AAI Limited t/as AAMI v Blankson
[2024] NSWPICMP 87
•19 February 2024
DETERMINATION OF REVIEW PANEL CITATION: AAI Limited t/as AAMI v Blankson [2024] NSWPICMP 87 CLAIMANT: Romina Blankson INSURER: AAMI REVIEW PANEL MEMBER: Maurice Castagnet MEDICAL ASSESSOR: Michael Hong MEDICAL ASSESSOR: Glen Smith DATE OF DECISION: 19 February 2024 CATCHWORDS: MOTOR ACCIDENTS – Claimant suffered injury in a motor accident on 23 March 2018 when her vehicle was hit from behind by the insured Toyota Hilux; dispute whether psychological injury was a threshold injury; whether there was any pre-existing psychological condition; where the Medical Assessor at first instance found that the psychological injury (panic disorder) was a non-threshold injury; Held – original assessment revoked; finding that the claimant’s psychological injury fulfilled the DSM-5-TR criteria for a diagnosis of specific phobia which is a non-threshold injury.
DETERMINATIONS MADE: CERTIFICATE OF DETERMINATION
Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury.
DeterminationThe Review Panel:
1. Revokes the certificate of Medical Assessor Doron Samuell dated 29 June 2022.
2. Certifies that the psychological injury (specific phobia) is NOT a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.
STATEMENT OF REASONS
INTRODUCTION
1.The claimant, Romina Blankson, suffered injury in a motor accident on 23 March 2018 when her vehicle, a Mazda RX-7 was hit from behind by a Toyota Hilux, insured by AAMI.
2.As a result of the accident, the claimant claimed that she sustained physical injuries as well as psychological or psychiatric injury.
3.The insurer accepted liability to pay the claimant’s statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) for the first 26 weeks.
4.Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
[2] Section 4.4 of the MAI Act.
5.The issue in dispute in this matter is whether the claimant’s psychological or psychiatric injury resulting from the accident was a threshold injury for the purposes of the MAI Act.
6.Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
7.The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
8.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
9.To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
10.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
11.The dispute was referred at first instance to Medical Assessor Doron Samuell who issued a Medical Assessment Certificate dated 29 June 2022 (the medical assessment).[4]
[4] Insurer’s bundle, p 1.
12.The Medical Assessor’s diagnosis of the claimant’s psychological condition was:
“[The claimant] describes clinically significant symptoms that are predominantly anxious in nature. She has experienced typical panic attacks and episodic anxiety, commencing a few months after the subject accident. Her panic attacks are of sufficient severity and intensity to satisfy the diagnosis of Panic Disorder.”[5]
[5] Insurer’s bundle, p 5.
13.The Medical Assessor found that the panic disorder was caused by the motor accident and was not a minor injury.[6] He noted that the claimant did not have vulnerability for a mental health condition before the accident and the accident was sufficiently frightening to be able to cause a mental health condition.
THE REVIEW APPLICATION
[6] Insurer’s bundle, pp 5 and 6.
14.On 26 July 2022, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
15.The President referred the application to a review panel for review, being 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.[7]
[7] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
16.According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Michael Hong, Medical Assessor Glen Smith and Member Maurice Castagnet (the Panel).
17.Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
18.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act, the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
19.The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
Motor Accident Injuries Act 201720.A threshold injury is defined in s 1.6(1) of the MAI Act:[11]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[11] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
21.Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
The Motor Accident Injuries Regulation 2017
22.Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
23.Part 1, cl 4(3) of the Regulations provide that “acute stress disorder “and “adjustment disorder” have the same meanings as in DSM-5-TR.[12]
[12] DSM-5-TR is the document entitled Diagnostic and Statistical Manual of Mental Disorders, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
The Motor Accidents Guidelines
24.Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on and after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
25.Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Causation of injury
26.Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13]
[13] See s 3B(2) of the Civil Liability Act 2002.
27.In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[14] [2021] NSWSC 13 (Raina) at [65].
MATERIAL BEFORE THE PANEL
28.Pursuant to directions issued by the Panel the claimant filed a paginated and indexed bundle of documents of 48 pages and the insurer filed a paginated and indexed bundle of 157 pages.
