Rebecca Johnson vs QBE Insurance

District Court New South Wales

State Insurance Regulatory Authority

Dispute Resolution Service

Medical Assessment – Minor Injury (Psychological)

Claimant Rebecca Johnson
Date of Birth 23/6/1973
Insurer QBE Insurance
Applicant Rebecca Johnson
Date of Accident 7/2/2018
DRS Reference 10074317
Insurer Claim Number 360005197801
Decision Maker Dr Doron Samuell
Date of Assessment 16/4/2019
Date of Certificate 24/4/2019

Assessment of Minor Injury – psychological or psychiatric injury

Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 (the Act}

The following injury caused by the motor accident:
Post-Traumatic Stress Disorder
is not a MINOR INJURY for the purposes of the Act

Background

  1. There is a dispute between Rebecca Johnson and the Insurer about:
    1. whether the injury caused by the motor accident is a minor injury under Schedule 2 section 2(e) of the Act
  2. Minor injury dispute to be assessed

  3. The following injuries were referred by DRS for assessment:
    1. Psychological Injury
  4. Submissions

  5. The applicant did not make a specific submission concerning the psychological injury.
  6. The respondents noted that a diagnosis of an acute stress disorder made by Dr Lim on 4 February 2018 is considered a minor psychological injury under the Act. The respondents further noted that there was no evidence of a recognised psychological condition beyond that of the acute stress disorder.
  7. Summary of documents considered

  8. Documents
  9. I have considered the documents provided in the application and the reply. I reviewed the contemporaneous medical notes and note that the applicant had a pre-existing mental health condition. Her diagnoses included anxiety and depression. It was also noted that there were extreme psycho-social stressors in relation to her husband. In the medical entry dated 2/2/2018, the applicant had anxious and depressive symptoms, five days before the subject accident.

    The general practitioner documented "Post-Traumatic Stress Disorder symptoms" but did not identify those symptoms. There were contemporaneous stressors concerning her pregnancy.

    In the medical entry dated 13/4/2018, it was documented that there were new symptoms since the motor vehicle accident that included hypervigilance, an exaggerated startle response, disturbing dreams about accidents and flashbacks.

    By the 4/5/3018, it was noted that the symptoms persisted but were lessening in magnitude and frequency.

    The symptoms were noted to have persisted as were concurrent psycho-social stressors. The contemporaneous certificates of Dr Eric Lim were noted and were uninformed concerning her pre-existing psychological difficulties. Dr Lim prescribed the anti-depressant, Mirtazapine.

  10. Additional/ Late Documents
  11. No additional documents were provided.

    Legislation and Guidelines

  12. In making my decision I have considered the following legislation and guidelines:
    • Motor Accident Injuries Act 2017 (the Act)
    • Motor Accident Injuries Regulation 2017 (the Regulation)
    • The Motor Accident Guidelines Version 4 15 January 2019

    Reasons

  13. Who attended the assessment
  14. Ms Elsaleh attended and was examined unaccompanied.

    History

  15. Psychosocial history and pre-accident history
  16. Ms Elsaleh was not working at the time of the subject accident. She had been working for Absolute Domestic as a cleaner and said that she was due to commence work as an administrator in a car yard. She is the recipient of Centrelink Benefits.

    Her psychiatric history includes counselling following a termination at five weeks gestation. She said that she was seeing the same psychologist at the time of the subject accident and saw that psychologist five years earlier due to domestic difficulties. She has seen the same psychologist on four separate occasions. She said that she had never previously taken anti-depressants before the accident.

    There is no family psychiatric history.

    Her medical history includes a right ankle operation where pins were inserted. She says that this was due to domestic violence. There is a family history of cancer and diabetes.

    She lives with her three children and was also living with her seventeen-year-old son at the time of the accident. She has five children in total.

    She was not in a relationship at the time of the accident. She said that she separated from her spray painter husband.

    Ms Elsaleh was born in Queensland and grew up in Queensland. She said that life growing up was “rough”. She left home at a young age, met a man and married him. She said that her father was a Vietnam War Veteran.

    She told me that she was subject to domestic violence and required refuge assistance. She said, “I hated my life as a child”.

    She was schooled through to Year 10 and then worked in a sandwich shop in the MLC Centre. She subsequently worked at a supermarket. Her longest period of employment was at a wedding reception centre.

  17. History of the motor accident
  18. She said the accident occurred in February 2018. She was in her 2016 Highlander Santa Fe, seven-seater at around 9:00 am. She was unaccompanied in the vehicle.

    She was driving on the MS at around 90 kmph. She was travelling in the middle lane.

