AAI Limited t/as AAMI v Lazkani
[2025] NSWPICMP 181
•19 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as AAMI v Lazkani [2025] NSWPICMP 181 |
CLAIMANT: | Jana Lazkani |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Paul Friend |
MEDICAL ASSESSOR: | Thomas Newlyn |
DATE OF DECISION: | 19 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; preliminary question of jurisdiction namely whether a Review Panel can consider the review when no internal review was requested or made by the insurer in relation to alleged psychological injury; Review Panel satisfied it had jurisdiction; claimant is a minor and was a passenger in a vehicle driven by her mother; claimant involved in a motor accident and developed psychological symptoms which were not reported by her mother until some two years after the motor accident; Review Panel accepted history from claimant’s mother that there was delay in seeking treatment and seeing a GP because the mother had hoped the claimant’s psychological symptoms would resolve; causation was satisfied; Held –Review Panel re-examined claimant and found a generalised anxiety disorder which is not a threshold injury; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Christopher Rikard-Bell dated 20 September 2023. |
STATEMENT OF REASONS
BACKGROUND
Jana Lazkani (the claimant) was involved in a motor accident on 10 February 2022. She was asleep in the right back seat of a car her mother was driving. A vehicle in front suddenly stopped and her mother was forced to quickly apply the brakes. A vehicle behind could not stop in time and crashed into the rear of their car, pushing them into the car in front.
Following the accident, she vomited a few times and had pain in her neck. Her general practitioner (GP) Dr Nayef Kanawati diagnosed her with a cervical spine injury with some intermittent right knee pain and referred her for physiotherapy.
The claimant also says she had psychological symptoms including anxiety, excessive worry and insomnia from the time of the motor accident. This was mentioned to her GP and she was referred for psychological treatment in mid-2024.
The claimant was 8 years of age at the time of the motor accident. Her mother, Katherine Lazkani, made a claim on her behalf for statutory benefits with AAMI (the insurer), the third-party insurer of the vehicle that she says caused the accident.
A medical dispute arose about whether the claimant’s psychological injury is a threshold injury or not a threshold injury and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
Her mother, Katherine Lazkani, retains authority to act on the claimant’s behalf in proceedings before the Commission.
Medical Assessor Home assessed the claimant’s physical injuries. In a Certificate dated
30 October 2023, Medical Assessor Home found accident-related soft tissue injuries to the claimant’s cervical spine and right knee. The Medical Assessor found the claimant’s physical injuries to be caused by the motor accident and was a threshold injury.
On 20 September 2023, Medical Assessor Christopher Rikard-Bell diagnosed the claimant’s psychological injury (generalised anxiety disorder) to be caused by the motor accident and was not a threshold injury.
The insurer lodged an application with the Commission seeking review of Medical Assessor Rikard-Bell’s decision. This was allowed by the President’s delegate and this Panel was convened to conduct the review.
RELEVANT LEGISLATION
Threshold injury
Under the Motor Accidents Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[1]
[1] The terminology for accidents that occurred before 1 April 2023 (such as the present) was “minor” injury and statutory benefits were only paid for up to 26 weeks.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, applies to the review. Part 5 deals with the assessment of threshold injury for psychiatric injuries.
The general provisions for medical assessment are contained in cl 5.6 of the Guidelines and are in the following terms:
“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.”
Specifically, in relation to threshold psychological or psychiatric injury assessments, cls 5.10-5.12 provide as follows:
“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
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychological or psychiatric condition. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [2]
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
The provisions state:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Rikard-Bell was referred to assess a dispute about whether the following injuries:
· psychiatric condition – post-traumatic stress disorder, anxiety, depression, and behavioural dysfunction,
are threshold injuries for the purposes of the Act.
The Medical Assessor found that the motor accident caused a psychiatric injury and the Medical Assessor provided the following reasons for the diagnosis of injury:
“Jana Lazkani is a 9-year-old girl who was developing normally prior to the motor vehicle accident on 10 February 2022. Following the accident, Jana has developed an anxiety disorder with a fear of being further injured, hypervigilance in relation to further accidents, avoidance of risk averse activities such as physical education and karate. She worries about the future and being further injured, and she worries about her mother. She is very emotional and she likes to sleep with her mother at night. There have been panic attacks, hypersensitivity when in the car, hypervigilance near trucks and on the motorway or near roundabouts. I formed the view Jana has developed generalised anxiety disorder following the motor vehicle accident…”
The Medical Assessor concluded that the generalised anxiety disorder is excluded from the definition of a threshold psychiatric injury and was therefore a non-threshold injury.
ISSUES FOR DETERMINATION
Jurisdiction
The insurer raised a preliminary issue in its written submissions about whether the Commission had jurisdiction to allow the lodgement of the application for medical assessment of a threshold dispute with respect to the claimant’s alleged psychological injury.
Section 7.19 of the MAI Act states that a medical dispute about a decision of an insurer may not be referred by a claimant for medical assessment until the decision has been the subject of an internal review by the insurer.
The insurer says while a decision was made about the claimant’s alleged physical injuries and an internal review was requested and conducted,[3] the claimant did not allege any psychological injury or provide any evidence in support of a psychological injury[4] until her application was lodged at the Commission.
[3] Internal Review Decision dated 23 June 2022.
[4] Clause 15 of the Commission’s Procedural Direction 6.
Hence, as no internal review was conducted by the insurer with respect to the claimant’s psychological injury, the insurer says the Commission ought to have addressed its submissions on the same and rejected the claimant’s application for medical assessment.
The parties were advised in its preliminary conference report dated 22 January 2025, it was the Panel’s view that the time to contest the lack of any decision made on the question of jurisdiction was at the time the medical assessment referral was made and before the matter progressed to Medical Assessor Rikard-Bell.
The power to refer an application for medical assessment rests with the President.[5] The Panel is not the Commission[6] and does not have any power or retrospective power to dismiss an application for medical assessment. The Panel only has the power to confirm or revoke a certificate of a Medical Assessor and, in the case of the latter, to issue a new certificate, as constituted and referred by the President.[7]
[5] Section 7.20(2) of the MAI Act - refers to the President arranging for the dispute to be dealt with by a Medical Assessor.
