Shamoon v QBE Insurance (Australia) Limited
[2023] NSWPICMP 128
•5 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Shamoon v QBE Insurance (Australia) Limited [2023] NSWPICMP 128 |
| CLAIMANT: | Rita Shamoon |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Samson Roberts |
| DATE OF DECISION: | 5 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 24 February 2018; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; claimant diagnosed with driving phobia which restricted travel; assessments of other psychiatric impairment rating scale (PIRS) categories did not show any psychiatric impairment; Held – claimant assessed at 0% permanent impairment for the psychological injury; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment The assessment made by the review panel under s 7.23(1) of the Motor Accident Injuries Act 2017 is as follows: · driving phobia. |
REASONS
BACKGROUND
Ms Rita Shamoon (the claimant) suffered injury on 24 February 2018 when her vehicle was hit by the insured vehicle which failed to stop at a red light.
QBE Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Shamoon any damages and or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether Ms Shamoon’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 clause 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Fukui and dated 30 May 2021. The Medical Assessor assessed the degree of permanent impairment at 5%.
ASSESSMENT UNDER REVIEW
Medical Assessor Fukui issued a medical assessment dated 30 May 2021 determining that the permanent impairment of the injuries was not greater than 10%. The Medical Assessor found that the claimant suffered from a generalised anxiety disorder and that she had suffered from a post-traumatic stress disorder which had resolved.
The Medical Assessor held that Ms Shamoon was consistent in her reporting of symptoms but no longer described post-traumatic symptoms. The claimant continued to experience residual significant anxiety symptoms characteristic of generalised anxiety disorder.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
On 5 August 2021 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.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury 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 (the Commission).
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 Merit Reviewer or a Medical Assessor.[5]
[5] 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.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the initial Direction. The insurer filed clinical records as a very late application.
The delay in the completion of the Review was due to the claimant being unavailable to be medically examined.
OTHER MEDICAL ASSESSMENT
Medical Assessor McGrath provided an assessment dated 29 April 2021.[8] The Medical Assessor found that Ms Shamoon sustained a number of soft tissue physical injuries resulting in permanent impairment of 5%.
[8] Insurer’s bundle, page 37.
STATUTORY PROVISIONS/GUIDELINES
Clauses 6.6 and 6.7 of the Guidelines provide:
“Causation 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.There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
MATERIAL BEFORE THE REVIEW PANEL
[9] See s 3B(2) of the Civil Liability Act, 2002.
The Panel requested and were provided with separate bundle of documents provided by the parties.
Treating records
Ms Zeina Boutros, psychologist provided a report dated 7 July 2018. The psychologist noted that she had assessed Ms Shamoon and agreed with Dr Abdulrahim’s opinion that the claimant exhibited signs consistent with post-traumatic stress disorder.
There are various reports from treating and qualified doctors relating to Ms Shamoon’s pain and ongoing symptom from physical injuries sustained in the motor accident.
Qualified opinions
Associate Professor Robertson provided a report dated 29 October 2019.[10] He provided a diagnosis of post-traumatic stress disorder and recommended treatment for the condition. The doctor assessed permanent impairment at 7%.
[10] Insurer’s bundle, page 20.
Dr Ben Teoh, psychiatrist, was qualified by the claimant and provided a report dated
21 July 2020.[11] The doctor diagnosed a generalised anxiety disorder and assessed impairment at 15%.[11] Claimant’s bundle, page 56.
SUBMISSIONS
Claimant’s submissions dated 30 June 2021[12]
[12] Claimant’s bundle, page 375.
These submissions sought a review of the assessment provided by Medical Assessor Fukui. The claimant referred to the findings made by Medical Assessor Fukui particularly with regard to current symptoms, treatment and social functioning. It was submitted that based on the observations and finding and had the Medical Assessor complied with AMA 4 and the Guidelines then different assessments would have been made.
It was submitted that errors were made for the classification under “Self-care and personal hygiene”, “social functioning” and “adaption”. Further, Ms Shamoon has active psychiatric treatment, and an adjustment should have been made under cl 1.222 [sic] of the Guidelines. The total permanent impairment was 18%.
