Tran v QBE Insurance (Australia) Limited
[2024] NSWPICMP 51
•1 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tran v QBE Insurance (Australia) Limited [2024] NSWPICMP 51 |
| CLAIMANT: | Thi Bao Van Tran |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Paul Friend |
| MEDICAL ASSESSOR: | Matthew Jones |
| DATE OF DECISION: | 1 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury on 22 July 2019; the dispute related to the assessment of permanent impairment arising from psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with major depressive disorder; assessments made in accordance with Psychiatric Impairment Rating Scale categories; Held – claimant assessed at 24% permanent impairment for the psychological injury; original certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate dated 17 October 2022 and issues a new certificate determining that: (a) the following injury caused by the motor accident gives rise to a permanent impairment of 24% and IS GREATER THAN 10%: · Major Depressive Disorder. |
STATEMENT OF REASONS
INTRODUCTION
Thi Bao Van Tran (the claimant) was injured in a motor accident on 22 July 2019 (the accident). The claimant was driving north on Canley Vale Road, Canley Vale. The claimant was wearing a seatbelt and was on her way to pick up her children. The insured vehicle was parked on the left-hand side of the street and made a U turn across the path of the claimant’s vehicle. It was struck on the passenger side left corner and pushed in the other direction. The airbags in the claimant’s vehicle did not deploy. As the claimant was not aware of any injuries, neither ambulance nor Police Officers were called. The claimant did not attend hospital. Her car was written off. The insurer admitted liability for the claim.
QBE (the insurer) insured the owner and/or driver of the offending motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act2017 (the Act).
The claimant says that she suffered injury to her head, cervical spine, both shoulders, left elbow and lumbar spine, in the accident, as well as psychological consequences. The insurer disputes the duration and extent of those injuries.
The claimant was seen by Medical Assessor Anthony Samuels on 13 October 2020 who certified as follows:
The following injury caused by the motor accident:
·Adjustment Disorder with Mixed Anxiety and Depressed Mood
is a MINOR INJURY for the purposes of the Act.
Neither party has disputed those findings.
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2 cl 2(a) of the Motor Accident Injuries Act 2017, the claimant was referred for assessment by Medical Assessor Yu-Tang Shen, who certified as follows:
The following injury caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%:
·Adjustment Disorder with Mixed Anxiety and Depressed Mood
That is the same diagnosis as was made by Medical Assessor Samuels.
OTHER MEDICAL ASSESSMENTS
Medical Assessor Peter Yu assessed the claimant and certified on 16 November 2020 that the accident caused injury to the claimant’s left shoulder, right shoulder and lumbar spine, which relevantly are minor (now threshold), for the purposes of the Act, and an injury to her cervical spine, which is not a minor injury. In so far as the Review Panel is aware, neither party disputed those findings.
THE REVIEW
The insurer sought a review of Medical Assessor Shen’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer brought the application within the time prescribed by s 7.25(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that Medical Assessor Shen erred in his assessment of the claimant’s psychiatric/psychological condition on the following bases:
(a) the Medical Assessor did not consider all of the evidence.
(b) The Medical Assessor made erroneous or unfounded references to prior alleged “abnormal illness behaviour”:
(i)without citing any reference to same;
(ii)stating whether the observed any such behaviour, and if so, what questioning of the claimant he undertook, and
(iii)deferring to such unspecified alleged former conduct of the claimant, rather than relying on his own findings.
(c) The Medical Assessor makes erroneous or unfounded reference to alleged prior inconsistencies:
(i)Without citing any references to same;
(ii)properly exploring any reasons for such alleged inconsistency (including language or cultural differences), and
(iii)deferring to such unspecified alleged former conduct of the claimant rather than relying on his own findings.
(d) The Medical Assessor incorrectly applied the PIRS criteria when assessing level of functioning and impairment.
The claimant submitted that Medical Assessor Shen’s assessment was incorrect in a material respect.
