AAI Limited t/as AAMI v Huang

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Huang [2024] NSWPICMP 802
CLAIMANT:	Yi Sang Huang
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Doron Samuell
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	27 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessor (MA) Canaris’ decision about treatment (allowed) and threshold injury (non-threshold persistent depressive disorder); Panel determined that it would hear and determine this Review with the Review in the related proceedings; re-examination with both MA’s conducted; current diagnosis was of adjustment disorder; other potential diagnoses identified and discussed; Panel satisfied adjustment disorder was caused by the accident; Held – adjustment disorder is a threshold injury; clause 4(2) of the Motor Accident Injuries Regulation applied; Panel determined claimant had not had, at any time since the accident, a non-threshold injury; David v Allianz Australia Insurance Limited and Lynch v AAI Limited t/as AAMI applied; treatment allowed as related to the accident and reasonable and necessary in the circumstances; MA Canaris’ certificate about treatment confirmed, certificate about threshold injury revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certification by Medical Assessor Canaris dated 3 July 2023 with regards to the treatment in dispute between the parties. 2. Revokes the certification by Medical Assessor Canaris dated 3 July 2023 with regards to the dispute about threshold injury. 3. Certifies that the claimant’s psychological or psychiatric injury caused by the motor accident is a threshold injury for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Background to the Review

Yi Sang Huang was involved in a motor accident on 18 February 2020.
Mr Huang says he injured his neck, back and shoulders in the accident and developed a psychological injury as a result of the accident. Mr Huang made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) against AAMI, the third-party insurer of the vehicle that Mr Huang says caused his accident. In due course, Mr Huang also made a claim for damages (lump sum compensation) against AAMI.
Three medical disputes have arisen in connection with the claims and Mr Huang referred those disputes to the Personal Injury Commission (the Commission) for assessment in two separate proceedings as follows:
(a) proceedings numbered M104085/93 commenced on 20 April 2021 concerning:
(i)a dispute about whether the claimant’s injuries were or were not threshold injuries for the purposes of the Act;
(ii)a dispute about whether a number of different treatments and consultations were reasonable and necessary and related to the accident, and
(b) proceedings numbered M22233/23-01-01 commenced on 18 December 2023 involving a dispute about the degree of the claimant’s whole person impairment (WPI) resulting from the injuries caused by the accident.
Medical Assessor Canaris determined on 3 July 2023 that the claimant had a non-threshold psychological injury and that all the disputed psychological treatment was related to the accident and reasonable and necessary in the circumstances.
The insurer lodged an application with the Commission seeking a review of Medical Assessor Canaris’ decisions. On 5 September 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 29 May 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.

The other Review proceedings

The Panel notes that Medical Assessor Fukui determined on 27 May 2024 that the claimant sustained an adjustment disorder with mixed anxiety and depressed mood which she assessed at 0% WPI.
The claimant lodged an application with the Commission seeking a review of Medical Assessor Fukui’s decision. On 8 August 2024, a delegate of the President determined there was reasonable cause to suspect a material in the assessment and allowed the Review. On that day, the delegate convened the same Panel to conduct the Review of Medical Assessor Fukui’s decision. A separate certificate and reasons have been issued in respect of that Review.

Other assessments

Medical Assessor Kenna determined threshold injury and treatment disputes in relation to the claimant’s physical injuries in a certificate dated 10 April 2022. He found all of the claimant’s physical injuries to be soft tissue and therefore threshold injuries. He found some of the treatment was related to the accident and reasonable and necessary but other treatment (including a C5/C6 discectomy and fusion) not related and not reasonable and necessary. The claimant lodged an application for review in respect of that decision which was, on

14 August 2022 refused.
On 14 May 2024, Medical Assessor Home determined the claimant’s WPI arising out of his physical injuries. He certified the claimant’s neck, lower back and right shoulder injuries resulted in a 9% WPI. On 15 June 2024 Medical Assessor Curtin determined there was no skin or scarring injury caused by the accident and therefore no impairment to be assessed. The Panel understands no application for review has been lodged in respect of either of these two assessment decisions.

LEGISLATIVE FRAMEWORK

General

As mentioned in paragraph 2 above, Mr Huang’s claim was made under the MAI Act and his entitlement to benefits and compensation are governed by the provisions of that Act. Mr Huang made a claim for statutory benefits under Part 3 of the MAI Act and a claim for damages under Part 4.

Treatment and care benefits

Statutory benefits include weekly income replacement type benefits under Division 3.3 of the MAI Act, as well as benefits relating to treatment and care in accordance with Division 3.4.
Under s 3.24(1) a claimant is entitled to statutory benefits for the expenses incurred in relation to the reasonable cost of treatment and care. Under s 3.24(2) no statutory benefits are payable for treatment that is not reasonable and necessary in the circumstances or does not relate to the injury resulting from the motor accident.

Threshold injury

While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks[1] after the accident.
[1] Legislative amendments made in 2022 extended the 26-week period to 52 weeks but only for persons injured in motor accidents after 1 April 2023. The amendments changed the terminology from “minor injury” to “threshold injury” for all claims regardless of the date of the accident.
In a claim for damages, s 4.4 of the MAI Act provides that an injured person cannot recover damages if their injuries are threshold injuries.
Medical Assessor Kenna determined the claimant’s physical injuries were threshold injuries however Medical Assessor Canaris determined Mr Huang’s psychological injury was not a threshold injury.
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Relevant to these review proceedings, part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[2] provide:
“[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.”
[2] The current version of the Guidelines is version 9, effective January 2023.
In other words, the Guidelines provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not (thereby excluding unrecognised psychiatric illnesses from the recovery of certain benefits and damages under 1.6(3) of the MAI Act). This method would also include the means of determining whether an adjustment disorder or acute stress disorder was present (both of which are recognised psychiatric illnesses, but which are threshold injuries in accordance with cl 4(2) of the Regulation).

Dispute Resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Canaris’, further medical assessments and the review of medical assessments by this Panel[3].
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings. The Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Canaris examined the clamant on 30 June 2023 and issued his reasons on 3 July 2023. A “Chinese” interpreter was said to be present, but no further details (for example Mandarin or Cantonese) are given.
Medical Assessor Canaris confirms he was asked to assess:
(a)    a threshold injury dispute;
(b)    a dispute about a consultation with Dr Kumagaya, psychiatrist on 22 May 2020;
(c)    a dispute about a consultation with Dr Lim, psychiatrist on 21 October 2020, and
(d)    a dispute about psychological treatment referred to in an Allied Health Recovery Request (AHRR) dated 17 April 2020.
Medical Assessor Canaris noted that he had been referred a dispute under Schedule 2(2)(c) as to whether treatment and care would improve the claimant’s recovery.
Medical Assessor Canaris took a history from the claimant that he had worked for a few days as a cleaner after the accident. The claimant denied any previous history of anxiety and depression. He appears to have admitted to having problems with his wife and that he had a previous accident but said otherwise he was well (the Medical Assessor then noted he had a thyroid and diabetes condition).
The claimant gave a history of being “rear-ended by another car” and that he hurt his neck and shoulder.
The claimant said he had physical symptoms and that he has pain when it is cold and when he moved his arm. He complained of losing his family and his children (he says they moved out five or six months after the accident). He said he trembles if he drives or is at traffic lights.
He said his mother sends him money and he is not receiving Centrelink benefits. He denies going out, says he cannot sleep, and he has pain in his head when he thinks. He says he spends all day in bed. He then said he goes out to the shops when he needs to.
Mr Huang said he relived the accident and dreamt about it.
He thought treatment was useless. He could not remember the name of the psychiatrist he has seen. He had been prescribed medication but did not know the name of it and has stopped taking it.
He drinks to help himself sleep.
Medical Assessor Canaris was of the view a diagnosis of post-traumatic stress disorder was not appropriate as the accident was minor. However, he did diagnose a persistent depressive disorder. The claimant’s chronic pain led to a diagnosis of somatic symptom disorder with predominant pain.
He concluded
“The claimant was not free of psychological difficulties before the subject accident. There is evidence of depressive symptoms before the accident linked with a range of life difficulties though as noted above it was not clear whether these would have amounted to a major depressive disorder or to an adjustment disorder. He was, however, working and appears to have suffered a very considerable decline following his motor vehicle accident. While his motor vehicle accident was clearly not the only difficulty he confronted, the worsening of symptoms and declining functioning appears to have very much come on since that time.”
The Medical Assessor certified the claimant had a non-threshold injury and certified the treatment in dispute as related to the injury, reasonable and necessary in the circumstances and that it would improve the claimant’s recovery.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer says Medical Assessor Canaris quoted the criteria in the DSM-5 but did not explain how the claimant met or did not meet each of the criteria. The insurer submits therefore that the Medical Assessor did not expose his path of reasoning.
The insurer also submits the Medical Assessor did not mention and therefore failed to properly consider the biomechanical report of Dr McIntosh.

