Saleh v Allianz Australia Insurance Limited
[2023] NSWPICMP 342
•20 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Saleh v Allianz Australia Insurance Limited [2023] NSWPICMP 342 |
| CLAIMANT: | Soha Saleh |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Paul Friend |
MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 20 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; Review of medical assessment of whole person impairment (WPI); psychological injury; review of certificate of Medical Assessor (MA) Roberts dated 3 December 2021; MA found 8% WPI; evidence of prior psychological issues; contention as to the level of pre-accident functioning as compared to post-accident functioning; lack of evidence to substantiate any significant lack of functioning prior to accident, apart from employment capacity; Held – 17% WPI in respect of injuries caused by the motor accident (19% current WPI, less 2% pre-existing WPI); certificate of MA Roberts revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Roberts dated 3 December 2021 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a whole person impairment which IS GREATER THAN 10%: exacerbation of pre-existing persistent depressive disorder – 17% WPI. |
REASONS
BACKGROUND
Soha Saleh (the claimant) is a 39-year-old female who alleges injury as a result of a motor vehicle accident which occurred on 15 March 2016.
Ms Saleh was the driver of a motor vehicle in Guildford NSW, with her husband as a passenger, when another motor vehicle failed to give way when exiting a driveway and collided with the front left side of Ms Saleh’s vehicle.
A Personal Injury Claim Form (the claim) was subsequently lodged on Allianz Australia Insurance Limited (the insurer), the insurer of the other vehicle. Liability was admitted and accordingly the insurer has a liability to pay Ms Saleh damages under the Motor Accident Compensation Act 1999 (MAC Act).
The subject dispute between the parties is whether Ms Saleh’s whole person impairment arising from the psychological injury caused as a result of the motor accident is above the 10% threshold. If the impairment is above 10% Ms Saleh is entitled to damages for non-economic loss. This constitutes a medical dispute for the purposes of the MAC Act.[1]
[1] See s 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment dated 3 December 2021 was conducted by Medical Assessor Roberts (the medical assessment). Medical Assessor Roberts assessed the permanent impairment for the psychological injury at 8%.
An application for referral of a medical assessment to a Review Panel (the Panel) was made by Ms Saleh. The delegate of the President referred the medical assessment to the Panel as they were 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.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).[3]
[3] Section 63(2B) of the MAC Act.
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
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.[5]
[5] Rule 128 of the PIC Rules.
All members of the Panel had no previous involvement with Ms Saleh or with this matter.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 63(3) of the MAC Act
On 28 February 2023 the Panel issued Directions to the parties to provide complete bundles of documents relied. Both Ms Saleh and the insurer have provided a bundle of all documents relied upon.
The Panel held a videoconference on 3 May 2023 and it was determined that a re-examination of Ms Saleh was required. Medical Assessor Friend and Medical Assessor Mason examined Ms Saleh via Microsoft Teams on 14 June 2023.
MEDICAL ASSESSMENT UNDER REVIEW
This review is from the assessment of Medical Assessor Roberts dated 3 December 2021. Medical Assessor Roberts determined that Ms Saleh suffered an 8% permanent impairment in respect of her psychological condition caused by the accident. Medical Assessor Roberts stated:
“There is insufficient information upon which to make a diagnosis of Posttraumatic Stress Disorder but there is a prominent history of depressive symptomatology and reference to anxiety. It is appropriate to conclude that Ms Saleh’s account of deterioration reflects an exacerbation of a pre-existent Persistent Depressive Disorder as an effect of the motor accident.
Ms Saleh has been in receipt of treatment both before and after the motor accident. Despite the treatment provided to her it is apparent that she has not experienced an appreciative improvement in her symptoms.”
The Medical Assessor took a detailed history from Ms Saleh. He noted that the history included inconsistencies, which he documented within his reasons. He also described
Ms Saleh as vague and that efforts to clarify the vagaries of her history proved unsuccessful.On account of the observed inconsistencies between the history and the clinical documentation, Medical Assessor Roberts stated that it was “…necessary to prefer the information contained within the contemporaneous clinical documents”.
He noted a prolonged psychiatric history, likely influenced by adverse experiences in childhood. The Medical Assessor went on to state:
“…It is evidence that until three weeks prior to the subject motor accident, Ms Saleh was describing psychiatric symptoms to her general practitioner and was considered sufficiently compromised from a psychiatric perspective as to warrant the writing of a Centrelink medical certificate. Diagnostically, the presence of chronic depressive symptoms supports a diagnosis of Persistent Depressive Disorder predating the subject motor accident and exacerbated by the accident.”
Medical Assessor Roberts assigned a current whole person impairment of 13%, assigning class 1 to Travel, class 2 to Self Care and Personal Hygiene; Social and Recreational Activities and class 3 to Social Functioning; Concentration, Persistence and Pace; and Adaptation.
Medical Assessor Roberts determined there was a 5% pre-existing whole person impairment. He assigned class 1 to travel and Social Functioning and class 2 to the remaining classes except Adaptation which was a class 3.
The whole person impairment of Ms Saleh as a result of the injury caused by the motor accident was assessed 13 – 5 = 8%.
SUBMISSIONS
The dispute as to the level of whole person impairment has a long history. For ease of reference, the various sets of submissions are referred to below in chronological order.
Insurer’s submissions undated
The insurer’s submissions lodged with the original reply to Ms Saleh’s application for assessment of whole person impairment address both psychological and physical injuries.
In respect of the relevant psychiatric injury, the insurer noted Ms Saleh’s past traumatic events and psychological symptomatology. The insurer relied upon the reports of
Dr Virgona in submitting that Ms Saleh may have suffered a possible aggravation of pre-existing persistent depressive disorder, with the only obvious accident related symptoms being a mild anxiety related to car travel.
Insurer’s submissions dated 17 October 2018
These submissions sought a review of the Certificate and Reasons of Medical Assessor Morris dated 22 February 2018.
The insurer submitted that the Medical Assessor had not received a complete copy of the Insurer’s Reply and in particular was not provided with the clinical notes of Guildford Road Medical Centre. It is submitted that Medical Assessor Morris’ reference to
Dr Bishay’s clinical notes not providing information as to Ms Saleh’s level of functioning, suggest he did not have the documents prepared by Dr Hanna from Guildford Road Medical Centre.
Claimant’s submissions dated 26 October 2018
Ms Saleh’s representatives note that an application for review must be lodged within
30 days after the determination was sent to the parties (clause 16.3.2 of the MAS Assessment Guidelines).
Claimant’s submissions undated
There are submissions as to the extension of time to review the decision of Medical Assessor Morris.
Ms Saleh refutes the insurer’s suggestion that the Medical Assessor was not provided with all the material.
Claimant’s submissions undated
These submissions were lodged seeking a review of the Medical Certificate.
The submissions assert that Medical Assessor Roberts erred in relation to the treatment of the past psychiatric history and the resulting impairment attributed.
It is submitted that in relation to the assessment of adaptation, Medical Assessor Roberts’ reasons are inconsistent with the ultimate determination of a class 3 impairment. It is noted that the Medical Assessor found a severe impairment overall, yet then concluded that there was only a moderate impairment for adaptation. He states she is severely impaired overall but has a moderate impairment regarding adaptation.
It is submitted that Medical Assessor Roberts’ impairment table for pre-existing impairment is internally inconsistent. It is asserted that in some areas, Medical Assessor Roberts has made assumptions to fill in gaps in the documentation available in respect of impairment, and yet in other areas, he has acknowledged that there is nothing in the documentation to support a conclusion of impairment.
Ms Saleh submits that there is nothing in the documentation to support the conclusion that Ms Saleh was impaired as a result of the pre-existing persistent depressive disorder. In addition, the Medical Assessor has taken the clinical entry of 23 February 2016 out of context.
Insurer’s submissions dated 14 February 2019
These submissions deal with the extension of time to apply for a review of the decision of Medical Assessor Morris.
The insurer submits the decision contained a material error as the Medical Assessor did not refer to the records of Guildford Road Medical Centre, and therefore failed to properly explain the reasoning process and failed to properly consider all material before him.
The insurer sets out a list of the various consultations with such medical practice which document ongoing psychological issues in the years before the motor accident.
Claimant’s submissions undated
Ms Saleh confirmed the submission that there are not “exceptional circumstances” such as to allow the insurer’s late application.
Ms Saleh submitted that the Medical Assessor was not in error, as he had the clinical notes before him and properly considered the evidence and used his clinical judgment in reaching the conclusions reached.
Insurer’s submissions dated 19 March 2019
The insurer submitted that Medical Assessor Morris failed to take into account the records of Guildford Road Medical Centre which provided information as to Ms Saleh’s level of functioning prior to the motor accident.
It is submitted that Medical Assessor Morris made no mention of the clinical notes specifically the “Outcome Took K10 results” which showed a score of 40 on 31 March 2015 and 41 on 22 December 2016. In the insurer’s submission this provides clear evidence of Ms Saleh’s level of functioning prior to the accident.
