Samhon v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Samhon v QBE Insurance (Australia) Limited [2023] NSWPICMP 283
CLAIMANT:	Sarah Samhon
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Michael Li Ying Hong
MEDICAL ASSESSOR:	Atsumi Fukui
DATE OF DECISION:	8 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver of a car which collided at an intersection on its left-hand passenger side; injuries reported, post-traumatic stress disorder (PTSD) and other psychological injuries; Held – claimant did not sustain any psychological injury as a result of or caused by the motor accident; claimant had a long-term prior history of chronic psychological problems including anxiety, depression and PTSD; Review Panel found the claimant’s adjustment disorder attributable to the accident caused by the motor accident was a threshold injury; claimant had not developed a new psychological injury or an aggravation of a pre-existing injury; claimant had a long term past history of chronic psychological conditions prior to the subject accident; claimant had been involved in three prior motor accidents between 2016 and 2018.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Enrico Parmegiani dated 16 September 2021. 2. Certifies that the following injuries caused by the subject motor accident are threshold injuries (formerly minor injuries): adjustment disorder. 3. Certifies that the following injuries were not caused or aggravated by the subject motor accident: post-traumatic stress disorder; depression or anxiety.

STATEMENT OF REASONS

INTRODUCTION

On 24 April 2020 Ms Sarah Samhon (the claimant) was driving her car on Station Street Fairfield when another car came out of Granville Street and hit her car on its left hand passenger side causing her car to rotate 180º. The airbags on the left-hand side of her car deployed. Ms Samhon’s car was undrivable and was towed away.
In the application for personal injury benefits dated 15 May 2020,[1] Ms Samhon stated she sustained the following injuries as a result of the accident: head, neck, chest, lower back, hip, right leg and tailbone.
[1] Insurer bundle AD2 R 9 page 78.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Samhon under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Parmegiani issued a certificate dated 16 September 2021. In that certificate he certified that the injury of adjustment disorder with mixed anxiety and depressed mood sustained by Ms Samhon is a minor injury for the purposes of the MAI Act. He also certified that the injury of post-traumatic stress disorder was not caused by the subject motor accident.
Ms Samhon has sought a review of the certificate of Medical Assessor Parmegiani.

BACKGROUND

Ms Samhon is 47 years of age and in receipt of a disability pension.
The claimant appears to have been involved in three prior motor vehicle accidents.
The first motor accident was on 23 June 2016.
The claimant was involved in a second motor vehicle accident on 31 December 2016. The claimant was driving at the intersection of Cabramatta and Banks Road, Miller. She stated to ambulance officers attending the accident scene that she was the driver and sole occupant of a car that T-boned another car at approximately 50 kmph.[2] She states that her seatbelt was worn and no airbags were deployed. The claimant complained of cervical spine tenderness and had small abrasions to the forehead with generalised aches and pains.
[2] Further Insurer bundle AD 1 pages 191-195
On 13 December 2018 Ms Samhon attended Fairfield Hospital after accidentally accelerating and hitting a wall whilst reversing a car from her garage at home. She reported pain all over the body including the chest, mid back, hip and lower legs. She reported there was no neck pain.
The claimant was then involved in fourth motor vehicle accident on 24 April 2020 which is the subject of this Panel review.
On 15 May 2020 Ms Samhon lodged an Application for Personal Injury Benefits.
On 15 August 2020 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that her physical and psychological injuries were minor injuries and that her entitlement to treatment and care expenses would cease on 23 October 2020.
On 7 July 2020 the insurer issued a “Liability Notice- Claim for damages” in which it was determined that the insured driver owed the claimant a duty of care and breached that duty of care causing the claimant to suffer some injury, loss or damage. However, the insurer determined the injury sustained by the claimant was minor and therefore the claimant was not entitled to pursue a claim for damages.
On 14 September 2020 Ms Samhon sought an Internal Review of that decision. On
1 October 2020 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons. This decision affirmed the insurer’s earlier decision that all the injuries suffered by Ms Samhon in the accident fell within the definition of minor injury.
On 7 October 2021 the claimant’s solicitor filed an application with the Personal Injury Commission (Commission) seeking a review of the certificate of Medical Assessor Enrico Parmegiani dated 24 September 2021.[3]
[3] Application for review, page 5.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[4]
[4] Section 7.20 of the MAI Act.
A separate medical assessment and a Medical Review Panel decision were made concerning Ms Salmon’s physical injuries.[5]

ASSESSMENT UNDER REVIEW
[5] Decision of Medical Review Panel 8 July 2022. Insurer bundle AD 2 R6 page 43.

