Tannous v QBE Insurance (Australia) Limited
[2024] NSWPICMP 413
•26 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tannous v QBE Insurance (Australia) Limited [2024] NSWPICMP 413 |
| CLAIMANT: | Madonna Tannous |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Christopher Rikard-Bell |
| DATE OF DECISION: | 26 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed she sustained psychological injuries in a motor accident; Medical Assessor (MA) Verma determined that the claimant suffered depression due to another medical condition (pain, in remission) caused by the motor accident which was a non-minor (now non-threshold) injury; review sought by the insurer under section 7.26; consideration and application of section 1.6 and the Motor Accident Guidelines; Held – Medical Assessment Certificate is revoked; the claimant suffered post-traumatic stress disorder caused by the motor accident and that such psychological condition is a non-threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Surabhi Verma dated 7 November 2022. 2. Certifies that the following injury caused by the motor accident on 13 December 2019 is a non-threshold injury for the purposes of the Motor Accident Injuries Act 2017: · post-traumatic stress disorder. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Ms Madonna Tannous, is a 40-year-old woman who was involved in a motor accident on 13 December 2019 when she was struck on her right hand side and knocked down by a motor vehicle whilst she was a pedestrian in a car park (the motor accident).
On 19 August 2020, Ms Tannous made a claim for personal injury benefits. The relevant compulsory third party insurer was QBE Insurance (Australia) Limited (the insurer).
Ms Tannous claims that she suffered psychological injuries caused by the motor accident. She also claims that she suffered injuries to her head, neck, back, left leg and bruises and scratches.
Ms Tannous’ claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A dispute has arisen between Ms Tannous and the insurer as to whether, for the purposes of the MAI Act, the psychological injuries she alleges were caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Surabhi Verma for assessment.
The medical dispute was assessed by Medical Assessor Verma, who issued a certificate dated 7 November 2022 wherein she certified that Ms Tannous suffered depression due to another medical condition (pain) that was currently in remission, was caused by the motor accident and was a non-minor (now non-threshold) injury for the purposes of the MAI Act (the Medical Assessment).
REVIEW PROCEDURE
The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 13 February 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
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: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. 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.
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: Rule 128 of the PIC Rules.
On 6 September 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 15 December 2023, the Panel informed the parties that it considered a re-examination of Ms Tannous was required. Arrangements were made for Ms Tannous to be re-examined by Senior Medical Assessor John Baker and Medical Assessor Christopher Rikard-Bell by video link (MS Teams) on 18 March 2024.
STATUTORY PROVISIONS
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a threshold psychological or psychiatric injury.
A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(a).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4, ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
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 a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 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:
“General provisions for assessment
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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury and provide:
“Threshold psychological or psychiatric injury assessment
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 respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“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.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 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.”
Clause 6.7 of the Guidelines states:
“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.”
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 24 November 2023 (insurer’s documents), and
(b) Ms Tannous’ indexed and paginated bundle of documents lodged on the Commission’s portal on 30 November 2023 (claimant’s documents).
ASSESSMENT UNDER REVIEW
Medical Assessor Surabhi Verma examined Ms Tannous on 20 October 2022 and issued a certificate under s 7.23(1) of the MAI Act dated 7 November 2022.
Medical Assessor Verma was asked to assess the minor (threshold) injury dispute in respect of the following injuries:
(a) psychological condition, and
(b) psychological injury.
Medical Assessor Verma took Ms Tannous’ brief psychosocial and pre-accident history. She also took a history of the motor accident and a history of the symptoms and treatment that followed, all of which, in the main, were consistent with the evidence.
Medical Assessor Verma noted the following:
“She went to Lebanon again as her Mum underwent another surgery. She stayed there for 3 months and then returned to Australia. Her GP then tried to investigate the palpitations which she was experiencing and put a ‘heart monitor’ as she experienced palpitations.
I enquired her that what could the possible reason of lag in her symptoms and the index injury. She said that gradually her physical symptoms worsened which impacted her mental health and hence the lag.”[2]
[2] Insurer’s documents at page 28.