Claimant’s submissions

The claimant says at [7] – [18] that the Medical Assessor took an “in-depth history” from the claimant, quoted statements and responses, reviewed all the relevant documentation and provided a diagnosis and reasons.
The claimant says at [19] – [28] that the Medical Assessor does not have to reference every piece of evidence and that he has clearly stated he had considered the documents attached to the application and reply.

Procedural matters

The Panel issued directions to the parties for bundles of relevant documents on

14 June 2024. The insurer’s bundle was due on 28 June 2024 and the claimant’s bundle was due on 12 June 2024. The Panel was to meet on 25 July 2024 to determine the way in which the Review would proceed.
The Panel received the insurer’s bundle of documents with dashcam footage on

28 June 2024. While the claimant uploaded a copy of a report of Dr Hong (as an additional document) the claimant had not complied with the direction by 24 July 2024. The Panel therefore decided on 24 July 2024 to vacate the teleconference listed on 25 July 2024 and issued further directions to the claimant requesting his bundle by 31 July 2024. The bundle was uploaded on 1 August 2024.
On 5 August 2024, having been made aware of the WPI dispute before the Commission, the Panel met and decided to defer the Review of Medical Assessor Canaris’ decision pending the outcome of the application for Review of Medical Assessor Fukui’s decision.
On 9 August 2024, after receiving the delegate’s decision relating to Medical Assessor Fukui’s assessment (and the allocation of that Review to the Panel), the Panel issued directions to the parties. The Panel advised we would determine the two Review proceedings together. Directions were made requesting a single consolidated bundle of documents relating to both Reviews from each party.
On 26 August 2024 the Panel met to discuss the two proceedings and determined that a re-examination was required and advised the claimant of the arrangements.

REVIEW OF THE EVIDENCE

The insurer provided a consolidated bundle of about 340 pages. The claimant’s bundle comprises 428 pages.

Claim form and claim documents

The insurer has provided claim forms from four of the other accidents in which the claimant has been involved:
(a)    3 September 2016 – claim form[4] - a rear end collision – the claimant alleged injuries to his neck, back, headaches and dizziness and his GP was Dr Tai of Hurstville, and his physiotherapist was from AMC Physiotherapy Campsie. He discloses a motor vehicle accident 10 years previously in which he injured his neck. The claimant’s address was stated as Shoreline Drive, Rhodes;
(b)    7 March 2017 – accident notification form[5] – rear end collision – no details of injuries or treatment providers are given but the medical certificate was completed by Dr Au-Yong of Homebush West and notes injuries including whiplash, low back injuries and recommended physiotherapy. The claimant’s address was given as Rhodes;
(c)
24 March 2018 – on the claim form for the June 2019 accident (see below) it is noted there was a claim made against Allianz following an accident on

24 March 2018. Later in the same claim form the claimant says “previously injured shoulders, neck and back on 24/3/18 in accident. Claim made and received treatment”, and
(d)    12 June 2019 - claim form rear end collision[6] – injuries claimed (against QBE) to neck, both shoulders and low back – no details of treatment provided. The claimant’s address was given as Castle Street, Castle Hill.
[4] Page 326 of the insurer’s consolidated bundle.
[5] Page 333 of the insurer’s consolidated bundle
[6] Page 337 of the insurer’s consolidated bundle.
The current claim form is dated 21 February 2020[7]. The claimant described the rear end collision and lists injuries to “my neck and right shoulder and back”. He discloses a previous injury or condition as “neck injury from MVA”. The claimant’s address was given as Castle Hill.
[7] Page 171 of the insurer’s consolidated bundle.
The police report of the accident is dated 21 February 2020. The scene was not visited. The report is unremarkable.
Within the insurer’s bundle are a number of photographs and some dashboard camera (dashcam) footage from inside the claimant’s vehicle[8]. Appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. While the insurer has provided expert evidence from an accident reconstruction expert (Dr McIntosh), the Panel has also viewed and considered the material.
[8] Page 160 and page 162.
One is of the photographs shows the front of the insured vehicle and two show the back of the claimant’s vehicle. The Panel notes that there is very little damage visible to the insured vehicle but the images do suggest there is an indented front number plate. The Panel cannot identify the damage to the rear end of the claimant’s vehicle noting it was dark at the time and the photographs are not very clear.
The dashcam footage shows the claimant approaching a set of red lights and coming to a complete stop in a left-hand turn lane. When the lights turn green, he turns the corner and approaches another set of lights which turn red as he approaches. He slows and stops, and the white hold line can be seen in front of his vehicle. Before these lights turn green, the claimant appears to take his foot off the brake and the car moves gently forward while the lights are still red. Just as the lights (for traffic turning from a side street into the street the claimant is on) turn orange there is an impact from behind. The effect of the impact can be seen as the claimant’s vehicle moves forward.

Pre-accident records and reports

Associated Medical Centre

Records from Associated Medical Centre (AMC) in Campsie have been provided[9]. These records contain entries, one per page. They do not include the usual identification as to the name of the practice, its address, the details of the claimant, his patient history and so on. They begin in November 2015 with one attendance, another in 2016 and three in 2017.
[9] Page 292 of the insurer’s consolidated bundle.
On 24 March 2018 the claimant attends on Dr Luo following a car accident earlier in the day. The claimant complained of “severe dizziness, nausea and right arm shoulder weakness and numbness. He was said to be “in terrible shock, anger, anxious” he was referred for physiotherapy. The claimant returned on 27 March 2018 with ongoing right shoulder pain and an ultrasound was requested. On 28 March 2018 the claimant attended with his scan results showing bursitis with fluid distention and Mobic was prescribed.
There was another attendance in 2018 unrelated to the accident.
The claimant attended again on 12 June 2019 after a car accident that morning. Mr Huang complained of discomfort in the neck, shoulder and lumbar spine and dizziness right after the accident. The claimant returned on 18 June 2019 saying his right shoulder pain was better after two sessions of physiotherapy and he wanted to return to work. On 18 July 2019 he had returned to work on reduced hours, taking breaks when he needed to. The claimant reported continuing neck and shoulder pain on 5 August 2019.
On 22 August 2019 Dr Ricky Lam notes, “He has not been doing full time due to family matters, but he is able to work full time. Needs self-exercise to improve general health… Stress with relationship wife wife ?psychological counselling.”
Within the AMC notes is a copy of a right shoulder ultrasound of 27 March 2018 done at the request of Dr Bishay and an MRI of the cervical spine undertaken on 26 May 2018 at the request of Dr Sun both record the claimant’s address in Rhodes.
The 26 May 2018 MRI was reported by Dr Brian Lam, radiologist, of Campsie Medical Imaging[10] as showing annular tears at C3/4, C4/5 which were “sub-acute” and degenerative changes which were longstanding at C5/6. There was a small disc protrusion at C3/4 and mild to moderate right C4 foraminal stenosis with subtle effacement.
[10] Page 308 of the insurer’s consolidated bundle.

