AAI Limited t/as AAMI v Tran

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Tran [2024] NSWPICMP 740
CLAIMANT:	Thieu Hung Tran
INSURER:	AAMI
REVIEW PANEL
MEMBER:	Cameron Thompson
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Atsumi Fukui
DATE OF DECISION:	25 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (the MAI Act); claimant suffered physical and psychological injuries in a motor accident on 9 January 2018 whilst driving a vehicle which had stopped at a red traffic light; another vehicle collided with the rear of the claimant’s vehicle causing his vehicle to collide with the vehicle in front of it; dispute as to whether the claimant’s psychological injury caused by the motor accident is a minor injury for the purposes of the MAI Act; Medical Assessor (MA) issued a certificate when the relevant term was “minor injury”; minor injury now described as a threshold injury; MA determined that the claimant had a specific phobia of car travel now in partial remission and a persistent depressive disorder which were caused by the motor accident and that these injuries are not minor (threshold) injuries; claimant re-examined; Held – the claimant meets the DSM-5 criteria for a specific phobia of car travel in partial remission and this injury was caused by the motor accident and is not a threshold injury for the purposes of the MAI Act; claimant does not meet the DSM-5 criteria for a diagnosis of a persistent depressive disorder; a psychiatric injury caused by a motor accident which fulfills the diagnostic criteria under DSM-5 for the diagnosis of a specific phobia at any time after the accident remains a specific phobia and therefore a non-minor (non-threshold) injury even if the symptoms relating to that injury subsequently improve or go into remission (applying Lynch v AAI Limited t/as AAMI); Panel certified that the psychological injury caused by the accident is not a threshold injury for the purposes of the MAI Act; certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of threshold injury Replacement certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Barrett dated 31 August 2021. 2. The Review Panel certifies that the psychological injury caused by the motor accident is not a threshold injury for the puroses of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

The claimant, Thieu Hung Tran, suffered physical and psychological injuries in a motor accident on 9 January 2018 (the accident). At the time of the accident Mr Tran was driving a Honda Civic Sedan which was stationary behind other vehicles which had stopped at a red traffic light on Rawson Road in Guilford, New South Wales, when a Toyota HiAce van collided with the rear of Mr Tran’s vehicle causing it to collide with the vehicle in front of it.
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
AAMI (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the MAI Act.
AAMI accepted liability to pay the claimant statutory benefits under the MAI Act for the first 26 weeks after the accident.
At the time of the accident, statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the motor accident were minor injuries.
There was a dispute as to whether the claimant’s psychological injury caused by the accident is a minor injury for the purposes of the MAI Act which was referred to Medical Assessor Melissa Barrett (the Medical Assessor) for assessment.
The Medical Assessor issued a certificate dated 31 August 2021 in which she certified that the following injuries caused by the motor accident are not minor injuries for the purposes of the MAI Act:
(a) specific phobia, car travel, in partial remission, and
(b) persistent depressive disorder with anxious distress, mild.
The insurer has sought a review of the certificate of the Medical Assessor.
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The certificate of the Medical Assessor was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions of the parties and certificate of the Medical Assessor were written at a time when the term was “minor injury”. We have used this term in these reasons as it was used by the parties or the Medical Assessor. However, the issue in dispute in this matter is whether the claimant’s psychological or psychiatric injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Pursuant to cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with the Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor,[1] and pursuant to s 7.26 of the MAI Act, on review, by a Review Panel.
[1] Section 7.20 of the MAI Act.

THE MEDICAL ASSESSMENT UNDER REVIEW

The Medical Assessor assessed the claimant on 23 August 2021 and issued a Certificate dated 31 August 2021.
The following injuries were referred to the Medical Assessor for assessment:
(a) psychiatric condition – psychological injury and post-traumatic stress disorder.
The Medical Assessor reviewed the documentation provided to her and clinically examined the claimant and made the following diagnosis:
“Based on the history contained in the documentation as well as that provided by Mr Tran at assessment and the mental state examination findings on assessment, I consider Mr Tran has a specific phobia, driving, in remission and a persistent depressive disorder with anxious distress, ongoing.”[2]
[2] At p 10.
The Medical Assessor determined that the claimant fulfilled the DSM 5 criteria for specific phobia of car travel as he reports a history of a fear of another accident, with somatic symptoms of anxiety, including palpitations, when driving, especially if a truck came near him or if he heard the noise of a truck near him, and that given his symptoms of anxiety caused significant distress had persisted for more than six months he fulfils the DSM-5 criteria for specific phobia.
In the opinion of the Medical Assessor, the claimant currently reported significant reduction in his symptoms of anxiety when driving, describing himself as “80% better”. There was no avoidance or restrictions but he still experienced some anxiety when a truck comes near him and he would therefore be regarded as being in partial remission and approaching full remission.
In the opinion of the Medical Assessor, however, the claimant would not meet the criteria for post-traumatic stress disorder as the accident would not meet criteria A for post-traumatic stress disorder, considering he was able to exchange details from the other drivers and then drive his car home to change cars and then drive himself to the hospital to check on the wellbeing of his wife and daughter. The Medical Assessor determined that the claimant would not have fulfilled the DSM-5 criteria A for post-traumatic stress disorder as there was no evidence that the claimant would have experienced the accident as one in which he was at risk of serious injury or death.
Further, in the opinion of the Medical Assessor, the claimant would have fulfilled the criteria for an adjustment disorder with anxiety. He had a period of treatment with low dose antidepressant agomelatine which resulted in some improvement, and then brief treatment with a psychologist and psychiatrist, but he then disengaged in treatment as he both felt improved and was concerned about the risk of becoming reliant upon medication.
In the opinion of the Medical Assessor the adjustment disorder has persisted since the accident and is ongoing, without remission, for more than three years since the accident and therefore he would now meet DSM-5 criteria for persistent depressive disorder.
The Medical Assessor determined that the following injuries were caused by the motor accident:
(a) specific phobia of car travel, now in partial remission, and
(b) persistent depressive disorder.
The Medical Assessor determined that the following injuries are not minor injuries:
(a) specific phobia, car travel, in partial remission, and
(b) persistent depressive disorder.