In respect of Ms Tannous’ current symptoms, Medical Assessor Verma noted that her mood had been on and off. Sleep had now improved, in that, she was able to sleep through the night. She enjoyed her partner taking her out for drives, going out for coffee and talking to him. Her appetite had increased and she had gained about 10kg in weight over the past year. Eating made her feel better. She has been unable to drive for long distances due to back pain but is able to drive short distances. She denied having persistent low mood. She denied having any current flashbacks or nightmares about the motor accident. She also denied having any anxiety. Energy levels had ameliorated and she was able to perform small chores. Attention and concentration was fine and she had been able to watch a television series without any difficulties. She was now able to vacuum and performed some household chores but had not yet recommenced exercising. She had not socialised with friends for about one year. Personal hygiene was better and she was able to shower, brush her teeth and wash her face on a regular basis. She had not returned to work.
In respect of current and proposed treatment, Medical Assessor Verma noted that Ms Tannous had not been on any treatment, nor had any treatment been proposed.
On mental state examination, Medical Assessor Verma observed that Ms Tannous presented as a 38-year-old female of Lebanese background, who looked the stated age. She was casually dressed and groomed. She engaged well during the interview and maintained eye to eye contact. She gave a clear account of her symptoms and difficulties. Speech was spontaneous and normal in volume and tone. She described her mood as fluctuating and her affect was bright and reactive. Thoughts were logical and goal-directed. There was no evidence of any manic or psychotic symptoms or any perceptual abnormalities.
Medical Assessor Verma opined that Ms Tannous’ presentation was consistent with the provided history and documentation.
Medical Assessor Verma noted the relevant documentation with which she had been provided. She also noted the insurer’s submissions that there was no evidence that Ms Tannous had suffered from a psychological disorder or symptoms following the motor accident and therefore, disputed that any such injury had been sustained in the motor accident; that there was no psychological diagnosis, and there were no symptoms or complaints recorded in the available medical material; and no evidence that she had suffered from a diagnosable psychiatric illness under DSM-5-TR.
In respect of diagnosis and reasons, Medical Assessor Verma opined as follows:
“Ms Tannous presented with the symptoms suggestive of Depressive Disorder due to another medical condition, in remission. The diagnosis is based on the presence of following DSM-5 criterion. She presented with symptoms which fulfilled the diagnostic criterion for this diagnosis.
The symptoms started after her pain worsened. This along with loss of sense of self after not being able to work added to the stressors. This could have precipitated the depressive episode, and was perpetuated by the changes in her relationship with her husband at that time. She has now noticed improvement in those symptoms with support from her GP and her current partner.”[3]
[3] Insurer's documents at page 30 at [20].
Medical Assessor Verma then identified the relevant criteria for depression due to another medical condition under DSM-5-TR.
Medical Assessor Verma certified that Ms Tannous suffered depression due to another medical condition (pain) that was currently in remission, was caused by the motor accident and was a non-minor (now non-threshold) injury for the purposes of the MAI Act.
REVIEW OF THE EVIDENCE
Application for personal injury benefits
On 19 August 2020, Ms Tannous completed an application for personal injury benefits in respect of the motor accident (the application form).[4]
[4] Claimant’s documents at pages 13-18.
The application form set out the basic particulars of the motor accident and Ms Tannous described the injuries she suffered in the motor accident as follows:
“Head injury, neck, back and left leg injury, bruises and scratches.”[5]
[5] Claimant’s documents at page 15.
No reference was made in the application form of Ms Tannous having suffered any psychological condition caused by the motor accident.
Ms Madonna Tannous’ evidence
In evidence, there is a statement by Ms Tannous dated 6 December 2022.[6] The relevant parts of that statement are referred to below.
[6] Claimant’s documents at pages 42-44.
Ms Tannous stated that she was born in Lebanon and completed the equivalent of year 12. She came to Australia in 2002 and later completed a Diploma in Early Childhood Education. She also completed a Diploma in Make-up Artistry and had undertaken work as an educator in a number of childcare centres. At the time of the motor accident, she was employed as a full-time manager at a pizza restaurant.
Ms Tannous described the motor accident as follows:
“On 13 December 2019, I was walking towards Bass Hill Plaza car park pedestrian crossing when I was hit by a car on my right side and knocked to the ground hitting my head. It was a sudden impact and I remember the bang. I was dazed and recall losing consciousness for a few seconds. I was helped up by passers-by. My belongings were lying every where [sic] on the road and the elderly lady who was driving the car was upset and crying for what had happened.”[7]
[7] Claimant's documents at page 42 at [9].