MediCentral

Records from MediCentral, George Street in the Sydney central business district were provided. They note the claimant’s address in Rhodes.
These records commence with an entry by Dr Tan on 29 March 2018. The claimant had an accident “knocked on the R side by another vehicle.” He said he had gone to his local doctor (the Panel notes this is AMC) on 24 March 2018. Mr Huang reported whiplash, left shoulder injury, seatbelt bruise over the right shoulder, low back pain and vertigo. He refers to the ultrasound showing mild subacromial bursitis. The claimant was prescribed Mobic and Panadeine Forte and referred to Dr Sun, rehabilitation specialist, and Mr Raymond Lo, physiotherapist. A CT scan was arranged of Mr Huang’s neck.
The claimant attended on Dr Tan again on 4 April 2018 with his CT scan results. The claimant was encouraged to see Dr Sun.
On 1 August 2018 the claimant attended again. He reported to Dr Tan that he was working full time but fewer hours despite the pain.
Included in the records is a report of a CT scan, completed by Dr Black, radiologist, of the claimant’s cervical spine and lumbar spine which noted a disc protrusion at C3/4 and a broad-based disc bulge at L5/S1.
There are three letters from Dr Sun to Dr Tan dated 24 April, 26 May and 28 July 2018. The claimant was having treatment for neck and shoulder pain and dizziness. The claimant was prescribed Mobic and Panadol.

MyHealth Castle Towers

The claimant’s records from MyHealth Castle Towers have been provided. They note the claimant’s address in Castle Hill.
On 26 August 2019 the claimant attended with a common cold. The next record dated 5 September 2019 notes, “called to give courtesy call. Wife had termination last week. Offered support for any emotional grievances. Patient said he will think about it.”
The claimant next attended on 19 October 2019 with eczema.
On 13 December 2019 the claimant attended, and the note reads:
“… forgetful. Issues with communication with wife. Can’t think. Works as a taxi driver and lot of changes. Wife was pregnant accidentally and had termination. Father met with MVA and went to Hong Kong. Has 2 children. Has been depressed for the last 2 months. Used to work as a taxi driver in own car – car was too old and had to change hence started working for another company. Now shift work.”
The diagnosis given was depression and a mental health plan was provided. Mr Huang was referred to Dr Xiao Ping Zhu, psychologist, at Castle Towers, Castle Hill.

Treating medical records and reports

The claimant attended MyHealth Castle Towers on 19 February 2020. The claimant complained of pain in the neck and right shoulder. He was tender over C5/6 but there was no spasm and no neurological issues. Scans were requested and a medical certificate given with a review to occur after the imaging was done. The next attendance at this practice was on 6 May 2020 for chest pain but there is no mention of the car accident at this appointment or any other appointments.
The claimant presented to Ryde Hospital on 19 February 2020 as a result of worsening neck and shoulder pain. After a CT scan showed possible injuries and fluid on the spinal cord, the claimant was transferred by ambulance (under flashing lights) to Royal North Shore. Claimant’s address Shoreline Drive, Rhodes.
The discharge summary from Royal North Shore notes the claimant was admitted on

19 February and discharged on 20 February 2020. His GP practice was identified as the Burwood Road Medical Centre. The claimant was said to have woken with neck pain that morning which was radiculopathic in nature down the right shoulder and it had persisted. He was transferred for an urgent MRI. On examination the cervical spine was not tender on palpation, but he was tender in the upper thoracic region and lumbar sacral junction. There were no neurological signs in the upper or lower limbs.
A C5/6-disc protrusion was reported on MRI and a collar was provided. The claimant was to wear the collar until he was reviewed in the orthopaedic spine clinic in two weeks’ time. An appointment was made for 3 March 2020. MRI showed disc herniations at C3/4, C4/5 and C5/6 causing central canal stenosis and cord indentation. There was impingement of nerve at C5/6 on the right side.
The claimant attended Dr Calvcahe-Rubio, general practitioner, of the Workers Doctors in Paramatta on 21 February 2020. The injuries were identified as “neck, shoulder, back, psych” and symptoms of relevance included trouble sleeping, flashbacks, anxious and cautious to drive. A psychologist was recommended in addition to physiotherapy for his physical injuries. Dr Calvache-Rubio does not mention the claimant wearing the collar provided by the hospital.
Mr Nielsen, psychologist, sought approval for eight psychological treatments on

17 April 2020. The claimant had already had five sessions, the first on 28 February 2020. The claimant was said to have post-traumatic stress disorder with symptoms of low mood, irritability, impaired memory and concentration, anxious and depressive cognition, flashbacks, rumination, avoidance and sleep disturbance. This treatment is one of the treatments the subject of the current treatment dispute.
Dr Mo of Workers Doctors referred the claimant to Dr Kumagaya, psychiatrist, at the Workers Doctors Practice on 22 May 2020. The referral says, “gentleman with stress from cervical neck injuries after MVA, likely requiring surgery. Recent presentation to hospital with stress induced atypical chest pain ?somatic. Awaiting cariology review”. This treatment is one of the treatments the subject of the current treatment dispute.
The claimant’s address at this time is Castle Street, Castle Hill.
The claimant commenced seeing Dr Angela Lam of Alliance Medical Health Care Centre (Alliance) on 2 June 2020. The claimant’s address was given as Birkdale Street Colebee. Dr Lam has a history of the accident occurring at 60 kms per hour. She has a history of neck and low back pain, bilateral shoulder pain and severe shock. The claimant complained of severe right sided neck pain and right arm paraesthesia and loss of sensation, headaches and low back pain radiating to the right little toe. She obtained some documents and requested imaging studies.
Mr Li, psychologist, wrote a letter “to whom it may concern’ on 11 June 2020. He lists the claimant’s symptoms including intrusive distressing thoughts of the car accident and distressing dreams and flashbacks. An AHRR was dated the same day noting the claimant was referred by Dr Lam. The diagnosis was of PTSD with claims of depressed and anhedonia mood, feeling detached from others including his wife and a loss of interest in hobbies and activities. The claimant’s address was said to be Birkdale Street Colebee. This treatment is the subject of the current treatment dispute.
Dr Khong, neurosurgeon, wrote a report dated 17 July 2020[11]. He says the right C6 radicular pain and right C5/6 disc herniation were caused by the accident. He proposed surgery (discectomy and fusion) to relieve the nerve root compression and relieve the claimant’s pain. Dr Khong had previously written a letter to Dr Calvache-Rubio (both are at the same medical practice). He appears to have seen the claimant three times. There were no neurological signs in the upper or lower limbs other than “global reduction” of sensation in the right arm. A right C5/6 foraminal injection was given but pain persisted.
[11] Page 72 of the claimant’s bundle. There is no addressee but it is in support of the claimant’s treatment.
On 24 September 2020, the claimant reported to Dr Lam he was fighting with his wife and the relationship was unstable. Ongoing physical symptoms were complained of. The claimant attended again on 21 October 2020 and said his wife and “said things” but he would not elaborate and requested a referral to a psychiatrist.
Dr Lam wrote a referral to Dr Lim, psychiatrist, in Kellyville on 21 October 2020 for “post-traumatic stress disorder with complicating relationship issues.” Dr Lam records the claimant was previously healthy when he was rear ended at moderate speed suffering a neck injury with disc herniations causing severe nerve compression and chronic pain. She says, “he has quite severe psychological symptoms including psychosomatic manifestations [chest pain]” the claimant was said to be having difficulty with sleep had he was having severe conflict with his wife and the relationship was “coming close to breaking down.”
On 21 October 2020, Dr Lam wrote to Dr Emily Kwok, psychologist, in identical terms to the Dr Lim referral. This treatment was rejected by the insurer and appears to be the subject of the current treatment dispute.
On 19 December 2020 Dr Lam noted the claimant had tried to contact Dr Kwok and Dr Lim but had not yet made an appointment. He had been “drinking a couple of beers each night to sleep” and was down and flat. On 16 January 2021 the claimant had still not been able “to get through” to the psychologist or psychiatrist. He was “not sleeping at all” and had right elbow and left knee pain.
On 31 February 2021, the claimant’s wife and children had not returned and he still had not seen a psychologist or psychiatrist. He was distressed and Seroquel was prescribed.
Dr Lam provided a report to the claimant’s solicitor dated 6 March 2021[12] in support of continued treatment. She says the claimant has post-traumatic stress disorder with severe depressive symptoms and has no capacity to work. She recommended psychological and psychiatrist treatment. She says he has deteriorated due to his treatment being terminated and that his mental health has suffered to the extent that his marriage has ended. Dr Lam wrote a letter dated 28 November 2020 in support of the claimant’s physical treatment continuing[13].
[12] Page 57 of the claimant’s bundle.
[13] Page 59 of the claimant’s bundle.
On 13 March 2021 the claimant reported he had still not made an appointment or purchased the Seroquel medication. On 19 May 2021, the claimant said that Eva Wong, psychologist had contacted him and he needed a mental health plan. However on 3 June 2021 the claimant had not made an appointment. For the rest of 2021 there are similar attendances with no scripts filled and no appointments made.
There are no appointments at all in 2022 and the next attendance on Dr Lam is 31 July 2023.
At that appointment the claimant had received the decision from Medical Assessor Canaris and was keen to pursue medication and treatment. At the next appointment on