Insurer’s submissions dated 12 November 2020[13]
[13] Insurer’s bundle, page 10.
The insurer noted that Associate Professor Robertson was qualified by both the claimant and the insurer and assessed the claimant at 7%. It submitted that the claimant, had contrary to s 6.3 of the MAI Act, failed to act in good faith by then obtaining a further report (Dr Teoh).
It was submitted that the assessment of Associated Professor Robertson be accepted, and the opinion of Dr Teoh is not considered.
Insurer’s submissions dated 27 July 2021[14]
[14] Insurer’s bundle, page 56.
These submissions were filed opposing the application to review the medical assessment. The insurer submitted that assessment of Class 2 for “Self-care and personal hygiene”, Class 1 for “Social functioning” and Class 1 for “Adaptation” were open based on the factual findings made by the Medical Assessor.
The insurer also noted that the assessment of Class 1 for Adaption was appropriate given the alleged difficulties in the claimant’s function is due to pain and her physical condition which cannot be considered pursuant to cl 6.215 of the Guidelines.
In respect of the effects of treatment, the insurer noted that cl 6.223 of the Guidelines was discretionary. Based on the material the last psychological treatment was on
13 May 2019. Further, the use of anti-depressant medication should not be considered when determining an adjustment for the effects of treatment (cl 6.224 of the Guidelines).
RE-EXAMINATION
Ms Shamoon was examined by both Medical Assessors on the Review Panel. The examination was delayed for over six months due to the claimant being unavailable. Their joint examination report is as follows:
“Who attended the assessment:
The assessment was undertaken by Medical Assessor Roberts and Medical Assessor Hong using Microsoft Teams. Ms Shamoon participated in the interview from her home.
Psychosocial history and pre-accident history
Ms Shamoon is a 38-year-old woman. She and her husband married in 2005. They have four sons aged 5, 11, 15 and 16 years. Ms Shamoon resides with her husband and four sons in Cecil Hills.
Ms Shamoon grew up in Iraq. She is the youngest of six sisters and two brothers. She reported a satisfactory relationship with her siblings. She did not recall any difficulties in her relationship with her parents. She recalled school in positive terms. She left in Year 7.
Ms Shamoon and her family left Iraq in 1997. They spent two months in Jordan and one year and eight months in Athens. They then travelled to Australia as refugees.
When asked regarding the basis on which the family left Iraq, Ms Shamoon replied that there were no problems in Iraq. She and her family were not the subject of any discrimination. She did not report any adversity. Her father was a midwife in Iraq.
On arrival in Australia, Ms Shamoon spoke no English. She studied English for a year in a College in Fairfield before entering Bossley Park High School where she undertook Years 10, 11 and 12. She went on to obtain a Certificate II in Business Administration in TAFE. She has never worked.
As stated above, Ms Shamoon was married in 2005 and pregnant by 2006.
She has siblings in Australia. One of her sisters lives in Michigan. She visits Australia every two years. They speak between visits. Ms Shamoon sees her local siblings every week to two weeks.
Ms Shamoon did not recall any pre-existing medical conditions, past operations or procedures. She did not recount any obstetric complications. All her children were born healthy. She did not report a history of cigarette smoking, alcohol use or illicit drug use.
Later in the assessment, Ms Shamoon recounted her involvement in a motor vehicle accident in 2014. She stated that it occurred at the same location as the subject motor accident. The vehicle in front of her had a towbar and reversed into her vehicle. She did not recall any injuries.
History of the Motor Accident
Ms Shamoon recalled that the motor accident occurred on 24 February 2018. She was 24 weeks pregnant with her fourth son. The accident occurred at around 9:30pm. She was driving with her three sons in the car, having left her sister‑in-law’s home.
Ms Shamoon recalled being stationary at a traffic light intending to make a right turn. The light turned green and she initiated the turn. As she did, a car came through the red light from her left collided with the driver’s side of Ms Shamoon’s vehicle.
Ms Shamoon recalled that she was driving a Toyota Kluger at the time of the accident. The other vehicle was a small hatchback.