Ms Tannous stated that she sustained injuries to her head, neck, back, left leg and left arm in the motor accident and that the accident had also significantly affected her emotionally.
Ms Tannous stated that following the motor accident, she consulted her general practitioner, Dr Farid Hanna, of the Chester Hill Family Medical Practice, who prescribed her medication. Her pain increased and she experienced body aches all over. She returned to consult Dr Hanna and was referred for X-rays of her neck and back. Dr Hanna also referred her for an MRI scan of her back and for physiotherapy. They discussed a steroid injection into her back.
Ms Tannous stated that she continued to manage her symptoms with medication. However, the medication caused gastric side-effects and so, she now takes Nurofen and paracetamol. She tried acupuncture and cupping. She also consulted a chiropractor and a psychologist on one of her post-accident visits to Lebanon.
Ms Tannous stated that she continued to have pain and stiffness in her neck with headaches, dizziness and nausea. The pain in her neck went into her left shoulder, where she experienced pain and numbness as well as pain in her left arm. The headaches were regular and significant.
Ms Tannous stated that she continued to have pain and stiffness in her back which goes down to her left hip and then into her left leg, foot and toes. She had difficulty weight-bearing on her left leg. The pain was worse when she tried to sleep. She experienced reduced sensation in her left calf and left foreleg.
Ms Tannous stated that she experienced difficulty with carrying, lifting, bending and prolonged sitting, standing and walking.
Ms Tannous stated that she had difficulty sleeping. She experienced night sweats, nightmares and palpitations. She experienced flashbacks of the motor accident. She recalled being on the ground and people looking on top of her. She recalled seeing a friend who was crying. There were people yelling and getting water. She recalled her shoes being on her right side.
Ms Tannous stated that, prior to the motor accident, she was very active and enjoyed training and socialising.
Ms Tannous stated that following the motor accident, she ceased exercising and the relationship with her husband deteriorated. She started overeating and put on weight. She felt insecure about her looks. She and her husband ceased having an intimate relationship. Her husband was very critical of her and did not understand what she was going through. She was constantly in pain. He did not understand this. He was verbally abusive about her pains and problems. Her personality changed. She cried a lot. She was angry and irritable. She was home a lot. The ongoing pain dropped her mood. She hated herself and felt insecure.
Ms Tannous stated that her energy levels had been low and that she had lost confidence and motivation. Although recently things had improved somewhat. She missed doing the things she enjoyed before the motor accident such as training, exercising, going out with friends and bowling with her children. She gradually stopped all of these activities and felt sad and low. She was not looking after herself and stopped seeing friends and family.
Ms Tannous stated that she avoided the scene of the motor accident. She was hypervigilant, especially near school zones and crossings. She was paranoid when her children wanted to cross the street. She became panicky. Her eldest son drove her at times. She was always calling her children, which annoyed them. She was constantly scared that something bad would happen to the children. She feared further injury to herself and to her family. She worried a lot and was very stressed. She became tired and fatigued.
Ms Tannous stated that, even though she had tried to return to the gym, she was unable to continue to do so because of her pains resulting from the motor accident. She had difficulty sleeping. She stopped driving. She did not like driving and preferred others to drive her. Her boyfriend drove her around a lot. She did not like being a passenger in a motor vehicle.
Ms Tannous stated that, at the time of the motor accident, she was employed as a manager of a pizza shop. She obtained this employment through a friend who had two restaurants. She worked 12 hours per day, seven days per week. Her duties included working on the cash register, cooking and cleaning, if they were short of staff.
Ms Tannous stated that, as a result of the injuries and disabilities she suffered in the motor accident, she had not been able to return to work at the pizza shop or any other work.
Treating medical records and reports
On 13 December 2019, Ms Tannous consulted Dr Hanna and reported that she was walking in a customer car park in Bass Hill when a car came out and hit her causing her to fall down, hit her head on the car and then fall to the ground. She reported no loss of consciousness or vomiting. She felt dizzy, complained of a sore left elbow, a sore back and headache. On examination, Dr Hanna observed grazes to her left elbow and back pain on all movement. Dr Hanna provided Ms Tannous with advice about concussion.[8]
[8] Insurer's documents at page 98.