The dispute was referred to Medical Assessor Parmegiani who assessed Ms Samhon and issued a certificate dated 16 September 2021.[6]
[6] Insurer bundle AD 2 R3 page 17.
The injuries referred for assessment included: the psychological injury – post-traumatic stress disorder, anxiety and depression caused by the motor accident is a minor injury for the purposes of the MAI Act.
Medical Assessor Parmegiani medically examined the claimant on 8 September 2021. He referred to the history of the motor accident, the detailed history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Parmegiani determined that the claimant had previously been diagnosed with post-traumatic stress disorder resulting from experiences that she suffered in her native country Iraq prior to migrating to Australia. Ms Samhon had been treated extensively for post-traumatic stress disorder with both antidepressant medication and psychological therapies. There is evidence in the clinical notes that indicated that her condition was chronic. She had also been involved in a prior motor vehicle accident in 2016 from which she suffered symptoms of chronic pain although she insisted that those symptoms had deteriorated after the subject accident.
Medical Assessor Parmegiani wrote that when assessed on 8 September 2021, Ms Samhon reported persistent symptoms of post-traumatic stress disorder which were clearly related to her Iraq experience. Since the subject accident the claimant reported symptoms of anxiety related to driving which she says have emerged since the accident as well as symptoms of more depressed mood.
Medical Assessor Parmegiani’s diagnosis within the DSM-5 classification system for
Ms Samhon was post-traumatic stress disorder; and adjustment disorder with mixed anxiety and depressed mood on the background of chronic pain.
Medical Assessor Parmegiani concluded that from a causal perspective the symptoms the claimant reported of her post-traumatic stress disorder at the assessment were clearly related to her pre-accident experiences and were not therefore caused by the subject accident. He further concluded that the claimant’s adjustment disorder with mixed anxiety and depressed mood were caused by the motor accident. He found the claimant’s chronic post-traumatic stress disorder was not caused by the motor accident.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Parmegiani was lodged within 28 days of the date on which the certificate was made available to the parties.
On 12 November 2021, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that the Medical Assessor’s statement that the reports of Mr Tingle were not available to him.[7]
[7] Statement of reasons of the Presidents delegate, page 2.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[8] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[8] Section 7.26(5A) of the MAI Act.
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.[9]
[9] 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.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties dated 10 November 2022 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitors for the claimant and insurer each filed a bundle of documents. In total over 2,000 pages of medical evidence, submissions, hospital records and other materials were filed by the parties.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury as follows:
“4   Meaning of “threshold injury”, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
(2) Each of the following injuries is included as a threshold injury for the purposes of the Act—
(a)  acute stress disorder,
(b)  adjustment disorder.
Note—
See section 1.6 (5) of the Act in relation to the making of Motor Accident Guidelines for or with respect to the assessment of whether an injury is a threshold injury.
(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013.”
Thus the MAI Regulation provides that an acute stress disorder and an adjustment disorder are both by definition classified as a threshold injury.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of a threshold psychological or psychiatric injury assessment cls 5.10, 5.11 and 5.12 of the Guidelines provide:
“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.”
In Briggs v IAG Limited trading as NRMA Insurance[11] his Honour Justice Wright stated at [35]:
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to 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.
6.7There 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.”

EVIDENCE BEFORE THE REVIEW PANEL

General observations on evidence

The Panel issued a Direction to the parties requiring each party to file an indexed, paginated bundle of documents and the claimant to attend a medical examination. In response to this Direction the solicitors for the claimant and insurer each filed a bundle of documents. In total over 2,000 pages of medical evidence, submissions, hospital records and other materials were filed by the parties. On 17 May 2022 the insurers solicitors applied to admit a further bundle of late documents from Liverpool Hospital.[12] The Panel has decided to admit these late documents in interest of justice under Rule 67(4) of the Personal Injury Commission Rules 2021.
[12] Further Insurer bundle AD 18.
The Panel notes that there are extensive and voluminous medical records, reports and clinical notes describing the claimant’s psychological and physical injuries. The Panel has read, discussed and carefully considered all of these medical records, reports and notes before it. The Panel has not referenced or summarised the records relating to Ms Samhon’s physical injuries or symptoms unless they are relevant or have some bearing on the consideration of the psychological injuries which are the subject matter of this Panel’s reassessment process.