After the impact Ms Shamoon drove her car to the side of the road. Other cars stopped. Passers-by asked after her wellbeing. She recalled that she could not open the driver’s door and waited for someone else to open it for her. The airbags did not deploy.
An ambulance attended the scene after five minutes. Paramedics check on her and her children. Police took one and a half hours to arrive.
Ms Shamoon’s husband and brother-in-law attended the scene. Ms Shamoon and her children went home in her brother-in-law’s car. Her husband tied the driver’s door of her car shut and drove it home.
History of Symptoms and Treatment Following the Motor Accident
Ms Shamoon recalled the onset of pain three days after the motor accident. Specifically, she recalled the accident occurred on Saturday and on Monday she was experiencing pain in her shoulder, back and knee. She stated her recollection that it was possibly on Tuesday morning that she went to her general practitioner, Dr Reem. No x-ray was performed because she was pregnant at the time. She recalled the treatment was delayed until after her baby was delivered. She then saw a specialist and engaged in physiotherapy. The physiotherapy continued until it was interrupted by COVID restrictions. She did not engage in any other treatment modalities.
Ms Shamoon did not identify any improvement in her physical condition. She continues to suffer symptoms in her back, right leg and both shoulders. Shoulder pain varies. Physiotherapy did not help with her physical symptoms.
Ms Shamoon recalled that her oldest son sustained a knee injury in the accident and her second son injured his back and chest. She stated that neither of her sons informed her that they were experiencing pain at the time.
Ms Shamoon reiterated that she did not suffer pain immediately following the subject motor accident. She recalled that she had to buy a new car. She estimated that it was approximately four weeks until she resumed driving because she was very scared.
Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
Ms Shamoon’s father died on 17 May 2019 and her father-in-law died on 2 September 2019. Ms Shamoon recalled that her father’s death was distressing. He had been well. She later became aware that he had suffered a small stroke but did not tell anyone. He was conveyed to Liverpool Hospital. He died on the second day of his admission. Ms Shamoon stated that she did not go anywhere for two to three months consistent with her cultural response to a death in the family.
Current symptoms
Ms Shamoon stated that she remains “really scared” when driving. She even becomes scared when travelling between home and her local Woolworths. She is anxious about the prospect of being involved in a further motor accident. She is a careful driver. When she drives past the scene of the accident, her children warn her about the risk of a motor accident. She stated that they remember the accident.
Ms Shamoon was asked whether she experiences anxiety in other circumstances. She stated that she becomes upset, cranky and might cry if someone calls her and tells her such things as her mother is sick, her brother has been in an accident or her sister has been in an accident. If she does not hear bad news, she does not worry.
Ms Shamoon stated that she enjoys time spent with her family. She enjoys holidays. She stated that she does not worry about her children and she is content that they are doing well. She however acknowledged impatience with them for no apparent reason but stated that she does not become physical with her children. She confirmed that when they do something wrong, she becomes “cranky”. She spoke positively of her relationship with them. She talks with them and she is friendly with them. They no longer let her help them with their homework believing that they know everything.
Ms Shamoon reported a normal appetite. She seeks to be healthy with her diet. She sleeps from 11:30pm to 3:30am and then lies in bed until 6:00am or 6:30am. She wakes feeling energetic. Sometimes she likes to have a sleep during the day. She remains motivated. She does not like to rely on help from others.
Ms Shamoon remembers the motor accident. She stated that she has a good memory. She thinks about the accident when turning through the same intersection. If she is required to drive, she becomes anxious at the prospect of going out but if someone is coming to pick her up, she does not experience anxiety. She stated that she has never become suicidal. She has dreams of the impact of the accident and experiences the emotion of shock.
Current and Proposed Treatment
Ms Shamoon takes Advil one tablet daily. If she is experiencing severe pain, she takes Endep. She stated that she does not use this medication every day. She could not recall the dose of Endep stating that she takes half a tablet.
Ms Shamoon did not state any intention to resume physiotherapy as it was not proving beneficial. She stated no intention to change the current approach to treatment.