THE APPLICATION FOR REVIEW

On 21 October 2021, pursuant to s 7.26 of the MAI Act, the claimant made an application to refer the medical assessment to a review panel (the Panel) for review. It is not in issue that the application was made within the time prescribed by s 7.26(10) of the MAI Act.
On 10 January 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5)(A) of the MAI Act and Schedule 1, cl 14(F)(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
On 1 November and 21 November 2022, the claimant was examined by Medical Assessors Hong and Fukui by videolink.

STATUTORY PROVISIONS AND GUIDELINES

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act:[7]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[7] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulation provides that “acute stress disorder” and “adjustment disorder” have the same meanings as in DSM-5.[8]

The Motor Accident Guidelines
[8] DSM-5 is the document entitled Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.

The Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, Part 5 of the Guidelines provides:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of threshold psychological or psychiatric injury the Guidelines also 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.
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

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
[9] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] [2021] NSWSC 13 (Raina) at [65].
In Briggs v IAG Limited trading as NRMA Insurance[11] his Honour Justice Wright stated at [35]:
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic 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 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.
6.7There 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.”

MATERIAL BEFORE THE PANEL

The Panel issued directions dated 18 July 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the insurer uploaded to the portal at AD2 a bundle of documents which were not paginated. The claimant uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 219 (CB).
On 6 September 2022 a further direction was issued requiring the insurer to upload to the portal a revised bundle of documents that it relies upon on the review, taking care to ensure that the index to that bundle shows a page number for the commencement of each document identified in its bundle. Pursuant to that direction the insurer uploaded to the portal at AD6 the insurer’s revised bundle of documents indexed and paginated from pages 1 to 257 (IB).
By a direction dated 6 September 2022, the claimant was directed to upload to the portal clinical records in relation to all treatment of the claimant by the psychologist, Erin Carmody. Pursuant to that direction the claimant uploaded to the portal at AD5 clinical notes from Workers Doctors which includes records in relation to consultations the claimant had with Erin Carmody.
The Panel has read and considered the documentation as identified in paragraphs 40 to 43 above in making its findings and determinations.

SUBMISSIONS

Insurer’s submissions dated 21 October 2021[12]

[12] IB p 1.

The insurer submits that the following grounds for review arise from the assessment of the Medical Assessor:
(a)    the Medical Assessor failed to properly apply the DSM-5;
(b)    the Medical Assessor proceeded on a misapprehension and incorrect history of the claimant’s clinical history and functioning, and
(c)    the Medical Assessor failed to properly consider and/or refer to all evidence before her in making her determination.
With regards to the injury of specific phobia, the insurer refers to and sets out the diagnostic criteria for this in DSM-5.

The insurer then refers to relevant passages within the certificate of the Medical Assessor including:
(a)    history of symptoms and treatment following the motor accident;
(b)    current symptoms – including recording that the claimant stated that he feels ”80% better” when he drives[13]
(c)    current and proposed treatment;
(d)    current functioning;
(e)    comments on consistency;
(f)    summary of relevant documentation, and
(g)    conclusions and reasons.
[13] IB p 3.
The insurer also refers to relevant information which was contained within the material before the Medical Assessor but not referred to within her certificate and reasons including the Allied Health recovery request completed by Dr Lim on 23 March 2018 and the Allied Health recovery request dated 28 May 2018 and the history obtained by the psychologist,

Ms Carmody, on 4 April 2018 that the claimant’s anxiety had decreased over the last few months.
The insurer submits that pursuant to the diagnostic criteria contained within DSM-5, in order for a diagnosis of specific phobia of car travel there must be immediate marked (that is intense or severe) fear or anxiety on almost every occasion there is exposure, car travel must be either actively avoided or endured with intense fear or anxiety and, those symptoms must be present for six months or more.
The insurer submits in relation to the history obtained by the Medical Assessor that the claimant’s anxiety was never severe enough to require him to pull over to the side of the road. It submits that there is further support in relation to the absence of sufficient severity of symptoms to warrant a diagnosis of specific phobia in the clinical records, and the material before the Medical Assessor revealed that the claimant continued to drive at all times following the accident and by 23 March 2018 was able to drive up to 1.5 hours including regularly driving his daughter to and from university and his family to a temple. The insurer submits that that history was entirely inconsistent with marked, intense or severe fear, or active avoidance.
The insurer notes that on 9 May 2018, Ms Carmody obtained a history of symptoms rated by the claimant as only 4 out of 10, and that on 6 June 2018, she noted the level of anxiety experienced by the claimant whilst driving had reduced from between 7 and 8 out of 10 to between 3 and 4 out of 10. The insurer submits that whilst it would be arguable that even symptoms of 7 or 8 out of 10 may not satisfy the diagnostic criteria being “marked”, “intense” and/or “severe symptoms”, the President would be satisfied that the rating of 3 or 4 would be most unlikely to reach the threshold.
The insurer also submits that the clinical histories are also relevant in relation to the diagnostic criteria that the activity is either actively avoided or endured with intense fear or anxiety. It submits that the Medical Assessor did not obtain any history that the claimant avoided driving or traveling in cars and there was no support for that proposition within the treating material and that the Medical Assessor obtained a specific history from the claimant that he did not avoid driving at any time after the accident. Accordingly, the insurer submits that that feature was required for a diagnosis by reference to Criterion C in the diagnostic criteria for specific phobias in DSM-5.
The insurer further submits that the material before the Medical Assessor and the history she obtained from the claimant would support an absence of any increase in the relevant symptoms after 9 May 2018 (when Ms Carmody obtained a history of symptoms) and as that was only four months after the accident, diagnostic criterion E would not be satisfied. It submits that there is further support of this submission in the report of Dr Khan dated