[6] Section 8 of the Personal Injury Commission Act 2020.
[7] Section 7.26 of the MAI Act.
While it is the Panel’s experience that Commission registry staff perform their functions with due diligence and care, some matters raised by the parties, such as the present, may have been overlooked. It is not unusual for parties to bring such matters to the attention of a Commission staff member or manager before the matter progresses to the medical assessment appointment. There are also other avenues such as by way of formal complaint or through judicial review. No such action was taken by the insurer.
The insurer has now lodged an application for review of the medical assessment which has been accepted by the President and the matter has accordingly progressed to this Review Panel. Indeed, the insurer has not raised any issue in the Panel performing its function and has indeed provided grounds for which the review is sought.
Accordingly, the Panel cannot consider the issue of jurisdiction. The Panel’s function is limited to a review of the medical assessment under s 7.26 of the MAI Act and the Panel intends to perform its function.
Insurer’s submissions
The insurer provides three grounds for review asserting that Medical Assessor Rikard-Bell:
(a) decided the matter solely on the self-reporting of the claimant and her mother and without considering the absence of any medical evidence referring to a psychological injury;
(b) failed to adequately apply and explain the DSM-5 criteria for a diagnosis of generalised anxiety disorder, and
(c) failed to consider and respond to the insurer’s submissions regarding the absence of any medical evidence referring to a psychological injury.
The insurer’s submissions are lengthy and are further summarised in the Panel re-examination report. The insurer’s submissions in full are contained in the Appendix.
Claimant’s submissions
The claimant says the Medical Assessor was open to rely on the evidence from the claimant and her mother. The claimant argues that the claimant was only 8 years at the time of the accident and it is an absurdity to suggest that she ought to have exercised reasonable care to acknowledge psychological trauma and seek medical attention.
In this regard, it is submitted the claimant’s mother was under the perception that the claimant would recover quickly from her psychological injuries and did not wish to propagate mental injury and trauma by treatment. Despite this, the claimant continued to show symptoms of psychological disturbance. It is further submitted that the mother’s perception was itself distorted due to her own injuries. The claimant says it would be contrary to the objects of the s 3(d) of the Personal Injury Commission Act 2020[8] to unfairly review the certificate based on a child’s lack of understanding.
[8] Section 3(d) “to ensure the decisions of the Commission are timely, fair, consistent and of a high quality.”
It is submitted that the Guidelines[9] and case law from the Federal Court[10] permits an Assessor to examine the claimant based on their subjective reporting, clinical examination and his own opinion.[11] It is contended that the insurer failed to refer to any statutory authority and/or common law to require other documented evidence. The claimant also notes that the Medical Assessor acknowledges that the assessment was consistent.[12]
[9] Clause 5.6(c) and (d).
[10] Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50.
[11] Garcia v Motor Accidents Authority [2009] NSWSC 1056.
[12] At paragraph 16 of the Certificate reasons of Medical Assessor Rikard-Bell.
In relation to the Medical Assessor’s application of the DSM-5 criteria, the claimant says the Medical Assessor has adequately addressed the relevant criteria for the diagnosis of generalised anxiety disorder. It is contended in Wingfoot v Kocak[13] the Court found that an Assessor’s reasoning should not be critiqued “minutely and finely with an eye keenly attuned to the perception of error”.
[13] [2013] HCA 43.
In relation to the alleged failure to consider the insurer’s substantive submissions about the lack of evidence to support the claimant’s psychological injuries, the claimant says the Medical Assessor dedicated a paragraph[14] on the insurer’s submissions. It is therefore submitted that there was no breach of procedural fairness.
[14] At page 7 of the Certificate reasons of Medical Assessor Rikard-Bell.
REVIEW OF THE EVIDENCE
At the preliminary conference on 22 January 2025, the Panel noted the following additional documents from the claimant that had been accepted by the President’s delegate:
· clinical notes of Cana Psychology.
The Panel invited the insurer to provide submissions in relation to the Cana Psychology clinical notes. No submissions were received.
The Panel also required additional information and the parties were directed to provide:
· all school records of the claimant, Jana Lazkani, including attendance, academic and extra-curricular activities;
· any school counsellor or otherwise records from a year before the motor accident to present day, and
· complete GP records (other than those already lodged).
On 10 February 2025, the claimant provided school records from Chester Hill Public School and updated clinical notes from the claimant’s GP, Dr Kanawati.
A summary of the documentation relevant to the matters to be determined in the threshold injury dispute is provided in the Panel re-examination report below.
PANEL RE-EXAMINATION REPORT
At the preliminary conference on 22 January 2025, the Panel determined that the claimant be re-examined. The claimant’s mother, Ms Katherine Lazkani, was requested to be present at the re-examination. The re-examination report is below:
Who attended the assessment
Ms Lazkani was accompanied by her mother Katherine.
The examination was undertaken by Assessors Paul Friend and Thomas Newlyn.
Assessor Friend was the lead interviewer.
HISTORY
Psychosocial history and pre-accident history
Ms Lazkani was born in Bankstown Hospital and lived in Chester Hill. She had attended Chester Hill Public School from Kindergarten to her current year of Year 6.
She is the youngest in a sibship of four, having three older brothers aged 22, 20 and 13 years of age, all of whom live at home.
Ms Lazkani felt well prior to the motor accident. She attended school, played sports at school and did karate outside of school.
She had no problem with school, friendship groups or sport.
Her mother stated that she would try anything.
Ms Lazkani’s mother stated that the only injury prior to the motor accident was a fracture of the right elbow when she was about five years of age which required her to wear a cast and from which she had fully recovered.
She had not been involved in previous motor accidents or any other trauma.
Ms Lazkani was not taking any medication at the time of the motor accident and is not currently taking any medication.
History of the motor accident
Ms Lazkani stated the accident occurred when she and the two younger of her three brothers were coming back from the beach. Her mother was driving.
They were on the highway and it was wet.
They had to brake suddenly, reportedly because a car braked in front of them.
The following vehicle collided with the rear of their vehicle, pushing them into the vehicle in front.
