AAI Limited t/as GIO v McCartney
[2025] NSWPICMP 321
•8 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v McCartney [2025] NSWPICMP 321 |
CLAIMANT: | Judith McCartney |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
SENIOR MEMBER: | Brett Williams |
MEDICAL ASSESSOR: | Gerald Chew |
MEDICAL ASSESSOR: | Alan Doris |
DATE OF DECISION: | 8 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; where Medical Assessor (MA) found post-traumatic stress disorder (PTSD) caused by the accident not a threshold injury; Held – claimant suffered specific phobia (cars) as a result of the accident; the diagnosed psychological injury is not a threshold injury; MAC revoked as the Review Panel’s diagnosis differed from that of the MA; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of assessment of Medical Assessor Rikard-Bell dated 9 November 2023 and certifies that specific phobia (cars) caused by the accident on |
STATEMENT OF REASONS
BACKGROUND
Judith McCartney was injured in a motor accident at Kurri Kurri on 4 July 2021 (accident). Following the accident she made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer).
A dispute has arisen between the claimant and the insurer about whether a psychological injury caused by the accident is a threshold injury for the purposes of the MAI Act. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The dispute was referred to Medical Assessor Rikard-Bell for assessment. On 9 November 2023 the Medical Assessor certified that post-traumatic stress disorder that had been caused by the accident was not a threshold injury for the purposes of the MAI Act.
The insurer sought a review of the assessment under s 7.26 of the MAI Act. The President’s Delegate was satisfied there was reasonable cause to suspect that the assessment was incorrect in a material respect. The review application was accepted and referred to a review panel.
This review panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment (Review).
THE REVIEW
The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
The Review 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: s 7.26(6) MAI Act. Although styled a "review", the Panel is determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] per Leeming JA (Beazley P and Basten JA agreeing).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: rule 128.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.
DIRECTIONS
The parties were directed to provide a joint bundle and submissions for the purposes of the Review. The insurer subsequently filed a joint bundle.
The parties also filed submissions dated 18 December 2024 (insurer), 9 December 2024 (claimant), 30 January 2025 (insurer), and 4 February 2025 (claimant).
LEGAL FRAMEWORK
The term “threshold injury” is defined in s 1.6 of the MAI Act and includes threshold psychological or psychiatric injury. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(a).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) states that acute stress disorder and adjustment disorder are each included as a threshold injury for the purposes of the MAI Act. For the purposes of cl 4. “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl4(3) of the Regulations.
Part 5 of the Guidelines contains the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. With respect to the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 …
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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
The Guidelines address causation of injury as follows:
“Causation of injury
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 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.
6.7 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.”
In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J said as follows at [35]:
“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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Rikard-Bell gave a certificate and reasons dated 9 November 2023. The Medical Assessor certified that post-traumatic stress disorder caused by the accident was a non-threshold injury for the purposes of the MAI Act.
In his reasons the Medical Assessor recorded that the claimant has non-insulin diabetes, underwent a knee replacement in 2017, had a L3-L5 laminectomy in 2014, and a left shoulder replacement in 2020.
There was no prior history of anxiety, depression, or treatment for mental health. The Medical Assessor’s reasons at [9] and [10] refer to an accident in February 2020, that involved a rear end collision. He recorded that the claimant returned to work two days after the accident.
The claimant reported that she continued to be able to care for herself. The relationship with her husband had been strained. The claimant had experienced some difficulties with concentration and restrictions driving as she didn’t like going past the site of the accident. There had been six sessions of psychological treatment.
The reasons refer to the subject accident in July 2021 under the heading “Details of any relevant injuries or conditions sustained since the motor accident”. The claimant reported that after that accident she experienced difficulty sleeping, dreams about the accident, being seriously injured, and never being able to walk again. She worried about low back pain and left leg pain. The claimant reported being hypervigilant particularly when driving, that she avoids the area where both accidents occurred, and was overly cautious when driving. She was having fortnightly psychological counselling.