The Panel has not referenced or summarised all of the records relating to Ms Samhon’s symptoms or injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be a just, quick and cost-effective resolution of the real issues in the proceedings.[13] Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly.
[13] Sections 3 and 42 of the Personal Injury Commission Act 2020.
In conducting this medical review the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance [14] who stated:
“[63] The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”

Treating medical evidence

[14] [2022] NSWSC 1079.

Pre-accident treating records

There are a number of pre-subject motor accidents medical records available from the claimant’s treating doctors and also the Liverpool Hospital file which refer to the claimant’s past medical history including a previous motor vehicle accident in 2016 and treatment for post-traumatic stress disorder, depression and other psychological issues.
On 24 December 2014 the claimant presented to the emergency department at Liverpool Hospital. The hospital noted a prior history of depression.[15]
[15] Further insurer bundle AD 1 pages 221-225.
On 1 December 2015 the claimant presented to Liverpool Hospital emergency department with left-sided chest pains. The hospital notes indicate the patient was very anxious and had depression.[16]
[16] Further insurer bundle AD 1 pages 211-212.
On 19 January 2016 the claimant presented to the emergency department of Liverpool Hospital reported visiting family in Iraq in January 2016. During that visit she reported a car bomb blast injury which caused leg swelling and bruising.[17]
[17] Further insurer bundle AD 1 pages 26-27.
The claimant presented to Liverpool Hospital on 24 June 2016 which is noted to be the day after a low speed motor vehicle accident.[18] The hospital clinical notes record that the claimant complained of neck, back and arm pain.
[18] Further insurer bundle AD 1 pages 16-17.
On 19 July 2016 a pain specialist at Liverpool Hospital Dr Rosa Hou recorded a history given by the claimant of trauma in Iraq including sexual assault and the death of her husband.[19]
[19] Further insurer bundle AD 1 pages 87-88.
Dr Hou recorded her diagnosis of the claimant as including: poor sleep; depression denies suicidal ideation; anxiety and stress; DASS 21 extremely severe depression, anxiety, stress; PSEQ- severe; and PCS- severe.
On 9 June 2017 there are some handwritten clinical notes by a clinical psychologist, referred by Dr Hou. The claimant reported leg injury in 2015, chronic pain, history of depression despite being on antidepressant medication, depression exacerbate by pain. Poor appetite, sleep problem, nightmares, traumatic memories. Reduced concentration. No suicidal ideation, multiple trauma, hypervigilant. The claimant was with the STARTTS program (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) for four years. She experiences social isolation, feels unsafe. Does not like enclosed space, anxiety around men, sleep at friend’s house and worried about break and enter. She reports struggling with looking after her children. Pain cognition “left is almost paralysed”. Pain is constant, 9/10. All family overseas, has one female friend.
On 15 August 2017 Dr Rosa Hou reiterated to the claimant the importance of psychologist and physiotherapy input.[20] Dr Hou noted her impression that the claimant continues to complain of whole-body pain in the context of two recent accidents, post-traumatic stress disorder, anxiety and social stresses. Dr Hou also noted that she explained to the claimant that the stress of going through litigation as the driver of the motor vehicle accident in 2016 does not help with her pain management.
[20] Further insurer bundle AD 1 pages 81-82.
On 5 December 2017 Dr Rosa Hou reiterated to the claimant the importance of psychologist and physiotherapy input.[21] Dr Hou again noted her impression that the claimant continues to complain of whole-body pain in the context of two recent accidents, post-traumatic stress disorder, anxiety and social stresses.
[21] Further insurer bundle AD 1 pages 81-82.
On 2 November 2018 Dr Rosa Hou again reiterated to the claimant the importance of psychologist and physiotherapy input. [22] Dr Hou again noted her impression that the claimant continues to complain of whole-body pain in the context of two recent accidents, post-traumatic stress disorder, anxiety and social stresses.
[22] Further insurer bundle AD 1 pages 80-81.
In a report dated 18 December 2019 Dr Yeasmin, general practitioner (GP) notes that the claimant is not sleeping at all, worry about everything, life, children, forgetful, always tired, headaches, anxiety. She was on Valium 5 mg. and Mirtazapine, and worried about everything.
On 18 December 2019 Dr Rosa Hou reported (before the subject accident) the claimant ran out of tablets for medication, persistent pain after motor vehicle accident June 2016.[23] Pristiq 100 mg, Mirtazapine 45 mg (Axit). Whole body pain in the context of “2 recent accidents” post-traumatic stress disorder, anxiety, social stressors are noted.
[23] Further insurer bundle AD 1 pages 75-76.
On 20 December 2019 the claimant attended Myhealth medical centre where it was noted that in 2004 she had a history of assault. Prescribed Axit 45 mg and Pristiq 100 mg and Gabapentin.