Ms Lazkani was actually awake at the time of the accident but her two brothers were asleep or dozing.
She immediately felt scared.
She remembered that three tow trucks arrived because there were three vehicles involved.
She, with one of her brothers, went in one tow truck and her mother and other brother went in another tow truck.
They were taken to a car yard where damaged vehicles were stored and were given a loan vehicle.
Her father, who lived separately from the family, came to the car yard. She travelled home in her father’s vehicle with her brothers.
Her mother drove home separately.
Ms Lazkani’s mother stated that Ms Lazkani had been very upset in the tow truck and in retrospect she would have preferred it if Jana had travelled with her.
History of symptoms and treatment following the motor accident
Ms Lazkani had neck pain and felt nervous and in shock, the next day. It appears she had about a week off from school off from school.
She was scared to travel by motor vehicle, especially on highways. Her neck pain persisted and over the next couple of weeks she developed back pain and left knee pain.
Her mother stated that she also got “nervous and anxious” approaching intersections and roundabouts and would brace herself and/or hold on to the door handle.
Her mother remembered that one day when they were travelling on the highway probably a few months later that a truck passed their vehicle. Ms Lazkani and her brothers, who were in the car were very scared and started screaming. The truck was just driving past them in a separate lane.
Ms Lazkani’s mother believed this happened in April or May 2022 and occurred when they were going out for her birthday.
This response to trucks recurred, particularly whenever they travelled on a highway.
Ms Lazkani stated that she would get very upset and emotional and start crying if there was any conflict with her cousins or a sibling which was confirmed by her mother. She would not be able to calm down and would tend to withdraw whereas before the motor accident she would either say something back to the person or go to her mother.
Ms Lazkani found it difficult to get to sleep. She felt that her brain was not ready to shut down even if she felt tired. She tried listening to “sleepy music” but often had to look at her mobile telephone and play a few games that were difficult in the hope that that would make her tired and allow her to sleep.
She was staying up as late as 1.00am on school nights and 5.30am in school holidays.
She had nightmares which probably occurred about every two nights. The nightmares were of fictitious accidents and “other scary stuff”.
She woke from a nightmare, went to her mother’s bed and was able to get back to sleep.
Ms Lazkani always tried to go to sleep in her own bed after the motor accident. She was sleeping in her own bed prior to the motor accident.
Ms Lazkani, as stated above developed neck pain the following day and subsequently back pain and left knee pain. Her shoulders and other parts of her body hurt when she did punches and kicks at karate training. She found it difficult to do sparring.
Her mother stated that she was too nervous and scared and get hurt when she tried sparring. She ceased doing karate soon after the motor accident.
She continued to play sport at school but found that basketball hurt her knees and back.
She ceased playing basketball because of the pain.
Ms Lazkani started to worry excessively from soon after the accident. She worried about every two days.
She worried what would happen if they drove past a truck or a truck drove passed them. She worried about her mother if her mother was not home, for example if she was at work. Worry would stop her doing activities.
Ms Lazkani became sad over “the smallest of reasons”. Her friendship group asked her why she was so sad and she stopped playing with them. She started to play with a different group although she still talked to her original friendship group.
Ms Lazkani before the motor accident was always keen to do homework but after the accident, she felt drained after the school day from crying and it was more difficult to do homework. She described feeling bad, sad and very tired. She would take a nap, after school, wake up a few hours later and forget to do homework or did not want to do homework.
She described “zoning out” a lot when she was in the classroom and staring out the window.
Sometimes the seating arrangements in the classroom were such that they sat on the floor. She felt better if she could sit on a couch.
She found it difficult, if she was sitting in a group of six students. One of the boys was annoying because he was loud and asked lots of questions.
She was asked about the NAPLAN testing in 2024. She found this easier because she was only sitting with one friend and no others were at the desk.
She found difficult to do mathematics because she felt nervous about doing it.
Ms Lazkani commenced physiotherapy soon after the accident but it appears this was not funded for a long period by the insurer and subsequently, she has had physiotherapy on and off.
Whilst having physiotherapy she has relief from the various pains but the symptoms relapsed when the sessions finished.
She commenced consulting Mr Chadi Abbas, psychologist, in June 2024. Ms Lazkani’s mother stated that by 2024 Jana was still panicky, upset, crying easily, had nightmares and difficulty getting to sleep
Her mother stated during the examination that she delayed seeking psychological treatment because she had expected Jana to be upset about the accident and thought that it would probably pass but by 2024 it was clear that it was not resolving.
Ms Lazkani’s mother had commenced consulting a different psychologist in about June 2022.
Ms Lazkani had recurring stomach pains for which she had been investigated and there was no abnormality found.
It was helpful to consult the psychologist. She had initially attended weekly and subsequently every two weeks and now is changing to attending every four weeks.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Lazkani suffered a fracture of her left leg towards the end of 2024. She was on a jumping castle at a cousin’s birthday party. She had come down the slide which had an open section. She landed. Someone else came down the slide and knocked her out of the castle, causing pain in her left leg.
They went to a medical centre where the doctor advised that if it continued to be painful, they should go to hospital.
She attended hospital where an x-ray which confirmed the fracture. She was in a cast for about 2½ weeks and then wore a CAM boot probably for a further 2-3 weeks. She continues to have pain in the middle of the left leg. A recent x-ray shows that the fracture was still observable. Ms Lazkani’s mother did not know whether the fracture was healing. Ms Lazkani’s mother was unable to say which bone was fractured.
Current symptoms
Ms Lazkani continues to have pain in the right shoulder, the right side of the neck and her left leg.
She continues to find it difficult to get to sleep at night but this is less troubling since commencing the therapy with Chadi Abbas.
She continues to need to play music at night and sometimes needs to play games on her mobile telephone.
The earliest that she now falls asleep now is about 8.00 pm but sometimes can be awake as late as 1.00 am.
She continues to have nightmares about once each week. She does not dream about the motor accident or fictitious motor accidents but describes them as “scary nightmares” which cause her to wake up and go into her mother’s bed where she can get back to sleep.
She can feel sad during the day, but now becomes angry and yells at others, instead of crying. She described “going off” at everyone.