Ms Shamoon has been under the care of Zeina Boutros at Moorebank. She recalls speaking to Ms Boutros about how she was feeling. She last saw Ms Boutros prior to COVID.
Mental State Examination
As stated above, the assessment was undertaken using audio visual technology. The quality of the connection was satisfactory. Ms Shamoon presented as a neatly groomed woman. She appeared to be wearing makeup. It appeared that her brows were shaped. She wore earrings. Her hands appeared manicured. No neglect of personal care was apparent. She exhibited reactivity of affect demonstrating a normal range of emotional expression. Her sense of humour was evident. She did not report a tendency to depressed mood. She expressed anxiety at the prospect of driving and when actually driving. She did not report anxiety in other settings. She presented her account in straightforward language. Her speech was accented but normal in terms of rate, tone and volume. She reported recalling the accident when driving past the accident scene. She has experienced dreams of the impact. She did not report other intrusion phenomena or avoidance. No features of a psychotic nature were elicited.
Current Functioning
Ms Shamoon was not working at the time of the interview and reported that she has never engaged in remunerative employment. Her husband runs a pizza shop seven days a week working from 4:00pm to 8:30pm. He is at home until 2:30pm or 3:00pm. Ms Shamoon stated that she has to be at home with him as she does not like to leave him alone. Her husband manages the home. She is able to clean but not in a way that she was accustomed prior to the accident due to the physical limitations which she ascribed to the accident. She therefore relies more on her husband and children. He does the shopping in the morning. She is limited in this regard due to her physical condition. She generally does the cooking but if there are meals that will take longer to prepare, due to her physical condition she leaves them to her husband who is a chef.
Ms Shamoon stated that she requires help with physically difficult aspects of dressing, but she is able to shower herself although she does so more quickly than she used to because of her physical condition. She continues to eat regularly.
Ms Shamoon recalled two to three years ago she had a friend who would visit with her husband and children and Ms Shamoon and her family would visit her friend but this ended with COVID. She continues contact with her friend by phone.
Ms Shamoon watches television. She watches Netflix. She listens to prayers on YouTube. At the time of the assessment, she was fasting, it being during the 40 days leading up to Easter. She acknowledged becoming very tired if she goes out shopping.
Once a week Ms Shamoon receives visitors. Her mother and mother-in-law visit. Her mother typically comes from 6:30pm to 9:00pm. Her mother-in-law comes to her home with her brother-in-law and Ms Shamoon will drive her back home. If she suffers pain in her neck, she will not drive. She is reluctant to drive generally because of her neck pain.
Sometimes she goes to St Thomas Church in Bossley Park. Sometimes she goes with her husband. When she goes to the church, she engages with other members of the church.
Every Saturday, Ms Shamoon drops her third son at church. He is preparing for Holy Communion. She stated that she typically drives with another son in the car when she does so.
Over Christmas 2022, Ms Shamoon travelled with her family by car to Melbourne and Adelaide. They holidayed for two weeks. Her husband drove. She does not engage in any outings with her husband. From the time of the holiday up till the time of the assessment, she reported no outings as a family due to financial constraints. Previously, she would go out for dinner or to the beach with her family from time to time.
Ms Shamoon spoke positively of her relationship with her husband and with her children.
Consistency of Presentation
No inconsistencies were identified with respect to Ms Shamoon’s account or her presentation at interview.
Diagnosis and Reasons
The symptomatology presented by Ms Shamoon included an account of anxiety when required to drive. She did not describe anxiety arising in other circumstances. She reported becoming upset when she hears about worrying circumstances such as potential illness or injury of family members. She is irritable at times but this does not reflect a pathological reaction. She did not describe depressive symptomatology.
The Panel considered Posttraumatic Stress Disorder. The available information does not support the conclusion that the motor accident was of a nature that could be considered consistent with Criterion A of the DSM-5 diagnostic criteria. Furthermore, other diagnostic criteria were not elicited at a level sufficient to meet criteria even if the accident was considered to reflect a Criterion A trauma.
In conclusion, Ms Shamoon suffers Driving Phobia based on the presence of anxiety of such a degree as to render her reticent to drive and of sufficient severity to compel her to restrain her driving to the local area.
