Allianz Australia Insurance Ltd v Akopyan

These judicial review proceedings arise from a motor accident on 2 August 2015, involving Mr Hamlet Akopyan, the first defendant. Mr Akopyan made a claim for compensation against the plaintiff, Allianz Australia Insurance Ltd, for injuries he says he sustained in the accident

The second defendant, the State Insurance Regulatory Authority (“SIRA”) and the third defendant, the Medical Review Panel (“the Panel”) appointed by SIRA, have filed submitting appearances.

By amended summons filed 7 February 2019 the plaintiff seeks the following:

It is not disputed that the vehicle insured by the plaintiff was the vehicle at fault in the accident with Mr Akopyan at Greystanes on 2 August 2015. Mr Akopyan was taken to Westmead Hospital after the accident but was released a few hours later.

Mr Akopyan alleges that he suffered physical and psychiatric injuries as a result of the motor accident. Specifically, Mr Akopyan alleges that he has developed a psychotic illness which was caused by the motor accident.

Pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”), for Mr Akopyan to be awarded any damages his degree of permanent impairment must be greater than 10%.

The plaintiff disputed that Mr Akopyan’s injuries give rise to greater than 10% permanent impairment and pursuant to Part 3.4 of the MAC Act, that dispute was referred to SIRA’s Medical Assessment Service (“MAS”).

The MAC Act provides for a scheme of awarding damages for non-economic loss for injuries caused to persons in motor accidents. When a dispute arises over the level of permanent impairment, an assessment through the MAS is required before damages may be awarded (s 132).

Part 3.4 of the MAC Act applies to disputes between claimants and insurers about the degree of permanent impairment (ss 57 and 58). Pursuant to s 60, SIRA is to arrange for the dispute to be referred for medical assessment to a medical assessor who has been appointed by SIRA under s 59(1). Under s 61, the medical assessor is required to issue a certificate in respect of the assessment.

Parties to a dispute are entitled to apply to the proper officer of SIRA for a referral of the medical assessment to a panel of assessors for review (s 63(1)). The proper officer of SIRA is to arrange for the matter to be referred to a panel, only if they are satisfied there is reasonable cause to suspect that the initial medical assessment is incorrect in a material respect (s 63(3)).

If the proper officer is so satisfied, and refers the dispute for review, the panel may either confirm the initial certificate or revoke the initial certificate and issue its own (s 63(4)). The panel’s assessment is “to be by way of a new assessment of all the matters with which the medical assessment is concerned” (s 63(3A)).

Section 133 of the MAC Act outlines that the degree of permanent impairment is to be assessed by MAS assessors in accordance with prescribed guidelines and s 44(1)(c) provides for the issuing of such guidelines.

Guidelines under s 44(1)(c) have been issued – the Motor Accident Permanent Impairment Guidelines – and these apply to assessments of permanent impairment resulting from motor accidents occurring between 5 October 1999 and 30 November 2017.

Relevantly, clause 1.35 of the Permanent Impairment Guidelines provides:

Under the section “Assessment of mental and behavioural disorders” clause 1.213 of the Permanent Impairment Guidelines provides:

In its written submissions, the plaintiff stated:

Mr Akopyan’s psychiatric injuries were assessed by Dr Synnott, psychiatrist, on 18 September 2017. Dr Synnott issued a Certificate dated 22 September 2017 assessing Mr Byrne as having greater than 10% permanent impairment because of psychiatric injuries caused by the motor accident. Specifically, Dr Synnott made a diagnosis of “Psychotic Disorder Not Otherwise Specified”.

Dr Synnott had conducted an interview with Mr Akopyan (assisted by an accredited interpreter) and also undertook a clinical examination.

Before recounting the history given by Mr Akopyan, Dr Synnott stated: [1]

Dr Synnott recounted Mr Akopyan’s pre-accident medical history, noting that according to Mr Akopyan, prior to the motor vehicle accident “he was basically a fit and healthy man”. Dr Synnott also recounted details of Mr Akopyan’s psychosocial history and pre-accident functioning.