She still talks to her original friends and plays with her new friendship group.
Her academic performance at school remains the same. She continues to “zone out” and still feels drained or tired at the end of the school day so it is more difficult to do homework.
Current and proposed treatment
Ms Lazkani is continuing to attend Mr Chadi Abbas now every four weeks.
She is not taking any medication.
She is not receiving any physiotherapy.
No new treatment is proposed.
Mental state examination
Ms Lazkani and her mother were examined by video teleconference.
There was good audio and video quality throughout.
The examination lasted for about 1½ hours.
Ms Lazkani was asked questions directly and subsequently, if necessary, her mother was asked to clarify and provide additional information.
The examination proceeded smoothly and Ms Lazkani was cooperative, alert and orientated and provided most of the history described above.
Ms Lazkani has ongoing pain in her right shoulder, the right side of her neck and her left leg as described.
She generally worries if not every day, then at least every two days.
She particularly worries when her mother is not at home, being concerned about her safety or welfare.
It remains difficult to get to sleep because she is worried about “things”. It is less of a problem than closer to the time of the motor accident.
She continues to have nightmares of scary things about once each week.
She continues feel nervous if travelling in a vehicle, particularly on a highway, but not in local familiar areas.
If she feels sad, she becomes angry and yells at others rather than crying.
Current functioning
Ms Lazkani sets an alarm to wake for 7.00am. She takes about five minutes to get out of bed and sometimes needs encouragement from her mother. She can get dressed and do her hair.
She eats breakfast at home unless school is providing breakfast.
She is currently fasting for Ramadan.
Her mother drives her and the younger of her three brothers to school. It is about ten minutes’ drive to her brother’s school and a further ten minutes to her school.
Her mother stated that the route is by backroads which are quiet.
Ms Lazkani’s mother stated that it can be difficult to get her out of bed and they can be late to school although they try to leave at 8.00 am.
Her mother collects her from school, in the afternoon. Her mother works two days each week. An auntie who lives near the school, collects her and either drives or walks her home or sometimes her auntie’s daughter collects her from school.
Travelling in local familiar areas does not cause any symptoms.
She continues to feel anxious traveling on a highway. Her mother avoids driving on the highway particularly if it is raining.
They have gone back to the beach but their father accompanied them.
Ms Lazkani did go on a school excursion to the City in 2024 travelling to and from by bus. She felt good when travelling. She described being distracted by her friends.
Her mother stated that Ms Lazkani has been taught various ways of distracting herself, by the psychologist, when travelling in a motor vehicle.
Her mother is concerned how Ms Lazkani will cope when she reaches the age when she can learn to drive and therefore will not be able to distract herself.
Ms Lazkani continues to see her friends. She goes to birthday parties, goes to shops with them and sometimes they have pyjama parties. She enjoys these social activities.
Ms Lazkani continues to be angry, except with her second brother with whom she has a good relationship.
She now screams at others. Her reaction was less pronounced prior to the motor accident.
She sometimes has fights with her cousins. Her mother stated the arguing or fighting is different and they have more emotional fights.
She has a good relationship with her friends.
Ms Lazkani struggles with mathematics and is frustrated with mathematics. She has always excelled in English and literature.
The frustration with mathematics has only occurred since the motor accident.
She finds it difficult to read a book where there are no pictures and needs to reread sentences, to understand them.
Ms Lazkani was asked about the high level of absence from school in the First Semester of 2024 where she was absent for 27 whole days but in Semester Two, she was only absent for 6 whole days.
Ms Lazkani’s mother reported that Ms Lazkani had a lot of “stomach bugs” in the first Semester.
Ms Lazkani was asked about this and how it affected her schoolwork. She replied that she felt that it had had no adverse effect on schoolwork.
The review panel asked about her worrying and the school excursion and whether she had been to the beach. Those answers have been incorporated into this Certificate.
Ms Lazkani’s father comes to their house for access visits, but does not take them out.
Comments of consistency
Ms Lazkani was engaged throughout the examination. She tried to answer questions to the best of her ability and was generally consistent in her demeanour and answering of questions.
She provided most of the information and her mother only provided information when directly asked.
REVIEW OF DOCUMENTATION
Summary of relevant documentation
The insurer’s submission by Renée Sadlier dated 20 November 2023 state that Jana Lazkani is an eight-year-old female, date of birth 15 November 2013.
It states there is no evidence or allegation of any psychiatric injury prior to the PIC Application.
The claimant’s application for personal injury damages dated 8 March 2022 does not list any psychiatric injuries or symptoms.
The Allied Health Recovery Request of Complete Allied Health Care dated 29 March 2022 contains no psychiatric symptoms reported by the claimant or identified by practitioners.
The Certificates of Capacity dated 8 March 2022 and 1 April 2022 do not mention psychiatric injury symptoms or psychiatric treatment.
The Personal Injury Commission Certificate by Assessor Christopher Rikard-Bell dated 20 September 2023 states the claimant was interviewed with her mother Katherine Lazkani.
Ms Lazkani is the youngest in a sibship of four, having three older brothers aged 20, 18 and 11.
Her mother has been unwell and anxious since the accident and has been receiving psychological treatment.
Her parents separated in 2009 but they have an amicable relationship.
Jana was a normal healthy toddler and preschooler. She attended preschool 4 days each per week and had commenced Kindergarten at Chester Hill Public School prior to the accident.
The accident occurred when they were travelling in a 100 km zone and the vehicle in front stopped suddenly. The following vehicle collided with the rear of their vehicle, forcing them into the vehicle in front.
Their vehicle was written off.
Jana stated she was half asleep and woke with a sudden jerk and began to panic. She was fearful about what happened and tearful.
They went to bed after coming home. The next day they noticed pain and discomfort.
They consulted Dr Kanawati who referred them for physiotherapy, scans and orthopaedic consultation.
Jana’s mother now avoids highways and is highly anxious in the vehicle. She avoided travelling on the freeway for three months after the motor accident.
The handwritten entry in the CANA psychology clinical notes dated 3 August 2024 records the though “We’re gonna get in another accident”. This is presumably Jana’ stated thought.