The insurer submitted that Medical Assessor Morris failed to provide proper reasons and failed to provide adequate or proper analysis of the issues and matters that would resolve the central issue between the parties. The insurer relied upon the judgement of Hall J in Allianz Australia Insurance Limited v Fancica [2012] NSWSC 1577.
Insurer’s submissions dated 18 April 2019
Following the initial Certificate and Reasons of Medical Assessor Morris, the insurer lodged an application for further assessment of whole person impairment.
In support of such application, the insurer relied upon additional relevant information including, clinical notes of Cumberland Hospital and clinical records of St John of God Burwood Hospital.
The insurer submitted that the material, in addition to the records of Ms Saleh’s general practitioners (GP) provide clear information as to Ms Saleh’s level of functioning prior to the motor accident. It was submitted that the material demonstrated that the level of functioning of
Ms Saleh prior to the accident was the same as her level of functioning after the accident. As such, the material was capable of having a material effect on the outcome of Medical Assessor Morris’ assessment.The insurer listed the various entries of the clinical files of St John of God Burwood Hospital that demonstrate a long list of psychiatric symptoms arising from various traumatic events. The notes demonstrate an admission to Cumberland Hospital between 11 July 2013 and
18 July 2013.The insurer highlighted the notes of St John of God Burwood Hospital document an admission in July 2014, and notes Ms Saleh providing a history of drug use.
The insurer also highlighted Ms Saleh attending upon a GP, Dr Bishay, between 2015 and 2016 who treated her for psychiatric symptoms.
It was submitted by the insurer that the clinical files provide “…clear evidence of the nature of Ms Saleh’s psychological problems, which are deep and longstanding…”
Referencing the additional material, the insurer submitted that an assessment of whole person impairment would amount to 0% as a result of the injury caused by the motor accident.
Insurer’s submissions dated 23 September 2019
Following the issuance of the Certificate and Reasons of Medical Assessor Prior, the insurer lodged an application for review pursuant to s 63(2) of the MAC Act.
It was submitted by the insurer that Medical Assessor Prior had made errors in respect of causation, and by “…limiting the basis for his ultimate findings to reliance only on Ms Saleh’s own uncorroborated and unsupported statements which in the insurer’s submission were contrary to the available evidence”.
The insurer asserted that Medical Assessor Prior had based the assessment solely on the basis of Ms Saleh’s own statements for which there was an absence of corroborative evidence. The insurer submitted that the Medical Assessor erred in failing to provide the reasoning process which led him to the conclusions reached. It was further submitted that proper regard was not had to the medical evidence that details Ms Saleh’s pre-existing psychiatric issues.
The insurer maintained that with analysis of the medical material, Ms Saleh’s whole person impairment ought to be assessed at 0% in respect of the injury caused by the motor accident.
Insurer’s submissions dated 18 May 2021
The insurer made further submissions in respect of its application for further assessment. The fact that further treating practitioners were identified by Ms Saleh’s representatives, and a Medicare statement had been obtained was referred to.
The insurer submitted that from the limited medical records received, it is revealed that
Ms Saleh has a long and complicated pre-accident psychiatric history. The insurer submitted that any proper consideration of causation could not be undertaken until a complete copy of Ms Saleh’s medicals records were received.
Claimant’s submissions undated – Application for review of determination of Medical Assessor Roberts
Ms Saleh submits that Medical Assessor Roberts erred in relation to his treatment of
Ms Saleh’s past psychiatric history and the resulting impairment.In respect of “Adaptation” Ms Saleh submits the Medical Assessor was inconsistent in his reasons. He determined Ms Saleh to be a class 3, however he found Ms Saleh to be “severely” impaired overall, yet found only a moderate impairment when it came to Adaptation.
The submissions go on to state that the Medical Assessor appears to have placed weight on the alleged inconsistencies regarding pre-accident employment. Ms Saleh submits that pre-accident employment is irrelevant to determining Ms Saleh’s current level of functioning.
It is submitted that the reasons of the Medical Assessor are internally inconsistent. It is stated:
“In some areas, Assessor Roberts has simply assumed, for example, where it is said that the ‘presence of a chronic depressive condition is inevitably expected to cause impairment in this area’ under ‘Social and Recreational Activities.’ However, in other areas, Assessor Roberts correctly notes that there was no information available to reach a conclusion as to impairment, such as in relation to Travel and Social Functioning.
Accordingly, on the one hand we have assumptions that are made in an attempt to fill gaps in the documentation available, and on the other, we have an acknowledgement that there was nothing in the documentation provided to support a conclusion of impairment.”
It is submitted that there is nothing in the documentation that supports a finding that
Ms Saleh was impaired due to her pre-existing psychiatric issues. It is also stated that the Medical Assessor took the clinical entry of 23 February 2016 out of context.The submissions suggest that the clinical entry of 23 February 2016 with Universal Health Clinic, which notes insomnia, loss of interest and demotivation is “quite clearly linked” to the death of her father who had “just died”.
Ms Saleh submits that the various other entries that go to Ms Saleh’s psychiatric state leading up to the accident do not say anything as to Ms Saleh’s level of functioning.
It is submitted that one cannot assume a past level of functioning merely based on diagnosis, and it is also not possible to draw inferences from the lack of detailed documentation immediately before the accident.
Insurer’s submissions dated 1 April 2022
In response to Ms Saleh’s application for review of the Certificate and Reasons of Medical Assessor Roberts, the insurer submits that the application failed to identify any material error.
The insurer submits that Ms Saleh’s assertion that the Medical Assessor was internally inconsistent in his findings in respect of “Adaptation”, is a misinterpretation of the findings. In this regard, the “severe impairment” found by the Medical Assessor has been taken out of context by Ms Saleh.
Referencing Medical Assessor Robert’s finding under “Adaptation” the insurer submits that the reference to severe impairment overall, was a reference to both the impacts of
Ms Saleh’s physical and psychological symptoms. As such, it is submitted there is no internal inconsistency in the Reasons of the Medical Assessor.The insurer submits that the Guidelines make it clear that Ms Saleh’s pre-accident employment is a relevant consideration when determining level of functioning. Accordingly, Ms Saleh’s submission that such issue is irrelevant is not correct.
In response to Ms Saleh’s submissions that Medical Assessor Robert’s findings are internally inconsistent (because he has assumed a level of impairment in some areas and in others have determined there was no information available), the insurer submits this amounts to a failure to have regard to the Guidelines.
The insurer refers to cl 1.217 of the Guidelines, in submitting that the Medical Assessor is to have regard to the whole of the medical and factual material “…but most importantly their own perceptions arising out of the assessment”. In this regard, the insurer notes that the relevant clause specifies that the psychiatrist’s clinical judgment is the most important tool in the application of the scale.
The insurer reiterates the submission repeatedly that the Medical Assessor’s clinical judgement and own perceptions are “key” in assessment of impairment.
The insurer sets out a number of inconsistencies in Ms Saleh’s history provided to Medical Assessor Roberts. By way of example, the insurer notes that Ms Saleh initially told the Medical Assessor that her marriage ended in 2015 but she later advised it was in 2016, after the accident. In response to questioning on that inconsistency, Ms Saleh stated that she had been suffering from memory problems.
The insurer refers to the clinical notes of Dr Bishay, GP. Entries in 2015 and 2016 leading up to the motor accident are highlighted. Those clinical entries include psychological complaints, including insomnia, loss of interest and demotivation. The prescription of Cymbalta prior to the accident is also noted.
The insurer also notes that the first entry of Dr Bishay following the accident, as Ms Saleh complains of ongoing depressive symptoms, and there is no mention of the motor accident.
The insurer refutes Ms Saleh’s assertion that the Medical Assessor made “assumptions” as to level of functioning and instead were the exercise of his clinical judgment which he was required to use under the Guidelines. The insurer states:
“The fact that Assessor Roberts found that there was insufficient information to indicate an impairment in “Travel” and “Social Functioning” but sufficient evidence of an impairment in other categories does not represent an inconsistency but instead his expert interpretation of the medical evidence before him and his clinical knowledge of the likely effects of Ms Saleh’s condition on the various aspect of her functioning…”
MATERIAL BEFORE THE REVIEW PANEL
Prior Medical Certificates and Reasons
Medical Assessor Morris, psychiatrist, dated 22 February 2018
Medical Assessor Morris diagnosed Ms Saleh with an adjustment disorder with mixed anxiety and depressed mood, and certified a whole person impairment caused by the motor accident of 10%.
A history was taken, including past psychological issues relating to family problems, and the prescription of Endep and Valium was noted.
An admission to Westmead Hospital in 2013 for uncontrolled crying was noted.
A three week admission to St John of God Burwood Hospital for ICE addiction in 2014 was recorded.
Medical Assessor Morris noted a history of violence from Ms Saleh’s father and noted that Ms Saleh received an apology from her father at the time of the St John of God Burwood Hospital admission.