It was submitted for the claimant that:
(a) Medical Assessor Samuels did not note any abnormal illness behaviour;
(b) Medical Assessor Shen did not engage with the opinion of the treating psychiatrist, Dr Verma, that the claimant’s alternate diagnoses is one of Depressive Disorder, and
(c) If the proper ratings were assigned under the PIRS, the claimant’s aggregate score would total 18-19 and medium Class 3 which converts to 22-24% whole person impairment.
The claimant’s application for review was opposed by the insurer. Detailed written submissions were provided. The insurer says that Medical Assessor Shen’s comment that “the level of psychiatric symptoms and disability is disproportionate to the purported mechanism of injury” should be accepted when the certificate is read as a whole. The insurer submits there is no error with the Medical Assessor’s report that the claimant has been inconsistent with her history of reporting her work circumstances, nor in the Medical Assessor’s acknowledgment of a previous assessment, revealing abnormal illness behaviour. The insurer further submits that Medical Assessor Shen considered Dr Verma’s opinion when forming his own opinion, by applying his own medical experience and expertise.
The insurer concluded that there was no error capable of having a material effect in the certificate and that the assessment of Medical Assessor Shen should not be referred to a Review Panel.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 19 December 2022 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was that Medical Assessor Shen did not provide a sufficient path of reasoning for finding that the claimant demonstrated inconsistencies between her presentation and reported impairment.
The President’s delegate did not deal with the other grounds of review as (impliedly) that was not thought to be necessary to properly discharge the statutory function of the President’s delegate.
Accordingly, the application was accepted and was referred to the Review Panel, which is to assess the following injury:
· psychiatric condition – psychological.
STATUTORY PROVISIONS
Section 4.4 of the Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the accident are minor (now threshold) injuries. Where it is accepted by the parties, or a medical assessor has certified[TR1] , that any of the injuries caused by the accident are non-minor (now non-threshold), it is necessary to assess whole person impairment arising from all injuries caused by the accident, in determining whether or not the statutory threshold of more than 10% is satisfied.
MATERIAL BEFORE THE REVIEW PANEL
The Review Panel requested and were provided with separate bundles of documents provided by the parties. The parties’ submissions have been outlined. Medical material relating to the claimant’s physical injuries, disabilities and impairments is not described, as it does not relate to the dispute before the Review Panel.
The only material in the claimant’s bundle relevant to the current dispute are Allied Health Recovery requests by the treating psychologist, Tim Dang, and her report dated 27 February 2021 to Dr Khan. Ms Dang stated the claimant’s “reported symptoms and presentation appear to be consistent with a provisional diagnosis of Adjustment Disorder”. It seems that the claimant did not continue her treatment with Ms Dang after the insurer ceased paying for it.
The claimant’s submissions refer to a report dated 17 November 2020 by Dr Naresh Verma, the claimant’s treating psychiatrist. That report was not made available to the Review Panel. It seems that Dr Verma diagnosed a Major Depressive Disorder – Non-melancholic which occurred in the context of chronic pain related to the motor accident. Dr Verma recommended that the claimant commence anti-depressive treatment.
The only material provided by the insurer that is relevant to a current dispute is the Certificate and Reasons dated 14 October 2020 by Medical Assessor Samuels. He certified that the motor accident caused the claimant to suffer an Adjustment Disorder with Mixed Anxiety and Depressed Mood which is a minor injury for the purposes of the Act. The insurer submitted that the claimant has not produced any evidence that any psychiatric injury related to the accident has resulted in permanent impairment.
RE-EXAMINATION
The assessment was conducted remotely by Medical Assessors Friend and Jones with the assistance of a Vietnamese interpreter. The Medical Assessors’ report is as follows:
“THE EXAMINATION
The examination took place via audio-visual link through the MS Teams platform, organised by PIC. Present were Dr Paul Friend, Psychiatrist, Dr Matthew Jones, Psychiatrist, Ms Tran, and Vietnamese interpreter: Thuy Dang. The technical quality of the connection was sufficient to facilitate the assessment.