Dr Synnott took a history of symptoms and treatment following the motor accident noting: [3]

Dr Synnott noted that he had reviewed the following salient opinions in the documents provided to him:

Dr Synnott concluded:

Dr Synnott found that Mr Akopyan’s “Psychotic disorder NOS” was caused by the motor accident, and determined Mr Akopyan’s permanent impairment as 26%.

The plaintiff applied for a review of Dr Synnott’s assessment under s 63(1) of the MAC Act. A Proper Officer of the MAS examined the application, and was satisfied that there was reasonable cause to suspect Dr Synnott’s assessment was incorrect in a material respect. There is no challenge to that decision. The matter was referred to a review panel.

Three psychiatrists, Dr Samson Roberts, Dr Wayne Mason and Dr Thomas Newlyn were convened as the Panel. The Panel held a teleconference on 26 April 2018, and examined Mr Akopyan and further discussed the matter on 22 August 2018. It issued its Certificate on 4 October 2018. The Panel diagnosed Mr Akopyan with “Psychotic Disorder due to another General Medical Condition” and determined that this was caused by the motor accident. The Panel determined Mr Akopyan’s whole person impairment at 41%.

The structure of the Panel’s Certificate included the fact that the conference was held, specification of the documentation and other material reviewed, the assessment under review, and the dispute identified by the parties as “Diagnosis/Causation (non-reliance on evidence)”. The Panel, under item 3 listed matters considered and decided by it. The Panel noted that it “considered afresh all aspects of the assessment under review” as is, of course, required by the legislation.

There was careful tracking through the documentary evidence considered by the Panel. The Panel noted Dr Synnott’s analysis and the history obtained by him from Mr Akopyan. This is followed by reference to the insurer’s submissions on the application for review, drawing attention to an admission to Liverpool Hospital in August 2015 noting a significant alcohol/drug abuse history and previous incidents of violence and a note of 21 August 2015 referring to bipolar affective disorder, current episode manic and psychotic symptoms and substance abuse affecting behaviour. There is also reference to a record of five car accidents and an entry on 14 September 2015 is noted as having referred to a quote from Mr Akopyan’s wife stating "he's back to how he used to be like five years ago". [4]

The Panel analysed Dr Klug’s report, including his conclusion that there was an absence of head injury in the motor accident, although Dr Klug said that there may have been a brief amnesic gap. There were three admissions to hospital under the Mental Health Act 2007 (NSW) noted by Dr Klug in August 2015, April 2016, and August 2016. Dr Klug diagnosed a “psychotic disorder due to another medical condition”, considering that it may be that Mr Akopyan has a bipolar-related disorder due to another medical condition. The whole person impairment assessment by Dr Klug of 24% is noted. [5]

Reference is made to a report of Dr Andronikashvili of June 2016 and the diagnosis made by him when Mr Akopyan presented for scheduling under the Mental Health Act on 15 August 2015. [6]

There is reference to a discharge/transfer summary referring to an admission/attendance in 2017 at Waratah House at Campbelltown with a diagnosis of schizophrenia and mood disorder and prescription of Clozapine. [7]

The Panel referred to a mental health discharge/transfer summary from Liverpool Hospital to Campbelltown Mental Health Unit in January 2017, noting the previous diagnosis of Schizoaffective Disorder in the context of a motor vehicle accident of 2015, resulting in unemployment and chronic pain with multiple suicide attempts. [8]

The Panel referred to other records in the nature of discharge/transfer summary documents. [9]

The emergency department clinical records pertaining to the presentation on 2 August 2015 directly after the motor accident are referred to by the Panel. The circumstances of the accident are noted and that the emergency department clinical records record that Mr Akopyan “self-extricated but was unsteady on his feet and amnesic to events”. [10]

Interestingly the observation is made by the Panel that the ambulance electronic medical record demonstrates that Mr Akopyan initially declined assessment by the ambulance officers and that the account was provided to the ambulance officers by a bystander. [11]

