Xie v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 248
•5 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Xie v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 248 |
| CLAIMANT: | Yo Shan Xie |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Christopher Rikard-Bell |
MEDICAL ASSESSOR: | Doron Samuell |
| DATE OF DECISION: | 5 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act1999; assessment of impairment of psychiatric injury; claimant pedestrian struck by insured vehicle; re-examination by both Medical Assessors; diagnosed with post-traumatic stress disorder and depression; claimant remained in full-time employment; injury impacted on social and recreational activities and social functioning; no impact on other categories; Held – claimant assessed at 1% impairment; original certificate confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: The Review Panel confirms the certificate of Medical Assessor Mason dated 19 December 2021. |
REASONS
BACKGROUND
Mr Yo Shan Xie (the claimant) suffered injury on 11 December 2015. The claimant was walking along a footpath when the insured driver mounted the footpath and collided with the claimant.
Insurance Australia Ltd (the insurer) is liable for the driver of the other motor vehicle for liability to pay to Mr Xie any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the 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 MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Mason dated 21 December 2021 (the medical assessment). Medical Assessor Mason assessed the permanent impairment for the psychological injury at 2%.
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 63(7) of the MAC Act.
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 63(2B) of the MAC Act.
Pursuant to s 63(3) of the 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).
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a 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 63(3A) of the Act.
MEDICAL ASSESSMENT UNDER REVIEW
This review is from the assessment of Medical Assessor Mason dated 21 December 2021 who determined that Mr Xie suffered a 2% permanent impairment for his psychological condition caused by the motor accident.[8] Medical Assessor Mason stated:
“Mr Xie was involved in a frightening motor vehicle versus pedestrian accident in which he thought he would be killed. He suffered minor physical injuries. He describes ongoing traumatic nightmares and intrusive day time recollections of the motor accident. He also describes hypervigilance and an exaggerated startle response with some low-level depressive symptoms. In my opinion he meets DSM-5 criteria for a mild chronic post-traumatic stress disorder. He does not meet DSM-5 criteria for major depressive disorder. I note a previous motor accident in 2007 which gave rise to an adjustment disorder with mixed anxiety and depressed mood. I was satisfied Mr Xie had no psychiatric symptoms prior to the subject motor accident.
Mr Xie was involved in a frightening motor vehicle versus pedestrian accident in which he thought he would be killed. He suffered minor physical injuries and developed trauma-related psychological symptoms and a low level of depressed mood. While he has been able to continue working, I am satisfied the motor accident was capable of causing the symptoms he described. There was no pre-existing condition. The subject motor accident was the substantial cause of his condition.”
[8] Claimant’s bundle, p 19.
SUBMISSIONS
Claimant’s submissions dated 22 January 2021[9]
[9] Claimant’s bundle, p 29.
These submissions detailed the physical and psychological injuries caused by the motor accident.
The claimant submitted he sustained a post-traumatic stress disorder and Major depressive disorder. He referred to the evidence of Dr Faisal Qidwai, general practitioner (GP) who referred the claimant to Sonia Lalwani, psychologist.
The claimant otherwise relied on the opinion and assessment provided by Dr Thomas Oldtree Clark.
Claimant’s submissions dated 8 February 2022[10]
[10] Claimant’s bundle, p 3.
These submissions were filed seeking a review of the Medical Certificate.
The claimant submitted that the Medical Assessor erred in reporting that he had a poor relationship with his wife and daughter since their return for Shanghai in 2010.
The claimant referred to evidence that he travelled with his wife and daughter to Italy in 2014 and to Germany in 2015. It was submitted that his relationship deteriorated two or three years after the motor accident.
The claimant submitted that the history taken with respect to concentration was incorrect and referred to the statement from the claimant’s wife. Reference was also made to the assessments made by Dr Clark and Dr Reutens.
The claimant submitted that the assessment was primarily conducted by audio which was unsatisfactory.
Insurer’s submissions dated 19 February 2021[11]
[11] Insurer’s bundle, p 11.
The insurer referred to the prior motor accident in February 2007 noting the assessment of Dr Westmore in May 2009 who assessed psychological impairment at 6%.
The insurer referred to Dr Reutens initial assessment in June 2017 when the doctor opined that the condition had not stabilised. In June 2020 Dr Reutens diagnosed the claimant with post-traumatic stress disorder and assessed his psychological impairment at 7%.