On 16 December 2019, Ms Tannous consulted Dr Hanna complaining of a sore lower back with pain referred into the left leg and the onset of pain in her neck resulting in trouble lifting both arms. Bruises to the chest wall over the right breast and grazes to the left elbow were noted. Dr Hanna referred Ms Tannous for X-rays of her cervical spine and lumbosacral spine.[9] He also issued Ms Tannous with a certificate of capacity providing a diagnosis of a mechanical derangement in the neck and back caused when she was hit by a car as a pedestrian. Dr Hanna certified Mr Tannous as having no current work capacity for any employment from 16 December 2019 to 18 December 2019.[10]
[9] Insurer's documents at page 69.
[10] Claimant's documents at pages 19-21.
On 16 December 2019, Ms Tannous underwent X-rays of her cervical spine and lumbar spine by Dr Jan Masesa, radiologist. In respect of the cervical spine, Dr Masesa observed that there was loss of the normal cervical lordotic curvature but no segmental subluxation was seen. There were no obvious fractures. There was no vertebral wedge compression. There was preservation of the disc spaces. There was minor degenerative endplate bony spurring visible at C5/6 and C6/7. There was no lytic skeletal lesion. In respect of the lumbar spine, Dr Masesa observed that the lumbar spine was held in minimal right lateral flexion. There was no segmental subluxation. Vertebral heights were maintained. There were no obvious fractures. Facet joints appeared within normal limits. There was no lytic skeletal lesion.[11]
[11] Insurer's documents at page 70.
On 17 December 2019, Ms Tannous consulted Dr Hanna who discussed the outcome of the X-rays to her cervical spine and lumbosacral spine.[12] Dr Hanna referred Ms Tannous to Mr Steve Cole, physiotherapist, for treatment of a musculo-ligamentous injury to her neck and back as a result of a motor accident.[13]
[12] Insurer's documents at page 69.
[13] Insurer's documents at page 75.
On 5 August 2020, Ms Tannous consulted Dr Hanna complaining of headache, night sweats, teeth grinding, poor sleep, early morning waking, depressed mood, low self-esteem, irrational fear and panic attacks. Dr Hanna recorded the reason for contact as being depression.[14]
[14] Insurer's documents at page 97.
In a separate entry in the Chester Hill Family Medical Practice on 5 August 2020, it was recorded that Ms Tannous attended on Dr Hanna in respect of her motor accident related mechanical neck and back derangement and complained of a sore back with pain radiating into the left lower limb, neck pain and headache. Dr Hanna noted that Ms Tannous was having trouble coping with her duties and looking after three children. She had stopped working because of the pain in her neck and back and she had not been having physiotherapy as she had been overseas for about five months. Dr Hanna prescribed Ms Tannous Brufen 400mg tablets.[15] Dr Hanna also referred Ms Tannous to Mr Cole.[16]
[15] Insurer's documents at page 68.
[16] Insurer's documents at page 88.
On 7 August 2020, Ms Tannous consulted Dr Hanna complaining of a sore lower back and requesting that the insurer cover the cost of physiotherapy. Dr Hanna provided Ms Tannous with advice in respect of exercise and weight loss.[17]
[17] Insurer's documents at page 68.
On 27 August 2020, Ms Tannous consulted Dr Hanna complaining of a sore neck, back pain radiating into the left lower limb, sore left shoulder and trouble sleeping. On examination, Dr Hanna observed back pain on the extremes of movement. He diagnosed a mechanical derangement of the neck and back and a soft tissue injury to the left shoulder as a result of the motor accident. He referred Ms Tannous to Mr Cole for physiotherapy.[18]
[18] Insurer's documents at pages 67-68.
On 29 August 2020, Ms Tannous consulted Mr Cole for physiotherapy, complaining of local neck pain and lower back pain associated with right leg pain.[19]
[19] Insurer's documents at page 67.
On 31 August 2020, Ms Tannous consulted Mr Cole complaining of a sore lower back following his treatment on the previous occasion. She informed Mr Cole that the home exercises he provided to her were okay. Mr Cole advised her that he would discuss referral for an MRI scan of the lower back with Dr Hanna, given the pain referred into her leg and the timeframe of her injury. [20]
[20] Insurer's documents at page 67.