The duration of the assessment was approximately seventy-five minutes.
INTRODUCTION
Ms Tran is a forty-nine year-old woman living in Ashcroft, where she has lived for approximately seven years. She lives there with her four children, aged twenty-eight, twenty, seventeen and eight. Ms Tran is not currently working and last worked for money for several months following the accident. This work involved cooking food at home and selling it to Asian grocery stores. For example, she would cook peanuts with flavour on them. When asked why she stopped work she reported that she does not think she was strong enough in her mind and body to do the job anymore.
Ms Tran receives income through Centrelink and is reportedly receiving the single mother’s benefit.
Early in the assessment, Ms Tran reported that she was previously married and that she and her husband were a happy couple before the accident but after the accident, about a year later, they divorced. She reported they had an initial separation period whilst they were living under the same roof. She reported that after the accident they did not get along anymore.
Ms Tran still has some contact with her husband. However they are not together. She sometimes needs help with paperwork that relates to them sharing the children. They will talk over the phone but he has not come to see her. When asked about the reasons for the divorce, Ms Tran reported that she could not be a normal wife to him. She reported that she was sad initially when they divorced but now it was not important to her. She said there was no point worrying about being together and not being happy or ‘a normal couple’.
Ms Tran was asked about any current treatment that she is receiving and she reported that she saw a psychologist in the past. However the insurance company stopped paying for this. Ms Tran stopped seeing the psychologist about one year ago and had a total of approximately twenty-four sessions with two series of twelve sessions.
Ms Tran also saw a psychiatrist, Dr Naresh Verma, over two years ago and only saw Dr Verma two times. She reported she cannot afford to see a psychiatrist any further.
Ms Tran reported she is still having physiotherapy. Initially the insurance company paid for the physiotherapy and now she is paying. She reported physiotherapy helps her and gives her ‘short relief.’ In the past she was going twice a week and now she goes approximately once a week.
Ms Tran was prescribed medications from her family doctor because of sleeping problems, stress and pain in her body. She does not know what medications they are and does not remember the names, however has been taking this mediation since the accident until now, approximately four years.
HISTORY OF THE MOTOR ACCIDENT
Ms Tran confirmed the date of accident as 22 July 2019. She was driving straight and was on her way to pick-up her children. There was a parked car on the left which suddenly made a U-turn and hit her car and pushed her car to the right. She reported her car was pushed and hit a tree. She said after she regained her alertness she got out of the car and the other driver was a very old man. She did not think she had any serious problems at the time of the accident. Her car was badly damaged at the front and was unable to be driven. She said after about fifteen minutes her car was towed away.
Ms Tran rang her husband and her husband and daughter came. Her husband signed the papers for the tow-truck driver and then drove her to a hire car place.
HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT
Ms Tran reported that on the night of the accident she vomited and had headaches. The next day she saw her family doctor for those two symptoms. She reported she did not feel a great deal of pain on the first night. At the time she saw her doctor she had some pain in her left shoulder and neck. Her doctor suggested she have Panadol and let the pain settle. She had a week of Panadol but it did not fix the problem. She went back to her doctor and asked if she could have some physiotherapy. She was told she could use her private health insurance to access physiotherapy.
Ms Tran continued to have significant pain in her shoulder, neck and the middle of her back on the right side. She said these were her only physical symptoms of note. Over time she received four injections, one in her neck, one in her back and one in each shoulder. The injections she received only gave her short-term improvement. A specialist told her that she had problems at C4, C5, C6 and C7 in her neck and that there was fluid there. A neck operation was recommended. She reported this was not approved by the insurance company.
Ms Tran reported the physiotherapy helps somewhat with the muscles in her shoulder and back.
With regard to the current status of her pain, Ms Tran reported she still has strong pain. Some days things are okay but winter and cold weather causes more pain. With respect to limitations this pain places on Ms Tran’s functionality, she reported she cannot carry, cannot lift and cannot do heavy chores. She reported that at the moment she does not tend to do anything, just a little bit of dusting or sweeping at home. She does not want to even cook and reported she cannot concentrate, cannot remember things and she burns things. She used to like to cook.