29.On 27 November 2023, the insurer filed an application to Admit Late Documents (the Late Documents bundle) which comprised of clinical notes from MyHealth Medical Centre Liverpool dated 26 October 2023 and received by the insurer on 30 October 2023.
30.By email of 1 November 2023, the insurer sought consent of the claimant to the lodgement of the additional material. The Panel understands that there was no response from the claimant.
31.The insurer submitted that given the additional documents consist of clinical records from a treating general practitioner and deal with the claimant’s pre-existing unrelated alopecia condition and any impact of the condition might have on the claimant’s psychological condition the material should be admitted into evidence.
32.The Panel concluded that the Late Documents bundle should be accepted into evidence so that it has before it a full history of the claimant’s treatment and pre-existing conditions.
33.In making its determination, the Panel has considered the respective bundles of the parties and the insurer’s Late Documents bundle.
SUBMISSIONS
Insurer’s submissions
34.The insurer’s submissions may be summarised as follows:
(a) the insurer submitted that the history taken by Medical Assessor Samuell of a history of difficulty breathing and the claimant felt like vomiting was insufficient to satisfy all the diagnostic criteria for panic disorder under DSM-5. Alternatively, the insurer submitted that the available evidence did not support the diagnosis, and
(b) the insurer submitted in circumstances where the claimant first experienced psychological symptoms eight months after the accident and, where the claimant indicated that her pre-existing alopecia condition caused her to feel suicidal in 2021 and took a small overdose after she was advised that the alopecia condition could not be cured, there was insufficient evidence to conclude that the claimant’s mental health condition was caused by the accident.
Claimant’s submissions
35.The claimant’s submissions may be summarised as follows:
(a) the insurer’s contentions are based on their own perceived interpretation of DSM-5 and clause 5.11 of the Guidelines. The finding of the psychological injury of panic disorder was made by the Medical Assessor based on the history taken from the claimant, the available medical evidence and the clinical assessment conducted, and
(b) the medical assessor found that the psychological injury was caused by the subject accident in circumstances where he was aware that the claimant had the condition of and concluded that there was no other cause for the claimant’s mental health condition of panic disorder.
SUMMARY OF EVIDENCE BEFORE THE REVIEW PANEL
36.The evidence relating to the injury being assessed may conveniently be summarised as follows.
Clinical records of Fairfield Chase Medical and Dental Centre
37.The clinical notes of the claimant’s general practitioner recorded the following entries:
(a) On 28 March 2023, Dr Gregor noted:[15]
[15] Page 56 of the insurer’s bundle.
“Migraine attacks
Lack of sleep
extremely stressed
Brother passed away
needs leave for a week
Family in England
Emotional
crying
Wakes in early hrs remmebering [sic] something at workalopecia…
TEMAZE TABLET 10mg one at night…”(b) On 20 October 2022, Dr Gregor noted:
“work stressing her
wants time to relax…”[16][16] Page 59 of the insurer’s bundle.
(c) On 8 April 2022, Dr Gregor noted:
“Panic attacks lately
when driving feels the car going to turn
Drives slow on motorway…
Phobia from fast driving…
Letter…to Dr Shameran Slew-Younan…”[17]
[17] Page 64 of the insurer’s bundle.
(d) On 21 December 2021, Dr Gregor noted:
“Feeling well
Problem sleeping
Very bad
Had it for a long time
Healthy sleep tips given
Used one tablet Circadin says didn't do anything
Dizziness
Spinning feeling
Migraines…
Early morning wakening. Depressed mood. Low self esteem. Irrational fear…No panic attacks…”[18]
[18] Page 66 of the insurer’s bundle.
(e) On 9 March 2021, Dr Gregor noted:
“Neck pains
Back pains
recurrent
After the MVA…”[19]
[19] Page 69 of the insurer’s bundle.
(f) On 14 August 2020, Dr Taj noted:
“…pregnancy counselling…”[20]
[20] Page 72 of the insurer’s bundle.
(g) On 7 August 2020, Dr Gregor noted:
“MVA (Motor vehicle accident)…
Pain in forehead as she hit sunshield
Develoed [sic] an egg on right forehead
Right shoulder pain…”[21]
[21] Page 74 of the insurer’s bundle.