On 31 August 2020, Mr Cole completed an allied health recovery request in respect of Ms Tannous. In the request, Mr Cole provided a diagnosis of a mechanical derangement in the neck and low back with left leg sciatica. He also referred to whiplash in a motor vehicle accident. Current signs and symptoms were recorded as pain in the low back and left leg when sitting; pain in the low back and neck when standing; pain with active range of motion of the low back and neck; and positive straight leg raising. Mr Cole noted that Ms Tannous had not returned to driving as she was not confident to do so. He recommended that she attend physiotherapy sessions, attend medical reviews, complete any further medical investigations and management and take any prescribed medication as required. He also recommended that she complete a home exercise program and modify any other lifestyle factors that impact on her recovery.[21]
[21] Claimant's documents at pages 24-28.
Later on 31 August 2020, Ms Tannous consulted Dr Hanna, who referred her for MRI scans of her cervical spine and lumbar spine.[22]
[22] Insurer's documents at page 67.
On 17 September 2020, Ms Tannous consulted Dr Hanna complaining of neck pain, severe back pain, left leg pain and headache. Dr Hanna examined her cervical spine and her lumbar spine. He noted that the insurer did not approve the requested MRI scans.[23]
[23] Insurer's documents at pages 66-67.
On 9 October 2020, Ms Tannous consulted Dr Hanna in the company of her husband. She complained of constant left lower limb pain, left hip pain, limping, poor sleep, early morning waking, depressed mood, low self-esteem and panic attacks. Dr Hanna examined her lower back and left hip and referred her for an MRI scan of her lumbar spine. He prescribed her Naprosyn SR 1,000 mg tablets, once-daily. He also referred Ms Tannous to Dr Medhat Metry, psychologist.[24] There were no reports in evidence by Dr Metry.
[24] Insurer's documents at page 66.
On 10 November 2020, Ms Tannous consulted Dr Annmarie Hanna of the Chester Hill Family Medical Practice. Ms Tannous discussed her injuries in December 2019 and in particular, her ongoing left-sided back pain radiating down her leg. Dr Hanna requested an MRI scan of Ms Tannous’ lumbosacral spine.[25]
[25] Insurer's documents at pages 94-95.
On 12 November 2020, Ms Tannous underwent an MRI scan of her lumbar spine by Dr Moharami, radiologist. The clinical history provided to Dr Moharami was one of lower back pain radiating down into the left leg since a motor vehicle accident in December 2019. Dr Moharami concluded that the main abnormality was at L4/5 where there was a moderate broad-based disc bulge with a larger component within the central to left extra-foraminal region resulting in marked left foraminal narrowing. There was impingement of the descending left L5 nerve. There was inferior migration of the disc in the left paracentral region over 5mm. There was a tiny annulus tear at the dorsal central aspect of the L3/4 disc.[26]
[26] Claimant's documents at page 32.
On 17 November 2020, Ms Tannous again consulted Dr Annmarie Hanna and discussed her ongoing back pain as well as the pros and cons of a steroid injection into the lower back. Dr Hanna advised Ms Tannous to continue with physiotherapy.[27]
[27] Insurer's documents at pages 93-94.
The last attendance entry in Ms Tannous’ Chester Hill Family Medical Practice clinical records in evidence was dated 10 November 2020.
Histories in medical records are often used to attack the credit of a claimant. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga;[28] and applied in King v Collins[29] and Mastronardi v State of New South Wales.[30] Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[31]
[28] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[29] King v Collins [2007] NSWCA 122.
[30] Mastronardi v State of New South Wales [2009] NSWCA 270.
[31] Mason v Demasi [2009] NSWCA 227.
The Panel acknowledges that caution must be taken when relying on clinical records and has exercised caution in this regard in respect of Ms Tannous’ Chester Hill Family Medical Practice clinical records. Also of relevance in respect to the clinical records is that Ms Tannous was stuck overseas due to the COVID-19 travel restrictions in force at the time, after having visited her sick mother in Lebanon between about January and July 2020.