Ms Tran reported she used to walk about one hour per day but now does not do this anymore. She reported she can drive, however only short distances. For example, shopping or taking her children to school. She reported she does not want to have showers and only when her children tell her to and she does not know how many days pass between showers. She does not know why she does not shower often but said it was not important.
When asked about any specific psychological or emotional symptoms following the motor vehicle accident, Ms Tran reported that she feels she is a useless person and does not want to do anything. She finds it difficult to explain the effect on her. She reported that she tried to continue to see her friends after the accident, but she could see how they looked down on her and she stopped seeing them. She also stopped cooking for the Asian grocery stores. She has no motivation to cook and she does not feel like she wants to do it. She does not feel like she wants to go to the shops.
Ms Tran was not sure how long after the accident she went to see a psychologist. Her children kept telling her that she should see a psychologist and she talked to her doctor who referred her to one. She was having problems remembering some of the details of her recovery journey.
Ms Tran also reported she does not go out much and has no motivation to do things. She will drive if she has to, but she gets scared if she sees a car behind her and it makes her want to stop.
Ms Tran became teary when asked whether she had any thoughts of self-harm or thoughts of suicide. She reported that several times she has thought of taking a lot of medications, however she still has very young children, which stops her from acting on these thoughts.
Ms Tran reported that her children help her, including by sponsoring her mother to come out and stay with her. She will come for three months at a time and has been coming on and off for three years. The last time she was in Australia was over a month ago and she was due to come back the day after the assessment.
Ms Trans has travelled back to Vietnam since the accident and went in 2022. Her younger sister in Canada bought tickets for her and her children to fly back and she spent three weeks there.
PSYCHIATRIC HISTORY
Ms Tran denied any history of mental health problems, including any experience of depression or anxiety. She had not received any psychiatric or psychological treatment and reported she was healthy and had a good life. She had not seen a psychologist, nor taken psychiatric medications, and not even been prescribed sleeping tablets previously.
MEDICAL HISTORY
Ms Tran denied any history of significant medical diagnoses or surgery. She denied any regular medications in the past and she denied any medication allergies. She described herself as ‘very healthy.’
DRUG AND ALCOHOL HISTORY
Ms Tran does not currently ingest any alcohol but in the past would have one or two beers at a party with friends and family. Her alcohol consumption was never a problem. There is no recreational drug history of significance. Ms Tran has not smoked tobacco and has no problematic gambling history. She does not ingest excessive caffeine and has never been addicted to prescription medications.
FORENSIC HISTORY
Ms Tran denied any criminal history or any history of work-related injury or worker’s compensation. She had never had any major motor vehicle accidents or been involved in any other compensation or litigation processes.
MENTAL STATE EXAMINATION
Ms Tran was an Asian female with long, brownish hair who wore no obvious make-up. She looked somewhat bedraggled and held her head in her hand often. She wore a short-sleeved, dark coloured shirt. She looked weary and overwhelmed. She was polite, cooperative and attentive during the assessment. Her speech was normal, via the interpreter, and there was no evidence of formal thought disorder or delusional thought processes. There were no current thoughts of self-harm. Her mood was depressed and hopeless and her affect (expressed emotion) was generally flat with little reactivity. She was teary at times. There was no evidence of perceptual abnormalities. Her cognition, insight and judgement appeared grossly intact in the context of the interview. Rapport was somewhat limited by Ms Trans’ low mood.
RECENT FUNCTIONING
Ms Tran reported she does not sleep well and when she is very tired, she will sleep a little then wake-up. She wakes four or five times a night. She reported she has to get out of bed at 7.00am to help her children. When asked about her appetite, she reported when her mother is with her, she prompts her to eat. Her weight prior to the accident was around 57/58kg and she is not sure of her current weight. She thinks she has gained weight. Her height is 164cm. Her concentration was reasonable in the context of the assessment, but at times her memory seemed vague and uncertain. Subjectively, she reported she was having problems with memory. For example, on two occasions her neighbours smelt something burning and told her children not to let her cook. She said most recently this happened about two months ago when her mother was in Vietnam.