14 August 2023, the claimant had noted no benefit from the medication and was relying on

1 – 1.5 glasses of red wine every night to sleep. Dr Lam has a history of the claimant living alone after a lot of conflict with his wife and separation.
Mr Li, psychologist wrote to Dr Lam on 19 August 2023. This letter is in similar terms to the letter of 11 Jun 2020.
On 10 October 2023 Dr Lam noted that after commencing the Dulxoetine he was seeing some effect, sleep had improved, and pain had improved was feeling confident and interested in doing some cleaning work.
Dr So provided a report to Dr Lam and Suncorp dated 3 November 2023[14]. He records the claimant as 43 years of age living with his wife and two children. With no previous history. He has a consistent history of the accident and that since then the claimant has developed increasing levels of anxiety, fearfulness, insomnia and recurrent nightmares. The claimant was said to be seeing a psychologist. A provisional diagnosis of post-traumatic stress disorder complicated by his physical injuries. The claimant’s medication was adjusted and he was advised to have psychological support. The claimant was to be reviewed.

Medico-legal and expert reports

[14] Page 254 of the claimant’s bundle.

Dr McIntosh, biomechanical expert

Dr McIntosh provided a report to the insurer on 13 November 2019, this does not appear to be a report into the forces involved in Mr Huang’s case or analysis of the crash dynamics of his accident or an analysis of the photographs and video that has been provided.
What his report appears to be concerned with is a review of the literature and general overview of the biomechanics of injuries in rear end motor vehicle collision.
Dr McIntosh summarises at [29] that in a normal case (no prior damage to the cervical spine) injuries are improbable at speeds of 10 – 15 kms. Of course, in Mr Huang’s case he had CT scans in 2018 which showed previous injuries or conditions of his cervical spine.
Dr McIntosh says at [38] that the research supports the view that low speed rear end collisions are high unlikely to result in thoraco-lumbar injury.
On 28 May 2020, Dr McIntosh then provides a report to the insurer. He has reviewed photographs. He did not have the dashcam. He cites a statement from the insured driver who apparently estimated the speed at impact as one kilometre per hour and said:
“My car just stopped behind a car … My foot slipped off the brake pedal … my car started to roll and bump to the other car in front of me.”
Dr McIntosh says the claimant’s reported speed given to Ryde Hospital of 60 kms per hour is implausible due to there being no observable damage and no airbag deployment in vehicle 1.
He expressed the opinion the loads and forces applied would suggest injury was very unlikely to have occurred.

Dr George, psychiatrist

Dr George provided a report dated 15 June 2020 to the insurer. He has a history of the accident and the clamant driving home. He also has a history of the onset of physical symptoms and the claimant’s treatment by Dr Lam and Dr Calvache-Rubio and referral to Dr Khong.
The claimant reported waking up with nightmares about someone trying to strangle him when he was driving. He thought about the number of times he has been hit in accidents.
The claimant said he had two to three months off before driving again and confirmed he has an Uber license but is not using his own vehicle.
He gave a “vague account” of having psychological counselling on four occasions but that no Mandarin interpreter had been available. He said he had not seen a psychologist after his 2015 or 2019 accidents.
He reported pre-accident thyroid and diabetes issues but no alcohol issues.
He referred to his wife (who works) and their family (he takes his two children to the park) but did not give any history of troubles or separation.
Dr George thought there was no evidence of a psychiatric injury.
The claimant was living at that time at Colebee.
Dr Smith, orthopaedic surgeon, provided a report to the insurer on 17 June 2020 to the insurer. He has a history of the claimant having a wife and two children and that “after the accident, he and his family have moved in with his wife’s family”. The claimant complained to him of pain in the back of his head, the right side of his neck and an electric light feeling in the right shoulder. The claimant also had low back pain also in the left thigh and with cramping of the left leg. He told Dr Smith he had “no spinal problems before the accident”.
While Dr Smith had not seen the radiological images, he considered the radiological reports which suggest there are normal features for someone of his age.
Dr Smith thought the claimant was manufacturing physical signs. He gave reasons for this including inconsistency of movement and medical implausibility.
Dr Korber, radiologist provided a report to the insurer dated 11 September 2020. He compared the 26 May 2018 MRI and 20 February 2020 MRI. At C2/3 and C3/4 there were disc protrusions which had not changed but there was pre-vertebral oedema consistent with injury in the most recent study.
At C4/5 there was a high intensity zone or annular fissure with central disc protrusion with no alteration between the two films.
At C5/6 there was a small disc protrusion in 2018 and a significant increase in the size of the disc protrusion in 2020.
At C6/7 there was no change.
He concluded:
“In my opinion, there has been a significant alteration in the appearances at the right side of the C5/6 disc from before the accident [May 2018] to after the accident [February 2020].
All radiological findings require close clinical correlation before being regarded as significant but there would appear to be a contemporaneous record of symptoms with right-sided radiculopathy.
On this basis, it would seen reasonable that the alteration in findings at the C5/6 level is consequent upon the motor vehicle accident if it is clinically correlated. The pro-vertebral oedema also confirms a significant injury.”
The Panel notes the claimant’s 12 June 2019 accident occurred between the two MRIs.
Dr Hong, psychiatrist, provided a report to the claimant’s solicitor dated 15 December 2023. He had the clinical notes of Dr Lam and CAHC and the Westmead hospital discharge summary.
Dr Hong has a history of the claimant living alone and that his ex-wife lives with their children.
The claimant disclosed two previous car accidents but he could not remember anything about them other than he recovered and did not sustain a psychological injury.
The claimant was asked about his wife’s termination. He said it was not a planned pregnancy and it was her decision. He said this did not cause any problems.
Before the accident the claimant had regular social and recreational activities, no difficulties with social interaction and no problems concentrating or with memory.
Dr Hong has a history of the rear-end accident which he understands occurred at 60 kms but the claimant “said it had been a long time now and he has trouble remembering what happened.” Dr Hong thought his problems with memory may have been caused by alcohol overuse.

The claimant says the accident occurred late at night, so he went home but went to Ryde Hospital the next morning before being transferred to Royal North Shore Hospital (RNSH) “where he stayed for a few more days” but the claimant was not sure for how long. The claimant reported 10 – 20 hospital presentations which he thought had all been at RNSH. He could not recall going to Westmead.
Dr Hong has a history of cervical spine injury and cites the certificate of capacity. The claimant said psychologically he has been frightened and did not drive for two years and now only drives to the shops and cannot drive for long.
He denied previous stressors.
He reported drinking everyday 250 mls of spirits but that his doctor asked him to cut down. He still drinks a few beers and two glasses of wine until he feels dizzy and goes to sleep.
The claimant reported taking medication including an antidepressant, tranquiliser and Minipress. He was not aware of the doses.
The claimant had said he was referred to Dr Kwok but did not have approval from the insurer and he saw Mr Li, psychologist, for a few sessions and Dr So, psychiatrist, once.
He gave a history of his wife leaving him after six months because of his anger after the accident and she did not wish the children to be affected. His children visit him once every week or two weeks. He does simple cooking and goes to the shops and does housework but nothing heavy. He told his mother about the accident two years later.
He came from Australia in 2001 and his family is overseas. The claimant said he cannot work because of his poor memory and fear of driving.
Dr Hong diagnosed a major depressive disorder, alcohol use disorder and specific phobia (driving). He was of the view the claimant had no work capacity. He thought the claimant would benefit seeing a psychologist, psychiatrist for medication review and says his psychological injury is entrenched. He assessed WPI at 25%.