It was noted by Medical Assessor Morris that Ms Saleh married, with the marriage breaking down and her moving back home in 2016.
Medical Assessor Morris took a history that Ms Saleh continued to feel anxious and had reduced motivation. Sleep had improved with medication although still disturbed. Her appetite was noted as variable. The nightmares were said to have improved, but ongoing intrusive traumatic memories of the accident remained. Ms Saleh was recorded as feeling sad, depressed and hopeless at times.
Medical Assessor Morris noted there were inconsistencies in her story, particularly the reported psychological symptoms prior to the motor accident which she tended to minimise and/or stated that she could not remember. She stated she did not take the medications that were prescribed by her GP.
She did not mention the previous problems with drug addiction and the history of depression and anxiety and the severity of the psychological problems which may have been related to her father’s physical abuse of her. She said that she did not think these were relevant.
Medical Assessor Morris made a 15% assessment of whole person impairment, assigning class 1 to Travel, class 2 to Self Care and Personal Hygiene and class 3 to the remaining four classes.
Medical Assessor Morris’ assessment of pre-existing whole person impairment was 2%. He assigned a class 1 to all classes except Adaptation to which he assigned a class 5.
Medical Assessor Morris assigned a final whole person impairment of 13 % arising from the motor accident.
Certificate and Reasons of Medical Assessor Prior, psychiatrist, dated 12 August 2019
The determination of Medical Assessor Prior resulted from an application for further assessment.
Medical Assessor Prior diagnosed an exacerbation of pre-existing persistent depressive disorder reaching the criteria for major depressive disorder and a chronic adjustment disorder with anxiety.
It states Ms Saleh had an exacerbation of pre-existing persistent depressive disorder currently reaching criteria for major depressive disorder and a chronic adjustment disorder with anxiety.
At the time Ms Saleh is noted to have recorded a significant ongoing exacerbation of the condition over the previous two months.
She was noted as not working, living alone and receiving Centrelink benefits.
Ms Saleh denied any significant pre-existing psychiatric symptomatology or receiving any forms of psychiatric, psychological or psychopharmacological treatment. Grief from her father’s death was said to have only lasted a couple of weeks.
She stated she had previously suffered from post-traumatic stress disorder, depression and anxiety but these were not present or symptomatic at the time of the motor vehicle accident.
Ms Saleh was noted to have not worked prior to the motor accident after going into drug rehabilitation for ICE, as she did not want to have the pressure of work on herself. She had not worked since 8-9 months prior to the motor vehicle accident.
Medical Assessor Prior noted that Ms Saleh’s statement she had no symptoms prior to the motor accident is not consistent with the medical documentation, particularly the medical certificates issued by Dr Bishay three weeks and five months prior to the motor vehicle accident which mention loss interest and demotivation.
Medical Assessor Prior noticed the inconsistency with Dr Bishay’s clinical notes which state three weeks prior to the motor accident she had a loss of interest and demotivation, was prescribed Cymbalta and stated that she needed to consult a psychologist. Ms Saleh maintained she was socialising, going out with her husband, attending parties and going to the gym.
The Medical Assessor took a detailed history of Ms Saleh’s reported functioning since the accident. After consideration of the history and documentation, Medical Assessor Prior found a whole person impairment of 22%, assigning class 2 to Travel; and Social Functioning and class 3 to the remaining classes except Adaptation which was a class 5. Medical Assessor Prior made a pre-existing whole person impairment of 7%, assigning class 1 to Travel; Concentration, Persistence and Pace, class 2 to Self Care and Personal Hygiene; Social and Recreational Activities; and Social Functioning and a class 5 to Adaptation.
A 15% whole person impairment was certified arising from the injuries sustained in the motor accident.
Treating medical evidence
The documentation demonstrates that Ms Saleh has a pre-accident psychiatric history.
On 11 July 2013 Ms Saleh was admitted to the Cumberland Hospital. It was recorded she had been diagnosed with depression by her GP 1½ years prior but was not on antidepressant medication. She had a history of relationship issues with her father and had a two-week history of auditory hallucinations.
On 16 June 2014 she was admitted to St John of God Burwood Hospital. The reason for admission was substance dependence. Ms Saleh was recorded as having had a history of methamphetamine addiction.
Clinical records from various medical practices document prior psychological issues.
Universal Health Clinic (Dr Bishay)
The entry dated 5 January 2013 states she felt dizzy, stressed, nervous, had panic attacks and pain in the neck but her mood was okay. She was prescribed Endep 25 mg one at night and Valium 2 mg one three times daily.
The entry dated 20 October 2015 states she felt down, had insomnia, loss of interest and demotivation for a few weeks. She was previously taking Avanza and previously saw a psychologist for counselling. She was prescribed Avanza 30 mg at night. It is noted
Ms Saleh needs to see a psychologist and she was given a Centrelink medical certificate for six weeks.The entry dated 20 November 2015 states the anxiety and depression were the same and Ms Saleh should continue Avanza 30 mg at night.
On 25 November 2015 Ms Saleh was noted to have chest pain after “wristling” (sic) with husband.
The entry dated 23 February 2016 states she still felt down, had insomnia, loss of interest and demotivation. She was previously taking Avanza which caused nausea and dizziness and stopped. She had seen a psychologist previously. She was changed to Cymbalta 30 mg and noted she needed to see a psychologist. She was given a Centrelink medical certificate for two months.
The entry dated 28 April 2016 states she still felt down, had insomnia, loss of interest and demotivation. She was upset that her father died. She was previously taking Avanza which caused nausea and dizziness and ceased it. She was prescribed Cymbalta 30 mg. She was given a Centrelink medical certificate for one month.
There is no mention of the subject motor accident, despite the statement in Dr Leonard Lee’s report dated 28 August 2017 stating that she consulted her GP two weeks after the motor accident because of ongoing pain in the left knee and back.
The entry dated 12 May 2016 states the depression was the same.
The entry dated 26 May 2016 describes her having dyspnoea and cough with a bit of wheeze. Dr Bishay also records Ms Saleh being involved in the subject accident (first mention by the GP). She was noted to have felt scared and shocked. It was noted Ms Saleh was on antidepressants.
The entry dated 21 June 2016 states Ms Saleh was experiencing nervousness after the “last” motor vehicle and was better on antidepressants.
The medical certificate by Dr Refaat Bishay dated 21 June 2016 regarding the motor accident on 15 March 2016 lists the diagnosis as exacerbation of depression.
There are no further references to the motor accident or to depression in the clinical notes.
Pitt Street Merrylands Medical and Dental Centre – 11 October 2009 to 31 May 2022
These notes make no mention of the subject motor accident or symptoms arising therefrom.
Ms Saleh was given the names of four psychiatrists on 25 April 2014.
An entry of 17 October 2014 states that Ms Saleh was pregnant and wanted to terminate.
The balance of entries are mainly centred on asthma symptoms.
Guildford Road Medical Centre
The records from the Guildford Road Medical Centre include reports, Centrelink Certificates, Mental Health Plans and clinical notes.
A referral to St John of God Burwood Hospital of Dr Hanna, GP dated 13 May 2014 is for admission for post-traumatic stress disorder and ICE addiction. The attendance on the practice on this date is the first recorded attendance.
The GP mental health treatment plan by Dr Hanna dated 10 July 2014 states the problem was drug use disorders and she was diagnosed with mental illness the previous year. It was stated that she had smoked ICE for nine years.
Issues with thinking, concentration, memory, sleep, motivation and anxiety were noted on examination.
A “K10” questionnaire completed by Dr Hanna is included which noted a result score of 34. A further questionnaire of 31 March 2015 revealed a result score of 40. A third questionnaire of 22 December 2016 had a result of 41.
A report of Dr Hanna dated 24 July 2014 states Ms Saleh was a drug addict admitted to hospital for rehabilitation on 15 June 2014 for three weeks. She was discharged on
6 July 2014 and a urine drug screen of 7 July 2014 showed no addictive drugs. She was noted to suffer from post-traumatic stress disorder and was being treated by a psychologist.A GP mental health treatment plan dated 31 March 2015 included diagnoses of drug use disorders and depression. It was noted Ms Saleh had a history of substance abuse as well as physical, sexual and mental abuse by her father. Medications were noted as Ventolin/Avanza 15mg and Duromine 40mg.
The Centrelink medical certificate by Dr Sharma dated 22 November 2016 included diagnoses of depression, anxiety, post-traumatic stress disorder and insomnia with all conditions being permanent. The symptoms are noted as commenced on 15 March 2016. She was certified as unfit to work until 22 February 2016 (presumably meaning 22 February 2017). The only listed symptoms for all conditions was “unable to concentrate”.
A referral of Dr Sharma to Dr Abu-Arab of 22 November 2016 noted Ms Saleh to have been involved in a motor accident which had aggravated her depression. It was noted Ms Saleh was not on medication, however, Lexapro had been started.