Causation and Reasons
The history presented by Ms Shamoon supports the conclusion that the diagnosed condition arises solely as an effect of the subject motor accident. No other factors were identified as influencing the causation of this condition.
Psychiatric diagnoses 1. Driving Phobia
Psychiatric treatment description Nil.
Category Class Reason for Decision 1. Self-care and Personal Hygiene 1 Ms Shamoon did not report neglect of her personal care or hygiene. She described eating regularly. Her personal presentation at interview was consistent with her account of continued attention to personal presentation. She reported requiring assistance with aspects of dressing due to physical limitations. No psychiatric impairment was apparent in this area of functioning. 2. Social and Recreational Activities 1 Ms Shamoon attributed reduced social interaction to COVID. She continues to participate in family recreational activities. She participated in a two-week driving holiday over Christmas. She receives family visitors. She engages in recreational activities and if not for financial constraints, her account indicated that she would be participating in family outings. Her account did not reflect psychiatric impairment in this area. 3. Travel
2 Ms Shamoon reported anxiety associated with driving. It is her preference to be driven. Her account reflected her ability to drive notwithstanding her anxiety but the impression derived from her account indicated that she only drives independently to familiar destinations. Accepting the accuracy of this description, the Panel considered that Ms Shamoon’s psychiatric injury had rendered her mildly impaired in this area. 4. Social Functioning
1 Ms Shamoon spoke positively of her relationship with her husband. He has evidently been supportive of her and has undertaken to compensate for her physical limitations with respect to household tasks. She also spoke positively of her relationship with her children. Her account did not reflect a decline in the quality of her relationship with them despite her impression that she is less patient than she would like to be. Although she has engaged less with her friends since COVID, she has maintained regular contact by phone. Overall, her account reflected the absence of psychiatric impairment in this area. 5. Concentration, Persistence and Pace 1 Ms Shamoon did not report a decline in her ability to undertake tasks due to psychiatric factors. She ascribed this to physical symptoms. She did not describe compromise with respect to concentration or memory. Her participation in the assessment did not reflect psychiatric impairment in this area. Based on Ms Shamoon’s account and the manner in which she participated in the assessment, the Panel found no psychiatric impairment in this area. 6. Adaptation
1 Ms Shamoon was not participating in remunerative employment prior to the motor accident. This circumstance has not changed. She continues to engage in her household and parenting responsibilities albeit with limitations attributed to her physical symptoms. Her account did not reflect psychiatric impairment. List classes in ascending order: 1, 1, 1, 1, 1, 2
Median Class Value: 1 Aggregate Score: 7 % Whole Person Impairment: 0% *%WPI = Percentage Whole Person Impairment
Apportionment
The entirety of the whole person impairment calculated above arises as an effect of the psychiatric injury caused by the motor accident.
Pre-existing/subsequent impairment
No pre-existing or subsequent psychiatric impairment was identified.
Effects of Treatment
Ms Shamoon is not in receipt of treatment. Although she has been prescribed a tricyclic antidepressant, this has been prescribed for the treatment of pain and is used only intermittently. It would not be expected to exert any effect on her psychiatric diagnosis. No adjustment for effects of treatment is required.
A Current % permanent impairment 0%
B Pre-existing/subsequent % permanent impairment 0%
C Adjustments % for effects of treatment 0%
Final % permanent impairment 0%”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[15] The Panel adopts the extensive reasons of the joint examination findings of the two Medical Assessors.
[15] Section 7.26(6) of the Act.
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 v Keen[16] and Insurance Australia Ltd v Marsh.[17] The Medical Assessors have explained the basis for their assessments which are different from those provided by other specialists. Further, the medical assessment of permanent impairment is undertaken at the time of the examination. In that respect, the previous assessments are somewhat outdated and do not reflect current symptomatology.
CONCLUSION
[16] [2021] NSWCA 287 at [40], [41] and [45].
[17] [2022] NSWCA 31 at [11], [21], [64].
The new certificate is attached at the commencement of these Reasons.
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