The Panel then notes clinical entries in the GP records as well as a mental health progress note by Dr A Virk from October 2016. Reference is made to a cerebral perfusion study performed on 21 October 2016 and reference is made to clinical notes referring to Mr Akopyan complaining of smelling smoke or seeing “the smoke man” who commands him to do things such as “kill yourself”. [12]

The Panel referred to a consultant psychologist’s report dated 10 May 2016 of Ms Flores-Kater and the results of her assessment and her findings. [13]

Documentation from Liverpool Health Service pertaining to the admission on 21 August 2015 to 14 September 2015 is referred to by the Panel which includes a note that Mr Akopyan’s wife suspected that he was using substances. The Mental Health Discharge Summary pertaining to the admission on 6 October 2016 to 11 November 2016 noted an account from Mrs Akopyan of an extreme personality change almost immediately after his accident. The summary records that during the admission Mr Akopyan reported persisting auditory and olfactory hallucinations. A diagnosis of Schizophrenia/Schizoaffective Disorder was made, and although extreme Post Traumatic Stress Disorder was considered the basis for the irritability and aggression, no symptoms of that condition are described. It was noted that there was present constant psychotic phenomena, including olfactory, auditory and visual hallucinations. [14]

The Panel noted Dr Virgona’s report and that Dr Virgona’s view was that the account of the motor accident “made no sense” and that in his view, Mr Akopyan developed psychotic symptoms in the period after the motor accident in the context of alcohol and analgesic use. Dr Virgona diagnosed obsessive compulsive personality features, chronic adjustment disorder and mixed anxiety and depressed mood noting that “[Mr Akopyan’s] psychosis dominates the clinical picture and requires further treatment to reveal the real extent of any accident-related symptoms”. [15]

There is reference by the Panel to the emergency department case history in January 2017 where Mr Akopyan had consumed a bottle of brandy and was engaging in bizarre behaviour, inappropriate laughing, inappropriate talking, and had a red face and red eyes and was complaining of auditory hallucinations. [16]

The Panel notes its conclusion that a re-examination of Mr Akopyan by the Panel was necessary. Additional evidence is then referred to by the Panel as documents provided by the parties, including a report of Dr Sekel, who thought there was "a history of psychiatric disorders for many years based on the extensive records" and a report of Dr Klug dated July 2018 which documents Dr Klug’s opinion that “it cannot be fully excluded that Mr Akopyan suffered from a traumatic brain injury as a consequence of the motor accident” and diagnosed Schizoaffective Disorder. [17]

The Panel refers to the report of Dr Roldan, psychologist, from April 2018 and the findings and assessments made by Dr Roldan. The Panel records Dr Roldan’s view that the testing indicated deliberate underperformance, even for a person with psychotic illness, and Dr Roldan’s conclusion that “I have significant difficulty in arriving at a concluded opinion with regards to aetiology and I must express some reservations about symptom/presentation validity.” [18]

The Panel then goes on to set out the information obtained at interview with Mr Akopyan. [19] The Panel took a pre-accident medical history, noted relevant personal details and psychosocial history, and took a history of the motor accident. This is followed by a history of symptoms and treatment following the motor accident which includes Mr Akopyan saying he lost consciousness in the accident, regaining awareness as he was being injected with a drug. The Panel notes: [20]

There is an account of bizarre behavior by Mr Akopyan in the days following the accident it seems given by Mr Akopyan’s wife. Police were called and the history obtained indicates that Mr Akopyan was admitted to hospital. The Panel notes a history from Mr Akopyan’s wife that due to other bizarre behavior she called an ambulance and Mr Akopyan spent six weeks in hospital during which time he was aggressive and would throw food in her face. There were other incidents and admissions to hospital described by Mr Akopyan and Mrs Akopyan. [21]

A history was taken of pre-accident functioning and current symptoms, followed by current and proposed treatment. The current treatment is noted to be Clozapine, 300mg at night for the past year and a half, an anti-depressant, 50mg at night and valium, 5-10mg per week when feeling restless. [22]

A mental state examination is recorded although it was conducted through an interpreter. The Panel noted: [23]

The Panel then outlined current functioning, noting that he interacts with nobody other than his wife and her son and has no family in Australia other than them. [24]

Under the heading “Panel Deliberations” the Panel records: [25]

The Panel then went on to assess Mr Akopyan’s level of impairment which it concluded was a 41% permanent impairment.