The Centrelink medical certificate of Dr Hanna dated 22 December 2016 includes diagnoses of depression and anxiety, post-traumatic stress disorder and insomnia which were all permanent and commenced on 15 March 2016. The only listed symptoms for all conditions is “unable to concentrate”.
The Centrelink medical certificate of Dr Hanna dated 22 February 2017 states that Ms Saleh continued to have depression and anxiety, post-traumatic stress disorder and insomnia which commenced on 15 March 2016. She was unable to concentrate and was unfit to work. Noted Ms Saleh was studying until 22 May 2017.
A referral to Dr Younan dated 22 February 2017 noted major depression and anxiety following the subject motor accident. It was noted that Zoloft was tried without success.
A further Centrelink medical certificate which is undated, states Ms Saleh was unable to work or study until 26 July 2017.
Subsequent Centrelink medical certificates, undated, certify Ms Saleh as unfit to work up to and including 21 February 2018 because of depression, anxiety and left knee and back injuries which are permanent, and commencing on 15 March 2016. It was noted that
Ms Saleh was unable to concentrate.The first clinical note of the practice according to the file is 13 May 2014. The attendance was for a smoking assessment. Ms Saleh is noted to smoke 15 cigarettes a day. She was noted as a non-drinker.
Ms Saleh attended upon Dr Hanna on 27 May 2014 for “counselling”.
A number of entries are included for various ailments up until 27 September 2014 when
Ms Saleh is noted to have been taking ICE for nine years and had been off since
16 June 2014. She requested a urine test “for her mother”.After a number of unrelated attendances, Ms Saleh attended upon Dr Hanna again with her mother on 30 January 2015. Ms Saleh’s mother was concerned that Ms Saleh had relapsed and was using elicit drugs and requested a urine drug screen.
Ms Saleh continued to attend upon the practice on numerous occasions for various ailments and also regular urine drug screens.
A number of weeks prior to the subject accident, Ms Saleh attended upon Dr Hanna on
2 February 2016 with a report of chest pain. The cessation of Duromine and Naproxen is noted. Ms Saleh was prescribed Prednisone.An entry of 22 November 2016 noted Ms Saleh had been involved in a motor accident and that Ms Saleh “feels that she will die”. She was noted to not be able to sleep. It was stated that she was “getting separated” from her husband with them fighting. She was described as always emotional. Dr Hanna noted Ms Saleh as not suicidal, and she needed to see a psychologist. She was prescribed Lexapro 10mg daily.
Ms Saleh received a further prescription for Lexapro on 9 December 2016. On 22 December 2016 Dr Hanna prepared a Mental Health Care Plan.
A number of attendances are noted in January 2017 and February 2017 for unrelated issues.
A clinical entry of 22 February 2017 notes the occurrence of the subject motor accident, with a description of a vehicle coming out of a driveway hitting her vehicle, causing depression. She was prescribed Zoloft 50 mg daily.
The entry dated 26 April 2017 states Ms Saleh remained depressed and had pain in the left knee and is prescribed Zoloft 50 mg daily.
The entry dated 3 July 2017 states that Zoloft 100 mg was ceased and Pristiq 50 mg daily was commenced.
The entry dated 17 July 2017 states she has joint pain in the left knee and depressed mood. She was prescribed Lexapro 20 mg one tablet daily. Lexapro was noted to have ceased on 21 July 2017.
The entry dated 14 August 2017 noted a depressed mood, with a prescription of Pristiq 50mg provided.
The entry dated 24 October 2017 states that Dr Younan telephoned. He had a fight with
Ms Saleh and she asked to have a copy of the letter which he will send to Dr Hanna. It states she was prescribed Avanza 30 mg at night and Pristiq 50 mg daily and her mood is depressed.Ms Saleh continued to take the same dose of Avanza and Pristiq for the remainder of 2017.
The entry dated 22 January 2018 states that the Avanza was increased to 45 mg daily and she continued to take Pristiq 50 mg daily. Mood was noted as depressed.
She continued to take those same doses of Avanza and Pristiq up to and including 14 June 2018 which is the last clinical entry. Her mood continued to be depressed.
Excelsior Family Medical Centre
An entry of 5 March 2018 notes Ms Saleh presenting with headache and pain behind the right ear. It was noted she was taking Avanza, Pristiq, Panadeine Forte and Naprosyn.
Ms Saleh presented on 9 July 2018 with asthma related symptoms. She also complained of muscle tension in her face and feet. She requested Valium to help her relax her muscles. She stated that Valium and Endone had helped her relax and sleep in the past. She denied any stresses in her current life.
An entry of 3 August 2018 records Ms Saleh as being homeless after being abused mentally and physically by her brother but did not want to report to the police. She was in a refuge shelter and was physically safe. She was noted to be not suicidal and being supported by women’s protection.
This clinical file makes no mention of the subject motor accident.
Clinical notes of Guildford After Hours Doctors
This file does not include any information relevant to Ms Saleh’s psychiatric complaints.
Clinical file of an unidentified practitioner
The case notes of an unidentified practitioner from 23 April 2020 to 29 April 2020 include the following entries.
An entry of 23 April 2020 states Ms Saleh suffers from post-traumatic stress disorder from childhood abuse and was prescribed antidepressant medication. The motor accident is noted to have occurred a few months after her father’s death.
It was noted that Ms Saleh’s father had been incarcerated for nine months for assaulting someone.
An entry of 6 August 2020 notes Ms Saleh as being scared crossing roads thinking that she was going to die. The previous three weeks were noted as being hard.
It was noted that a lot was happening in Ms Saleh’s life. Her father passed away three years prior and two friends and two family members had recently died. Her mother was noted to have two benign brain tumours.
Ms Saleh is recorded as being diagnosed with post-traumatic stress disorder more than 10 years ago. She was noted to have flashbacks of the accident and that she thought she was going to die in the accident.
On 13 August 2020 Ms Saleh is noted to be feeling better and trying to go for a walk. She was noted to be isolated and not close to her family.
The entry dated 15 October 2020 states Ms Saleh had not been able to leave the house for the previous few days, had reduced sleep, reduced motivation, increased apathy and lethargy. She did not know what to do with herself. She was noted as isolated and friendless and more depressed. She felt foggy, unable to focus or concentrate and was forgetful.
The entry dated 29 October 2020 states Ms Saleh was “not too bad”. She had a bad experience at Aldi. The cashier was rude. She felt intimidated. They argued over the payment. Her friend sorted out the payment.
St Marys Guildford Medical Centre
A referral report dated 11 July 2013 of Dr Moussad to Westmead Hospital, states Ms Saleh was feeling down and tired and had been hearing voices. She had thoughts of harming herself with no plans. A family history of schizophrenia was noted.
Dr Mahmoud Abu-Arab
The clinical notes from Dr Abu-Arab are from 22 February 2017 to 16 May 2017 are handwritten and difficult to decipher.
The notes do refer to the subject accident and the death of Ms Saleh’s father around that time.
The described symptoms include being fearful at night, depressed, having flashbacks which wake her up and being unable to take responsibility.
The notes mention a termination of a pregnancy and her thought she would not be able to take responsibility for a child. Ms Saleh is noted to think about death and dying.
Ms Saleh was noted to be fearful of study and looking for a job. She had poor concentration and dissociation and reduced appetite. She was noted to fear that someone will come out from underneath the bed and that someone is walking behind her.
Ms Saleh was noted to remain at home, suffering poor sleep and appeared to state she has thoughts of suicide.
There are a total of four recorded sessions. The entry on 16 May 2017 states she is severely depressed.
Westmead Hospital
Ms Saleh presented to the hospital at 1:18 am on 31 May 2022 stating that she had been assaulted at Westfields shopping centre by 6-9 people, at 8:30pm (presumably the previous evening). She sustained multiple punches to the left cheek, right upper lip and left side of head. She was kicked and punched in the lower rib and flank region. She was not knocked out.
The Glasgow Coma Scale score was recorded as 15. A number of physical injuries were noted. Investigations detected no abnormality and she was discharged later that morning.
The mental health assessment dated 11 July 2013 states she attended her GP that day seeking help because of hearing voices for the last two weeks telling her to self-harm and to cut her wrist. She lived alone and was not coping. She moved out of home the previous year. She was diagnosed by her GP with depression.
She was told by her GP to consult a psychiatrist but has not seen one since she has been diagnosed. She was not prescribed any antidepressant medication. She was prescribed Valium a year prior which she took when needed. She was taking sleeping tablets, Temazepam.
She had difficulty sleeping in the previous two to four weeks due to hearing voices and averaged three to four hours of sleep a night. She had a poor appetite and has lost 5 kg in the last two weeks. She was fasting for Ramadan for a month beginning the day prior.
It was noted that Ms Saleh’s mother was diagnosed with schizophrenia five years ago and is currently on medication. It was noted that she had worked as a dental assistant for the last six years.
The mental health review, presumably the admission notes, dated 12 July 2013 states
Ms Saleh had a two-week history of command auditory hallucinations telling her to kill herself as she does not deserve to live. She was noted to have a background of depression. She was diagnosed 1½ years previously with depression but was not on antidepressant medication. It was noted Ms Saleh saw shadows at night and heard noises in the bathroom.