Insurer’s submissions dated 18 February 2022[12]
[12] Insurer’s bundle, p 129.
These submissions were filed opposing the application to review the medical assessment.
The insurer objected to the “new evidence” concerning the pre- accident marital relationship and submitted it should be “struck out” and there was no error by the Medical Assessor.
The insurer submitted that the claimant was given the opportunity to explain his concentration difficulties and the Medical Assessor otherwise used his expertise in assessing the impairment.
Insurer’s submissions dated 28 February 2023[13]
[13] Insurer’s bundle, p 133.
These submissions were filed seeking to include the documentation from NSW Transport.
The insurer submitted that the documentation “shows the claimant’s hours has remained consistent since the date of the subject accident.”
EVIDENCE
Pre-existing conditions
The claimant suffered a motor accident in February 2007 when he was involved in a rear end collision. In December 2008 Dr Bodel noted the claimant suffered soft tissue injurie sot the neck and back and post traumatic stress disorder.[14]
[14] Claimant’s bundle p 375.
In May 2009, Dr Westmore, psychiatrist, opined that the claimant suffered from an adjustment disorder with depressed mood. The doctor then noted the breakdown of the marital relationship and assessed impairment at 6%.[15]
[15] Claimant’s bundle p 385.
The pre-accident clinical records of the GP of recent origin do not refer to any prior symptoms relevant to the assessment of permanent impairment.[16]
[16] Claimant’s bundle, pp 274-281.
In 2008 the claimant entered into consent orders that the physical injuries for a work injury, associated with the prior motor accident but assessable under AMA 5, gave rise to 11% permanent impairment in accordance with the certificate of Dr Bye.[17]
[17] Insurer’s bundle, p 63.
Contemporaneous medical evidence
The ambulance report noted conflicting stories between the unlicensed driver and the claimant. Skid marks did not support the driver’s version. Examination noted minor abrasions on hand, pain in right shoulder and right hip. The claimant was ambulant without pain. The ambulance personnel suggested a plan of management including the claimant attend hospital if pain becomes so bad, he cannot walk.[18]
[18] Insurer’s bundle, p 83.
The claimant attended hospital following the motor accident. The admission note recorded:[19]
“Walked into Concord ED c/o pain on the L hip and R lower leg after the patient was hit by a car whilst walking. Fell down but did not hit head. Also, c/o central neck pain.”
[19] Claimant’s bundle p 161.
The clinical note of Dr Qidwai, GP on 13 December 2015 referred to the motor accident noting multiple injuries to the hand and upper limbs, grazes, right shoulder and right hip.[20]
[20] Claimant’s bundle p 282.
On 14 December 2015 the GP noted that Mr Xie was “psychologically shocked”[21] and certified him unfit for work.
[21] Claimant’s bundle p 283.
On 8 June 2016 the GP referred Mr Xie to a psychologist noting the claimant had chronic pain from injuries, low mood and “stress with thoughts of daughter crossing road and getting in an accident”.[22]
[22] Claimant’s bundle p 329.
The clinical records of the psychologist commence in June 2016.[23] Ms Lalwani then noted symptoms including flashbacks, vigilance, memory issues, anxiousness, anger, poor sleep and poor concentration.[24]
[23] Claimant’s bundle p 395.
[24] Claimant’s bundle p 412.
The clinical note dated 1 November 2016 referred to the claimant’s concerns about the relationship with his wife.[25]
[25] Claimant’s bundle p 420.
Qualified evidence
Dr Thomas Oldtree Clark, psychiatrist, was qualified by the claimant and provided a report dated 24 April 2017.[26]
[26] Claimant’s bundle, p 40.
Dr Clark diagnosed a classical Major Depressive Disorder with loss of weight, suicidal thoughts, sleeplessness and nightmares. The doctor noted there were a mix of symptoms of Post traumatic stress disorder due to vivid recollections and flashbacks. Permanent impairment was assessed at 15%.
We have a read and do intend to summarise the various medical reports concerning the physical injuries sustained in the motor accident.
Dr Sharon Reutens, psychiatrist, was qualified by the claimant and provided a report dated 14 June 2017.[27] The doctor diagnosed post-traumatic stress disorder caused by the motor accident and recommended further treatment including antidepressant medication.
[27] Insurer’s bundle, p 39.