These proceedings were brought pursuant to s 69 of the Supreme Court Act 1970 (NSW). Relief under s 69 is available only for jurisdictional error or error of law on the face of the record:

The grounds of review relied upon by the plaintiff are:

As explained in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [45]:

Substantial guidance as to how the Panel should approach its task is provided by the judgment of the Court in McGiffen:

It is also clearly settled law that medical assessors are to form their own opinion on the medical question referred to it by applying their own medical experience and their own medical expertise: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] per French CJ, Crennan, Bell, Gageler and Keane JJ (“Wingfoot”). The reasons must explain the path of reasoning by which the conclusion was reached: Wingfoot at [55].

In D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201, it was held that a finding of fact for which there is no evidence does not necessarily constitute an error of law on the face of the record (per Simpson AJA with whom Macfarlan and Leeming JJA agreed):

I observe at the outset that the plaintiff’s written submissions (“PWS”) are replete with value judgements by the author as to the importance, weight and cogency of material made available to the Panel for its evaluation. Examples of this occur repeatedly throughout the PWS and betray an attitude of merits review.

In PWS [11], a reference to Dr Synnott regarding Mr Akopyan as “an unreliable historian” is followed by the comment “which appears undeniable”. In PWS [13] there is gratuitous commentary upon Dr Synnott’s diagnosis, describing it as one that “could scarcely have been more non-specific”, despite it corresponding to a DSM-IV identifiable psychiatric condition. In PWS [17], an opinion is volunteered that “the first defendant provided little reliable information when interviewed by the Review Panel” but again this is a value judgement by the author of the PWS, rather than a reference to any conclusion reached or observation made by the Panel.

In PWS [19] there is a partial quote from DSM-IV which leaves out a critical part of the relevant passage where it specifically addresses matters that need to be taken into account when identifying the diagnostic features of Psychotic Disorder due to a General Medical Condition. The incomplete quote leaves a potentially misleading impression of what is in DSM-IV as to what a diagnosing psychiatrist or here, the Panel, should take into account in considering that particular diagnosis.

The complete paragraph from DSM-IV under the heading “Diagnostic Features” of “Psychotic Disorder Due to a General Medical Condition” reads: [26]

The parts omitted from the PWS are underlined.

The defendant fortunately tendered the complete extract from DSM-IV otherwise this Court may well have been misled by the incompletely extracted material.

In respect of ground 1, apart from constantly emphasising that there is no evidence of a head injury, (an observation with which I do not agree), evaluative commentary is made throughout the PWS dealing with that ground, indicating the opinion of the author of the PWS as to the kind of things that, in his view, ought to have been noted in contemporaneous reports but were not, but at the same time minimising or disregarding matters that were recorded that can indicate a head injury. For example, at PWS [34] commentary is made that: “a CT scan of the brain was arranged at Westmead Hospital, but only because the First Defendant professed to be amnesic of the event”. There is no evidence cited for the drawing of that conclusion. This is followed by the somewhat withering comment, again betraying a merits review type of approach: “The result of the CT scan was, predictably, normal” (emphasis added).

The PWS then go on to emphasise evidence that another specialist, a neuropsychologist, took the view that the temporal relationship between the accident and the onset of psychotic symptoms is “insufficient” to establish causation, but makes no reference to other experts whose reports were also before the Panel who took a different view, let alone any reference to the DSM-IV which specifically states temporal relationship is a matter that ought to be considered.

In any event, as correctly observed in the written submissions for Mr Akopyan (“DWS”) it is obviously up to the Panel to reach its own view. A new assessment is required by s 63(3A) of the MAC Act.