16 June 2018 which included a comprehensive list of symptoms reported by the claimant which made no mention of ongoing fear or anxiety associated with driving and certainly not of the severity required for a diagnosis of specific phobia.
The insurer submits that the Medical Assessor should have put to the claimant the inconsistency between the clinical records (which support the presence of symptoms for only a brief period following the accident) and the history provided by the claimant of significant symptoms which persisted between 1 and 1.5 years.
The insurer also notes that Criterion G, which provides that a specific phobia is not the correct diagnosis where the disturbance is better explained by symptoms of another mental disorder, including reminders of traumatic events (as in post-traumatic stress disorder), and submits that the history obtained by the Medical Assessor was that the claimant’s disturbance was such that he was reminded of the motor accident, and indeed, she noted that he described the flashbacks which was consistent with the histories obtained by his treating doctors.
The insurer submits that the material before the Medical Assessor and the history she obtained from the claimant would not be sufficient to reach the level described within DSM-5 that individuals with specific phobia show similar patterns of impairment in psychosocial functioning and decreased quality of life as individuals with other anxiety disorders (and alcohol substance use disorders) including impairments in occupational and personal functioning. It submits that the claimant’s occupational and interpersonal functioning would seem to be unimpaired.
The insurer submits that the Medical Assessor falls short of establishing that the claimant ever met the diagnostic criteria for specific phobia at any time since the accident and that all criteria must be satisfied to establish that diagnosis. Accordingly, it submits that the President would have reasonable cause to suspect the assessment of the Medical Assessor, in particular the diagnosis of specific phobia, was incorrect in a material respect.
With regards to the Medical Assessor’s diagnosis of persistent depressive disorder with mild anxious distress, the insurer sets out the diagnostic criteria for this disorder under DSM-5 and emphasises the following elaboration of the diagnostic features ap page 184 of DSM-5:
“The essential feature of persistent depressive disorder (dysthymia) is a depressed mood that occurs for most of the day, for more days than not, for at least 2 years, or at least 1 year for children and adolescents (Criterion A).”
The insurer submits that pursuant to DSM-5 a diagnosis of persistent depressive disorder must also specify an accompanying set of features and refers to the explanation of “with anxious distress” at page 184 of DSM-5.
The insurer refers to relevant passages within the certificate of the Medical Assessor including the following:
(a)    psychological history and pre-accident history obtained by the Medical Assessor;
(b)    the history of symptoms and treatment following the motor accident obtained by the Medical Assessor;
(c)    current symptoms;
(d)    current proposed treatment;
(e)    mental state examination;
(f)    current functioning;
(g)    comments on consistency, and
(h)    conclusions and reasons.
The insurer notes that the clinical records of Dr Huynh reveal that the claimant reported insomnia and difficulty sleeping for a number of years prior to the accident including on 8 November 2017, two months before the accident and that there was also a history of low energy, fatigue and tiredness.
The insurer submits that having regard to the diagnostic criteria contained within DSM-5, in order for there to be a diagnosis of persistent depressive disorder with anxious distress, the claimant must experience depressed mood for most of the day, for more days than not, for at least two years including suffering from two or more of the following symptoms:
(a)    poor appetite or overeating;
(b)    insomnia or hypersomnia;
(c)    low energy or fatigue;
(d)    low self-esteem;
(e)    poor concentration or difficulty making decisions, and
(f)    feelings of hopelessness.
The insurer submits that there must also be two or more of the following during the majority of days:
(a)    feeling keyed up or tense;
(b)    feeling unusually restless;
(c)    difficulty concentrating because of worries;
(d)    fear that something awful may happen, and
(e)    feeling that the individual might lose control of himself or herself.
The insurer submits that there was no mention anywhere within the material before the Medical Assessor or in the history she obtained from the claimant of low self-esteem, feelings of hopelessness, feeling keyed up or tense, restlessness, fear that something awful might happen or feeling that the claimant might lose control of himself.
The insurer submits that that leaves only “poor appetite”, “insomnia”, and “low energy or fatigue” by reference to the first list and “difficulty concentrating because of worries”; by reference to the second list above.
The insurer submits that the absence of two symptoms from the second list would of itself give rise to reasonable cause to suspect material error in the assessment of the Medical Assessor and further submits that the following would be relevant:
(a)    the only person to have obtained a history of poor appetite from the claimant was the Medical Assessor, but submits that the history obtained by her was unlikely to reach the level of “poor appetite” required for the purposes of a diagnostic criteria within DSM-5 and that in any event by the date of the assessment the claimant described a “normal appetite”;
(b)    in relation to “insomnia”, the insurer submits that the history obtained by the Medical Assessor of some difficulty sleeping would not reach the level of insomnia and in any event the pre-accident medical records revealed those problems were present prior to the accident;
(c)    the position is similar in relation to “low energy and fatigue”, and
(d)    the Medical Assessor obtained a history of identical capacity for concentration before and after the accident which would support an absence of impairment in this regard.
The insurer submits that the Medical Assessor should have put to the claimant the inconsistency between the pre-accident records which revealed a history of insomnia and difficulty sleeping with the history provided by the claimant that those problems were related to psychological/psychiatric problems caused by the accident. The insurer further submits that the Medical Assessor should also have put to the claimant the inconsistency between the pre-accident records which reveal a history of low energy and fatigue with the history provided by the claimant that those problems were related to psychological/psychiatric problems caused by the accident.
The insurer refers to Criterion H contained within DSM-5 and submits that in order for there to be a diagnosis of persistent depressive disorder, the symptoms from the same must cause clinical significant distress or impairment in social, occupational or other important areas of function. It submits that the Medical Assessor obtained a history that the claimant was able to work full-time and perform domestic duties both for his own purposes and on behalf of his family and maintained a good relationship with his wife and daughter including driving them to various activities, and that this would seem entirely inconsistent with Criterion H.
The insurer also refers to the history provided by the claimant to the Medical Assessor of significant improvement of his overall psychological/psychiatric symptoms following a period of treatment would be relevant and starkly inconsistent with the diagnosis of persistent depressive disorder with mild anxious distress.
The insurer also submits that under the Medical Assessor’s mental state examination, the Medical Assessor observed not only that the claimant had full range of facial expressions and gestures, normal speech, reactive effect and was warm and appropriate and both smiling and laughing during the assessment, but also noted he was “not depressed”.
The insurer submits that the Medical Assessor falls short of establishing that the claimant meets the diagnostic criteria for persistent depressive disorder with mild anxious distress and notes that all relevant criteria must be satisfied to establish the diagnosis.
The insurer also notes that the express statement of the Medical Assessor that the diagnosis arose from an adjustment disorder which had persisted for more than three years. It submits that having regard to the definition of a minor injury under the MAI Act, which includes an adjustment disorder, and the insurer’s submissions regarding the likelihood that the claimant’s symptoms would not be sufficient to satisfy the diagnostic criteria for a persistent depressive disorder, the President may feel this aspect alone would be sufficient cause to suspect the assessment of the Medical Assessor was incorrect in a material respect.
Accordingly, the insure submits that the President is satisfied there is reasonable cause to suspect the assessment of the Medical Assessor was incorrect in a material respect and would refer the medical assessment dispute to a Review Panel for review.