Other assessments

Medical Assessor Fukui

Medical Assessor Fukui examined the claimant on 10 May 2024 and issued a certificate dated 27 May 2024. She was asked to assess the WPI resulting from the injuries caused by the accident. Her assessment notes that a Cantonese interpreter was used.
The claimant gave the Medical Assessor a history of 10 years employment as a taxi driver before the accident and that six weeks before the accident he commenced as a ride share driver and since the accident he is working as a causal residential cleaner 15 hours a week.
He noted previous diabetes and thyroid illnesses. The claimant conceded family problems before the accident but said he had never had a previous mental health condition.
He confirmed three previous motor accidents all of which were rear-end collision from which he said he sustained only minor injuries.
The claimant said in the current accident (18 February 2020) he was hit from behind by a “huge” impact and he felt like he may have been killed. He was wearing his seatbelt and airbags were not deployed. He experienced immediate physical pain in this neck, right shoulder and lower back. He drove home.
He went to Ryde Hospital the next day then was sent to RNSH for a scan and was given a neck collar and told he had a “disc injury with nerve compression.” He has trialled many things and has decided against surgery.
He blames his inability to do things around the house as affecting his relationship with his wife and that this led to the breakdown of his marriage 10 months after the accident.
He described chronic pain and concern about finances.
Medical Assessor Fukui had a history that a year before the accident, Mr Huang’s GP prescribed anti-depressants, referred him to Dr So who he saw monthly and that he sees a psychologist every fortnight.
The Medical Assessor said:
“The most significant factor which has contributed to the decline in his mental state is the marital separation which occurred 10 months after the subject motor accident. Mr Huang clearly stated that he was not depressed prior to the separation.”
He said his alcohol use started after his wife left him.
Medical Assessor Fukui thought the clamant was exaggerating the impact of the collision. She noted he gave a clear history of his symptoms not inconsistent with the documents.
Medical Assessor Fukui reviewed the notes of the claimant’s treating GP in relation to the claimant’s pre-accident depressive episode and considered his presentation at that time “was more likely an adjustment disorder with depressed mood” based on the K10 score of 26.
While she accepts the claimant presented with a clinical picture of Major Depressive Disorder and Adjustment Disorder and Somatic Symptom Disorder she notes:
“However, it has been 4 years since the subject motor accident and the history Mr Huang provided indicates that he developed significant depressive symptoms only after his marital separation. I questioned Mr Huang carefully about his depressive symptoms following the subject motor accident and he clearly stated that he was not depressed prior to the marital separation and that he was “back to near normal” in terms of his mental state. He clarified that whilst he was still suffering physical symptoms and not functioning well from a chronic pain perspective he was managing well.”
She therefore diagnosed an adjustment disorder with mixed anxiety and depressed mood and that there was “no evidence for a significant permanent impairment.” Any current impairment she said related to his marital separation and decline.
She assessed his current WPI at 17% which was not caused by the accident. She assessed his impairment at the time of the claimant’s separation at 4% and that his current permanent impairment is 0% which she explained as deducting 17% from 4%.

Physical injury assessments

Medical Assessor Kenna examined the claimant on 6 April 2022 and issued his reasons on 10 April 2022. He was asked to assess injuries to the cervical spine, lumbar spine, right and left shoulders. He was asked to then consider various treatment modalities including C6 nerve root injections, C5/C6 discectomy and fusion surgery, radiology, physiotherapy, exercise physiology and so on.
The claimant said he was separated from his wife and has been for many years. He was working as an industrial cleaner which he described as heavy work. The claimant “states he has not been involved in motor accidents previously and there is no previous history of spinal pain or symptoms involving either shoulder.”
The claimant reported his neck pain was worse than his back and were mainly right sided. He denied injuring his left upper extremity or left shoulder. Working was said to aggravate the symptoms in the right upper limb.
On examination there was 20% restricted motion in all six planes of movement in the neck, but normal back and shoulder movements.
Medical Assessor Kenna was satisfied the claimant did injure his neck, back, right and left shoulder and diagnosed soft tissue threshold injuries. He found the treatment to the neck including the surgery and nerve root injections was related but found the surgery was not reasonable and necessary at that time. He does not appear to have allowed any of the treatment claimed in respect of the lumbar spine.
Medical Assessor Home examined the claimant on 9 March 2024 and issued his reasons on 9 May 2024.
He has a history from the claimant of accidents in 2016 and 2018 and recovery from each of them although more persistent symptoms after the 2018 accident. He does not have a history of the 2019 accident and the claimant says he had no symptoms before the February 2020 accident.
The claimant reported early symptoms of shock and that neck and right shoulder pain started immediately and lower back pain began within 24 hours. The claimant said his current symptoms were of neck pain on the right radiating to the right arm and elbow. The claimant also reported right shoulder pain limiting elevation and interfering with sleep. There was mild pain reported in the back.
The claimant says he is separated and lives alone. The claimant reported returning to work as an industrial cleaning part time 15 – 16 hours per week “undertakes cleaning and collects rubbish around construction sites.”
Neck movements were more reduced that when the claimant was examined by Medical Assessor Kenna (some planes of motion restricted by one third and others by 25%). Left shoulder motion was normal but there was now restriction of shoulder motion in the right (e.g. 150 degrees of flexion and 130 degrees of abduction). Some lower back movements were also now restricted by one third to one quarter.
Medical Assessor Home had watched the dashcam and considered the material and was satisfied the mechanism of the accident could have caused injuries to the spine and right shoulder. He considered the cervical spine injury was an aggravation of pre-existing changes with no radiculopathy. He also diagnosed a soft tissue injury to the lumbar spine and right shoulder noting there was no radiology of the shoulder.
In terms of WPI he found:
(a)    cervical spine DRE II 5% which he did not reduce as “the information … is insufficient” to determine if there was any pre-existing impairment;
(b)    lumbosacral spine DRE I 0%, and
(c)    right shoulder 4% (again not reduced due to the quality of the pre-accident medical records).
Medical Assessor Curtin examined the claimant on 14 June 2024 for the purposes of assessing the WPI in relation to “skin-disease-stress-related eczema.”
The Medical Assessor has a history of eczema dating back to 2011. He noted the accident, viewed the film and recounted the mention or absence of a mention of skin complaints in the records after the accident. The claimant said that “there was no acute exacerbation of his dermatitis immediately following the accident, but nevertheless since then, he felt that his skin condition had deteriorated.”
Medical Assessor Curtin says that stress resulting from the accident could have caused the claimant’s eczema to flare up but there is no evidence that a flare up occurred. He acknowledges the mention of eczema in some certificates of fitness and capacity but say there is no mention of it in the records. At the time of his examination there was no evidence of any eczema. He found the skin-disease-stress-related eczema was not caused by the accident and therefore there was no WPI resulting from the accident.

RE-EXAMINATION FINDINGS PROVIDED BY THE MEDICAL ASSESSORS

General observations

Mr Yi Sang Huang (the claimant) attended in person at the Commission’s medical suites on

7 November 2024. A Cantonese interpreter appointed by the Commission attended throughout the re-examination. Medical Assessor Baker was in person with Medical Assessor Samuell joining by MS Teams videoconference.
The claimant confirmed he was born in Fujian, China. This southern province of China has a Fujian dialect of Min Chinese. Fujian was identified by the claimant as being his first language. He said that he was also taught Mandarin Chinese as this was the official language. The claimant said he was also proficient in Cantonese. The claimant reported that at about 15 years of age he had left Fujian to live in Hong Kong. The main Chinese dialect in Hong Kong is Cantonese and he learnt Cantonese whilst working in the grocery markets for his father’s grocery business. He said he remained living in Hong Kong until his arrival in Perth in 2001.
The claimant said English was his fourth language and he was not proficient in English.
Prior to commencing the assessment, the claimant was asked whether he could fully understand the Cantonese interpreter. The claimant said he could clearly understand the interpreter. No aspect of this assessment was conducted in English. All of the information was via way of the claimant speaking and the interpreter.
We note that Medical Assessor Fukui, and Medical Assessor Home document that they too used a Cantonese interpreter for their assessments. At the conclusion of the re-examination, we were satisfied that the claimant was able to understand and be understood by the interpreter.