Post-accident treating records

In her application for personal injury benefits dated 15 May 2020, the claimant stated that the injuries she received in the motor vehicle accident were head, neck, chest, lower back, hip, right leg and tailbone. No mention was made of any depression, anxiety or other psychological condition. The application for personal injury benefits form described the subject motor accident as follows. The claimant was driving at 45 kmph speed before impact and was hit from left side and the airbags were deployed. Physical injuries were noted and there was no psychiatric history recorded. In the previous injury section of the form,
Ms Samhon's response indicated there was no past history.
A Certificate of capacity/ certificate of fitness form from May 2020 refers to a motor vehicle accident, insomnia, anxiety after the subject accident.
On 1 May 2020, Liverpool Hospital pain specialist, Dr Rosa Hou [24] reported that the claimant said that she had been in a motor vehicle accident one week ago on 25 April 2020 as a driver of a car where she was hit on the left side of her car. She reported that she presented to Liverpool Hospital with headache, neck and lower back pain. She had a CT brain and neck scan which excluded injuries. She reported that she felt pain had exacerbated since the accident especially her lower back and coccyx area. She has been taking oxycodone and paracetamol given by the emergency department.
[24] Further insurer bundle AD 1 pages 73-74.
In a report from Judy Zou, psychologist, dated 13 November 2020 the claimant describes pain all over body, takes children to school, 30 minutes each way, drives, cooks but if pain too much, gets takeaway food. Takes Mirtazapine 30 mg, Pristiq 100 mg, depressed mood, loss of interest, poor sleep, nightmares, reduced concentration and memory, normal appetite.
On 2 November 2020, Dr Rosa Hou [25] reported that the claimant says that she is still in a lot of pain since the motor vehicle accident in April, despite taking oral analgesia which she feels is only temporary. The claimant describes lumbar radiculopathy, numbness to the right leg and toes. She describes feeling very depressed due to pain and situation with COVID-19 she has stopped seeing psychologist due to cost issues.
[25] Further insurer bundle AD 1 pages 71-72.
On 25 November 2020 notes from Liverpool Hospital noted Axit 45 mg and Pristiq 100 mg, claimant having iron infusion.
On 15 March 2021 Dr Rosa Hou reported worsening headache, neck and lower back pain from a recent motor vehicle accident.[26] Also recorded an impression of post- traumatic stress disorder, anxiety and social stressors.
[26] Further insurer bundle AD 1 pages 69-70.
On 15 September 2021 Dr Rosa Hou noted the claimant reported persistent pain after motor vehicle accident June 2016. [27] Current medications included Pristiq 100 mg and Mirtazapine 90 mg. Dr Hou noted post-traumatic stress disorder, anxiety and social stressors. Refer to psychologist.

Treating Medical reports and Medico-legal reports
Dr Graham Vickery - psychiatrist and pain management
[27] Further insurer bundle AD 1 pages 67-68.

In a report dated 20 October 2017 Dr Graham Vickery, psychiatrist, examined and reported on the claimant’s condition.[28] He reported that the claimant has been on a disability support pension for pre-existing post-traumatic stress disorder since June 2016. He noted that the claimant had been undertaking counselling for post-traumatic stress disorder since she had migrated to Australia in 2010. Ms Salmon reported trauma related symptoms in relation to her abduction in Iraq. Dr Vickery found there was no trauma related symptoms due to the motor vehicle accident. Dr Vickery concluded there is a history of pre-existing post-traumatic stress disorder, anxiety and social stressors. He found there are no psychiatric injuries due to this accident.