Dr Reutens opened that impairment was not assessable at the time because the injuries had not stabilised.
Dr Reutens provided a further report dated 26 June 2020.[28] The doctor repeated her diagnosis of post-traumatic stress disorder and considered it unfortunate that the claimant had not undertaken any further psychological treatment as she recommended.
[28] Insurer’s bundle, p 51.
Dr Reutens described the symptoms as chronic and entrenched and assessed permanent impairment at 7% with no deduction for any pre-existing impairment.
Statement[29]
[29] Claimant’s bundle, p 9.
The claimant’s wife provided a statement dated 7 February 2022. She stated that the couple separated around 2008 and reconciled in 2010. They travelled overseas together in 2014 and 2015. The relationship deteriorated about two or three years after the accident due to constant arguments and stated that they have “no relationship” apart from discussing financial matters.
Other Medical Assessment
Medical Assessor Gorman provided a Medical Assessment Certificate dated 27 May 2021.[30] The Medical Assessor found that the permanent impairment for the physical injuries was 7% due to assessable impairment of the cervical spine, right shoulder and left shoulder.
Employment records[31]
[30] Insurer’s bundle, p 105.
[31] Insurer’s bundle, p 134.
The claimant’s employment records with NSW Transport show, as the insurer submitted, consistent hours of employment since the motor accident.
RE-EXAMINATION
Mr Xie was examined by the Medical Assessors on 19 May 2023. The examination report is as follows:
Psychosocial history and pre-accident history
The claimant attended the examination unaccompanied and was assessed via video conference. A Chinese interpreter was provided who facilitated the interview.
Mr Yi Shan Xie is a 59-year-old man of Chinese origin who works as a bus driver and resides with his wife Yan Zhou, aged in her 50’s and is currently unemployed. There is a 23-year-old daughter who resides separately.
Prior to the accident, Mr Xie reported he was sleeping and eating well. He was taking care of himself appropriately and the relationships with his wife and daughter were positive and sound. His concentration was good and he was socialising, playing table tennis and interacting with friends on a regular basis. He was working full-time and could travel without any problems.
Past medical history
There is a previous history of hypertension and high cholesterol. The current medication is for cholesterol and he takes Aspirin. There is no other medication or antidepressant medication. Mr Xie state he does not like to take antidepressant medication as when his brother was depressed the medication seemed to make him worse. On occasions Mr Xie will use natural sleeping agents. There is no history of drug or alcohol issues. There is no family history of psychiatric illness.
Past psychiatric history
There was psychological treatment approximately a year ago for “some sessions” with a psychologist who was either Indian or Sri Lankan. The treatment did assist with learning to relax and reduce pressure; however, the treatment did not continue and there has been no further treatment for approximately a year.
Past forensic history
There was a previous motor vehicle accident on 19 February 2007 with recovery over a number of years. Mr Xie separated from his wife a year later as he was not working then he started work as a bus driver prior to the subject motor vehicle accident. There is no history of Workers’ Compensation claims, insurance claims or legal issues.
History of the motor vehicle accident
On 11 December 2015 Mr Xie was involved in a motor vehicle accident while he was working on Blaxland Road when he heard a loud noise then saw a vehicle heading towards him which struck a gutter and collided with him. Mr Xie was injured and there was a brief loss of consciousness for a few seconds. He said, “… a blackout.” Mr Xie was quite distressed and a colleague who was close by was able to phone an ambulance and the Police, as Mr Xie’s phone was not working.
History of symptoms and treatment following the motor accident
Initially there were no major physical issues when assessed by the paramedics, however subsequently, Mr Xie noticed pain in his knee, hand, neck and lower back. Later in the day the pain exacerbated after he returned home and there was an assessment at Concord Hospital. Mr Xie stayed home for two days after the accident then returned to work on full duties. There is currently no psychological treatment received.