Insurer’s submissions to the Dispute Resolution Service dated 26 May 2020[14]

[14] IB p 28.

These submissions were relied upon by the insurer in reply to an application by the claimant with regards to a minor injury dispute in respect of the following injuries:
(a)    neck injury with pain and stiffness radiating to the left shoulder;
(b)    reduced grip strength in the left hand;
(c)    lower back injury, and
(d)    psychological injury – post-traumatic stress disorder.
The insurer notes that an internal review was completed pertaining to the minor injury dispute dated 28 April 2020 and relies on the findings of its internal review regarding the minor injury dispute.
The insurer makes reference to its internal review Statement of Reasons which, it submits, clearly set out the insurer’s reasoning supporting its minor injury determination with respect to both physical and psychological injury.
With respect to psychological injury the insurer notes that Part 5.11 of the Guidelines states that the assessment of whether a psychiatric illness is present must be made under the DSM-5 criteria. It refers to Part 5.12 of the Guidelines which states that if the person’s symptoms do not meet the assessment criteria for a psychiatric illness under the DSM-5 (aside from adjustment disorder or stress disorder) then the person has a minor injury.
The insurer notes that the claimant’s general practitioner (GP), Dr Eric Lim, provided an initial diagnosis of an acute distress disorder and that a subsequent diagnosis of post-traumatic stress disorder was made in May 2018, and further that claimant’s psychiatrist, Dr Khan provided a diagnosis of post-traumatic stress disorder following a motor vehicle accident.
The insurer acknowledges that the claimant may be suffering from psychological symptoms due to the accident, however, for the injuries to be considered non-minor, a diagnosis must be made under the DSM-5. The insurer submits that it is not in possession of any medical evidence to confirm a diagnosis under the DSM-5 has been made, and that as such, psychological injuries sustained in the subject motor accident falls under the definition of “minor injury” per the MAI Act, the Guidelines and the Regulations.

Claimant’s submissions dated 9 December 2021[15]

[15] These submissions were not included in CB but were lodged with the claimant’s reply to the insurer’s application for review of the certificate of Medical Assessor Barrett at document R1.