Mr Peter Tingle - consultant occupational psychologist
[28] Insurer bundle AD 2 pages 301-308.

In a report dated 23 June 2020 Peter Tingle,[29] wrote in a psychologist assessment, that he noted psychological trauma from the subject accident several months after the subject accident. Mr Tingle wrote that the claimant continues to need physiotherapy and she has experienced psychological sequelae with flashbacks, nightmares about the accident.
[29] Insurer bundle AD 2 R 13 page 104.
Mr Tingle noted that the claimant experiences continuing anxiety and depression because of the lack of resolution of her physical injury symptoms.
Mr Tingle noted the claimant’s pre-morbid history, noted psychological issues as a result of trauma in Iraq and her husband was murdered. He also noted that the claimant is on the disability support pension for her mental health issues. Mr Tingle reported that the claimant probably had post-traumatic stress disorder and major depressive disorder in partial remission, before the subject accident. Mr Tingle reported that the claimant is currently experiencing clinically significant symptoms of anxiety and depression associated with changes in her life due to injury limitations and ongoing pain. Her current adjustment disorder has been triggered by the subject accident.
In another report from Mr Tingle with an assessment date 23 June 2020,[30] Mr Tingle noted that Ms Samhon had four sessions after referral in June 2020. After the accident, she experienced a psychological injury, post-traumatic stress disorder, and her psychological health is adversely affected by pain, with sleep, anxiety and depression stem from the accident. Mr Tingle wrote in the report that,
“….Her physical and psychological health is deteriorating due to her motor vehicle accident symptoms and lack of appropriate treatments. She reported to me that she attended Liverpool Hospital’s accident and emergency department on the 8/10/2020 because of overwhelming pain and that she was advised that she needed a pain management review and program as soon as possible. In today’s session Ms Samhon was in tears for much of the session and overwhelmingly anxious. I consider that a psychiatrist referral is now warranted given the difficulties she is facing and the deterioration in her mental health.”
[30] Claimant bundle AD 3 page 2.
In an Allied Health Recovery Request form dated 31 October 2020 written by Mr Tingle he noted adjustment disorder with anxiety and depressive symptoms, past trauma in Iraq. Recommended cognitive behaviour therapy (CBT).

Dr Tony Antoun - injury management consultant

In a report dated 8 August 2020 Dr Antoun reported motor vehicle accident on
24 April 2020.[31] He noted about the claimant’s history that the claimant was shot and underwent abdominal surgery in 2009 resulting in chronic pain, major depression/anxiety and post-traumatic stress disorder due to these dramatic events in Iraq.

SUBMISSIONS

[31] Insurer bundle AD 2 page 140.

Claimant’s submissions

The claimant’s solicitors provided submissions dated 7 October 2021. [32]
[32] Claimant bundle AD 3 page 6
The claimant submits that the report of Dr Peter Tingle dated 23 June 2020 was overlooked or not provided to Medical Assessor Parmegiani. The claimant submits that Dr Tingle reported that the claimant experienced a psychological injury, post-traumatic stress disorder, as a result of the trauma and circumstances of her car accident.
The claimant’s solicitors also argue that Medical Assessor Parmegiani did not properly apply the DSM 5 manual as required. Medical Assessor Parmegiani referred to in his reasons that the claimant did not experience specific thoughts as the subject accident unfolded. The claimant’s solicitors note that criterion a does not make any reference to “specific thoughts” nor has Medical Assessor Parmegiani explained the meaning of that phrase. The claimant argues that the failure of Medical Assessor Parmegiani to explain the meaning of the phrase “specific thoughts” amounts to an error to provide adequate reasons to justify his diagnosis of the claimant.