Her mother is highly anxious and emotional and finds it difficult travelling near trucks, roundabouts and U-turns.
Jana worries about her mother.
She has not liked to be hurt when doing physical education at school or with rough play. She ceased karate.
She has occasional dreams about motor accidents and sometimes has pain in her stomach.
She is currently very fearful and frightened of being harmed.
She worries about being hurt at school and in a motor vehicle.
She wakes up during the night. She is emotional and tearful, worries about the future and worries about being hurt.
She worries when she is doing PE (PDHPE) that she will be hurt. She has pain in her neck which may last a day and will occur once or twice each month.
She worries about being in pain and about her parents and siblings.
She worries about school and is worried on the freeway near trucks and roundabouts.
She has had a panic attack with shortness of breath and palpitations. She is now more sensitive and emotionally fragile.
She has ceased karate, but has started to play basketball.
Assessor Rikard-Bell makes a diagnosis of Generalised Anxiety Disorder which is not a threshold injury.
The Application for Personal Injury Benefits signed by Katherine Maree Lazkani dated 8 March 2022 states the injury is a neck injury.
The Certificate of Capacity/Certificate of Fitness dated 8 March 2022 regarding the motor accident on 10 February 2022 lists the injuries as a cervical spine ligamentous injury.
The Certificate of Capacity/Certificate of Fitness dated 1 April 2022 lists the diagnosis as cervical spine ligamentous injury.
The clinical records of Dr Kanawati including the updated notes are handwritten.
The entry date 21 February 2022 states involved in a motor accident on 10 February 2022. Her mother was the driver and she was in the back passenger seat wearing a seat belt. She reported neck pain.
The entry dated 28 March 2022 refers to neck pain and nausea and vomiting and ringing in the ears.
The entry dated 1 April 2022 states she has nausea and vomiting and it appears she was to be referred to Dr Maniam.
The entry dated 5 August 2022 appears to state that she has pain from C2 to C6 or 7.
The entry dated 16 February 2023 is difficult to decipher but does state she has anxiety especially in a car.
The entry dated 3 April 2023 states she has abdominal pain and nausea.
The entry dated 21 April 2023 refers to pain in the neck and appears to state that there are normal movements of her cervical spine.
The entry dated 8 January 2024 states there is excoriation for the skin of the fingertips with cracking and bleeding. She says she bites them when anxious.
The entry dated 13 September 2024 appears to state that she will be referred to psychologist Chadi Abbad.
The entry dated 14 January 2025 states she has panic and depression and PTSD. She holds on in cars and has fears of an accident. She has insomnia. Her mother says she is very scared and wakes up with bad dreams screaming. She is overly emotional crying and gets upset easily. She appears to say she has panic attacks.
The discharge referral from the Children’s Hospital at Westmeath for the presentation on 22 January 2023 states she presented with abdominal pain for two days central and non-radiating associated with nausea and dysuria.
Microscopy of the urine showed white cells less than 10 and the urinalysis showed a small amount of leukocyte.
The blood tests were unremarkable. She had a normal blood glucose level.
The Allied Health Recovery Request dated 15 June 2024 by Chadi Abbas psychologist states that her mother reported:
Nervousness and fear
Hypervigilance in the car causing significant increases in anxiety
Anticipatory stress when car needs to stop
Extra clingy
Poor sleep
Bouts of sadness and nervousness.
Helplessness
Nightmares of the incident.
The provisional diagnosis was posttraumatic stress disorder and insomnia.
The report by Chadi Abbas dated 14 February 2025 states she initially presented with symptoms of Generalized Anxiety Disorder which emerged as a psychological response of the motor accident.
Her symptoms included excessive worry, difficulty relaxing, heightened vigilance, particularly in situations resembling aspects of the accident.
A thorough clinical assessment including the use of standardised measures confirmed the diagnosis of GAD.
These highlighted her elevated anxiety levels in situations related to travel and general day-to-day activities post-accident.
She has demonstrated notable improvement in the following areas:
Significant reduction in the frequency and intensity of the anxiety symptoms
Improved confidence and willingness to participate in previously avoided activities such as car travel
Increased ability to utilize coping strategies, independently to manage feelings of anxiety.
The report by Dr Minh Truong, radiologist, of an MRI scan of the brain dated 6 April 2022 concludes that there is no MRI evidence of intracranial haemorrhage.
The clinical notes of Cana Psychology include the following
The Child PTSD Symptom Scale for DSM-5 dated 11 May 2024 lists the upsetting thing that bothers her is that it might happen again. The total score is 35 which is in the Moderate range of severity.
The claimant’s submissions which are not signed or dated, states that the claimant’s mother was under the perception the child would psychologically recover quickly from the accident and she did not wish to propagate mental injury and trauma by treatment.
The claimant continued to have symptoms of psychological disturbance. The mother’s perception was itself distorted by her own injuries.
The insurer’s reply submissions by Renee Sadler dated 16 November 2022 state regarding the psychiatric injuries that the insurer submits during the event that the psychological injuries are assessed by the PIC that there is no medical evidence the claimant sustained any psychological injury and particularly not recognised psychiatric condition
The only suggested evidence the claimant sustained any psychological injuries are the observations of the claimant’s mother. It is apparent that the concerns of the mother were not sufficient for the claimant to seek any medical treatment.
Accordingly, any psychological injuries sustained by the claimant does not meet the definition of non-minor injury in accordance with the Act and the Guidelines.
The academic records from Chester Hill Public School
Semester 1 2021
English - achievement high, effort excellent
Mathematics - achievement sound, effort excellent
Human society and its environment - achievement sound, effort satisfactory
Science and technology - achievement sound, effort good
Personal development, health and physical education - achievement sound, effort good
Creative arts - achievement sound effort satisfactory
The categories for commitment to learning are usually which is the highest level and one is sometimes
The categories for personal and social development are all in the usually category.
Whole days absent were 11 and partial days absent were two
Semester 2 2021
English
States she was learning from home and was given an opportunity to read and view a variety of imaginative informative persuasive texts. She responded to the text by discussing new vocabulary locating literal information and referring to the features of images in text and making inference of our character. Jana understands the structure and sequence of writing persuasive text. She effectively states her opinion and justifies her reasons from her point of view using persuasive language.