(h) On 5 August 2020, Dr Priyamanna noted:
“MVA 8:30 am today
Was the restrained driver of her car - almost stationary
Was hit in the passenger side
of her car
Car passenger side and bonnett - damaged
May be a write off as stated by patient
Patients head moved forward and hit sun shade
Presents with mild frontal headache and shoulder pain…”[22]
[22] Page 74 of the insurer’s bundle.
(i) On 23 June 2020, Dr Gregor noted:
“Serious headaches 10 days occasionall [sic] right and…other times left forehead
Overworked // Stress
severe body pains
Not sleeping well
Sleeps max 4 hrs…”[23]
[23] Page 75 of the insurer’s bundle.
(j) On 10 August 2018, Dr Gregor noted:
“MVA last tuesday at 07 41
Saw GP
Seat belt on
Car still on red traffic light
a car hit her from behind
Went forward and back on impact
No lacerations
Now has pains on the right side of the nck [sic]
Could barely move yesterday
Pins and needles on the right neck shoulder
Having ongoing physio and HydroWill continue acupuncture with Dr Aung…”[24]
[24] Page 82 of the insurer’s bundle.
(k) On 8 August 2018, Dr Tian Hong Priyamanna noted:
“Was on her way to work
MVA at 7:41am
Stationery [sic] car
Car rolled onto the rear of her car causing small dent
Was thrown forward but nil impact of head trunk or limbs with any part of car
Similar MVA in April this year and needed hospitalisation, neck brace.
Has ongoing neck pain and intermittent R shoulder pain with restricted elevation
Presents today with neck pain, and pain in R forehead
Nil pain in other regions of her body
O/E
Nil seat belt injury of note
Nil-external-head-injury
C spine – nil focal tenderness
posterior neck generally tender especially on right
Shoulder – restricted elevation
Probably not new signs
Has had symptoms and signs since previous accident
Trunk and limbs – nil remarkable findings
A- Muscle strain
analgesia discussed”[25][25] Page 83 of the insurer’s bundle.
(i) On 9 July 2018, Dr Aung noted:
“Pain on the back of nck [sic]…mar 2018 followed an MVA
Stated that had a mormal [sic] CT cervical spines
Not relieved with physio
Not relieved with Tramal, Valium or Panamax…”[26]
[26] Page 84 of the insurer’s bundle.
(m) On 9 July 2018, Dr Gregor noted:
“Neck pains still bothering her
Very tense…”[27]
[27] Page84 of the insurer’s bundle.
(n) On 2 April 2018, Dr Gregor noted:
“MVA 24/3/2018 at 1005
Driver
Seat belt on
No alcohol
At red traffic standing hit behind by acar raer ebnded [sic] at 60 km/hr
Firehead [sic] hit the steering well and her body rocked to front and back
No laceration
. Pains started 20 min later-in neck and left forehead-·
No LOG
No vomiting
Ambulance not called
Went to EDGiven neck brace kept in hosp 2 days…”[28]
(o) On 5 November 2016, Dr Gregor noted:
“Headaches
Losing hair
Bald patches
Tender to touchDenies psychological trauma…”[29]
[28] Page 87 of the insurer’s bundle.
[29] Page 89 of the insurer’s bundle.
Clinical records of Ware Street Medical and Dental Centre
38.On 8 April 2022, the claimant was referred by her general practitioner Dr Allen Donatosian Gregor to psychologist Dr Shameran Slewa-Younan at the Ware Street Medical and Dental Centre for treatment under a GP Mental Health Care Plan, dated 8 April 2022.[30]
[30] Page41 of the insurer’s bundle.
39.The Plan referred to a problem/diagnosis of “mixed anxiety and depression”[31] with the goal being the control of symptoms through psychological counselling, regular physical and relaxation exercises and consideration of anti-depressant therapy.[32]
[31] Page 44 of the insurer’s bundle.
[32] Page 46 of the insurer’s bundle.