Previous medical history

The claimant reported that he was the third and youngest son of a three-sibling family. He said his father was still living and aged about 75 years and had worked the family business for all of his working life. He said his mother was alive and aged 63 years. The claimant did not report any childhood neglect, trauma or abuse. He said he was educated and was an average student. The claimant reported that he moved with his family to Hong Kong and worked in his father’s grocery business.
At about 21 years of age the claimant left Hong Kong and came to Western Australia for the first time. He attended Edith Gowan University and studied Information Technology and Science. On completion of his course, he was awarded a Bachelor of Information Technology and Science however the claimant never worked in this industry. When he was asked why he had not worked in the field of information technology and science, Mr Huang was initially vague but then said he was married and financial pressure placed him in a position of accepting what ever work he could find when he arrived in Sydney.
The claimant said he worked as a taxi driver for about 10 years. He said he owned his own taxi and worked for himself. He recorded on the 2019 motor accident claimant form that he earned $29,000 a year for this work.
The claimant said that his car was old and no longer safe to be a taxi, and he changed his role to work as a ride-share driver. At the time of the subject motor accident on

18 February 2020 he was “going to work” as an Uber driver. He said he had rented the car he was in, as it was “set-up to work” as a drive-share vehicle.

Previous motor accidents

The claimant said he had a motor accident in about 2006 however he could not remember any details of it but said he was not psychologically or physically injured in this event. The claimant then said he had also had motor accidents while driving his taxi in 2016, 2017, 2018 and 2019. The claimant was asked about these accidents.
At about this time in the re-assessment the claimant had his first angry outburst. He said: “Them bastards keep running into the back of me…they’re bastards!” The claimant was provided with an opportunity to settle and compose himself. When a further attempt was made to query the earlier accident, he had a similar angry outburst.
The claimant did not demonstrate other signs or symptoms of autonomic arousal that often accompany people who experience post-traumatic stress disorder. The claimant did not complain of panic. He did not suffer from shortness of breath. He did not sweat. He did not complain of his heart racing. He did not have any tremor of his arms. He did not verbally threaten aggression or throw any items as can occur when a claimant is experiencing posttraumatic stress disorder.
Further attempts were made during the re-assessment but each time the issue of prior motor accidents was raised, Mr Huang would not provide more information.

Marital and family relationships

The claimant was asked about his marital relationship before the motor accident on

18 February 2020. He said his wife works fulltime in her career. He said that he had always experienced arguments within his marriage. He said however that he never expected to live separated from his wife and two children because of these arguments.
The claimant was asked about his emotional state regarding his wife’s decision to terminate her last pregnancy. He said that she was in control of her body and the decision as to whether to have the baby was her decision. Enquiry was made as to whether his wife’s decision not to have a baby had affected his sadness. He was unsure whether he was depressed at that time. He said he was referred for counselling but could not remember the name of the psychologist. The claimant said he was still living at home with his wife and children before the motor accident.
The claimant said that at about the same time he was sad and upset for his father who had a motor accident in Hong Kong. He said his last trip to visit his father was before the subject motor accident in about December 2019. He was reassured by his trip to visit his father and returned to Sydney.
The claimant said his wife went to live with her parents in their Sydney home with his two children about 10 months after the accident. The claimant continued to live in an apartment that had been purchased for him by his father.
The claimant said that his mother and extended members of his family (including an aunt) have visited him for about three weeks each. He said about five members of his family have visited during 2023 to 2024. They stay with him in the apartment. He said prior to informing his mother of the full extent of his problems he had tried to recover without involving and “worrying his mother”. He said her health had also been affected recently, and he remains in regular fortnightly to monthly telephone conversations with her and his extended family in China.

General medical history

The claimant said he had suffered from hyperthyroidism. The medical record described the claimant’s condition as “Graves’ Disease”. The claimant reported that he was treated with radioactive iodine and that his condition resolved. The claimant said he used Thyroxin replacement therapy. He said he also had been diagnosed with Diabetes and has been prescribed metformin for this condition.
The claimant also said he had recurrent skin rashes that he said was Eczema. He said he was suffering from a skin rash at the time of this assessment.
The claimant reported that he had physical treatments for his previous motor accidents. He said he suffered from pain due to his physical injuries to his neck and had been treated with physiotherapy. The last accident in 2019 was documented to have caused him to have between 12 June 2019 until 18 June 2019 off work. He said he could not remember much about this event and advised the Panel to look at the records.

The subject motor accident

The claimant was shown the video captured from his dash-cam of the subject motor accident. The claimant was shown the photographs of the motor vehicles.
Mr Huang agreed the dash-cam video showed the car moving from the impact of the car behind his.
The claimant had, at this time, his second significant angry outburst, when asked to describe his immediate symptoms after the motor accident. The claimant said, “Them bastards keep running into the back of me…they’re bastards!” On enquiry as to how many people were involved in the accident, he said one other than himself. The claimant was asked to clarify if only one person was in the car behind him, and he repeated “Them bastards…” and it was clarified with Mr Huang that he was referring to all of the other drivers who had hit him as well as the driver in this subject motor accident. He spontaneously replied, “I am not at fault!” “I am good driver!”
Mr Huang was asked about the report from Dr Hong that he was fearful (phobic) of driving. The claimant said that while he no longer drove work vehicles, he could drive his own private car. He added the car he was driving at the time of the accident was a rental car. He said he had no further knowledge of what happened to it, after he returned the car. He confirmed that he continued to drive his own vehicle without any issue after the accident.
The claimant said he did not notify the police or ambulance service after the subject accident. The claimant went home but said the next morning he suffered from neck and right shoulder pain. The claimant said that he remained in pain demonstrating by pointing to his neck and right shoulder.

Symptoms after the accident.

The claimant was asked what symptoms he now suffered because of the subject motor accident. The claimant had his third outburst of anger and cursing using the same phrases as before. Enquiry was made as to other symptoms than anger.
The claimant reported that he suffered from poor sleep and nightmares that were angry and violent and involved passengers not other drivers. He said he suffered from impulsive outbursts of anger. He said that his anger had led to him leaving the family home where his wife and two children live with his wife’s parents. He said he preferred not to have his children see his anger.

He confirmed he was living alone and that his wife lived with her parents. He had regular access to his children. This agreement was private, and no Family Court applications have been made by either him or his wife. He said the separation was permanent, but they were not divorced. He said he was sad at times, but his sadness did not stop him from trying to recover and become well again.
The claimant was asked about the physical symptoms documented in the medical records. He said he continued to experience pain in his neck and right shoulder. He described a tingling sensation in his arm.
The claimant did not offer any more symptoms.
The claimant was asked about his poor memory and said his thinking was often clouded before and after the accident.
The claimant was asked about his consumption of alcohol. He said he would drink 4 – 6 cans of beer most nights. He said he drank alcohol to induce sleep as his sleep was poor. He said he might also drink 1 – 2 glasses of wine. The claimant did not report missing work or other events due to alcohol use disorder. He said his drinking a to reduce his evening experience of pain.

Treatment

The claimant reported he attended hospital the day after the accident and then notified the police shortly after his hospital attendance. The claimant reported his pain remained after having injections into his neck. He said he still experienced pain in his right shoulder that was worse after working. He described his current job as a part time role cleaning small ground level construction sites of garage and light building waste for about three days for a total of 15 hours per week.
The claimant reported he had attended a psychologist, Mr Hason Li, and a psychiatrist, Dr Kumagaya, during 2020. The Medical Assessors note Mr Hason Li’s documented PCL5 was a score of 72 on 11 June 2020[15]. The original self-report scoring schedule was not included in the documents and the language in which the screening test was provided was also not documented. The language spoken by the psychologist and psychiatrist in reaching their initial diagnosis is not documented. The claimant said he could not remember what language his psychologist spoke during their consultations.
[15] The PCL5 score by the psychologist did not include an assessment of posttraumatic stress disorder criterion A for DSM-5-TR. More current versions of this self-report screening tool do include criterion A.
The claimant was asked why there was an absence of recorded medical attendances during 2022 until July 2023. The claimant stated his preferred general practitioner was Dr Angela Lam. He said he would only attend doctors that were recommended by her. He said that he could not remember whether he attended anyone other than Dr Lam during 2022 until July 2023. He said he attended her at her Lidcombe rooms. He did not provide any further dates of attendances anywhere else and advised the Panel to check the records.
After Medical Assessor Canaris certificate had been issued, the claimant said he had returned for treatment with Dr So, a psychiatrist. He had been prescribed Prazosin 1mg twice daily, Duloxetine 60mg daily and Agomelatine 25mg at night. He said his pain had improved as well as his sleep.
The claimant said his consumption of alcohol was about 4 – 6 cans of beer most days. He said he might also drink red wine. He said he did not drink spirits. He said he was advised not to drink alcohol. The claimant reported that he had not missed any days of work due to his consumption of alcohol. He reported he would be notified the night before he was required at work and he would be picked up from his home and driven to the work site before been returned home after work. He would abstain from alcohol on those nights.