Mathematics
Jana was exposed to learning activities that required her to count, order, read and write 2-digit and 3-digit numbers using a range of studies and recording methods.
She confidently arranges numbers to 1000 in ascending and descending order along a number line. Jana recognizes, counts and orders Australian coins and notes according to their value.
She identifies the difference between dollars and cents. Jana accurately adds a total value of money including the amount of change noted. Amount of change needed.
General comment
Jana enthusiastically attended all zoom sessions during the learning from home and demonstrated an eagerness and dedication of learning during online lessons and ask questions using the chat.
Whole days absent 6, partial days absent 8
Semester 1 2022
English - achievement sound, effort good
Mathematics - achievement basic, effort excellent
Human society and its environment - achievement sound, effort good
Science and technology - achievement sound, effort excellent
Personal development, health and physical education - achievement sound, effort excellent
Creative arts - achievement sound, effort excellent
The domains in attitude to learning shows that commitment to learning is usually with one rarely which is complete homework
The domains in personal and social development are all in the usual category.
Whole days absent 24, partial days absent 12.
Semester 2 2022
English - achievement sound, effort good
Mathematics - achievement sound, effort good
Human society and its environment - achievement sound, effort good
Science and technology - achievement sound, effort good
Personal development, health and physical education - achievement sound effort good
Creative arts - achievement sound, effort good
The domains in commitment to learning are in the usual category, except completes homework which is rare
The domains in personal and social development are all usually.
Whole days absent 18, partial days absent 8
Semester 2, 2023
English - achievement sound, effort good
Mathematics – achievement basic, effort good
Human society in its environment - achievement sound, effort good
Science and technology - achievement basic, effort satisfactory
Personal development, health and physical education - achievement sound, effort good
Creative arts - achievement sound, effort good
The domains in commitment to learning are in the usual category except complete homework which is rarely
The domains in personal and social development are all usually.
Whole days absent 5, partial days absent 4.
Semester 1 2024
English - achievement basic, effort satisfactory
Mathematics - achievement basic, effort satisfactory
Human society and its environment - achievement sound, effort good
Science and technology - achievement sound, effort satisfactory
Personal development, health and physical education - achievement sound effort good
Creative arts - achievement sound, effort satisfactory
The domains for commitment to learning are usually, except for completes homework which is rarely
The domains for personal and social development one is usually and five are sometimes
Whole days absent 27, partial days absent 1
Semester 2 2024 has a different format.
English - achievement basic, effort satisfactory
English as an additional language/dialect EAL/D Developing, ELA/D support - in class support
Mathematics - achievement basic, effort satisfactory
Human society in its environment - achievement basic, effort satisfactory
Science and technology - achievement sound, effort satisfactory
Personal development, health and physical development - achievement sound, effort good
Creative arts - achievement sound, effort satisfactory
The domains for personal and social development usually -3, sometimes - 2.
The domains for commitment to learning usually -4, sometimes - 2
Whole days absent 6, partial days absent 5e.
The NAPLAN report for the NAPLAN held 10-20 May 2022 shows the following
Reading-band 5 above school and national average
Writing-band 5, above school and national average
Conventions of language-band 6 above school and national average
Numeracy-band 4 just below national average above school average
The NAPLAN report held in March 2024 is as follows
Numeracy numeracy-strong just below national average above school average
Reading-strong just below national average above school average
Writing upper level of strong above national and school average
Spelling conventions of language
Spelling- exceeding above school and national average
Grammar and punctuation strong above school and national average.
DETERMINATIONS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[15]
[15] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[16]
[16] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessors Friend and Newlyn and adopts the findings in their entirety. The Panel reconvened on 17 March 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis and reasons
The Review Panel considered all the available evidence including the additional information which is summarised above.
The Review Panel concluded that the claimant reaches criteria for a diagnosis of generalised anxiety disorder.
The claimant has excessive anxiety and worry for at least six months which commenced soon after the motor accident and continues to occur each day.
She struggles to control it particularly when she tries to get to sleep but also during the day.
She described being easily fatigued at the end of the school day, having trouble concentrating and that she “zones out”. She is irritable and inclined to become angry with others and has difficulty getting to sleep.
The disturbance is not better explained by another disorder such as panic disorder or social phobia or other anxiety disorder.
The symptoms cause significant distress in day-to-day functioning, evidenced by the need to employ techniques taught by her treating psychologist to distract herself while travelling in a motor vehicle, particularly on the highway. There were also reports from the claimant’s reporting school teachers of slightly worse academic functioning in year 2024. Her school attendance declined following the motor accident, however in the Panel’s view, this could be attributable to her psychological symptoms or her recurring stomach issues which may or may not be related to the motor accident.
The disturbance is not attributable to the physiological effects of a substance or another medical condition.
Ms Lazkani has nightmares of “scary things” and is anxious travelling on a highway, but did not describe sufficient symptoms to reach criterion for a diagnosis of post-traumatic stress disorder or panic disorder.
Causation and reasons
Ms Lazkani was functioning well with no impairment of functioning prior to the motor accident and did not describe any pre-existing psychiatric or psychological symptoms.
She has not been involved in any subsequent motor accidents.
She sustained a fracture of her left leg in late 2024 but that has improved. She did not report any increase in her level of worrying following the fracture and it is not causing any ongoing adverse psychiatric/psychological impact.
There is no other cause for the condition of generalised anxiety disorder other than the motor accident on 10 February 2022.
The Panel considered the absence of early reporting of the claimant’s psychological symptoms in the claim form, certificates of capacity/fitness and in the early entries of her GP, Dr Kanawati. It appears the first entry of any psychological symptoms was in the entry of
Dr Kanawati dated 16 February 2023 where the claimant is stated to have anxiety, especially when in a car.
The Panel however noted that the claimant was only 8 years of age at the time of the motor accident and as such, would have been highly dependent on her mother when providing the relevant history to treating medical practitioners. The Panel accepts the claimant’s mother’s evidence in submissions (which was confirmed in re-examination), that she felt the claimant’s symptoms would pass and that the claimant’s mother herself, was consulting a psychologist in about June 2022. When the claimant’s symptoms did not resolve, the claimant’s mother sought psychological treatment which was approved by the insurer in June 2024 and the claimant saw psychologist Mr Chadi Abbas.