    She said that she was unexpectedly hit from behind. Her car began spinning. She believes it may have spun around five times. She said, “I felt like I was smashing into things”. She applied her handbrake and foot brake. She said that when she stopped, she saw traffic coming towards her. She was afraid that other vehicles would hit her.

    She said that her vehicle “slammed into the brick barrier”. She said that at the time of the accident, she thought she was going to die. She said that she started praying.

    Her airbags were deployed. She said that she felt as though she was crushed and said that smoke was coming out of her car. She said, “all I could see was smoke”. She said people were telling her to stay in her vehicle but someone helped her out. She told me that she felt ok initially and she was not aware of any problems. She said, “I felt fine and didn’t want to go to the hospital”. She said that she was “so shocked to be alive”. She said that in her dreams, the accident happens in slow motion.

  19. History of symptoms and treatment following the motor accident
  20. She left the accident in an ambulance and went to Chippendale Hospital where she stayed for one to two days. She was initially treated with physiotherapy and steroid injections.

    She said that her mental health difficulties began not too long after the accident. She said that she was depressed that she lost her job. She added, “I will never get that job again”. She said that she has dreams about the accident that began not long after the event occurred

  21. Details of any relevant injuries or conditions sustained since the motor accident
  22. There were no relevant injuries or conditions sustained since the motor vehicle accident.

  23. Current symptoms
  24. She said that with medication she is able to sleep through but sometimes her whole body “jolts” during sleep. She said that she may dream about the accident “a couple of times a week” but over time, the symptoms have decreased. Her appetite has fluctuated and her weight has increased due to inactivity. She told me that is “upset all the time”, She said that she feels angry because simple tasks like shopping at “so hard”. She added, “it makes me depressed”. She said that she is unhappy because “I want to be normal”. There was no diurnal mood variation and suicidal ideation. Her concentration was poor.

    She said that she was in too much pain and can’t sit for too long. She said that her concentration has been affected due to the analgesics.

    She complained that she is unable to pursue normal recreational activities due to her physical difficulties. She feels bad that she cannot perform her usual roles.

    She is able to drive, cook and clean. She does shopping online. She dresses herself and showers and toilets herself.

  25. Current and proposed treatment
  26. She takes analgesic medication but no psychotropic medication. She stopped seeing the psychologist that she saw previously.

    Clinical Examination

  27. Mental State examination
  28. Ms Elsaleh presented as a woman of stated years who was wearing an Islamic head covering. Her level of self-care and grooming appeared to be normal. Her psychomotor functioning was normal.

    Her speech was normal in form. The content had a dramatic quality. She described sadness at the alteration in her physical functioning and the diminution in her capacity to perform her usual roles and responsibilities. At times, due to poor concentration, her narrative would become tangential.

    Her affect was reactive and observed within a normal range. She did not appear distressed or disordered at any stage during the interview.

    Her cognitive functioning was normal.

    There was no evidence of psychosis.

  29. Current functioning
  30. She is not working and attributes that to her physical condition. She is able to continue parenting her children, although, does not engage in similar level of recreational activities.

  31. Comments of consistency
  32. There were no issues of inconsistency identified.

    Review of Documentation

  33. Summary of relevant documentation
  34. Ms Elsaleh had a pre-existing history of psychological difficulty. She had psychological problems documented in the days prior to the subject accident. There is contemporaneous evidence of hyperarousal, re-experiencing phenomena and disturbed mood following the subject accident.

    Determinations

  35. Diagnosis and reasons
  36. There is a pre-existing history of anxiety and depression immediately prior to the subject accident. She continues to suffer from anxiety and depression.

    She was documented as having symptoms of Post-Traumatic Stress Disorder that lasted more than a month and developed within three months of the subject trauma. The symptoms subsequently abated and she is now in remission for that disorder.

  37. Causation and reasons
  38. The anxiety and depression was pre-existing and not caused by the motor vehicle accident.

    The Post-Traumatic Stress Disorder was caused by the motor vehicle accident. I note that she was the victim of domestic violence.

    Summary of injuries referred by the parties

  39. The following injuries WERE NOT caused by the motor accident:
    • Anxiety and Depression.
  40. The following injuries caused by the motor accident have resolved
    • Post-Traumatic Stress Disorder
  41. Minor injury

    Section 1.6(3) of  the Act:
    A Minor psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.

    Part 1 clause 4 (2) of the Regulation:
    2) Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act

    1. acute stress disorder
    2. adjustment disorder
  42. 3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5}

    Not Applicable.

Conclusion

The following injury is not a minor injury:

  • Post-Traumatic Stress Disorder.

Dr Doron Samuell Medical Assessor
Dispute Resolution Service

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