The claimant notes that the insurer has alleged that the claimant’s psychological injuries do not meet the criteria of non-minor injury under Part 5 of the Guidelines and that the Medical Assessor has certified that the claimant suffered from the following non-minor psychological/psychiatric injuries:
(a) specific phobia, car travel, and
(b) persistent depressive disorder with anxious distress.
The claimant submits that he has been involved in the automotive/smash repair industry for almost 30 years and cannot simply “actively avoid” or limit his exposure to cars or driving due to the nature of his job.
The claimant notes that his psychologist has suggested forced exposure to reduce his psychological symptoms.
The claimant submits that his anxiety also partly stems from being a smash repairer for 20 years, and that given the impact of the van when it collided with his car in the motor accident, he became more familiar with the consequences of the motor accident and hence he developed anxiety and phobia.
The claimant notes that his daughter, Lucy Tran, also suffered non-minor injuries by way of a tear in the shoulder and psychological injuries in the motor accident and that his wife, Thi Thuy Tien Nguyen, also suffered significant injuries in the motor accident.
The claimant submits that as a result of the accident, he was not able to work for the first month following the accident and had to perform the majority of the domestic duties such as cooking, cleaning and washing because his wife and daughter were also injured. In February to April 2018 the claimant submits that he had return to work to run his business – he had to ensure that the business remained functioning as he is responsible for paying three employees, including himself. The business costs around $500,000 per year which includes wages, rent and other operating expenses. Initially the claimant started back to work on 15 hours on light duties per week during which time he reported experiencing stress and flashbacks. From April 2018 onwards, he had to upgrade his hours to three days per week due to financial stress and then had to go back to full-time work due to loss of income. He subsequently had to reduce his hours again in May 2018 due to difficulties coping. He tried to restrict himself to light duties and paperwork and only accepting small jobs which would not trigger his psychological condition, but during this time he still experienced flashbacks of the accident, nightmares and sleep disturbance and it is submitted that this clinical history has been well noted by the treating psychologist, Dr Abdal Khan.
The claimant refers to the entry in the clinical notes of the psychologist, Erin Carmody, on 9 May 2018 that “Still recalls the accident but what can you do”.
The claimant submits that he started to accept bigger jobs later in 2018, but his mood fluctuated depending on the severity of the jobs as they can cause flashback but he had to continue operating his business.
The claimant notes that the Medical Assessor at page 9 of her Certificate noted the comment of the treating psychiatrist, Dr Khan, that the claimant “continued to experience symptoms of posttraumatic stress disorder including symptoms of intrusion (unwanted memories, nightmares, flashbacks), avoidance of trauma-related thoughts, negativity (negative effect, feelings of isolation) and arousal (irritability, difficulty concentrating and difficulty sleeping secondary to nightmares and pain)”.
With regards to the insurer’s submission that the claimant was able to exchange details and then drive to the hospital to check on the wellbeing of his wife and daughter (after the accident), the claimant submits that he has been in the industry for almost 30 years, and being able to get out of a car accident and exchange details is the basic knowledge required in attending to a property damage claim. The claimant submits that his wife and daughter were injured in the accident and that driving to the hospital despite his condition is an understandable response under the circumstances.
In conclusion, the claimant submits that:
(a)    he has consulted Dr Khan, psychiatrist, who has noted that he has suffered from symptoms of post-traumatic stress disorder and associated sequelae;
(b)    the presence of a diagnosis of specific phobia (car travel) is consistent with the fact that the claimant initially having to take time off work before being forced back on light duties;
(c)    specifically the claimant was asked to go through forced exposure to reduce his psychological symptoms;
(d)    the clinical history obtained is consistent with the claimant’s circumstances in coping with taking care of his family and managing as best he could and seeking to recover from his condition;
(e)    the clinical history is also consistent with the claimant’s attempts to recover from his injuries by seeking professional help and returning to work, thus fulfilling the objects of the CTP Scheme;
(f)    a psychological diagnosis provides a snapshot of the time of the claimant’s symptoms and temporal factors mean that it is reasonable to expect some recovery from initial symptoms, particularly with treatment, and
(g)    the Medical Assessor has correctly diagnosed the claimant as suffering from specific phobia (car travel) and persistent depressive disorder with anxious distress.

RE-EXAMINATION

The claimant was examined by Medical Assessors Hong and Fukui on 1 and
22 November 2022. The examination report is as follows:

“Who attended the assessment

The assessment was conducted by Medical Assessors Hong and Fukui via an audio-visual link (MS Teams). Mr Tran attended unaccompanied from his office at his work.
Due to the loss of signal transmission from Mr Tran during the initial assessment date, the assessment was completed over two days, 1 and 22 November 2022.

History

Psychosocial history and pre-accident history

Mr Tran is a 55-year-old married man living with his wife and 23-year-old daughter. He is a spray painter by trade and has had a smash repair business for twelve years. He works full-time.
Mr Tran was born and raised in Vietnam. He is the fourth child of six children in the family. He arrived in Australia in 1989 when his sister sponsored him and his parents and two younger siblings to come to Australia.
He had completed Year 9 at school before arriving in Australia. After arriving in Australia, he studied English during 1989 and 1990 and then completed schooling for Years 11 and 12 at TAFE. He studied two years of mechanical engineering at the University of NSW before taking up a trade as a spray painter.
He denied any significant medical history.
He denied a psychiatric history before the accident. Medical Assessors Hong and Fukui discussed his general practitioner’s (GP) medical records and the prescribed psychotropic medications predating the accident with him. There was no evidence that he had suffered from a diagnosable psychiatric disorder according to DSM-5 prior to the accident.
Mr Tran stated that he never consumed alcohol. He has smoked 8 to10 cigarettes daily for thirty years. He denied illicit substance use or prescription medication misuse.
He denied a history of gambling.
There was no known family psychiatric history.
He denied prior motor accidents or compensation history. He denied a forensic history.
Before the accident, Mr Tran stated that his wife attended to the majority of housework, and he mowed the lawn. He described engaging in activities such as swimming, socialising with friends and family and going away on a holiday every year with his family. He stated that the accident occurred a day after he and his family returned from a holiday.

History of the motor accident

The accident occurred on 9 January 2018. He was driving and his wife and daughter were sitting in the rear passenger seats. He stopped at a red light behind a few other cars and saw a van behind him in his rear-view mirror. The van collided into the rear of his vehicle and pushed his vehicle into the car in front. Upon impact, his wife and daughter screamed. He got out of his vehicle and exchanged details with the other drivers. His daughter was holding her shoulder and his wife told him she could not move her neck. His daughter called an ambulance. The ambulance took his daughter and wife to Westmead Hospital. Mr Tran noticed that he had discomfort over his right shoulder from the seat belt pressure. He drove his car home and then drove another car to Westmead Hospital to see his wife and daughter.