Insurer’s submissions

The insurer did not provide further written submissions to the Review Panel but relied upon its earlier submissions to the President’s delegate on 8 November 2021.[33]
[33] Insurer bundle AD 2 R 1 page 3.
The insurer disputes that Medical Assessor Parmegiani contained any errors or mistakes that are capable of having a material effect on the outcome of the assessment.
The insurer concedes that Medical Assessor Parmegiani does not appear to have commented on the reports of Mr Tingle notwithstanding that those documents were annexed to the insurer’s reply marked R5. The insurer argues that the claimant reported her psychological symptoms to Medical Assessor Parmegiani and these were similar to the symptoms reported on by Mr Tingle. The insurer submits that the symptoms recorded by
Mr Tingle were clearly communicated to Medical Assessor Parmegiani through other documentation and the claimant’s self reporting.
The insurer argues that Medical Assessor Parmegiani was entitled to form his own opinions, including his own independent assessment of the alleged psychological condition, based upon his examination and the claimant’s self-reporting: Garcia v Motor Accidents Authority [2009] NSWSC 1056. Given the detailed mental state examination and history taken by Medical Assessor Parmegiani, the insurer submits that all the necessary critical information was before Medical Assessor Parmegiani.
The insurer argues that contrary to the claimant’s submissions, Mr Tingle’s actual diagnosis of the claimant was that of an adjustment disorder related to the subject accident and probable post-traumatic stress disorder as a result of the claimant’s pre-accident experiences and trauma in Iraq.
The insurer also submits Medical Assessor Parmegiani provided adequate reasons in his decision and that there is no error in him applying criteria A for post-traumatic stress disorder diagnosis from page 271 of DSM 5. The insurer submits that Medical Assessor Parmegiani provided more than adequate reasons to justify the findings made in his assessment that the claimant’s reported persistent symptoms of post-traumatic stress disorder were clearly related to her experiences in Iraq.

MEDICAL EXAMINATION

The medical re-examination took place on 14 April 2023 by videoconference.
Ms Samhon was at home and her carer had gone out. Her two children, son and daughter were at home too. Ms May Dabliz was the Arabic interpreter who was present during the medical examination. Dr Fukui and Dr Hong participated in the re-examination from their Sydney offices.

History

Psychosocial history and pre-accident history

Ms Samhon was an imprecise historian and clearly struggled with her memory, and this is likely due to extensive trauma from the past and this also affected her memory around the time of the subject accident. She also discussed that she had a patchy memory of her previous experience of being tortured, and some of her memory came back intermittently.
She was born in Iraq and fled to Jordon, and came to Australia in 2009 as a refugee. She has never worked in Australia and reported that about two or three years after her arrival, she was placed on a Disability Support Pension from Centrelink. She reported having a carer organised from Centrelink for maybe four years to help her with day-to-day activities.
She was the third of six siblings. All of her family are overseas.
She has an extensive history of trauma, and said that she was kidnapped and assaulted and had been tortured and raped. She was in prison for a few weeks in Iraq. After she came to Australia she attended counselling with STARTTS for a few years, but cannot remember the last time she attended - she said it was a long time ago and there is no memory of attending after the 2020 accident, but recently her doctor asked her to contact STARTTS again for more trauma therapy, and she could not identify a reason for this.
She said she had a previous car accident, around 2016 but cannot remember exactly when that was. The Panel discussed the 2016 car accident and there is a suggestion she had another accident around 2019, but she cannot remember any other accident.
She discussed that in 2019 there was a period of time she did not drive, and on further enquiry, she could not quite remember why or give other details. She confirmed that she worried about everything in 2019, and gets scared, and said that she was not scared when driving. She said she had emotional reactions to fireworks and loud noises because they reminded her of the Iraqi experience.
She does not have drug or alcohol problems.
In terms of medical history, she has suffered iron deficiency and had a gunshot wound when she was in Jordan.
There was a history of referral to a pain clinic and psychiatric history during 2019 about which she did not recall any detail.
She was married and widowed in 2008. Her husband was murdered, and she has not had another partner since.

She was previously a university lecturer and has not engaged in paid employment after she came to Australia.

History of the motor accident

On 24 April 2020, Ms Samhon was on her way to pick up her children from school and was driving on her own in Fairfield. She drove a Lexus and was doing 45 kmph. She reported that there was a car that came out from a side street and struck her car from the side. She recalled her car spun and she experienced severe pain in her neck and back. Her airbag was deployed and her car was later written off by the insurer.
She did not go to the hospital and her brother came to pick her up. Later she went to Liverpool Hospital and was observed for 24 hours. She explained that because this was during the COVID-19 pandemic, she did not want to be at the hospital for very long and wanted to be discharged as soon as she could.