40.In a report dated 25 May 2022 to Dr Gregor, Dr Slewa-Younan noted that her initial impression was that the claimant met the criteria for a specific phobia (Driving) following a motor vehicle accident in 2018 on background of persistent depressive disorder.[33]
The claimant’s statements
[33] Page 51 of the insurer’s bundle.
41.In a statement dated 22 August 2022, the claimant said the following:
“….
4.I have read the MAS Certificate of Assessor Doran [sic] Samuell dated 29 June 2022 (‘Certificate’) and agree with its contents except for when the Assessor has stated on page 4 of his Certificate ‘The overdose was taken after she was advised that her alopecia could not be cured.’. I do not remember ever taking an overdose.
7. I refer to paragraph 3.8 of the Insurer's submissions and state that I suffer from the following symptoms as a result of the subject accident:
a. Pounding heart or accelerated heart rate, sweating and shaking. This usually occurs when I suffer from nocturnal panic attacks on monthly basis (as mentioned on page 4 of the Certificate). I wake up and I would be sweating and shaking, and my heart would be pounding at an accelerated rate in the middle of the night. I also experience the abovementioned symptoms while I am driving on the Motor Way (beside or close to large and heavy vehicles) as well as symptoms which include nausea or abdominal distress and fear of losing control or going crazy. I experience this about 14 times a month on average and almost every time when I drive on the Motor Way.
8. I refer to paragraph 3.14 of the Insurer's submissions and state that alopecia is trigged [sic] by stress and panic attacks.
…
10. I have never had a panic attack prior to the subject accident. I believe the alopecia has been made worse by worrying and stressing as over the panic attacks and anxiety which arise from the injuries and disabilities sustained in the subject accident.”[34]
[34]Pages 7-8 of the claimant’s bundle.
42.In a statement dated 22 February 2021, the claimant said the following:
“…
38. Since the accident I have had another accident in or around August 2018 similar to the subject accident. I was stationary at traffic lights where a motor vehicle failed to stop and as a result it collided with the rear of my motor vehicle. I believe that as a result of the second accident my injuries have aggravated.
…
41. As a result of the subject accident, my social life has been greatly affected. On or about 29 January 2021 I was driving with my friends towards Campbelltown to have dinner using the Motor Way and halfway I pulled over and stopped driving as I started to shake and panic. I was feeling fearful to drive on the Motor Way and my friends were surprised at the way I behaved as they have never experienced that behaviour from me prior to the accident This makes me feel guilty and worried that my friends no longer have interest to spend time with me.”[35]
[35] Pages 37-38 of the insurer’s bundle.
RE-EXAMINATION FINDINGS
43.On 27 November 2023, Medical Assessor Hong and Medical Assessor Smith conducted the examination with the claimant via audio-visual link. The claimant was located at her own home. The claimant was alone for the duration of the examination.
Psychosocial history and pre-accident history
44.The claimant is a 38-year- old woman living alone in a rented granny flat at Canley Vale. She has lived there for around eight years. She said that she is not currently in a relationship, and she has no children. She works as a ‘freight desk analyst’ for Coca-Cola (9:00am to 5:00pm; Monday to Friday, with some flexibility in being able to work from home). The claimant said that, at the time of the accident in March 2018, she was working full-time with Coca-Cola.
45.The claimant reported that she was born in Ghana and there were no perinatal complications. She grew up in Ghana until age 13 and then went to the United Kingdom, with family, living in South London. She completed her A-levels and then undergraduate study in finance and computing at Brunel University.
46.The claimant came to Australia in 2011. She has a temporary visa, awaiting permanent residency. She subsequently studied for a Master of Business and she completed this online in around 2022.
47.The claimant said that her parents usually reside in England, but her mother (aged 62) also works as a trader of oats and sugar in Ghana. Her father (aged 65) drives ‘an executive cab’. She has a younger sister and a younger brother. She denied a history of traumatic incidents in childhood.
48.In terms of previous psychiatric history, the claimant denied a history of significant anxiety or depressive symptoms prior to motor accident in March 2018. She specifically denied a history of previous panic attacks, obsessions, and episodes of depressive symptoms. She had not been prescribed an antidepressant medication prior to the subject motor accident.