Details of any relevant injuries or conditions sustained since the motor accident
Nil reported
Current Symptoms
Currently Mr Xie has difficulty with his sleep and he wakes up a lot. He describes paranoia and states he hears sounds and he described nightmares involving blood, murder and being killed, which he believes are related to the motor vehicle accident. His appetite is normal and his weight is stable. Generally, Mr Xie’s mood is low and he is hypervigilant when near the site of the accident, if he is close to vehicles or if he hears of pedestrians injured. He has a potential fear of dying or fear of being run over and Mr Xie believed he was going to die when the vehicle was heading towards him at the time of the accident. If he hears loud noises similar to the sound of the vehicle on the day of the accident or if he is in the vicinity of where the accident occurred, he will become hypervigilant and agitated and is likely to feel symptoms of anxiety. Mr Xie denied any suicidal feelings; however, he does feel extremely low in his mood at times. There is a lack of certainty about the future and there is a lack of ability to plan as to whether he should stay in his marriage. There is pain in his hip and knee on walking up stairs and lower back pain is an ongoing issue. In addition, there is pain in his neck and he is required to change position on an hourly basis. He does manage to sustain employment, despite the pain in his neck and back. Mr Xie worries about the future and has no plan to retire, as such, he is worried about being able to continue to work in order to support himself and his family. He is very avoidant of social interaction and does not have any friends.
Current routine
Mr Xie wakes up at 5.00am and will shower while his wife prepares his clothes for the day. He will have breakfast then go to work which is a 10 minute drive. He works from 7.00-7.30am until midday then will have a few hours gap when he sits in his car and sleeps. He then works from mid-afternoon until 7.00 or 7.30pm. On arriving home, Mr Xie will have dinner which his wife prepares and is usually a simple meal of rice, noodles or vegetables then he goes to bed. On the weekend Mr Xie stays at home and will watch television. Occasionally he will visit the GP, Dr Charlton.
Current and proposed treatment
There is no current or proposed treatment.
Mental State Examination
Mr Xie presented as smallish man of Chinese origin who was casually attired in a yellow shirt and he wore a blue cap. His eye contact was poor; however, he was able to maintain good focus and concentration throughout the interview. His speech was normal in tone and volume. There was no abnormality of perception. Mr Xie’s affect was depressed with little reactivity and he described feeling anxious about potentially a further motor vehicle accident or being injured. His cognitive function appeared normal and his thoughts were logical. Mr Xie was a little evasive at times. He stated his daughter was not residing at home and that he did not know where she was living or whether she was a student, or whether she was not studying at all. Mr Xie spoke a lot about his marriage and how his marriage is problematic.
Mr Xie stated he would not consider further psychological treatment or medication in relation to anxiety and depression, as he does not believe treatment would be helpful and he did not believe treatment was helpful in relation to his brother. He is worried medication could affect his performance at work as a bus driver and he does not want his job compromised. Mr Xie said he still thinks about the motor vehicle accident, the blackout and near-death experience.
Current functioning
Mr Xie is able to dress, feed and manage his self-care reasonably well. He takes his medication and his food intake is sufficient. He can shower and clean himself and presents himself well enough in order to work and deal with the public. Therefore, there is no impairment of self-care and personal hygiene.
In terms of social functioning, there have been longstanding marital difficulties and a separation in 2008. Mr Xie and his wife reconciled prior to the motor vehicle accident and they went on an overseas trip in 2015 of which some photographs were provided. The reconciliation was reasonably successful however gradually, since the subject motor vehicle accident, the marriage has suffered further and has gradually become worse. There is no intimacy and there are difficulties relating to each other. Nevertheless, Mr Xie’s wife does provide food and arranges his clothing. They are still residing together and she is supportive at home. Therefore, there is mild impairment of social functioning.
In terms of concentration, Mr Xie was able to concentrate throughout the entire interview. He is working in a highly responsible role driving buses and taking care of the wellbeing of passengers which requires him to remain alert. He reads the news on occasions and overall, there is no impairment of concentration, persistence and pace.
In terms of social and recreational activities, Mr Xie does not have an interest in socialising, going out, interacting with friends, going for coffee or going to the movies, as he did previously. In addition, he no longer plays table tennis or involves himself in any extracurricular activities. He is reluctant to interact with others and reluctant to socialise, however there is contact by phone and text message with some friends. There is some socialisation at work, however not a great deal. Therefore, there is moderate impairment of social and recreational activities.
In terms of adaptation, Mr Xie has continued working as a bus driver consistently and has not received any formal warnings in relation to work performance. There have been up to six days absent from work due to illness over the past 12 months, however generally his attendance at work is consistent. Mr Xie reported his performance was adequate and he was competent at work. Therefore, there is no impairment of adaptation.
In terms of travel, Mr Xie is able to drive and function well at work as a professional driver. Therefore, there is no impairment of travel.