History of symptoms and treatment following the motor accident

Mr Tran had neck pain which radiated down into his left hand resulting in numbness and tingling. He had lower back pain which radiated down his leg. He could not bend down. His regular GP did not want to get involved in a compensation matter, so he went to see Workers Doctors. He attended physiotherapy and took analgesics. His symptoms gradually improved.
Mr Tran experienced problems with his sleep. He had frequent nightmares. As a panel beater, he was constantly exposed to damaged and smashed vehicles at work. If he saw a heavily smashed up car, he recalled the accident. He feared driving but he had no choice other than to continue driving since both his wife and daughter were unable to drive due to their injuries and they needed to attend medical appointments. He was anxious whilst driving and he panicked when large vehicles came close, next to, or behind him when driving. Loud or squeaky noise and braking noise from vehicles also made him feel “panicky”. His anxiety was triggered only when exposed to other vehicles on the road or if he witnessed an accident. He therefore endured driving with intense fear and anxiety. He denied flashbacks. He stated that whenever he recalled the accident, he became anxious.
Mr Tran avoids the motorway where the accident occurred because it is “a dangerous area” with single lanes and “nowhere to go”. He stated that it feels “scary”, and he wants to avoid any accidents because of “bad drivers”. He is more vigilant when he sees trucks on the road and avoids passing a truck. However, he does not pull over when he sees a truck.
He denied depressed mood, thoughts of self-harm or suicide. His appetite and energy level have remained steady. He was asked specifically about his mood, and he stated that his mood has not changed from before the accident. Mr Tran had a few weeks off work immediately after the accident because of pain and numbness. He stated that he had to care for his wife and daughter due to their injuries in addition to running his business. He gradually returned to work and by April 2018 he was working 3 days per week. He was working full time by 2020.
He was referred to see a psychologist and a psychiatrist. He attended psychology sessions a few times and stopped around 2019. He was prescribed agomelatine (Valdoxan) for a few months following the accident because of his difficulty with sleep. It helped with his sleep, and he stopped taking the medication as he was feeling better.

Details of any relevant injuries or conditions sustained since the motor accident

Nil reported.

Current symptoms

Mr Tran remains anxious about being in a vehicle. He still avoids driving on the motorway where the accident occurred and is more vigilant when he sees trucks on the road. He is anxious as a passenger in a car if another vehicle gets too close. He still becomes “panicky” when driving if another vehicle is close to him or when he hears loud or braking noise. He occasionally gets nightmares when he sees vehicles that have been rear-ended in his smash repair workshop as it reminds him of his accident. He easily becomes irritable and tries to control himself at work.

His sleep is disrupted due to pain in his neck and numbness in his hand. He sleeps an average of 5 hours of broken sleep. It is hard for him to go back to sleep after waking up.
He struggles with bending and has difficulty working under a vehicle so he needs to have the vehicle on a hoist. Numbness in his fingers affect his work.

Current and proposed treatment

He is not engaged in any psychological or psychiatric treatment. He uses Panamax as needed for pain.
Additional Evidence
There was no formal psychiatric history documented in his medical records. However, Mr Tran’s GP documents a history of insomnia, lethargy and stress over the years from 2004 to 2017 with prescription of low dose antidepressant medications including amitriptyline 10mg, dothiepin 25mg and agomelatine 25mg. Mr Tran was asked to clarify the reasons for his reported symptoms and prescriptions from his GP. He stated that during 2004 to 2017 he had a problem with sleep due to increased stress from work. During 2009 he left work for a year as his father was ill and he took “normal tablet for sleep”. He recalled that in 2010 there was a fight with an employee, and he also took some medication. He denied seeing a psychologist or a counsellor at any time in relation to that issue.

Clinical examination

Mental state examination
Mr Tran presented as casually dressed and neatly kempt. He was euthymic and there was no evidence of a pervasive depressed mood. His affect was reactive. There was no evidence of anxiety or agitation. His speech was normal in rate and flow. Towards the end of the second assessment when clarification was being sought about his symptoms, he became mildly irritated and stated, “I am a victim, why ask me so many questions?”.
He was able to focus and maintain concentration for the duration of the assessment. He denied thoughts of self-harm or suicidal ideation. He stated that whilst he has improved both physically and psychologically, he was not “normal”.

Current functioning

Mr Tran returned to working full-time by 2020 but has physical limitations due to difficulty bending and tingling in his fingers.
He drives but experiences significant anxiety and avoids trucks on the road. His self-care is intact and he helps with home duties.
He reported he has a “bad temper” and this has been noticed by his employees. He maintains good family relationships.

Comments on consistency

There were no inconsistencies noted in his history or presentation.

