.
The Panel concludes that the claimant’s injury caused by the motor accident is an adjustment disorder, which is a threshold injury. The certificate issued by Medical Assessor Gerald Chew dated 5 October 2023 is therefore confirmed.
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