With respect to Ms Trans’ daily activities, she gets out of bed around 7.00am and then takes her children to school. She then goes home and, when her mother is with her, she lies down and does not do very much. She sometimes sleeps in the daytime for half an hour or so, then she wakes-up again. She reported she does very little to pass time, apart from moving around inside her house. She gets up and sits down again, lies down, walks around and she is ‘doing nothing.’ She then picks-up her children when it is time to do that in the afternoon.
Ms Tran reported she does not watch Vietnamese television or read Vietnamese newspapers. She said her children are able to speak Vietnamese to her.
PERSONAL HISTORY
Ms Tran came to Australia in 2002. Her husband was in Australia at that time. He sponsored her and one child to come over. She and her child were the only relatives to come to Australia at that time. Her mother lives in Vietnam and her father passed away when she was three. She has seven siblings: one in Canada and six in Vietnam. She is the second of the eight siblings. She has contact with her siblings. In the past this was regular contact but now it is not so regular.
Ms Tran has made friends since coming to Australia. In the past, she was a nail shop owner and she had friends at that time, but now no more. She said most of her friends have worked in the nail industry.
Ms Tran has had two marriages, the first was an arranged marriage in Vietnam and the marriage was only for several months. Her eldest child of twenty-eight is from that marriage. She said at the time they were living with her paternal grandparents and her grandfather had cancer and had six months to live. They arranged for her and her sister to get married. After her grandfather died, she moved back to her grandmother’s to help her. She reported that seven years after her first marriage she met her second husband and they were married for almost twenty years.
With respect to Ms Tran’s education, she studied in Vietnam until about Year Nine, when her grandfather became sick and she stopped studying. She had no further education, but in Australia worked as a nail artist and learnt on the job. She had grown-up in Central Vietnam in a small town.
CONSISTENCY
The Panel crosschecked a number of details from Ms Tran with the documentation. The Panel referred to general practitioner notes in January 2020 indicating that Ms Tran and her husband had been separated for two or three years, but living in the same house. Ms Tran’s response to this was that she could not remember the exact year when they separated and thought it may have been in 2022. She did not engage well with this inconsistency.
The Panel pointed out that Dr Truong had noted about two years after the accident that Ms Tran had been working in a grocery store which involved a lot of physical activity. Ms Tran’s response to this was that at the time she was unable to do her nail job and Centrelink asked her to study or get a job. She did get this job for a week and the job was so heavy that she was not able to do it. She had pain and she had to put items onto shelves and they were so heavy. She said her shoulders and neck pain gave her headaches. She stopped that work because of pain and she did not feel comfortable with the job. She went on to say that Centrelink asked her to do a course which she tried to enrol in, however she was unable to learn very well. The children helped her do her homework. She said this was an online course in customer service. She said that if she had stopped the course Centrelink would have stopped her payments. She was not sure why she struggled with this course, but knew that she was unable to do it.
DIAGNOSIS
Ms Tran reported a narrative and presented at assessment as consistent with having a Major Depressive Disorder, which is ongoing. She has low mood most of the time, sleep disturbance, appetite disturbance, problems with motivation, suicidal thoughts at times and she has become socially withdrawal and reliant upon others. She would readily satisfy DSM-5 criteria for the diagnosis of Major Depressive Disorder.
This diagnosis is not inconsistent with other psychiatric and psychological assessments available in the documentation, particularly given the passage of time and that development and progression of mental health problems can be variable and individual.
Ms Tran also reported ongoing significant pain that interferes with her functioning.
Ms Tran is not receiving any significant psychiatric or psychological treatment at present. She appears to have stabilised in her recovery and reached maximum medical improvement. She is unlikely to change in her level of psychiatric impairment by any significant degree in the upcoming twelve months.