In the circumstances and on balance, the Panel viewed the delay in reporting psychological symptoms or in seeking psychological treatment does not mean the symptoms were not present from the time of the motor accident. The Panel therefore determined that the claimant’s psychological injury and diagnosis was causally related to the motor accident.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
· generalised anxiety disorder.
Threshold injury
Section 1.6(1) of the Act states that:
“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.”
Section 1.6(3) of the Act states:
“A Threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Part 1 cl 4 (2) of the Regulation states:
“2) Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of the Act
a) acute stress disorder
b) adjustment disorder
3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)”
Generalised anxiety disorder is not an acute stress disorder or an adjustment disorder and is not a threshold injury.
CONCLUSION
The Panel concludes that the claimant’s injury caused by the motor accident is not a threshold injury. The certificate issued by Medical Assessor Christopher Rikard-Bell dated
20 September 2023 is therefore confirmed.
APPENDIX
Insurer’s review submissions
1. Background and Submissions
1.1 The Claimant, Jana Lazkani, is an 8-year-old female (DOB: Omitted for privacy) who
alleges physical and psychological injuries as the result of a motor vehicle accident
which occurred on 10 February 2022.
1.2 The Claimant referred her injuries to the PIC for threshold injury assessment. Prior to
her PIC application, there was no evidence or allegation of any psychiatric injury and
the Claimant’s application relied only on observations of her mother.
1.3 No Internal Review was requested or conducted in consideration of psychiatric injuries.
1.4 In the Insurer’s threshold injury reply submissions (A2), it was submitted that there was
no jurisdiction for the PIC to assess psychiatric injuries because no Internal Review had
been conducted of those injuries. The Insurer further submitted that the application for
assessment of psychiatric injuries ought to be dismissed under clauses 15 and 17 of
PIC Direction 6 because there was no evidence capable of supporting a non-threshold
injury.
1.5 Neither of those points have been considered by the PIC or Assessor Rikard-Bell.
1.6 Nevertheless, Assessor Rikard-Bell assessed the Claimant’s alleged psychiatric injuries
on 20 September 2023 and issued a Certificate dated 4 October 2023 finding that the
Claimant sustained a non-threshold psychiatric injury, namely Generalised Anxiety
Disorder (A3).
1.7 The Insurer submits that the matter ought to be referred to a Review Panel in respect
of the following material errors:
(a) Assessor Rikard-Bell decided the matter without considering the absence of any
medical evidence and erroneously relied solely on self-reporting of the Claimant
and her mother.
(b) Failure of Assessor Rikard-Bell to adequately apply and explain the DSM-5
criteria.
(c) Failure of Assessor Rikard-Bell to consider and respond to the Insurer’s
submissions.
1.8 The Insurer submits that each of the above errors had a material effect on the outcome
of the decision.
2. Review Ground 1 – Decision in Absence of Evidence and Reliance on Self-
Reporting
2.1 As noted in the Insurer’s reply submissions, there is no medical evidence that the
Claimant sustained any psychological injury.
2.2 For the avoidance of doubt, attention is drawn to the following aspects of all available
evidence in this matter:
(a) In the Claimant’s Application for Personal Injury Damages dated 8 March 2022,
no psychiatric injuries or symptoms are listed (A4).
(b) The Allied Health Recovery request of Complete Allied Health Care dated 29
March 2022 contains no psychiatric symptoms reported by the Claimant or
identified by practitioners. There is no psychiatric treatment recommended in the
Claimant’s treatment plan (A5).
(c) In the Initial Physiotherapy report dated 4 April 2022, there are no psychiatric
injuries or symptoms reported. Although this is a physiotherapy report, the Insurer
highlights that a ‘relevant history’ was taken which could expect to have contained
any psychological injuries or complaints (the Insurer notes that psychological
conditions are often noted by physiotherapists because of the possible impact on
compliance with physiotherapy plans) (A6).
(d) In the consultation records of Complete Allied Health Care, there are nine
consultations in which there were zero reports of any psychiatric injury or
symptoms. In the consultation on 5 April 2022, there is no response provided to
‘psychologist’ in the list of the Claimant’s treatment providers (A7).
(e) In the Certificates of Capacity dated 8 March 2022 (A8) and 1 April 2022 (A9),
which include a box to list a diagnosis of the motor accident related injuries, there
is no mention of psychiatric injuries, symptoms, or psychiatric treatment.
(f) The clinical records of Vijay Maniam, the Claimant’s orthopaedic surgeon, contain
no noted complaints of psychiatric symptoms (again, the Insurer notes that
psychological symptoms are often referenced by physicians given the possible
impact of a person’s mental state on their physical treatment) (A10).
2.3 The Insurer accordingly highlights that it is not in possession of any evidence of
psychiatric injuries or symptoms, and more importantly, Assessor Rikard-Bell was not
presented with any medical evidence of psychiatric injuries or symptoms.
2.4 It has been held repeatedly at law that coming to a decision in absence of probative
evidence is an error of law. It was common ground in the Federal Court matter of
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC
50 which stated “… an error of law will be established if it appears that the Tribunal has
made a finding of fact, or has drawn an inference, without any supporting probative
evidence” (emphasis added).
2.5 Assessor Rikard-Bell has not considered that there was an absence of any medical
evidence or absence of any prior complaints.
2.6 In coming to his decision, it appears that Assessor Rikard-Bell has relied solely upon
the self-reporting of the Claimant and her mother. While the Insurer acknowledges that
self-reporting of a Claimant can indeed form part of the evidence available to an
assessor, such evidence would be expected to have materialised (in at least the
slightest degree) in treating medical records if it was reliable.
2.7 In absence of any prior allegation or evidence of psychiatric symptoms, the Insurer
submits that the self-reporting in this matter is not evidence of material probative value
upon which the decision can be solely based. Therefore, the decision has been made
in absence of any probative evidence, but in any event, the absence of medical
evidence itself has not been considered.