Medical assessment certificates
Medical Assessor Alan Home – 12 August 2022
On 8 August 2022, Ms Tannous was assessed by Medical Assessor Alan Home in respect of the alleged physical injuries she sustained in the motor accident. Medical Assessor Home issued a certificate dated 12 August 2022.[32]
[32] Insurer's documents at pages 141-149.
Medical Assessor Home opined that Ms Tannous was consistent in her presentation.
Medical Assessor Home certified that Ms Tannous suffered a soft tissue injury to her cervical spine, a soft tissue injury to her lumbar spine and a closed head injury caused by the motor accident and that those injuries were all minor injuries (now threshold injuries) for the purposes of the MAI Act.
SUBMISSIONS
Insurer’s submissions
The insurer provided written submissions in respect of the Medical Assessment dated 1 June 2022.[33] It also provided written submissions in respect of the Review dated 28 November 2022.[34] A brief outline of the submissions is provided below.
[33] Insurer's documents at pages 17-24.
[34] Insurer's documents at pages 4-13.
The insurer sought a review of the Medical Assessment on the following basis:
(a) there was a failure to properly engage with the material and substantive arguments;
(b) there was a failure to apply the test of inconsistency;
(c) there was an error in the DSM-5-TR diagnosis, and
(d) there was a failure to provide adequate reasons.
There was no evidence that Ms Tannous suffered from a psychological disorder or that any psychological symptoms had been raised in the post-accident period. Therefore, the insurer disputed that any such injury had been sustained in the motor accident.
The only reference to psychological symptoms in the period following the motor accident, on the available records, was in Ms Tannous’ Commission application submissions. Otherwise, no psychological diagnoses, symptoms or complaints were recorded in the available medical material.
It was unclear why Medical Assessor Verma accepted that the motor accident was the sole or even primary cause of Ms Tannous’ apparent psychological symptoms in circumstances where it appeared, from the available evidence, that an equally available determination was that the psychological symptoms were primarily or solely attributable to her family/marital issues. Such conclusion was consistent with the fact that there were no psychological complaints in any of the post-accident records.
There was no evidence that Ms Tannous suffered from a diagnosable psychiatric illness pursuant to DSM-5-TR.
Ms Tannous’ submissions
Ms Tannous’ lawyers provided written submissions in respect of the Medical Assessment dated 11 January 2021.[35] They also provided written submissions in respect of the Review dated 19 December 2022.[36] A brief outline of the submissions is provided below.
[35] Claimant's documents at pages 38-39.
[36] Claimant's documents at pages 3-12.
Ms Tannous rejected the insurer’s stated grounds for the Review and provided reasons for so doing.
The insurer’s repeated principal submission was that there was no recording in the early clinical records of Ms Tannous’ treating doctors of a psychological condition. However, in the circumstances of this case, it was entirely explicable and entirely expected. Ms Tannous was injured on 13 December 2019. By February 2020, she had returned to Lebanon. Due to COVID-19, she was unable to return to Australia until July 2020. Ms Tannous stated that it was upon her return to Australia in July 2020 that she became aware of symptoms consistent with mental health issues. She acknowledged that she did not see a doctor about them or seek treatment.
It is well known that psychological conditions very rarely start the day of the motor accident but develop over time as a result of the shock of the accident; as a result of symptoms setting-in; and as a result of the injured person being worn down by the ongoing pain, disability and incapacity in circumstances where they had, initially, been hopeful of recovery.
Further, whilst July 2020 represented the time Ms Tannous herself identified the experiencing of mental health issues, it was more likely than not, that subclinical symptoms had been developing beforehand of which she was either unaware or putting down to normal variations in mood.
The mere fact that there was no recording, initially, in such circumstances is entirely expected as Ms Tannous, within two months of the motor accident, was stuck overseas for a period of six months.
The insurer submitted that there were relevant personal stressors that potentially could have caused Ms Tannous’ condition. There was no evidence that the cancer diagnosis in respect of Ms Tannous’ mother was life-threatening or imminently terminal. Being stuck in Lebanon for six months was not something Ms Tannous complained about as being a factor, rather, it was just the reality that faced the world at the time. The deterioration of Ms Tannous’ marriage and eventual divorce were matters that arose after the onset of symptoms and accordingly, were not relevant to her condition’s initial cause.
Ms Tannous’ complaints as to causation related to the motor accident injuries, disabilities and consequences thereof, namely, her inability to work. She did not say that it was her mother’s illness that depressed her.