In the DWS, Mr Sheldon SC submitted that the approach taken in the PWS was incorrect. It is wrong for the plaintiff to proceed on the basis that a self-report of symptoms cannot establish evidence of head injury. This means that even the possibility of an error of law is not raised. The only submission properly open to the plaintiff in these circumstances relates to the weight to be attached to such evidence which is, of course, entirely a matter for the Panel relying on its own professional skill and judgement to determine, based on its clinical experience. To submit otherwise is to “dress up a merits review as a complaint of reviewable error.” [27]

Mr Sheldon SC pointed out the incomplete DSM-IV quote thus providing the highly relevant parts of that extract and what was required by DSM-IV to be considered about the aetiology of the condition as well as the alternative analyses that can provide the necessary connection between the general medical condition and the psychosis.

In oral submissions, Mr Khandhar SC (appearing for Mr Akopyan in substitution for Mr Sheldon SC) referred to a number of sources of evidence of head injury within the material available to the Panel:

All those points demonstrate clinical references to a general medical condition, namely head injury, involving dizziness, unsteadiness, amnesia and head pain in the hours immediately after the accident.

Mr Khandhar SC submitted that the analysis by the Panel was done consistently with the requirements of the application of the DSM-IV diagnostic approach, including, as required by the relevant part of DSM-IV, the need for the clinician(s) to “also judge that the disturbance is not better accounted for by a primary Psychotic Disorder, a Substance-Induced Psychotic Disorder, or another primary mental disorder (e.g., Adjustment Disorder).” [28]

Mr Khandhar SC submitted that if there is some evidence of head injury, even one piece, then the “no evidence” ground fails. That ground should truly be seen as a complaint about the weight the Panel gave to evidence that was before it, which is not a matter for this Court, and is entirely a matter for the expertise of the Panel.

I accept the submissions made in both the written and oral submissions by senior counsel for Mr Akopyan. I reject the submissions made by the plaintiff. It seems to me the ground fails at the first hurdle given that there was contemporaneous evidence of head injury available for the Panel to consider. I also accept that the Panel, which comprised expert specialist psychiatrists, were required to, and did in fact, analyse the background and clinical history, directly assessed Mr Akopyan and applied their professional skill and judgment to the task at hand. There is no error of law and certainly no error of law on the face of the record in how it completed that task.

These grounds can be dealt with together. In my view these grounds amount to little more than an amplification and/or repetition of the first ground.

In relation to the second ground, the PWS commenced from the position that because there was no basis for the Panel’s diagnosis that there had been a head injury, there is a failure to identify a physiological mechanism for the psychotic disorder found. This submission is developed to engage in criticism of the purported absence of an “aetiological connection” or “physiological mechanism” thus submitting that the diagnosis reached is not “legitimate”. It was argued that this failure amounts to jurisdictional error.

The third ground, an assertion of failure to give adequate reasons for its decision, also has its origin in the insistence by the author of the PWS that there was no evidence of head injury. The PWS argued that if the only evidence of head injury is Mr Akopyan’s “own assertion that he was “amnesic to events”” [29] , the Panel was required to explain how this “evidence” bases the conclusion reached (again an evaluative side-comment by putting inverted commas around the word “evidence” in the PWS). This submission is developed along similar lines to the submission in respect of ground 2 that there was a requirement for an explanation of the physiological process identifying the connection between the general medical condition and the psychosis.

In paragraph [53] of the PWS the following is stated:

This submission is not available. When the full relevant extract from DSM-IV is read in context it is evident that temporal association is indeed a factor that should be considered; there was no “preclusion” of the kind stated in the PWS, or at all.

I reject the submissions made by the plaintiff in respect of both grounds 2 and 3 and those grounds fail.

In respect of the asserted jurisdictional error and asserted error of law on the face of the record, I accept as a correct reflection of the law the position succinctly stated in DWS [42]-[44]:

The appeal fails.