Diagnosis
Past psychiatric history:
Mr Tran does not believe he has a psychiatric history prior to the accident. Review of his GP’s clinical notes indicate that over the years preceding the accident he has had insomnia, anxiety and depressive symptoms associated with stress. He was prescribed a number of medications before the accident including an antidepressant medication, Dothep, in December 2010[16], and the antidepressant, Agomelatine, in June 2018, after the accident.[17] He did not attract a formal psychiatric diagnosis. He did not have driving phobia before the accident. It is the opinion of the Panel that the treating medical evidence does not indicate that he had an active psychiatric disorder immediately before the accident,
[16] CB p 138.
[17] AD5.
Specific phobia of car travel, in partial remission:
Mr Tran developed anxiety and fear about driving a car following the accident. The Panel confirmed a diagnosis of specific phobia of car travel in partial remission based on the history contained in the documentation, the history provided by Mr Tran during the re-examination by Medical Assessors Hong and Fukui and the mental state examination findings during that assessment. In the opinion of the Panel, this is a new psychiatric diagnosis which developed after the accident. This is not a threshold injury as it is not an adjustment disorder or an acute stress disorder.
Mr Tran’s psychological condition meets the DSM-5 diagnosis of specific phobia as follows:
Criterion A – Marked fear or anxiety about a specific object or situation (eg,. flying, heights, animals, receiving an injection, seeing blood) – Mr Tran has excessive symptoms of anxiety when driving, marked anxiety and fear of another accident, anxiety about driving with trucks on the road and anxiety as a passenger if another vehicle comes close.
Criterion B – The phobic situation or object almost always provokes immediate fear or anxiety - Mr Tran becomes anxious when he sees a truck or hears a loud noise, braking noise and squeaks. He recalls his accident whenever he is reminded by seeing damaged vehicles at his smash repair business.
Criterion C – The phobic object or situation is actively avoided or endured with intense fear or anxiety - Mr Tran has persistent avoidance of the motorway where the accident occurred as it is a specific trigger for his fear response. He endures driving on motorways with trucks with significant anxiety and avoids driving past a truck and becomes more vigilant.
Criterion D – The fear or anxiety is out of proportion to the actual danger posed by the specific object or situation and to the sociocultural context - Mr Tran stated that he avoids driving on motorways because it is “scary” due to “bad drivers”, and he does not want to be exposed to another accident.
Criterion E – The fear, anxiety or avoidance is persistent, typically lasting for 6 months or more - Mr Tran’s overall anxiety has reduced but his symptoms of fear and avoidance have persisted for over 4 years.
Criterion F – The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning - Mr Tran experienced clinically significant distress related to driving. He sought treatment for this and was provided with treatment by a clinician. The Panel confirmed he does not have impairment and noted that impairment is not required to fulfil this criterion, as he already fulfills the clinical distress description, and DSM-5 only requires either clinical distress or impairment.
Criterion G – The disturbance is not better explained by the symptoms of another mental disorder, including fear, anxiety, and avoidance of situations associated with panic-like symptoms or other incapacitating symptoms (as in agoraphobia); objects or situations related to obsessions (as in obsessive-compulsive disorder); reminders of traumatic events (as in posttraumatic stress disorder); separation from home or attachment figures (as in separation anxiety disorder); or social situations (as in social anxiety disorder -
Mr Tran’s condition is not better explained by symptoms of another mental disorder, including a persistent depressive disorder and an adjustment disorder.
It is also the Panel’s opinion that his condition is in partial remission given the improvement in the symptoms reported by Mr Tran. Six months after the accident he fulfilled all of the DSM-5 criteria for a diagnosis of specific phobia of car travel.
In the opinion of the Panel, the claimant’s symptoms do not meet the DSM-5 criteria for the diagnosis of a persistent depressive disorder or an adjustment disorder for the following reasons.
Persistent depressive disorder:
A diagnosis of persistent depressive disorder must meet all of the following DSM-5 criteria:
Criterion A – Depressed mood for most of the day, for more days than not, as indicated by other subjective account or observation by others, for at least 2 years. Note: in children and adolescents, mood can be irritable and duration must be at least 1 year.
Criterion B – Presence, whilst depressed, of at least two of the following:
(a) poor appetite or overeating;
(b) insomnia or hypersomnia;
(c) low energy or fatigue;
(d) low self-esteem;
(e) poor concentration or difficulty making decisions;
(f) feelings of hopelessness.
Criterion C – During the 2-year period (1 year for children or adolescents) of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
Criterion D – Criteria for a major depressive disorder may be continuously present for 2 years.
Criterion E – There has never been a manic episode or hypomanic episode;
Criterion F – The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
Criterion G – The symptoms are not attributable to the psychological affects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., hypothyroidism).
Criterion H – The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Adjustment disorder
The assessment criteria under DSM-5 for the diagnosis of an adjustment disorder are as follows:
Criterion A – The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
Criterion B – These symptoms or behaviours are clinically significant, as evidence by one or both of the following:
1. Marked distress that is out of proportion to the severity of the intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
2. Significant impairment in social, occupational, or other important areas of functioning.
Criterion C – The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
Criterion D – The symptoms do not represent normal bereavement and are not better explained by prolonged grief disorder.
Criterion E – Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.
A diagnosis of an adjustment disorder is not made if the stress-related disturbance meets the criteria for another mental disorder, which in this case it does – specific phobia of car travel.
The Panel did not elicit symptoms characteristic of an adjustment disorder or persistent depressive disorder (PDD) and when the Panel specifically questioned Mr Tran about depressed mood, changes in appetite and energy at any point after the accident, he stated that there was no change in these symptoms from his pre-accident mental state. He attributed his insomnia primarily to his pain symptoms. He sometimes has nightmares. His anxiety revolves around driving and is consistent with his driving phobia. In the absence of a depressed mood, PDD cannot be diagnosed. Therefore, in the Panel’s opinion, Mr Tran does not have an adjustment disorder or a persistent depressive disorder. He does not have an adjustment disorder, because he does not have clinically significant anxiety and depressive symptoms (separate from his phobia), as evidenced by significant impairment in his social and occupational functioning, or marked distress that is out of proportion to the severity or intensity of the stressor.
Whilst there is reference to “flashbacks” by the GP, Dr Abdal Khan and Erin Carmody, it was clarified with Mr Tran that he did not experience true flashback phenomenon. What he described was recalling the accident when there were reminders such as seeing a smashed-up car.