Cumberland Hospital
The discharge summary for the admission between 11-18 July 2013 is handwritten. It states Ms Saleh had borderline personality traits and complex trauma. She presented with depressive symptoms, low mood, reduced appetite, poor sleep, suicidal ideation in the context of multiple recent stressors.
She was prescribed Seroquel and then changed to mirtazapine. It states the diagnosis was adjustment disorder and depressive symptoms. She was commenced on treatment with dialectic behaviour therapy. The TSH was reduced but her T4 was normal. The discharge medication was mirtazapine 15 mg at night.
St John of God Burwood Hospital
The handwritten doctor’s admission notes for the admission on 16 July 2014 state that
Ms Saleh had smoked ICE for eight years with friends apparently at weekends. She denied any paranoia.Ms Saleh stated that for the previous two years she has had no fun anymore. She was depressed because of family problems. She had reduced level of energy, poor ADLs, good motivation, stating that she always wanted to do more. Her libido was good. She was noted to have gained weight, currently over 70 kg, previously mid-60 kg.
Ms Saleh was noted to be isolating and avoiding interaction. She was recorded as having three accidents, but no loss of consciousness. It was noted that her sleep had always been a problem, even before smoking.
The diagnoses were:
a. Axis 1 – Polysubstance dependence and depression;
b. Axis 2 – Cluster B traits, complex posttraumatic stress disorder, and
c. Axis 3 – Asthma.
The discharge summary from St John of God Burwood Hospital dated 11 July 2014 states Ms Saleh was admitted for polysubstance from 16 June 2014 to 6 July 2014. The discharge diagnoses were:
a. Axis 1 - Polysubstance;
b. Axis 2 – Cluster B, and
c. Axis 3 – Asthma and hay fever.
Dr Younan, consultant psychiatrist
Ms Saleh was referred to Dr Younan by her GP. A report of Dr Younan dated 25 May 2017 states Ms Saleh was first assessed on 23 May 2017.
She complained of sleep disturbance, nightmares, waking up feeling choked, inability to concentrate, forgetfulness, irritability and intolerance to noise or responsibility and dissociating behaviour.
She reported sleepwalking and at times finding out she did something without recollection of doing it. It is stated that these symptoms developed after a motor accident on
15 March 2016.It is stated that Ms Saleh gradually became more depressed and irritable which led to separation from her husband. It was noted that two months after the accident Ms Saleh became pregnant and underwent a termination between the 10th and 12th week, feeling unable to cope with a pregnancy. She affirmed that her husband agreed with the termination.
The relationship with her husband became strained and he eventually talked about divorce. This caused her to leave home and she was living with her mother, sister and brother.
Dr Younan diagnosed post-traumatic stress disorder and major depression. He increased the dose of Zoloft to 100 mg daily.
A further report of Dr Younan dated 29 June 2017 states Ms Saleh remained unchanged. Zoloft had no beneficial effect and she was advised to change to Pristiq 50 mg one daily.
A report dated 27 July 2017 states Ms Saleh remained depressed and had increased muscle tension. She was unable to sleep at night. Pristiq 50 mg had not had any beneficial effect.
Ms Saleh reported headaches during which she was unable to concentrate and experienced pain and pressure behind her eyes feeling they will protrude out. She had increased muscle tension and appears was clenching her teeth.Dr Younan added mirtazapine 15 mg one tablet in the evening, in addition to Pristiq 50 mg, one in the morning.
A further report dated 16 August 2017 states Ms Saleh appeared to be uptight and anxious. The mirtazapine 15 mg helped her sleep at night but she woke up so the dose was increased to 30 mg at night.
In a report dated 27 August 2018 Dr Younan noted Ms Saleh’s situation was very stressful. She was living in a refuge. She had her monthly period twice that month. Her anxiety in relation to approaching cars remained unchanged.
Dr Younan, in a report dated 11 March 2020 states Ms Saleh, since April 2018, has felt depressed, lacked self-confidence and continued to experience death wishes. The dose of mirtazapine was reduced to 30 mg because she had gained a lot of weight. The dose of Pristiq was increased to 100 mg daily.
These reports were accompanied by handwritten notes from 23 May 2017 to 22 September 2020.
Qualified medical reports
Dr Leonard Lee, psychiatrist, dated 28 August 2017 addressed to Ms Saleh’s solicitors
Dr Lee took a history that Ms Saleh had stopped working at the time of her marriage in 2014. A “slight psychological reaction” was noted due to her father’s sudden death of a heart attack in 2016. It was noted that she was prescribed antidepressants, but did not take them and her condition improved after two weeks.
A history of the subject motor accident was taken and Ms Saleh’s symptoms arising therefrom. Ms Saleh was noted to have a range of difficulties after the accident.
Dr Lee made a diagnosis of major depression and post-traumatic stress disorder arising from the injuries sustained in the motor accident. The report states the previous episodes of psychological disturbance had resolved prior to the motor accident.
Dr Virgona, psychiatrist, addressed to the insurer/insurer’s solicitors
In an initial report dated 20 September 2016 Dr Virgona takes a detailed history of the subject accident and Ms Saleh’s alleged difficulties arising therefrom. She also described the relationship with her father and his death prior to the subject accident.
In terms of past psychiatric history, Dr Virgona noted Ms Saleh reported that she had seen a psychologist two years prior. He apparently told Ms Saleh that she had "too many childhood traumas". Ms Saleh is noted to have found the therapy helpful, however, the psychologist moved away. She did not know if she needed more sessions.
She stated that she felt "traumatised from my dad. Before he died, he said sorry. Before he said sorry, everything was dark but after it was beautiful and nice and then he passed away and we didn't have enough time together".
In terms of diagnosis, Dr Virgona stated that Ms Saleh presented with a complex picture in the context of two traumatic events. Namely the death of her father and the subject motor accident. He opined Ms Saleh did not reach criterion for a diagnosis of post-traumatic stress disorder. Instead, he diagnosed an adjustment disorder with anxiety.
Dr Virgona noted Ms Saleh had symptoms of grief, related to the death of her father, which were probably consistent with "normal" grief at that stage and did not warrant a specific diagnosis.
In a further report dated 5 October 2017, Dr Virgona noted a history that Ms Saleh had separated from her husband in November 2016.
In terms of treatment, Dr Virgona noted Ms Saleh had consulted psychologist, Dr Abu-Arab and Dr Younan, psychiatrist. Ms Saleh reported that medications prescribed had made her feel a bit more calm, and waking less at night but she still was not able to concentrate much.
Dr Virgona took a detailed history that is set out in his report. Dr Virgona noted there to be considerable inconsistencies between the history Ms Saleh provided previously and the records. She previously reported a history of physical abuse as a child, and consequent impacts on her self-esteem, but not the extent of her abuse nor the extensive drug use history.
Dr Virgona stated that the reported resolution of most prior psychological problems as a result of Ms Saleh’s father's apology was not supported by the records. He states that such records clearly indicate that she was suffering significant psychological symptoms in the year before the accident, and, as recently as the month before the accident she was noted to be clearly depressed. She was in a similar state a month after the accident but the accident was not mentioned until May 2016, over two months after the accident.
Dr Virgona opined that Ms Saleh was likely suffering a persistent depressive disorder before the accident, that it is possible there was some aggravation of symptoms with the accident, but the only obvious accident-related symptom (if one accepts her account) was specific anxiety related to car travel. Dr Virgona stated that he was not in a position to reliably comment upon her functioning pre or post-accident as Ms Saleh's account was so unreliable.
Dr Cipriani, clinical psychologist report dated 11 February 2017 addressed to the insurer’s solicitors
The report states that Ms Saleh’s complaints were assessed objectively with various neuropsychometric and psychometric instruments. It was stated that the cognitive impairment may be associated with major psychiatric disorder not just those involved in brain injury.
Ms Saleh’s prior history of drug use (methamphetamine) which may have resulted in lasting emotional changes or psychosis, which is appropriately assessed with neuropsychometric and psychometric instruments.
Dr George, psychiatrist, report arising from examination on 28 June 2022
Ms Saleh was examined via teleconference. Dr George took a history that Ms Saleh was living in a one bedroom home and independently.
The doctor took a history that Ms Saleh had been physically, emotionally and sexually abused by her father and the sexual abuse was more than molestation. It extended over eight years. Her father was gaoled for assault of her brother when he was 11 years of age for about eight months. This led to a breakdown of the relationship between her mother and father. Ms Saleh is described as being traumatised by her developmental life.
Dr George sets out a detailed history received from Ms Saleh regarding past drug use and the breakdown of her marriages. He also sets out the history of the subject accident and the complaints arising therefrom.
Dr George diagnosed an exacerbation of already existing persistent depressive disorder, incorporating elements of post-traumatic stress disorder. He did not consider Ms Saleh required any treatment, opining that there would be no change with or without treatment.