History of symptoms and treatment following the motor accident

Ms Samhon reported anxiety when driving after the subject accident. She does not know how long it took before she could replace her car. She purchased another Lexus, the same model, and reported that she had anxiety driving her car. She worried about big cars near her and said she gets scared, particularly when cars come from a side street from the left. She said she had a bad reaction and felt in shock due to the 2020 accident, and continues to drive with anxiety.
The Panel asked about other psychological difficulties, and she said she could not cope with anything after the 2020 accident, and also acknowledged that she had trouble coping and worried about everything before the subject accident.
She said after the accident when she drives she has a lot of physical reactions and pain. She prefers to catch an Uber.
She has poor physical tolerance and she needs to have a "stand" (which sounds like a walking frame) to walk now. She stated if she bends down to pick up something she will scream due to pain. If she sneezes she suffers severe pain. She said that she is sick of the pain and her doctor has been telling her to move a little bit, regularly, because sitting down for too long is not good, but she said she is in too much pain and she cannot move.
The Panel asked Ms Samhon more about driving anxiety from the previous accident(s), but she had trouble recalling any information and said she did not feel scared driving, although she confirmed that she worried about everything and felt scared immediately before the subject accident.
She had depression and anxiety before the accident and said that this became worse after the accident, as she is in more pain, and physically she had become more debilitated and she needs a lot of assistance mobilising and needs to have a walking frame.
She had problems with concentration, memory and headaches, and poor energy levels. The Panel asked her about these symptoms before and after the accident and she explained that she felt worse and could not elaborate further.
She has chronic insomnia and her sleep became worse after the accident, she stated that she has to change position a lot due to pain, when sleeping.
She said that after 2020, she put on a lot of weight because she cannot move and is always in pain. She gained more than 10kg and is not sure of her current weight.
She denied having any problems with irritability or anger problems.
She reported having chronic nightmares and flashbacks relating to her experience of being tortured and about the car accident.
She does not like enclosed spaces, being around men, or crowded places, and worries about breaking and entering, and this has not changed after the subject accident.

Details of any relevant injuries or conditions sustained since the motor accident

Ms Samhon has not had further car accidents or sustained other psychological injuries.

Current symptoms

Ms Samhon continues to have depressive symptoms, generalized anxieties and worrying thoughts, driving anxiety, concentration and memory problems, low energy levels and chronic insomnia with nightmares. She has flashbacks and trauma memory. She is not irritable but over-reacts and worries about her safety. She is highly anxious and avoidant.

Current and proposed treatment

Ms Samhon is currently taking: Pristiq (desvenlafaxine) in the morning, 1 tablet Axit (mirtazapine) 2 tablets at night. She stated her antidepressant medications have not changed after the subject accident. Panadol Osteo and Panadeine forte as needed for pain.
She consulted Peter Tingle, psychologist for more than six sessions and ceased around 12 months ago. She has difficulties recalling her psychological treatment history before and after the subject accident.
She has been consulting Dr Rosa Hou, pain specialist for several years and had a recent consultation.
She has not had inpatient treatment for her psychological health.
Her GP recently discussed connecting with STARTTS again and the Panel could discern no specific relation to the subject accident.

Clinical examination

Mental state examination

Ms Samhon wore a Puma tee shirt and had neatly shaped eyebrows. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was briefly tearful and did not wish to take a break. She was moderately restricted in her affect range and reactivity. She smiled and laughed, and gestured regularly. She spoke spontaneously. She was not thought disordered and gave long answers.
At the end of the assessment, the Panel asked Ms Samhon for additional information that she thought may be relevant and she discussed she just wants to be better.