Mental State Examination

The claimant attended wearing a t-shirt with white stains and holes in the cloth. When he was asked what the white stains were he said tooth paste. His pants were also stained with similar stains which he said was also toothpaste. His hair was washed and uncombed. He had a clean ungroomed beard. The claimant spoke in angry short sentences. He frequently spoke over the interpreter. The claimant was asked to provide opportunity for the interpreter to complete his sentences prior to speaking. The claimant’s speech was normal in rate and rhythm. He did raise his voice when he used the phrase “They’re bastards…” He was asked about his mood. The claimant reported sometime having a sad depressed mood and other times being anxious and angry. The claimant’s affect was consistent with his reported mood. His affect was reactive and appropriate with the content of his speech.
The claimant was orientated in time, place and person. He complained of “cloudy thinking” but said (and demonstrated during the re-examination) that he did not have any word finding difficulties. He said he could concentrate to perform the tasks at work (and he was able to communicate with the interpreter and to the Medical Assessors throughout the one hour plus examination). He said he could provide for himself as he was living alone most of the time. He said he could experience happiness when with his children.
The claimant did speak about angry nightmares involving passengers strangling him or attacking him. He was asked but did not report nightmares about rear-end collisions.
The claimant did not describe any dissociative symptoms. He did not report any delusional ideas or psychotic symptoms. He did not report suicidal thoughts or plans. He said sometimes he felt like giving up. On enquiry to explain this statement about “giving up” he confirmed he would become low in his energy.
The claimant reported his primary concern involved his pain. He was preoccupied with this pain. He demonstrated the areas affected by pain (neck and shoulder). He reported that since the time of the motor accident his pain had improved however it had never fully resolved.
The claimant reported that he was motivated to keep working even though he experienced pain and had not adjusted to his life since the motor accident.

CONSIDERATION OF THE ISSUES

What is the claimant’s current diagnosis?

It is the clinical judgment of the Medical Assessors that the claimant, as he presented at the re-examination, satisfies the criteria set out in DSM-5-TR (F43.25) for an adjustment disorder with mixed disturbance of emotions and conduct. The criteria set out in DSM-5-TR (F43.25) is met for the:
(a)    criterion A - the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of onset of the stressor(s). This criterion is met by the identifiable stressor being the subject motor accident with the emotional and behavioural response being the uncontrollable anger demonstrated by the claimant towards his wife and whilst participating at this re-assessment. The claimant reported other symptoms consistent with mixed anxiety, that include being anxious whilst driving his car, and having periods for depressed mood, with changes in his sleep due to pain;
(b)    criterion B - these symptoms or behaviours are clinically significant, as evidenced by both of the following:
(i)marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
(ii)this criterion is met by the nature of the motor accident, the angry outbursts demonstrated at the time of the assessment as well as the reports of anger that resulted in the claimant’s relationship with his wife and children being significantly affected.
(iii)significant impairment in social, occupational, or other important areas of functioning (the change in family situation), and
(iv)this criterion is met by the claimant changing career from working as driver to working as a construction site cleaner.
(c)    criterion C - the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder. This criterion is met as the claimant does not meet criteria for other conditions for the reasons set out below. There is no pre-existing condition;
(d)    criterion D - the symptoms do not represent normal bereavement. This criterion is met as the claimant is not grieving as there has been no death of extended family or parents, and
(e)    criterion E - once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months. This criterion is met by as the consequences of pain caused by the subject motor accident has not resolved. The symptoms of anxiety, depressed mood and angry outbursts continue to affect the claimant’s emotional state and conduct as seen by the claimant’s presentation at this re-examination.
The claimant had been diagnosed with many different psychiatric conditions by his treating health practitioners and independent medical examiners and Medical Assessors. These condition include adjustment disorder with mixed anxiety and depressed mood, post-traumatic stress disorder, alcohol use disorder and persistent depressive disorder (dysthymia) with major depressive episode, specific phobia (driving), somatic symptoms disorder with persistent pain with anxious distress and physical pain that has not resolved.
It is the clinical judgment of Medical Assessors Baker and Samuell that the claimant does not meet the criteria for a post-traumatic stress disorder as per DSM-5-TR (F43.10) for the following reasons:
(a)    the motor accident did not exposure the claimant to actual or threatened death or serious injury. This is informed by the report of Dr McIntosh and is evidenced by the dashcam footage, the photographs, the general nature of the accident, the fact emergency services were not called and did not attend and the claimant went home after the accident and did not seek immediate treatment;
(b)    the claimant’s capacity to return to the workforce in a different role, and
(c)    the claimant was not avoidant of driving motor vehicles as since the motor accident he said that at all times he could drive his own car.
The Medical Assessors are of the view that the claimant does not meet the criteria for a specific phobia (driver) as set out in DSM-5-TR (F40.248). While the claimant reports anxiety and appeared anxious on his arrival at the re-examination, the severity of his anxiety was insufficient to cause any impairment in his capacity to drive his own car. For this reason, he does not meet criteria for a specific situational phobia that is caused by the avoidance of driving.
The clinical judgment of the Medical Assessors is that the claimant also does not satisfy the criteria for an alcohol use disorder in accordance with DSM-5-TR (F10.10). While the claimant says he does drink alcohol, the mere consumption of alcohol is insufficient for the diagnosis of alcohol use disorder. The claimant’s consumption of alcohol is, on his history, not associated with any specific loss of function as reported by the claimant or documented in the medical record. On direct enquiry with the claimant, he did not attribute his loss of marital relationship, or the cause of the motor accident to his consumption of alcohol. He does not report, or have documented, common consequences of uncontrollable alcohol use that may include legal consequences such as driving under the influence of alcohol or domestic violence associated with alcohol use disorder. The claimant reported he does not drink when he knows he is going to be working. He is able to control his alcohol intake. For these reasons the claimant cannot be diagnosed with an alcohol use disorder.
Medical Assessors Baker and Samuell do not find that the claimant meets the criteria set out in DSM-5-TR (F45.1) for somatic symptom disorder with persistent pain. While the claimant did report ongoing pain related to his neck and his right shoulder, he is still able to work in part time physical employment as a cleaner on construction sites. The claimant reported that his level of his pain has improved slowly over the years since the motor accident however he has never had prolonged period of being pain free. The claimant’s adjustment to his living circumstances since the subject motor accident was incomplete at the time of the re-examination. For these reasons the claimant’s report of pain is not excessive or unreasonable. The claimant clearly explained he wanted to live a pain free life which has not happened since the subject motor accident.
The medical members of the Panel are of the view that the claimant does not meet the criteria for Persistent Depressive Disorder (dysthymia) with major depressive episode with anxious distress as he does not report the minimum necessary symptoms to meet Criterion B for this disorder as specified in DSM-5-TR (F34.1). While Assessor Canaris had listed the requirement for this diagnosis he did not indicate which of the Criterion B symptoms he was reliant on in making this diagnosis.
The Panel also notes the following reports of pre-accident anxiety and depressive symptoms:
(a) 22 August 2019, Dr Lam reports stress related to his marital relationship and appears to suggest counselling, and
(b) 13 December 2019, MyHealth Castle Tower notes say the claimant was forgetful and having communication issues with his wife. There were changes at work at the issue with the termination and “has been depressed for the last two months” a mental health plan was provided and a referral to a psychologist.
The claimant had reported and documented various trauma related physical symptoms and at the time of the re-examination, the minimum necessary symptoms for this diagnosis were not found by the Medical Assessors Baker and Samuell.