A pre accident whole person impairment assessment was made by Dr George of 5%, assigning class 3 to Employability, class 2 to Concentration, Persistence and Pace and Social Functioning and class 1 to the remaining three classes.
A current whole person impairment of 7% is given, assigning class 3 to Employability, class to Concentration, Persistence and Pace; Social Functioning: Travel: Social and Recreational Activities; and Self Care and Personal Hygiene.
Accordingly, a 2% whole person impairment was assessed by Dr George arising from the injuries sustained in the motor accident.
The content of the reports of orthopaedic surgeon, Dr Harrington, addressed to the insurer’s solicitors is noted.
RE-EXAMINATION
The Review Panel considered the material before it, noting the reference to inconsistencies in the various psychiatric reports and the difficulty clarifying/resolving these inconsistencies. As noted above, it was determined by the Review Panel that a re-examination was required. Ms Saleh was re-examined by Medical Assessor Friend and Medical Assessor Mason on
14 June 2023.
History of the motor accident
The motor accident occurred on 15 March 2016 when Ms Saleh was driving straight along a road. Her husband was the front seat passenger.
A vehicle came out of a driveway on her left. She tried to brake and avoid it but it struck the left side of her vehicle. The impact caused her vehicle to be forced to the opposite side of the road and impact a fence.
Ms Saleh was unable to describe the manner of her vehicle being forced to the opposite side of the road and impacting on the fence.
The airbags in Ms Saleh’s vehicle deployed. She got out of the vehicle, but felt very shocked. The other driver, who was female, blamed Ms Saleh for the motor accident. Someone drove her vehicle to the side of the road and she and her husband left it there. It was later written off.
She contacted a friend who collected her and her husband and took them home.
History of symptoms and treatment following the motor accident
Ms Saleh felt very upset, nauseated and shocked the night of the motor accident.
The next day she felt low in mood which progressively deteriorated. She talked to one of her sisters who is a registered nurse and who recommended that she consult her GP.
She subsequently consulted Dr Bishay at Universal Health Clinic in Merrylands on
28 April 2016. His clinical entry for that date states she feels down, has insomnia, loss of interest, demotivation and is upset about her father’s death.It states that she had ceased taking Avanza because it caused nausea and dizziness and she was prescribed Cymbalta 30 mg and it was recommended that she see a psychologist.
He also provided her with a Centrelink medical certificate for one month.
Ms Saleh reported that she had pain in her left knee and her back but there is no mention of those injuries in the entries of 28 April or 12 May 2016.
Ms Saleh stated that she became very withdrawn, did not want to leave the home, withdrew from contact with friends and just wanted to be left alone. She lost confidence in herself.
She started to sleepwalk which she had previously done, a few times, at age 13 years. She was found by her husband, on one occasion, in the kitchen trying to cook. She believed that she sleepwalked a couple of times each week for about two years.
She cried for no reason, felt unworthy, had no confidence and felt isolated.
She had some nightmares about the motor accident but also about falling down and being chased by somebody who was trying to kill her. The nightmares woke her from sleep and it was difficult to get back to sleep.
She had no energy, was withdrawn and had little patience or tolerance. Her libido was very low and she and her husband started sleeping in separate rooms. They had an occasional sexual relationship.
She became pregnant and had a termination of pregnancy in August 2016. She could not cope with having a child. Her husband had agreed to the termination because she could not cope.
She believed that she could not be a housewife to her husband in that she could not do the cooking, cleaning, washing or shopping and had no energy. In her words, “I couldn’t deliver what I promised”.
She decided to leave the marriage and return to live with her family in her mother’s house. She shared the house with her mother, older sister and two brothers. She felt more comfortable and supported.
She became dissatisfied with the treatment by Dr Bishay. Her mother or one of her siblings ensured that she consulted Dr Hany Hanna at the Guildford Road Medical Centre, after she moved back to the family home.
Dr Hanna had been the family GP for many years which is consistent with the supplied documents including a referral to St John of God Burwood Hospital in 2014 and general practice mental health treatment plans in 2014 and 2015.
Dr Hanna prescribed Zoloft and analgesic medication for knee and back pain. Dr Hanna referred her to psychologist, Dr Mahmoud Abu-Arab, whom she consulted for 9 or 10 sessions under Medicare.
She was referred to a physiotherapist and attended for 4-6 sessions but found it unhelpful.
She later consulted a psychologist at Dr Hanna’s practice for 6-8 sessions, again under Medicare. This was mostly by telephone during COVID-19 pandemic and was not helpful.
Dr Hanna referred her to Dr Monir Younan psychiatrist, whom she consulted from
23 May 2017 to 22 September 2020. It appears that the appointments were every 2-4 weeks, at least initially, but may have become less frequent over time.Dr Younan prescribed Pristiq and Avanza but ceased Zoloft because it had no beneficial effect.
She was referred to Dr Medhat Guirgis regarding the pain and reported anterior cruciate ligament tear on the MRI scan. Dr Guirgis recommended she have surgery which she declined feeling too scared to undergo the surgery.
Current symptoms
Ms Saleh has pain in her lower back in the middle and on the left side. She continues to have pain in her left knee and pain in the neck. She can walk for a maximum of 10-15 minutes before her knee starts to click and ache. She puts most of her weight on her right leg when she walks. She can have pain or aching in the left knee if she has walked the previous day.
Ms Saleh continues to feel depressed, struggles to concentrate only being able to read two paragraphs at a time and cries for no reason. She has no goals in her life, does not look forward to anything, has difficulty getting to sleep and can have bad dreams or nightmares with the same content, as described above which wake her from sleep and it is difficult to get back to sleep.
She feels guilty and bad and prefers to be alone.
She has recurring periods wherein she suddenly does not know where she is or who she is which last for about five seconds, after which she regains full awareness.
Current treatment
Ms Saleh is currently prescribed:
a. Avanza 30 mg at night;
b. Pristiq 100 mg in the morning which she takes every day;
c. Panadol Osteo 0-6 daily but mostly it appears 2-6 daily, and
d. Naproxen on most days.
She is not having any counselling by a psychologist or treatment by a psychiatrist.
She only consults health professionals, if she is pushed to do so by others.
She currently lives in East Hills and previously lived in Liverpool. It is too far to travel to consult Dr Younan.
Previous medical history
Ms Saleh has had one or two previous motor accidents which were minor and she did not suffer any injuries.
She had surgery on her cervix to remove a cyst.
She had lifelong difficulty with breathing through her nose and was mostly breathing through her mouth.
Her father was violent. He abused her physically, emotionally and sexually.
The physical abuse appears to have been the worst. He would repeatedly hit her. He repeatedly denigrated her.
He repeatedly pinched her in what she regarded as “sensitive areas” but it did not involve overt sexual behaviour. This commenced at about age 7 years and continued, at least until she was living in Australia.
It ceased after her father forced the entire family to leave the family home, apart from one of her brothers whom he continued to hit. The school became aware of her brother’s injuries, notified the police and her father was subsequently charged, convicted and gaoled.
She and her siblings subsequently lived with their mother and her father did not return to live in the family home. He visited from time to time after an apprehended violence order expired.
He apologised for his behaviour a few years before his death in February 2016.
Ms Saleh realised that she could study and achieve academically after living in Australia. She felt that she could prove to her father that she was capable of achieving something.
Previous psychiatric history
Prior to the subject motor accident, Ms Saleh has suffered from psychiatric/psychological symptoms at various times.
She had repeated periods wherein she would feel depressed and go to bed for 3-7 days, then recover and resume her usual activities.
She was admitted to Cumberland Hospital on 11 July 2013 depressed, having suicidal thoughts and in her words, hearing noises, not voices as stated in the discharge summary.
She used methamphetamine at weekends for about 9 or 10 years until being admitted to
St John of God Burwood Hospital on 16 July 2014. She used methamphetamine because it made her feel energetic, increased her level of confidence and made her more focussed. She sought treatment in 2014 because she realised that she was “going downhill”. She maintained abstinence of methamphetamine after that admission to hospital. She never used other illegal substances.Ms Saleh believes that she probably consulted a psychologist several times after the admission to St John of God Burwood Hospital but cannot specifically recall consulting a psychologist.
She stated that by 2015 she felt improved, was happier in her life and was able to move back home after the admission to St John of God Burwood Hospital. She had previously moved out of home probably in about 2012 because her family were accusing her of being a drug addict.
Her father died suddenly at an exercise class that she and a couple of her siblings were attending with him. He had a sudden heart attack.
She grieved for his death but believes that she had a normal grief and eventually coped with his death. She had an improved relationship with her father after he apologised for his previous abuse.
Normal grief is widely accepted as lasting for a minimum of two years and symptoms can persist for five years or longer.
Subsequent history following the motor accident
Ms Saleh had a rhinoplasty which was noted in the entry by Dr Bishay dated 27 July 2016. This was to treat the longstanding problem with difficulty with breathing through her nose.
She has not had any subsequent surgery.