Current functioning

Ms Samhon is 47 years old and lives with her two children. Her daughter was born in 2007 and her son was born in 2008 and she does not recall their ages.
She has nightmares and her daughter generally sleeps next to her and reassures her and tell her she is okay.
She prefers to not drive, and would call an Uber. She can drive on her own locally. She needs a walking frame to walk.
The Panel discussed her childcare capacity, and asked her in what way she struggled with looking after her children before the accident, but she could not provide an explanation or explain the changes after the accident.
She reported that her carer takes her out for walks or to go to the shops. She goes to physiotherapy. She takes her medications, she watches television, she eats breakfast and said she reads a lot. Generally, she reads the Koran. She does not go to the mosque or go to any community centres or meet up with groups of people, because she does not like to be in crowded places. If she goes to a crowded place or a mosque, she stated she cannot breathe and suffers anxiety problems.
Her children catch a school bus.
Ms Samhon needs assistance to shower and said there is some problem with her arm and her head is sore, and she cannot wash her hair.
She does some cooking, such as chicken dishes and rice dishes. She generally goes with the children to do shopping or a neighbour will do it for her, or she will go with the carer.
She has no other family in Australia. Her brother recently visited her and then returned overseas.
Ms Samhon said she has never had close friends in Australia. She has a neighbour that helps and another friend that comes to help, and the Panel noted that she has always been isolative due to her pre-existing post-traumatic stress disorder.

Comments of consistency

Ms Samhon has major difficulties recalling her psychiatric history immediately before the subject accident, and this is consistent with her trauma history and having major psychopathology immediately before the subject accident.

Determinations

Causation and reasons

Ms Samhon has pre-existing post-traumatic stress disorder and anxiety and depressive symptoms. After the subject accident, she developed further anxiety and depressive symptoms, which are conceptualised as an adjustment disorder as her symptoms are directly caused by the impact of the subject accident. The increased pain after the subject accident perpetuates and prevents any resolution of her anxiety and depressive symptoms and the subject accident is a significant cause of her current psychological condition.

Diagnosis and reasons

Ms Samhon has a complicated history with pre-existing post-traumatic stress disorder, depression and anxiety and has had at least one previous car accident. In her previous application form, she noted having shock and anxiety, although on assessment today she did not recall having a problem and said that she was not scared about driving after the 2016 accident. However, she also reported she did not drive for a period of time in 2019. She was having treatment for whole body chronic pain, trauma symptoms, chronic depressive symptoms and generalized anxiety immediately before the subject accident.
After the 2020 accident, she purchased a new car and described having anxiety about driving, particularly anxiety around big cars and cars from side streets, and also described having significant physical reactions and pain when driving. She has whole-body pain, and after the accident she developed increased pain, particularly affecting her neck and back that affects everything she does.
Apart from Mr Tingle, there is no evidence from the history that she provided or from the treating clinicians’ reports, that she suffered an aggravation of her pre-existing psychiatric disorders.
After the subject accident, she described further anxiety and depressive symptoms as a result of the impact of the subject accident and subsequently increased pain. As there is a direct triggering event causing her symptoms, this is consistent with an adjustment disorder caused by the subject accident. This is a threshold injury.
She has not suffered an aggravation of her pre-existing post-traumatic stress disorder or MDD, because her psychological conditions fluctuated over the years and are not significantly different before and after the subject accident. Her psychotropic medications have not significantly changed after the subject accident. She has had treatment with a psychologist, and this was similar to the pre-existing trajectory of her illness and need for psychological treatment before the subject accident. Finally, her psychiatric functioning is not significantly different after the subject accident.
She does not have new post-traumatic stress disorder, as the nature of the subject accident and Ms Samhon's described psychological response did not fulfil the DSM-5 post-traumatic stress disorder criterion A event description. Furthermore, criterion G was not fulfilled, as her trauma symptoms related to the subject accident, have not caused significant new impairment in social, occupational or other important areas of functioning. The Panel noted Mr Tingle’s report. Whilst the claimant has flashbacks and nightmares related to the accident, having these symptoms are not sufficient to diagnose PTSD.
She does not have a new major depressive disorder after the subject accident, as her depressive symptoms are more consistent with an adjustment disorder and related to the intensity of her chronic pain. Furthermore, criterion B was not fulfilled, as her depressive symptoms related to the subject accident, have not caused significant new impairment in her functioning. The Panel noted Mr Tingle’s comments regarding the claimant’s major depression, and noted that all of the DSM-5 criteria must be met for a MDD diagnosis to be made, and in her case, criterion B was not fulfilled.
In conclusion the Panel recognized that Ms Samhon is distressed as a result of the subject accident, however she has not developed a psychological injury that is not a threshold injury after the subject accident, or an aggravation of a pre-existing injury.
As a result of these findings the Panel revokes the certificate of Medical Assessor Parmegiani dated 16 September 2021 and issues a replacement certificate in accordance with these reasons.

[2023] NSWPICMP 283

8 May 2023