49.In terms of general medical history, the claimant reported that she was previously generally medically well and she denied a history of other major medical conditions, including diabetes mellitus, asthma, epilepsy, thyroid disease, head injury, hypertension and ischaemic heart disease. She denied a history of surgery. She reported an allergy to codeine (itch, vomiting). She was diagnosed with alopecia in around 2017[36] but there were no obvious psychological contributing factors to this at the time, apart from generally stressful working conditions.
[36] The Panel notes that a diagnosis of the condition was made on 8 October 2016, but treatment did not commence until 2017.
50.In terms of drug and alcohol history, the claimant said that she does not consume alcohol and she denied a previous history of legal or medical complications associated with alcohol consumption. She denied illicit substance use. She is a non-smoker. She denied excessive caffeine consumption and problematic gambling. She said that she was prescribed diazepam (benzodiazepine medication) to assist her whilst flying but she denied abuse of this medication.
51.The claimant denied a known family history of mental health issues.
History of the motor accident
52.The claimant reported that on 23 March 2018, at around 9:00pm, she was driving home alone from university in her own Mazda CX-7. She said that she was sitting in the car at a red light when, “I blacked out for a second, everyone was shouting, are you okay?” She said that a Toyota Hilux had hit her vehicle from behind and she noted, “he was a little bit abusive saying, ‘why didn’t I move?’ I couldn’t move, it was a red light”. She suffered from neck pain, “I couldn’t turn my head properly”. She said that she exited the vehicle and she “saw a dent in the back of the car”. She said that the man driving the Hilux tried to drive off but other people at the scene stopped him from driving away. She said that she exchanged details with the Hilux driver. An ambulance attended and took her to Liverpool Hospital. She said that her vehicle was towed and subsequently repaired.
History of symptoms and treatment following the motor accident
53.The claimant said that after the accident, she felt “panicky”. The claimant said she had difficulty breathing and she felt shaky.
54.The claimant said that in hospital, a neck stabilisation collar was applied and she was administered analgesic medications. She needed to wait for 11 hours for a doctor to assess her, “if I wanted to use the bathroom, they literally pulled me on the side”. She said that the neck collar was pressing on her chest and this was uncomfortable. She said that because she had been lying down for 11 hours, “I couldn’t feel anything in my legs”. She was administered anticoagulant injections because of her immobility. She described feeling “agitated, frustrated and crying, the neck brace was very uncomfortable”.
55.The claimant said that she had investigations and was admitted to a ward. After the first day she requested to be moved because she was in a room with other people. She said: “I was a bit scared, I had private health insurance, I wanted to move from that room”.
56.The claimant said that she was in hospital for around four days. After discharge from hospital, she needed to stay with a family friend for two weeks for care. She subsequently received treatment with physiotherapy and hydrotherapy. She continued physiotherapy treatments until the insurer ceased approval around two years ago. She suffered from ongoing neck pain and migraines, “I never used to have migraines” (before the accident). She said that at times she has suffered from around three migraines per week.
57.The claimant said that she returned to work for three days per week, five hours per day for one month and then she was able to work from home.
58.The claimant reported that immediately after the accident she felt scared to drive, “I was getting flashbacks”. She noted that when travelling as a passenger in a vehicle, “I was very fearful, especially when there were trucks coming, I would have flashbacks of the screaming, ‘are you ok?’ She said that when she saw “big truck cars I would get flashbacks”. She described experiencing panic attacks, with shaking, sweaty palms and racing heart. She felt withdrawn and sad, “because I lived by myself, I was worried who would assist me, I don’t have family here”. Ms Blankson said that her sleep was affected, “I would jump out of my sleep, I would have dreams of cars” around once per week. She said that migraines made it difficult for her to fall asleep. She said that her appetite was not clearly affected. She previously would go on road trips with her church, but she stopped attending these trips “because I didn’t want to sit in the car, I was embarrassed because people would see me being anxious”. She said that finally she returned to attending local church trips to Woolloomooloo, but she has not returned to interstate trips.
59.The claimant said that even when she commenced driving again, she avoided sitting in cars and she would often walk to the shops. She felt anxious, “just sitting in the car”.