She has not been involved in any subsequent motor accidents.
Ms Saleh continued to live at home. She remained depressed.
Her family started to be more confronting of her situation. They told her she should get married or go back and live with her husband. They told her she needed to do something with her life. One of her brothers was quite abusive, repeatedly saying that she was worthless and useless.
The family tried to set her up in a new relationship in 2017 or 2018 but she made the decision that it was not going to work out and declined to continue in the relationship.
Her functioning was much as described previously. She eventually moved out of home to get away from the abuse. She lived in a hotel for a few nights, presumably emergency accommodation, and subsequently in a women’s refuge for three months where she had counselling and attended groups.
One or more workers, at the refuge, helped her get into what appears to be private rental accommodation in Liverpool. She has lived in community housing, in East Hills for the past year.
Ms Saleh’s functioning, as far as can be determined, did not change after she left home. She was no longer emotionally abused after leaving home.
Personal history
Ms Saleh was born in Iraq and lived in the town of Diwanya. The family left Iraq when she was aged nine years, apparently because her father felt that he was at risk from people associated with Saddam Hussein.
They lived in Dubai. Her father worked as an Arabic teacher and her mother was a driving instructor. Her father’s visa was about to expire and the family relocated to Australia arriving when she was aged about 16 years.
She completed one year of English language classes and subsequently completed Years 10 and 11 and part of Year 12 at secondary school. She left school before the Higher School Certificate believing she would do poorly in that examination.
She did a computer course apparently organised by the school and subsequently enrolled in TAFE where she did several courses which she did not complete but later completed Certificates III and IV as a dental assistant, having previously done a course at the Dental Assistant’s Institute.
She worked as a dental assistant for 10-11 years. This was initially full time and later part time and casual.
She received Centrelink payments, presumably Newstart payments to supplement her income. The information provided by Centrelink lists her reported earnings in 2012 to
14 October 2014. It appears that at most she earned no more than about $4,000 each year.Ms Saleh believes that she ceased work in about April 2015. She was then engaged to be married. She stated she needed time to buy furniture and prepare to be a bride. She believes she was working about three days per week until she was married.
She married some time in 2015 but cannot say even what month she was married and it could have been as late as November 2015.
It appears that she continued to receive Centrelink benefits from time to time. The clinical notes of Dr Bishay state that she was provided with Centrelink medical certificates certifying her as unfit to work on 20 October 2015 and 23 February 2016. The latter certificate covered the time of the motor accident.
She stated that her husband did not work regularly. She had an Islamic marriage and not a registered Australian marriage, so she was able to claim Centrelink benefits even if he was working.
Ms Saleh stated that prior to the motor accident she had continued to have short periods of depression for 3-7 days, as previously described which is consistent with the reported issuing of Centrelink medical certificates on 20 October 2015 and 23 February 2016.
She felt well, after recovering from the periods of depression and socialised, walked, exercised, cooked, cleaned the home and undertook all her personal care without difficulty.
The Centrelink records show that she was working up to 17 March 2015 and that the medical certificate dated 20 October 2015 was the last recorded medical certificate prior to the motor accident.
Functioning prior to the motor accident
Ms Saleh was asked about her functioning in the month or two prior to the motor accident.
She stated that she was able to get up and shower each day, went to the hairdresser twice a week, would do the cooking, cleaning and shopping, sometimes with her husband.
She did have periods of depression for 3-7 days and would stay in bed but then would recover and function well.
There was no impairment of her social activity.
She drove without difficulty.
She had had her driver’s licence suspended once for repeated speeding offences. She had also driven a vehicle whilst it was unregistered, which was unknown to her.
The relationship with her husband and family was good.
She stated that she had no problems with her memory or concentration but it was transiently impaired if she was depressed and/or distressed.
She stated that she was looking for work but she had not attempted to go back to work since ceasing working in about April 2015.
Current functioning
She currently has “to fight” with herself, to get out of bed each morning just not having the energy or motivation. She showers every 4-5 days. She does not change her clothes every day and only washes them occasionally.
She neglects her personal grooming including brushing her hair or attending to her nails unless her sister prompts her or takes her to the hairdresser. She has had lip filler in the past and has had her eyebrows groomed.
She makes toast or cooks an egg or quick noodles for meals, but also relies on her sister to send her Uber Eats or a male friend who brings over food that his mother cooks.
She does “a bit of cleaning” and sometimes washes the dishes but often her sister comes over and cleans the house, changes the bed sheets and does most, or all, of the laundry.
She stated that she relies on others for meals, cleaning and laundry because she does not have the energy, cannot organise herself and that her back and knee ache.
She has contact with her family and will go out to dinner from time to time with her mother and sisters. She can catch a train or get a lift to travel from East Hills to Guildford where her family live. She has driven several times to visit them.
Ms Saleh can drive but feels anxious and repeatedly looks in the rear view mirror. She feels particularly anxious if she is in a narrow street. She can feel like she is suffocating if she is parked in a narrow street. She drives as far as Liverpool from East Hills. Her family purchased a motor vehicle for her.
She feels more anxious if a vehicle overtakes her or is following her.
Ms Saleh has not formed a new relationship. She has one male friend whom she sees but states this is not a relationship. She has a good relationship with her mother. She has a male and a female friend whom she sees and also talks to her sisters.
Ms Saleh stated that she cannot focus to read or watch television and her thoughts are all mixed up. She sat through an examination which lasted almost two hours and although she was a bit forgetful, she was able to answer most questions including clarifying questions.
Ms Saleh, as stated, has not returned to work. She tried to do some work experience at a dentist with whom she had previously worked at about a year ago, but only lasted for an hour.
She currently receives Job Seeker Centrelink benefit and has a medical certificate from a doctor which means she is required to make 15 job applications each month.
She has been offered a few jobs but has not accepted them feeling she is unable to do them. She has had various interviews with Centrelink officers to explain her situation.
She has sometimes had her Centrelink payments suspended because she has not met the required obligations.
Mental state examination
Ms Saleh was on time, alert, orientated, understood the purpose of the examination.
She struggled to provide accurate timelines for some events but it should be noted that a lot of these events occurred more than five years ago. She was much clearer about the timeframes of more recent events.
She could not remember certain events, particularly the assault in 2002, until reminded of it.
Ms Saleh described ongoing depressed mood, social withdrawal, loss of energy, motivation and drive.
She lacked motivation and relied on others to prompt her to attend to her personal care and/or seek treatment. She struggled to do household duties and relied on others to do these tasks and activities.
She had nightmares or bad dreams some of which related to the content of the accident but also to falling down, being chased or being in a dark place.
She feels anxious when driving, especially if a vehicle overtakes her or is following her.
She did not describe any other trauma-specific symptoms.
Specific questioning
Ms Saleh was asked about various parts of her history.
She was asked about the entry in Dr Bishay’s dated 5 January 2013 which stated that she was feeling dizzy, stressed, nervous, had panic attacks and pain in the neck and was prescribed Valium and Endep. Ms Saleh agreed that this probably occurred although she could not specifically remember it.
She was asked her about the entry in Dr Bishay’s notes dated 20 October 2015 which record her as feeling down, having insomnia, loss of interest and motivation for a few weeks and that she had previously taken Avanza.
Ms Saleh agreed that this probably had occurred. She had ceased taking Avanza because it did not agree with her.
She agreed that she was still depressed in November 2015.
Ms Saleh agreed that on 23 February 2016 she was depressed and down, had a loss of interest and was unmotivated and was prescribed Cymbalta. She stated this was probably because of her father’s death. It is noted that the father’s death is not mentioned in the clinical notes until 28 April 2016.
Ms Saleh stated when asked that the pre-accident periods of severe depression sometimes followed an argument with her husband or a family member and sometimes arose spontaneously.
Ms Saleh agreed that at these times she was down and was unable to work, which is supported by the Centrelink medical certificates issued in October 2015 and February 2016. She stated that this was consistent with her previous history of recurrent short lived periods of depression in her life.
The Centrelink medical certificate by Dr Bishay dated 23 February 2015 is not recorded in the Centrelink records, presumably because it was not presented to Centrelink.
Ms Saleh confirmed that her first marriage occurred when she was aged 19 years. She met her husband who was then 36 years whilst nightclubbing. She realised, after the marriage that he was too old, that the marriage would not last and left.
She was asked about the assault which is recorded in the discharge referral from Westmead Hospital dated 31 May 2002. She stated that she and her sister had been attacked by a group of teenagers. They had been rescued by a friend and the police arrived soon after. She stated she was physically injured but there were no emotional effects. She did not want the police to press charges against the people involved.
The Medical Assessors noted that Ms Saleh’s eyebrows appeared to be well groomed and she agreed that she did attend to them. She also agreed that she had had filler in her lips several years previously at the insistence of her mother who paid for the procedure.
Consistency of presentation
It was concluded that Ms Saleh’s account and presentation was consistent throughout the examination considering that some relevant events had occurred 5-10 years ago.