Is the diagnosed psychiatric injury caused by the accident?

The claimant has had four other rear end collisions which led to claims being made and treatment being provided. Mr Huang said he had recovered from his prior physical injuries. The claimant returned to work as a driver. The medical records from various practitioners do not suggest any treatment was being provided to the claimant for physical injuries in the months before the motor accident on 18 February 2020. This motor accident caused pain to the claimant’s neck and right shoulder well documented in the medical records.
Mr Huang’s presentations since the subject accident and the history given at the re-examination is that of a person who has developed a mixed disturbance of emotions and conduct as a result of continued pain.
The diagnosis of DSM-5-TR (F43.25) adjustment disorder with mixed disturbance of emotions and conduct resulted in the permanent separation of the claimant from his wife and restricted access to his children due to his angry conduct upsetting them. This diagnosis could by caused by the stressor of the motor accident and the consequences of pain that had not fully remitted as it had in the earlier motor accidents.
The remaining question of causation is whether the motor accident did in fact cause or materially contribute to the development of the adjustment disorder. Symptoms of anxiety and depressed mood were reported in the records and have been present before the subject motor accident, however the onset of anger and angry outbursts that affected the claimant’s conduct in relation to his marriage and the relationship with his children appears to be a new symptom which was not present before the subject motor accident.
The Panel therefore finds that the subject motor accident did cause an adjustment disorder with mixed disturbance of emotions with the significant impariment in social functioning as well as occupational function evidenced by the change of employment by the claim at and the permanent separation of the claimant from his wife with restricted access to his children.

Does the claimant have a threshold injury?

The Medical Assessors have found that Mr Huang has a psychological injury recognised by the DSM-5-TR which has been caused by the subject motor accident. Therefore, subject to the Regulation, the claimant satisfies the requirements of a non-threshold injury pursuant to s 1.6(1)(b) of the MAI Act.
The symptoms that have been recorded have been mixed with the best explanation for the wide number of symptoms being the psychological condition of mixed emotions and conduct. The mixed emotions that the claimant presented and reported at the re-examination included anxiety and depressed mood as documented by other assessors and independent medical examiners.
The claimant provided a clear history of how his mixed disturbance of emotions and conduct had caused him to leave the marital relationship as he did not want to emotionally affect the children, the angry conduct was demonstrated by the claimant at the time of the re-examination. The consequences of the stressor of the subject motor accident were sufficient to have pain as a continuing consequence that the claimant could not adjust to it and has caused his disturbance of emotions and conduct with angry outburst directed towards his wife and presented at the re-assessment.
Clause 4(2) of the Regulation provides that an adjustment disorder is a threshold injury. As the Medical Assessors have, in their clinical judgment diagnosed an adjustment disorder in accordance with DSM-5-TR, the Panel finds that the claimant has a threshold injury.

Has the claimant had, at any time since the accident, a non-threshold injury?

The two Review Panels in David v Allianz Australia Insurance Ltd[16] and Lynch v AAI Limited t/as AAMI[17] held that whether the claimant has a threshold or non-threshold injury on the day of any re-examination by a Panel is only one part of the assessment. The Panels found in those two cases that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.
[16] [2021] NSWPICMP 227.
[17] [2022] NSWPICMP 6.
The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.
The Panel has carefully considered the medical records and the reports of the various psychiatrists who have examined the claimant as follows:
(a)    Dr Calvache-Rubio (a GP) suspected psychological symptoms and referred the claimant to Mr Neilson, psychologist. He diagnoses post-traumatic stress disorder with symptoms of low mood, impaired memory and concentration, anxiety and depressive symptoms. Mr Neilson is not a psychiatrist, and he has not clarified how the criteria according to DSM-5-TR were met at that time. The Panel notes that the claimant’s clear history at the re-examination was that he has been able to drive his own vehicle since the time of the accident. Avoiding driving is a core symptom for the diagnosis of post-traumatic stress disorder and therefore Mr Neilson’s diagnosis cannot stand. In the light of the claimant’s pre-accident symptoms associated with his family situation the Panel is not satisfied that Mr Neilson’s diagnosis of anxiety and depression can be relied on to support a finding of non-threshold injury;
(b)    the claimant presented to Dr Mo in May 2020 and was referred to Dr Kumagaya for stress due to physical injury and pain which supports the medical members of the Panel’s diagnosis of adjustment disorder;
(c)    Mr Li, psychologist in June 2020 diagnosed post-traumatic stress disorder with depressed mood. As with Mr Neilson, the Panel is not satisfied that Mr Li’s diagnosis can be relied on to support a finding of non-threshold injury;
(d)    Dr Lam records in September 2020 increasing marital issues and referred the claimant to Dr Lim, psychiatrist, for post-traumatic stress and relationship issues. There is no evidence in the records at this time as to how the criteria for a post-traumatic stress disorder may have been satisfied in accordance with DSM-5-TR at that time;
(e)    Medical Assessor Canaris examined the claimant on 3 July 2023 and diagnosed a persistent depressive disorder but did not disclose how the claimant’s presentation and circumstances applied to the various criteria required for that diagnosis. In the light of the claimant’s pre-accident anxious and depressive episodes revealed in the records, the Panel is not satisfied that at the time of the Medical Assessor’s examination a diagnosis of non-threshold persistent depressive disorder was established;
(f)    Dr So made a provisional diagnosis in November 2023 (in a letter to Dr Lam) of a post-traumatic stress disorder complicated by the claimant’s physical injuries. The Panel notes this was a provisions diagnosis only and therefore it cannot be relied upon, and
(g)    Dr Hong diagnosed in December 2023 a major depressive disorder, alcohol use disorder and specific phobia (driving) all of which are non-threshold injuries. The Panel notes in relation to these diagnoses:
(i)the claimant was able to drive his own car without difficulty since the accident and therefore the diagnosis of specific phobia (driving) is not made out in the Panel’s view;
(ii)the claimant was able to control his alcohol intake and therefore an alcohol use disorder diagnosis is not made out in the Medical Assessors’ view, and
(iii)the claimant had reported symptoms of depression (and anxiety) before this accident and Dr Hong’s diagnosis appears to have been made on the basis the claimant could not work and was fearful of driving. This history is not correct on the claimant’s history given at the re-examination and therefore it is the Medical Assessors’ clinical judgment that this diagnosis is not established at that time.

The Panel is not satisfied on the basis of its analysis of the records that at any time since the accident a diagnosis of a non-threshold injury could be made in accordance with the DSM-5-TR.

Is the disputed treatment related to the injuries caused by the accident and is it reasonable and necessary treatment?

The disputed treatment is:
(a)    psychological treatment referred to in an AHRR dated 17 April 2020,
(b)    a consultation with Dr Kumagaya on 22 May 2020, and
(c)    a consultation with Dr Lim psychiatrist on 21 October 2020, and
It appears that all of this treatment had occurred, or was to occur in the initial 26 weeks after the accident. Dr Lim’s consultation occurred outside the first six weeks after the accident but within the first year. The records of MyHealth Castle Towers and Dr Lam establish that this treatment was related to the accident in that it was sought to address symptoms of stress, anxiety and mood associated with the claimant’s ongoing pain and physical injuries, his relationship issues and emotional symptoms arising after the motor accident. The Panel is satisfied that the disputed treatment is related to the injuries caused by the accident.
The Panel notes that this psychological and psychiatric treatment was not associated with any remission of the claimant’s psychological injury or symptoms according to the history provided by the claimant. However, the claimant was able to improve in his level of functioning and did return to work. The Panel is therefore of the view that the disputed treatment is reasonable and necessary and did assist with the claimant’s partial recovery since the accident.

CONCLUSION

As the Panel has come to a different conclusion to that of Medical Assessor Canaris in respect of the threshold injury dispute it follows that his certificate must be revoked.
However, the Panel has formed the same view concerning the claimant’s treatment as Medical Assessor Canaris and therefore his certificate in respect of the dispute treatment is confirmed.

[2024] NSWPICMP 802

27 November 2024