60.The claimant said that she had a video call from Fairfield Hospital with a psychologist (a female, whose name she could not recall) around one year after the accident for a couple of sessions. She has not seen a psychiatrist for treatment. She said that her general practitioner prescribed medications for the migraines and nausea but she has not been prescribed an antidepressant medication.
Details of any relevant injuries or conditions sustained since the motor accident
61.The claimant said that she has been involved in two other motor accidents at some stage since the subject accident in March 2018, but she could not clearly recall the dates and details of the accidents. She said that there was an accident in early August 2018 and another in August 2020. She said that the accidents “brought back the memories” of the March 2018 accident, but she said these accidents were not as significant as the March 2018 accident psychologically.
62.The claimant reported that she has remained distressed by her alopecia and she has been stressed at work, “there was a lot of pressure on me, I’m not in the mood for socialising”. She spoke to a counsellor from the Employer Assistance Program on four or five occasions over the past three years.
63.The claimant reported that she had been in an “on and off” relationship for six years. In around 2020, she fell pregnant but the child’s father did not want the baby and she had a termination of pregnancy. She said that her parents did not want her to have a child, “I agreed with them at some point”. She denied being pervasively distressed or depressed after this issue.
64.The claimant said that around 18 months ago, she took eight tablets of paracetamol (over the course of a day) and she “hoped not to wake up” but there was no impact. She said that she had been told not to take more than six tablets of paracetamol and so she believed that taking eight tablets might be harmful for her.
65.The claimant said that in around March 2023, her brother passed away suddenly at age 43 and she noted, “they found him in the bed, it could have been a heart attack”. She experienced suicidal ideation briefly at that time. She took temazepam (benzodiazepine medication) and melatonin for insomnia as required but not regularly. She has not received any further psychological treatment.
Current symptoms
66.The claimant remains anxious about travelling. She said that her mood is “okay, a bit tense, under the pump at work”. She said she will not drive when it rains, and she avoids driving on motorways. She takes a longer route to avoid a motorway because she feels “triggered” in that environment. She sometimes asks for lifts from people. She feels anxious and hypervigilant when driving and when travelling as a passenger. She continues to avoid interstate trips with her church due to her anxiety. She sleeps from 10:00pm, after having some difficulty and she wakes up at 6:30am. She denied recent nightmares or dreams. Her appetite is currently reasonable. She has migraines three to four days per week and she suffers from ongoing neck and right shoulder pain. She denied current suicidal ideation.
Current and proposed treatment
67.The claimant said that she has massages at work on Tuesday. She uses a hand massager for her neck. She takes a medication prescribed by her general practitioner for migraines but she has not been referred to a neurologist.
68.The claimant said there is no current plan for further psychological therapy.
Clinical examination
Mental State examination
69.The claimant was visible in the telehealth session from the shoulders up. She appeared well groomed, and she wore a colourful patterned top and a scarf over her head. She was cooperative and there was no agitation. She said that her mood is currently “okay”, and her affect was appropriately reactive. Her speech was of normal volume and spontaneity but her thought form was somewhat circumstantial. There was no pervasive worthlessness and there were no ideas of harm to self or others.
Current functioning
70.The claimant reported that she is generally independent in self-care, and she showers daily. She usually prepares meals, but she buys takeaway food around once per week. She remains anxious about driving, particularly on the motorway and over long distances. She attends her church and goes on local trips with the church community. She denied other hobbies or interests. She currently works from home around three days per week and goes into the office two days per week.
Comments of consistency
71.The claimant told the medical examiners of the Panel that her anxiety and panic symptoms commenced immediately after the accident in March 2018. She could not explain why in Medical Assessor Samuell’s certificate, it was documented that her anxiety developed a few months or eight months after the accident. (The Panel notes that both timeframes were documented in the certificate). The claimant noted that her anxiety worsened when she returned to driving, which might, in part, explain the discrepancy.
72.The medical examiners of the Panel note that Medical Assessor Samuell did not document the history of other motor accidents and the claimant was unable to account for this. The claimant reported that her anxiety was significant after the March 2018 accident and although the other accidents likely aggravated her anxiety, they were not the primary cause.