It is worth noting the differences found on examination by the Panel at assessment in terms of current functioning are that there is no impairment of self-care and personal hygiene, as Mr Xie does shower regularly and there was no indication of cautions from the workplace in relation to personal hygiene. In terms of social functioning, the Panel accepted mild impairment as the relationship with his wife is suffering and there are a lot of arguments with no intimacy between the couple. There have been no further periods of separation or domestic violence, however Mr Xie’s daughter has moved out of the family home, although it is unclear what the circumstances are in relation to her departure. It was accepted there was no impairment of travel, moderate impairment of social and recreational activities, no impairment of concentration, persistence and pace and no impairment of adaptation.
Comments on consistency
The presentation was consistent with the history provided.
Diagnosis and causation
It is the Panel’s view Mr Xie does have features consistent with post-traumatic stress disorder which have now improved, however are causally related to the subject motor vehicle accident of 11 December 2015. In addition, there are some depressive qualities and it is worth noting Dr Mason diagnosed post-traumatic stress disorder, however, did not diagnose major depressive disorder. There are no pre-existing psychological injuries or conditions.
Permanency of impairment
Permanent impairment is defined in AMA 4 (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Degree of permanent impairment Psychiatric Impairment Rating Scale
The determination as to permanent impairment is made in accordance with AMA 4 and Part 6 of the Motor Accident Guidelines.
Psychiatric Diagnoses Post-traumatic stress disorder with depression Psychiatric Treatment
- DescriptionNil psychological treatment received Category Class Reason for Decision Self-Care & Personal Hygiene
1 Mr Xie is able to dress, feed and manage his self-care reasonably well. He takes his medication and his food intake is sufficient. He can shower and clean himself and presents himself well enough in order to work and deal with the public. Therefore, there is no impairment of self-care and personal hygiene. Social & Recreational Activities
3 In terms of social and recreational activities, Mr Xie does not have an interest in socialising, going out, interacting with friends, going for coffee or going to the movies, as he did previously. In addition, he no longer plays table tennis or involves himself in any extracurricular activities. He is reluctant to interact with others and reluctant to socialise, however there is contact by phone and text message with some friends. There is some socialisation at work, however not a great deal. Therefore, there is moderate impairment of social and recreational activities. Travel
1 In terms of travel, Mr Xie is able to drive and function well at work as a professional driver. Therefore, there is no impairment of travel. Adaptation
1 In terms of adaptation, Mr Xie has continued working as a bus driver consistently and has not received any formal warnings in relation to work performance. There have been up to 6 days absent from work due to illness over the past 12 months, however generally his attendance at work is consistent. Mr Xie reported his performance was adequate and he was competent at work. Therefore, there is no impairment of adaptation. Concentration, Persistence & Pace
1 In terms of concentration, Mr Xie was able to concentrate throughout the entire interview. He is working a highly responsible role driving buses and taking care of the wellbeing of passengers which requires him to remain alert. He reads the news on occasions and overall, there is no impairment of concentration, persistence and pace. Social Functioning 2 In terms of social functioning, there have been longstanding marital difficulties and separation in 2008. Mr Xie and his wife reconciled prior to the motor vehicle accident and they went on an overseas trip in 2015 of which some photographs were provided. The reconciliation was reasonably successful however gradually, since the subject motor vehicle accident, the marriage has suffered further and has gradually become worse. There is no intimacy and there are difficulties relating to each other. Nevertheless, Mr Xie’s does provide food, arranges his clothing, they are still residing together and she is supportive at home. Therefore, there is mild impairment of social functioning. List classes in ascending order:
1 1 1 1 2 3
Median Class Value: Aggregate Score:
1 9
Whole Person Impairment:
1%
*%WPI = Percentage Whole Person Impairment
Apportionment – pre-existing/subsequent impairment
There is no apportionment for pre-existing injuries.
Effects of treatment
There is no adjustment for treatment effect as there has been no psychological treatment received.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[32] and Insurance Australia Ltd v Marsh.[33]
[32] [2021] NSWCA 287 at [40], [41] and [45].
[33] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive and comprehensive reasons provided by the Medical Assessors. The Medical Assessors have explained in a comprehensive fashion the diagnosis and various PIRS assessments for the impairment.
CONCLUSION
The certificate issued by Medical Assessor Mason is confirmed.
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