2.8 Had Assessor Rikard-Bell considered the absence of any available medical evidence
and gave the Claimant’s self-reporting the proper probative value, the Insurer submits
that his decision would reflect that the symptoms required to establish a diagnosis under
the DSM-5 were not supported by evidence.
2.9 Without supporting evidence for a DSM-5 diagnosis, no finding of a non-threshold injury
decision can be made.
2.10 The Insurer accordingly submits that Assessor Rikard-Bell has made a material error by
making a decision in absence of any medical evidence, failing to consider that absence,
and instead relying of the self-reporting of the Claimant and her mother.
3. Review Ground 2 - Failure to Adequately Apply and Explain the DSM-5
Criteria
3.1 Even if there was supporting evidence that the Claimant met the DSM-5 criteria, the
Insurer submits that Assessor Rikard-Bell has not adequately explained how the criteria
has been satisfied.
3.2 The Insurer acknowledges that Assessor Rikard-Bell has briefly listed the DSM-5 criteria
on page 7 of his Certificate, but there are the following deficiencies in his actual
application of the criteria:
(a) In criteria A (at 300.02 on page 222 of the DSM-5), it is stated that there must be
excessive anxiety and worry occurring more days than not for at least 6 months
about a number of events or activities. Assessor Rikard-Bell did not obtain a
history from the Claimant regarding the frequency and duration of her symptoms
and has not explained why he considered that the symptoms have occurred for
more days than not over a period of six months.
(b) Criteria B requires that the Claimant has difficulty ‘controlling the worry’. There is
no explanation by Assessor Rikard-Bell about the Claimant’s ability to control her
symptoms and why the criteria B is met.
(c) Criteria C requires that the Claimant’s worry/anxiety is associated with at least
one specified symptom which has been present for more days than not for the
prior six-months. Only one of the symptoms identified by Assessor Rikard-Bell in
this criteria is taken from the exhaustive list of applicable symptoms for this
criteria in the DSM-5, being sleep disturbance. Assessor Rikard-Bell states that
the Claimant ‘likes to sleep with her mother at night’ but he has not stated whether
there is disturbed sleep, or that it has continued for more days than not over sixmonths.
(d) Criteria D requires that the symptoms cause clinically significant distress or
impairment in areas of functioning. In each of the impairment categories set out
on page 6 of Assessor Rikard-Bell’s certificate, he has found no to mild
impairments in various areas of functioning. However, none of these appear to
be clinically significant (particularly noting that no symptoms have been significant
enough to justify the Claimant having undertaken treatment). This includes that
the Claimant can concentrate but “becomes tired at times”; is doing well at school
but is “more emotional”; and that she socialises well but avoids some activities
and is “over cautious”. Even if any of these symptoms are clinically symptoms,
their significance has not been explained by Assessor Rikard-Bell in application
of this criteria.
3.3 In accordance with the DSM-5, every one of the above criteria must be met for the
diagnosis to be established and it was incumbent upon Assessor Rikard-Bell to disclose
his path of reasoning in accepting that each criteria had been met.
3.4 The Insurer refers to the comments of Schmidt J in AAI Limited v Fitzpatrick [2015]
NSWSC 1108 which ruled on the extent of reasoning required in a medical assessment
Certificate under the almost identical provisions of the Motor Accidents Compensation
Act 1999:
“The conclusions expressed in the certificate issued must then be explained by
the assessor in the accompanying statement of reasons. While the reasons
given need not be elaborate, they must disclose the actual path of reasoning by
which the assessor arrived at the opinions formed on each of the issues which
had to be resolved.”
(Emphasis Added)
3.5 The Insurer submits that the requisite path of reasoning is not present for the crucial
aspect of the certificate. Even implicitly, it is unclear how the assessor has arrived at his
application of the DSM-5 criteria, particularly in absence of any medical evidence to
support the symptoms required for satisfaction of the criteria.
3.6 Had Assessor Rikard-Bell appropriately explained his path of reason, the Insurer
submits that it most likely would have been concluded that the applicable criteria had
not been met and the Claimant had not sustained Generalised Anxiety Disorder, or likely
any other recognised psychiatric condition under the DSM-5.
3.7 The Insurer accordingly submits that the failure to adequately explain and apply the
DSM-5 criteria is a material error which justifies the referral for review.
4. Review Ground 3 - Failure to Consider and Respond to the Insurer’s
Submissions
4.1 Assessor Rikard-Bell failed to consider the Insurer’s substantive submissions with
respect to the Claimant’s psychiatric injuries.
4.2 It is well established law that a failure to respond to a clearly articulated argument is a
denial of procedural fairness and an error of law, most concisely summarised by
Gummow and Callinan JJ in Dramchmko v Minister for Immigration & Multicultural
Affairs [2003] HCA 26 (at [24]):
“To fail to respond to a substantial, clearly articulated argument relying upon
established facts was at least to fail to accord [the party] natural justice.”
4.3 The Insurer’s reply submissions made a very clear argument that there was an absence
of any medical evidence, and accordingly, any psychological injury does not meet the
definition of a non-threshold injury.
4.4 On page 2 of the Certificate, Assessor Rikard-Bell notes only that the Insurer had
submitted that the psychological injuries were threshold injuries. So much is inherent in
the fact that there was a dispute before the Assessor. When Assessor Rikard-Bell
further considers the Insurer’s submissions in greater detail on page 7, he only notes
that the Insurer outlined the date of the accident and the history of the physical injuries
only.
4.5 None of the Insurer’s substantive submissions on the Claimant’s psychiatric injuries are
outlined, particularly not the primary submission that the absence of any medical
evidence suggests the injuries are threshold injury. That main point has not been noted
or responded to at all by Assessor Rikard-Bell.
4.6 Had the Assessor considered and responded to that submission, the Insurer submits
that it would have most likely been concluded that the Claimant’s symptoms were not
clinically significant to satisfy the DSM-5 criteria.
5. Conclusion
5.1 The Insurer accordingly submits that the certificate of Assessor Rikard-Bell ought to be
referred to a Review Panel due to material error.
5.2 The Insurer reserves the right to provide further evidence
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