73.The medical examiners of the Panel noted that there were no general practitioner records of anxiety immediately after the subject accident, but also note the general paucity of the clinical records with respect to her psychological distress. As is common in accident cases, initial attention was directed to the claimant’s physical injuries and their treatment following the accident, with the claimant’s psychological condition coming into focus thereafter.
Diagnosis and reasons
74.The Panel considered that, based on the provided history, the mental state examination and review of the material before the Panel, the claimant presented with symptoms consistent with the following recognised psychiatric diagnoses according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022):
(a)specific phobia, and
(b)adjustment disorder with mixed anxiety and depressed mood.
75.The claimant described marked fear and anxiety about travelling in rain and on motorways (Criterion A). Driving in those situations always provokes immediate anxiety (Criterion B). Travelling on motorways and over long distances is actively avoided (Criterion C). The fear is out of proportion to the actual danger associated with travelling in those situations (Criterion D). The fear, anxiety and avoidance have persisted for over six months (Criterion E). The anxiety has resulted in clinically significant distress and impairment as she has avoided her previous church trips (Criterion F). The symptoms are not better explained by another disorder, such as posttraumatic stress disorder, as full criteria for that condition are not fulfilled. Specifically, she did not present with pervasive and recurrent re-experiencing phenomena. The condition was also not, in the opinion of the medical members of the Panel, better explained by the diagnosis of a panic disorder. The panic attacks related to the specific fear of travel (Criterion G).
76.In addition to the anxiety about travelling, the claimant has also suffered from depressed mood in the context of physical symptoms including neck pain and migraines, which she said have developed after the accident. Her symptoms are consistent with the additional diagnosis of an adjustment disorder. She described depressed mood and frustration due to her physical limitations (Criterion A). The symptoms have been significant as evidenced by her level of distress and avoidance of some activities (Criterion B). The medical members of the Panel did not consider that the claimant presented with symptoms meeting criteria for another condition that would account for the depressive symptoms such as persistent depressive disorder or major depressive disorder (Criterion C). Her symptoms do not represent normal bereavement (Criterion D). She reported persistent anxiety, frustration and depressed mood in the context of the ongoing physical symptoms (Criterion E).
77.These diagnoses were generally consistent with the treating psychologist’s documentation. The psychologist diagnosed specific phobia and persistent depressive disorder. The medical members of the Panel also diagnosed specific phobia but diagnosed adjustment disorder with mixed anxiety and depressed mood rather than persistent depressive disorder.
Causation and reasons
78.The claimant reported that she developed alopecia around one year prior to the accident in 2017 but there was no other history of a significant pre-existing anxiety or depressive condition. She reported that she developed immediate anxiety symptoms after the accident in March 2018. She avoided travelling on motorways and over long distances due to her anxiety. She experienced symptoms of panic when driving. These symptoms fulfilled DSM-5-TR diagnostic criteria for the diagnosis of specific phobia, which is a non-threshold injury.
79.The claimant also reported depressive symptoms in the context of her physical symptoms, consistent with the diagnosis of adjustment disorder with mixed anxiety and depressed mood. She has experienced general life stressors and work stressors and had subsequent car accidents. As her current psychological symptoms and impairment are directly related to the subject accident, the medical members of the Panel concluded the subject accident is the main cause of her psychological injury.
FINDINGS
80.The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were or were not threshold injuries, as defined under the MAI Act.
81.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: See Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21] and [64].
82.The Panel adopts the examination findings and conclusions of the Panel’s Medical Assessors.
83.The Panel finds that the claimant suffers a specific phobia, and an adjustment disorder with mixed anxiety and depressed mood, both caused by the motor accident. The specific phobia is not a threshold injury for the purposes of the MAI Act.
CONCLUSION
84.As the Panel has found different DSM-5-TR diagnoses namely specific phobia and adjustment disorder with mixed anxiety and depressed mood, to those found by Medical Assessor Samuell, namely panic disorder, the Panel revokes the certificate issued by the Medical Assessor and issues a replacement certificate.
85.The Panel’s replacement certificate appears at the commencement of these reasons.
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