Medical Assessor Verma’s finding of a non-minor (non-threshold) psychological injury ought to be confirmed.
THE RE-EXAMINATION
Preamble
The Panel re-examination and assessment of Ms Tannous was undertaken via audio-visual link (MS Teams). Senior Medical Assessor Baker and Medical Assessor Rikard-Bell undertook the re-examination and assessment jointly.
Ms Madonna Tannous is a 40-year-old woman who resides with her partner, Yassar, and her 11-year-old son. There are two older children aged 18 and 20 who reside nearby with Ms Tannous’ first husband. Ms Tannous separated from her second husband, Hassam, in April 2021.
As outlined in Ms Tannous’ statement, she arrived in Australia from Lebanon in 2002 and completed year 12. In Australia, she obtained a diploma in childhood education and make-up artistry. At the time of the motor accident, Ms Tannous was working full-time as a manager at a pizza restaurant.
Prior to the motor accident, Ms Tannous was working seven days per week. She would go to the gym after work and would go for a long walk. She was sleeping well and socialised well with friends and family. She was able to concentrate and she could stay on task. She was a confident driver with no restrictions.
Personal history
Ms Tannous is one of six siblings and came from a close family. Her early childhood was good. She finished her schooling to year 12 and arrived in Australia at the age of 18, when she married her husband. There are two children of the marriage. Ms Tannous settled well in Australia. She studied childcare and cared for her children. Ms Tannous was working in various capacities and worked in childcare from 2015 to 2019, then at a pizza restaurant from August 2019 until the motor accident on 13 December 2019.
Mental state examination
Ms Tannous presented as a pleasant woman who was neatly dressed, with her hair tied back. She was well presented with neatly manicured nails. She was pleasant, cooperative and engaged well with the interview process. Her speech was normal in tone and volume. There was no abnormality of perception. Ms Tannous’ affect was reactive, although she was a little tearful at times and anxious. Her cognitive function appeared normal and her thoughts were logical. Her insight and judgment appeared to be normal.
History of the motor accident
On 13 December 2019, Ms Tannous was involved in a motor accident as a pedestrian, when she was struck by a vehicle on her right hand side. She was stunned and lost consciousness for a few seconds. She said that the elderly driver was extremely upset. Ms Tannous sustained injuries to her head, neck, back, leg and arm. She was in a state of shock and felt no pain initially. Ms Tannous was worried about collecting her son from school. Her employer assisted Ms Tannous by contacting her son’s father. Ms Tannous attended on a general practitioner. At the time, she was suffering from scratches, bruises and pain at the back of her head.
Symptoms following the motor accident
Subsequently, Ms Tannous has developed more intense pain involving her head with recurrent migraines which have worsened. There is pain down the left hand side of her neck and shoulder down to the lower back, leg and down to her foot. There have been nightmares, night sweats and palpitations, as well as flashbacks about the motor accident. Ms Tannous recalls people yelling and screaming and she is fearful of further injury. There are intrusive recollections of seeing people standing around her and she feared she may have died. There is emotional disconnection from her surroundings and she is now hypervigilant, extremely worried and fearful of being harmed. There has been a loss of confidence and motivation.
Ms Tannous no longer likes going on outings with friends and she is reluctant to go to the gym. She is fearful around school zones and fearful about crossing the road. Her recovery has been gradual with ongoing pain restricting her activities. The main impediment is her anxiety and fear of further injury.
Ms Tannous has been unable to work since the motor accident. She has tried to return to work but has been too anxious. She travelled to Lebanon in 2020 for six months, three months in 2022 and three months in 2023. Ms Tannous explained her mother, aged 74, had breast cancer and has now made a good recovery. Her father died from cancer in 2010.
Past medical history
Apart from an appendicectomy, there is no history of serious illnesses, injuries or conditions. The current medication is Imitrex 10mg for migraine. There is no family history of psychiatric illness and no history of drug or alcohol issues.
Past psychiatric history
There is no history of anxiety, depression or need for treatment from mental health care professionals in Australia. Although her brother took her to see a psychologist on two occasions in Lebanon, she did not find the treatment particularly helpful.