PERMANENT IMPAIRMENT
Degree of Permanent Impairment
Psychiatric diagnoses 1. Major Depressive Disorder 2. 3. 4. Psychiatric treatment description Nil Category Class Reason for Decision 1. Self Care and Personal Hygiene 3 Moderate impairment
Ms Tran appeared that she had taken very little care in her appearance. She reported that she requires prompting to eat at times and also prompting to shower. She is reliant on her mother and children for basic day-to-day tasks and is functioning at a low level. Utilising clinical judgement, there is a class 3 moderate impairment.2. Social and Recreational Activities 3 Moderate impairment
Ms Tran reported withdrawing from all of her friendships and is not partaking of any of her previous social or recreational activities, for example daily walking. She described nothing with respect to significant social activities, nor recreational activities even in the company of her own home. Utilising clinical judgement, there is a class 3 moderate impairment.3. Travel
2 Mild impairment
Ms Tran reported she is able to drive if she has to, and will drive short distances and to local destinations with which she is familiar. She drives her children to and from school, and to the local shops, but otherwise is not travelling independently. This is consistent with a class 2, mild impairment.4. Social Functioning
2 Mild impairment
The Panel took the view that Ms Tran had indeed separated prior to the motor vehicle accident and there was significant pre-accident marital dysfunction. Subsequent to the accident, Ms Tran has reduced her contact with friends and only really has contact with her nuclear family and mother. She still maintains contact with her siblings; however this is at a decreased rate. Utilising clinical judgement, this is consistent with a class 2, mild impairment.5. Concentration, Persistence and Pace 3 Moderate impairment
Ms Tran reported nothing of any cognitive demand in her day-to-day routine. She would be currently incapable of completing any study or any meaningful employment; she lacks motivation, direction and capacity in day-to-day activities. She reported she has problems with concentration and memory that were at times apparent during the assessment. Utilising clinical judgement, there is a class 3 moderate impairment here.6. Adaptation
4 Severe impairment
There appear to be physical limitations with respect to Ms Tran’s ability to work. This is not taken into account in the assessment of psychiatric impairment. She has attempted some work since the accident that appears to be limited primarily for physical reasons. Prior to the accident she was working part-time and would look after her children at home. This appears to have been the equivalent of full-time work prior to the motor accident. She reported that her elder children have moved home to assist her with looking after her and the family. The Panel has taken the view that Ms Tran would have some work capacity, but at the very lower end, consistent with a class 4, Severe Impairment.
This would be consistent with Ms Tran have some adaptative capacity (for example, taking her children to school and back and completing minor domestic tasks) but that her adaptative capacity would be inconsistent and require assistance and flexibility.List classes in ascending order: 2 2 3 3 3 4 Median Class Value: 3 Aggregate Score: 19 % Whole Person Impairment: 24% *%WPI = Percentage Whole Person Impairment
Apportionment/Effects of Treatment:
There is insufficient evidence or any justification for any adjustment for pre-existing or subsequent impairment.”
FINDINGS
The Review Panel conducts a new assessment of all the matters which the medical assessment is concerned.[1] The Review Panel adopts the extensive reasons of the joint examination findings of the Medical Assessors’ Friend and Jones.
[1] Section 7.26(6) of the Act
The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[2] The Medical Assessors have explained the basis for their assessments which are different to those provided by Medical Assessor Shen in material respects. Medical Assessor Shen gave a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood arising from the motor accident.
[2] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Ltd v March [2022] NSWCA 31.
The Review Panel is satisfied that the claimant currently suffers from a Major Depressive Disorder, caused by the motor accident, which accords with the diagnosis made by Dr Verma, the treating psychiatrist. Further, the medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are somewhat outdated and do not reflect current symptomology, as found by Medical Assessors Friend and Jones.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Yu-Tang Shen should be revoked. The new certificate appears at the commencement of these Reasons.
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