Causation and reasons

Mr Tran did not suffer from a phobia of car travel prior to the accident. Having considered his symptoms onset and the characteristic nature of his psychological injury, the Panel has concluded that the accident caused his driving phobia.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment was a determination of the dispute in this matter as to whether the claimant’s psychological and psychiatric injury caused by the accident is a threshold injury for the purposes of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[18] and Insurance Australia Limited v Marsh.[19]
[18] [2021] NSW CA 287 at [40], [41] and [45].
[19] [2022] NSW CA 31 [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[20] that the claimant bears the onus of proof in establishing that an injury is not a threshold injury for the purposes of the MAI Act.
[20] [2022] NSW PICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessors Hong and Fukui in its reasons and adds the following further reasons.
The insurer makes specific reference to the following relevant passages within the certificate of the Medical Assessor:
(a)    the reference in the records of the psychologist, Erin Carmody, on 4 July 2018 that the claimant was “continuing to cope well independently, symptoms improving daily”;
(b)    the Allied Health Recovery Request dated 6 September 2018 which noted “ongoing sleeping difficulties and anxiety while driving but improving compared to initial stages following MVA”;
(c)    in the Medical Assessor’s conclusions and reasons at page 10 the comment that: “Currently he reports significant reduction in his symptoms of anxiety when driving, describing himself as “80%” better. There was no avoidance or restrictions but he still experiences some anxiety when a truck comes near him. He would therefore be regarded as being in partial remission and approaching full remissions”, and
(d)    in terms of current and proposed treatment the Medical Assessor notes that: “He is not engaged in any psychological treatment or any psychiatric treatment. He ceased the antidepressant, Agomelatine, as he reports an improvement and concerns about becoming reliant upon medication. There is no additional treatment proposed currently.”

The insurer refers to the timing of the notes made by the psychologist, Ms Carmody, and submits that the material before the Medical Assessor and the history she obtained from the claimant would support an absence of any increase in the relevant symptoms for a diagnosis of specific phobia after 9 May 2018, but as that was only four months after the accident, diagnostic criterion E would not be satisfied. It submits that the report of Dr Khan dated 16 June 2018 further supports this submission because it includes a comprehensive list of symptoms reported by the claimant but made no mention of ongoing fear or anxiety associated with driving and certainly not at the severity required for a diagnosis of specific phobia.
In David v Allianz Australia Insurance Limited [21] (David), the Panel considered the timing of when radiculopathy occurred in the context of a non-minor (non-threshold) injury. The Panel in that matter concluded that the radiculopathy was satisfied if it was present at any time.[22] We adopt those reasons insofar as they are relevant to the issues of when the psychiatric diagnosis is made.
[21] [2021] NSWPICMP 227 at [84]-[104].
[22] Ibid at [70].
The only difference in determining the relevant time for the diagnosis of psychiatric injury is that cls 5.10 and 5.11 of the Guidelines require the condition to be “present”. However, as cl 5.11 provides, the diagnosis must be made under DSM-5 which provides for a diagnosis of a specific phobia which can be described as either in partial remission or full remission depending on the circumstances of the improvement in the condition. That diagnosis made pursuant to DSM-5 describes a past condition which satisfied a diagnosable psychiatric condition.
The Panel adopts the reasoning in Lynch v AAI Ltd t/as AAMI [23] (Lynch) that a change in psychiatric diagnosis over time is not only consistent with the provisions of DSM-5 but is otherwise consistent with physical injuries. A simple fracture is a non-minor (non-threshold) injury within the meaning of the MAI Act and the fact that it subsequently heals does not change its status from being classified as non-minor (non-threshold) when the injury occurred to one being classified as minor because the injury had healed.[24]
[23] [2022] NSWPICMP 6.
[24] Lynch at [72].
Applying the decision in Lynch, just as a fracture caused by a motor accident which has healed by the time it is medically assessed remains a non-minor injury, a psychiatric injury caused by a motor accident which fulfills the diagnostic criteria under DSM-5 for the diagnosis of a specific phobia at any time after the accident remains a specific phobia and therefore a non-minor (non-threshold) injury even if the symptoms relating to that injury subsequently improve or go into remission.
The insurer also submits in relation to the history obtained by the Medical Assessor that the claimant’s anxiety was never severe enough to require him to pull over to the side of the road and submits that there is further support in relation to the absence of sufficient severity of symptoms to warrant a diagnosis of specific phobia in the clinical records. It is the Panel’s opinion that a DSM-5 diagnosis of a specific phobia of driving does not require a person to pull over. Mr Tran described driving under duress with significant anxiety after the accident. He avoided driving on the motorway where the accident occurred, but even after his symptoms started to improve, he had a persistent avoidance of the motorway where the accident occurred because it was a specific trigger for his symptoms, and this avoidant behaviour is characteristic of a specific phobia of driving. This history of the claimant’s symptoms after the accident is consistent with the history of post-accident symptoms he provided to the Medical Assessor in August 2021– that “he did not avoid driving but was anxious driving for about 1 to 1.5 years after the accident, initially experiencing palpitations if he heard a truck brake behind him or near him”, that at the time of his assessment by the Medical Assessor he felt “80% better” when he drives,[25] was able to drive but was anxious when trucks are nearby, can drive on motorways, including as far as Wollongong with a friend, and can drive on his own for periods of 30 to 60 minutes but still feels some anxiety when trucks come close to him.[26]
[25] IB p 16.
[26] IB p 17.
The Panel has determined that the claimant meets the assessment criteria under DSM-5 for a specific phobia of car travel, in partial remission, which is caused by the motor accident. This is not a threshold injury for the purposes of the MAI Act.
However, the Panel has determined on clinical assessment of the claimant that he does not meet the assessment criteria for a diagnosis of a persistent depressive disorder.

CONCLUSION

For the reasons set out above, the Review Panel revokes the certificate of Medical Assessor Barrett dated 31 August 2021. A replacement certificate is attached to the commencement of these Reasons.

[2024] NSWPICMP 740

25 October 2024