It was concluded that Ms Saleh’s responses to specific questioning adequately explained the apparent inconsistencies within the supplied documents.
Diagnosis
Ms Saleh had been previously diagnosed as having post-traumatic stress disorder, anxiety and depression, adjustment disorder with anxiety and persistent depressive disorder exacerbated by injuries sustained in the motor accident.
The Review Panel felt that she met criterion for a diagnosis of persistent depressive disorder exacerbated by the injuries sustained in the motor accident.
She had repeated periods of depression prior to the motor accident but these were not ongoing. It appears she may have, from time to time, met criterion for major depressive disorder, such as when she was admitted to Cumberland Hospital on 11 July 2013, and also subsequently, when she had been unable to work in October 2015 and possibly February 2016.
Her mood fluctuated such she could function, leave home and visit her family and at other times was so depressed that she stayed in bed for 3-7 days.
The depressive symptoms were exacerbated by the injuries sustained in the motor accident. She struggled to function in all aspects of her life, lost her libido, left her marriage and returned home so that her family could care for her.
She has remained depressed thereafter, although her mood may fluctuate from day to day.
She left home in 2019, because of the abuse she was receiving from family members, particularly one brother. She has better relationships with her mother and sisters since leaving home.
She had not been able to return to work despite making one attempt to do so. She had declined several job offers because she felt unable to work.
She has few trauma-specific symptoms.
Causation
Ms Saleh has recorded various psychiatric/psychological symptoms at least from time to time prior to the motor accident and used methamphetamine for 9-10 years at weekends prior to the motor accident. She had treatment with antidepressant medication but mostly did not take them, and she had some treatment sessions with a psychologist but it appears no other psychological treatment.
She married in 2`015 and it would be reasonable to assume she was not depressed at that time although she did become depressed in October 2015 which is consistent with her repeatedly becoming severely depressed for 3-7 days requiring her to go to bed. These exacerbations sometimes followed an argument with her husband or a family member.
Following the motor accident the depression became more severe. This is noted in the records of Dr Bishay who repeatedly refers to her being depressed up to 21 June 2016 and subsequently in the records of Dr Hanna and the various medical certificates up to and including 21 February 2018.
Dr Hanna has attributed the depression to the motor accident on 15 March 2016.
There were subsequent events in her life including separation from her husband but this was because of the depression.
She was criticised and emotionally abused by her family in 2017 and 2018 which caused her to leave home in 2019 but there is no evidence that that abuse led to any deterioration of functioning.
The Medical Assessors concluded following the examination and careful consideration of the documentation, that the exacerbation of the pre-existing persistent depressive disorder was caused by the subject motor accident.
Degree of permanent impairment Psychiatric Impairment Rating Scale (PIRS)
Current whole person impairment
Psychiatric Diagnosis
· Pre-existing Persistent Depressive Disorder exacerbated by injuries sustained in the motor accident
Psychiatric Treatment · Treatment with Avanza and Pristiq and Zoloft
· Treatment by a psychiatrist
· Treatment by a psychologist
AREA OF FUNCTION CLASS REASON FOR DECISION Self Care and Personal Hygiene 3 Moderate impairment. Ms Saleh does live alone but relies on a male and a female friend and her sister to help her. Her sister mostly does the cleaning and laundry. Her friends help her with food and one of her sisters sends food over via Uber Eats.
She struggles to get out of bed in the morning, only showers every four or five days and does not change her clothes frequently. She does very little household activities apart from washing up some dishes. Some grooming occurs when initiated by family members but is not sustained.Social and Recreational Activities 2 Mild impairment. Ms Saleh does undertake some social activities with her family, particularly her mother and sisters. She can travel to Liverpool and to visit her family in Guildford. She sees her male and female friends. Travel 2 Mild impairment. Ms Saleh can drive as far as Liverpool and has on occasion driven from East Hills to Guildford. She is anxious whilst driving and repeatedly looks in the rear view mirror. She can use public transport. Social Functioning 3 Moderate impairment. Ms Saleh separated from her husband following the motor accident, feeling that she could not do what she promised when she married and that she needed to be cared for by her family. She has a better relationship with her mother and sisters since leaving home. She has not formed a new relationship. Concentration, Persistence and Pace 2 Mild impairment. Ms Saleh reported she had marked difficulties with her memory and concentration but, as noted above, she was able to sit through an examination lasting almost two hours and although at times not remembering details of certain events, she was more able to recall the time sequence of more recent events in the last couple of years compared to those before five years ago. Adaptation 5 Total impairment. Ms Saleh attempted to return to work following the motor accident but was unable to cope, has not been able to do any work and believes she cannot work in her current state. The Panel agreed that she could not sustain employment or manage her household alone with her current symptoms. List classes in ascending order: 2, 2, 2, 3, 3, 5 Median class value: 2.5 rounds up to 3 Aggregate score: 17 Whole person impairment: 19%
Pre-accident whole person impairment
Diagnosis
· Persistent Depressive Disorder
Treatment · Treatment with Zoloft
· Treatment by a psychologist
· One admission to hospital
AREA OF FUNCTION CLASS REASON FOR DECISION Self Care and Personal Hygiene 2 Mild impairment. Ms Saleh had recurring periods of depression including periods of severe depression wherein she could stay in bed for 3-7 days but then would recover and function. This occurred before and after her second marriage in 2015. The depression was not continuous. Social and Recreational Activities 1 No impairment. Ms Saleh reported no difficulties socialising and undertook various physical and recreational activities with her family, father, husband and friends. Travel 1 No impairment. Ms Saleh had no impairment of her ability to drive. Social Functioning 1 No impairment. Ms Saleh reported that she had no difficulties in the relationship with her husband other than occasional disagreements and similarly with her family. Concentration, Persistence and Pace 1 No impairment. Ms Saleh stated that she had no difficulty with focussing and concentrating. She had completed several courses to become a dental assistant and worked as a dental assistant until ceasing in about April 2015. Adaptation 5 Total impairment. Ms Saleh was not working and her general practitioner, Dr Bishay, had certified her as unfit to work in October 2015 and February 2016 because of depression. List classes in ascending order: 1, 1, 1, 1, 2, 5 Median class value: 1 Aggregate score: 11 Whole person impairment: 2%
Effect of treatment
Ms Saleh has had treatment by a psychiatrist and psychologist and treatment with psychiatric medication. There is no evidence that any treatment has been effective. No allowance is made for treatment.
Current whole person impairment 19%
Pre-existing whole person impairment 2%
Final Whole Person Impairment 19-2 = 17%
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd[7] v Keen and Insurance Australia Ltd v Marsh.[8]
[7] [2021] NSWCA 287 at [40], [41] and [45].
[8] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive joint examination findings of the Medical Assessors and the conclusions set out above, and adds the following reasons.
The insurer submits that the evidence demonstrates Ms Saleh suffering a loss of functioning from a psychological perspective at the time of the accident.
The clinical entry of 23 February 2016 documents psychological symptoms that pre-date the accident. The context was that Ms Saleh’s father had just died and the Medical Assessors accept that these symptoms complained of are likely to be linked to that death.
Putting aside that entry, which is not detailed, the only entries in the clinical notes relating to Ms Saleh’s psychiatric state, leading up to the accident are the ones from 20 October 2015 and 20 November 2015. These do not say anything about her level of functioning.
The Medical Assessors considered the K10 scores and the mental health plans on which they were based. Using clinical judgement and taking into account the absence of any validated psychiatric diagnosis immediately prior to the subject accident, the Medical Assessors agreed the K10 scores were not valid indicators of the severity or stability of a psychiatric condition at that time.
Medical Assessor Roberts had difficulty accepting Ms Saleh’s account evidenced by repetition of various alleged inconsistencies and has attempted to fill the gaps by referring to documentation. The difficulty is there is a lack of information and documentation regarding the initial pre-accident functioning. The assessment of impairment has been reached by the Medical Assessors utilising a thorough joint examination, consideration of the extensive documentation and the exercise of clinical judgment. Ms Saleh was found to be consistent in her presentation, considering the context of many events happening over the course of five years.
One cannot assume a past level of functioning merely based on diagnosis, nor was it possible to draw inferences from the lack of detailed documentation immediately prior to the accident.
The Medical Assessors were not able to make adequate assessments of pre-accident functioning from the documentation provided, apart from employability. The history provided by the claimant indicated no impairment in other areas of functioning. Noting a diagnosis of persistent depressive disorder with intermittent depressive episodes and using clinical judgement, the Medical Assessor considered self care and personal hygiene was mildly impaired while the other four categories of the PIRS were unimpaired.
The Panel noted that although Ms Saleh was not working and had periods of depression there was no adequate evidence in the supplied documents that prior to the motor accident she had impairment of social and recreational activities, travel, concentration, persistence and pace and social functioning.
CONCLUSION
The certificate issued by Medical Assessor Roberts dated 3 December 2021 is revoked. A replacement certificate is attached at the commencement of these Reasons.
0
3
0