Past forensic history
There is no previous or subsequent history of motor vehicle accidents, workers’ compensation claims, insurance claims or legal issues.
Current routine
Ms Tannous goes to bed at 6.00am and sleeps until 2.30pm as she is awake for most of the night. She does not go out a great deal and stays home. Her partner takes her son to and from school each day and she orders food via online shopping services.
Current symptoms
Currently, Ms Tannous’ sleep is interrupted as she sleeps during the day and is awake at night. Her appetite has increased and she has gained 10kg in weight. Ms Tannous’ mood fluctuates and there has been a lot of pain in her legs, neck and shoulders. She has had suicidal thoughts but no attempts. The chronic pain following the motor accident, impacted on her marital relationship and her second marriage broke down in Lebanon. The couple separated in April 2021 and Ms Tannous formed the relationship with her current partner in September 2021, which is progressing well. Ms Tannous has had some “weird thoughts” at times and has heard that someone has been with her ex-husband, although there are no particular voices or paranoid ideations.
Ms Tannous feels hypervigilant and worried about further motor accidents. She is fearful of crossing the road and there are intrusive thoughts of the motor accident and the other driver’s face, as well as bystanders, who were concerned as to whether she had died. Ms Tannous’ emotions have been numbed and she is hypervigilant and startles easily.
Current functioning
Ms Tannous is able to dress, feed and manage herself and her son well. Therefore, there is no impairment of self-care and personal hygiene.
In terms of social functioning, Ms Tannous relates well to her husband and children. Therefore, there is no impairment of social functioning.
In terms of concentration, Ms Tannous’ concentration is reduced. Therefore, there is mild impairment of concentration, persistence and pace.
In terms of social and recreational activities, Ms Tannous no longer socialises, does not attend the gym and does not go out. Therefore, there is moderate impairment of social and recreational activities.
In terms of adaptation, Ms Tannous has been unable to work since the motor accident. Therefore, there is possibly mild impairment of adaptation from a psychological perspective.
In terms of travel, Ms Tannous is reluctant to drive. Therefore, there is mild impairment of travel.
Consistency
Ms Tannous presentation was consistent with the history provided and the available documentation.
DIAGNOSIS, CAUSATION AND REASONS
Ms Tannous is a 40-year-old woman of Lebanese origin who arrived in Australia at the age of 18. There are three children from two relationships and prior to the motor accident, Ms Tannous was working full-time as a manager at a pizza restaurant. Ms Tannous was involved in a motor accident on 13 December 2019 as a pedestrian when she was struck by a vehicle. The accident was frightening and Ms Tannous was fearful that she may have been seriously injured. She was dazed and there was a brief loss of consciousness.
Ms Tannous developed symptoms consistent with post-traumatic stress disorder caused by the motor accident. The features according to DSM-5 are outlined below:
“A. a traumatic event (the motor accident);
B. re-experiencing phenomena with intrusive recollections, nightmares, flashbacks about the accident;
C. avoidance behaviours avoidance of driving, avoidance of crossing the road;
D. negative cognitions with emotional numbing, disconnection and negative self-perception;
E. marked alterations in arousal with hypervigilance;
F. duration of more than one month;
G. significant impairment of functioning, and
H. not due to substance use or other medical condition.”
It is the Panel’s view that the psychological condition, post-traumatic stress disorder, is a ‘non-threshold’ injury for the purposes of the MAI Act. Although there were other contributing stressors such as the breakdown of her marriage and concerns in relation to her mother’s cancer diagnosis, it is the Panel’s view that the psychological condition is causally related to the motor accident on 13 December 2019. Despite the complaints of ongoing pain, it is the Panel’s view that the psychological condition caused by the motor accident was more than negligible and the somatic symptoms were not the core complaints.
FINDINGS
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[37] and Insurance Australia Ltd v Marsh.[38]
[37] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[38] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Baker and Medical Assessor Rikard-Bell based on their examination and specific findings pertaining to diagnosis, causation and assessment as to whether the injuries were threshold injuries.
The Panel determines that Ms Tannous suffered post-traumatic stress disorder caused by the motor accident and that such psychological condition is a non-threshold injury for the purposes of the MAI Act.
Accordongly, the certificate of Medical Assessor Verma dated 7 November 2022 is revoked.
CONCLUSION
The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.
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