Medical Assessor Rikard-Bell found that the claimant developed post-traumatic stress disorder following the February 2020 accident. He did not address whether the subject accident had caused or materially contributed to the post-traumatic stress disorder.
EVIDENCE
The bulk of the evidence relied on by the parties for the purposes of the Review is contained in the joint bundle filed in accordance with the Panel’s directions. The Panel has considered all the evidence in the joint bundle.
In addition to the material in the joint bundle the insurer sought leave to rely on documents relating to an accident on 6 February 2020 (2020 accident). That material was provided with further submissions dated 29 January 2025. The insurer had earlier foreshadowed that it would seek to rely on additional material relating to the 2020 accident in its submissions dated 29 November 2024.
For the reasons given on 3 February 2025 the Panel was satisfied the insurer should be given leave to rely on the additional material because it is relevant to the issues in dispute. The claimant was given an opportunity to respond to this material[1], and did so in written submissions dated 4 February 2025.
[1] Review Panel Report and Directions dated 3 February 2025.
Reports from treatment providers
A medical certificate from Dr Demesa dated 26 November 2019 records that the claimant had been involved in a motor accident and had been unwell on 25 November 2019.
There is a referral from Dr Demesa to Dr Salaria dated 20 February 2020 for opinion and management of back pain. The referral records that the claimant had been involved in “2 MVA”. Her prior history included rheumatoid arthritis, Diabetes Mellitus, Type 2, hepatic steatosis, anxiety, vertigo, “GORD”, hypertension, neck and back pain.
A report from Dr Robyn Cody, clinical psychologist, dated 17 July 2020 records that the claimant had been referred “for assistance to regain self-confidence and reduce feelings of anxiety, which had arisen post MVA by two (having been hit from behind when parked at traffic lights in most recent accident).” The claimant reported being involved in motor vehicle accidents in November 2019 and February 2020. It was after the second accident she had become fearful, shaky, constantly on-guard when in the car, constantly scanning other cars and bracing for possible impact again. When driving she had to pull over most trips because she became “shaky, sweaty and her heart races”. She avoided driving whenever possible. She reported consistent back pain and reduced functional capacity.
In Dr Cody’s opinion the claimant was experiencing symptoms of post-traumatic stress disorder “post MVA”. CBT based treatment was recommended to address her symptoms.
In a report dated 23 November 2020 Dr Cody recorded that the claimant had attended two sessions via telehealth, had not attended further sessions since 27 July 2020, and had been discharged from care.
A report from Dr Salaria records that the claimant was “very disabled” because of back pain and was “feeling very disabled and depressed because of being in pain all the time”.
A “715 Health Check” records the claimant’s medication, medical history, “overall health”, activities of daily living and other matters. The claimant’s physical activity is described as being “minimal due to back pain”. It is recorded that she “gets frustrated and a little depressed in relation to her back pain”.
A GP Mental Health Plan dated 18 October 2022 refers to anxiety and “possible PTSD”. The patient history records that she:
“…had car accident 3x in 2 years. She started to have anxiety with driving, she feels uncomfortable and sometimes has sleepless nights because of it. She sometimes avoid[s] long distances”.
Philip Bryden-Brown, the claimant’s treating psychologist, reported to Dr Demesa on
6 August 2023. The claimant presented with a history of anxiety after being involved in three car accidents. She was first seen in November 2022. The claimant explained the source of her anxiety and requested help to cope with it so she could again drive with confidence and reduce anxiety when she is a passenger. Cognitive Behavioural Therapy (CBT) had been used with some limited success in reducing anxiety when driving, however has had minimal effect on the anxiety she experiences when she is a passenger. Further treatment was recommended.
Mr Bryden-Brown reported to the claimant’s solicitors on 18 December 2023. Mr Bryden-Brown recorded that he had been treating the claimant since 8 December 2022, and there had been a total of 10 consultations. She presented with a high level of anxiety generally, and especially both driving and being a passenger in a car after she had experienced two car accidents: the first on 6 February 2020 and the second on 4 July 2021.
The claimant reported that the two accidents had a very detrimental effect on her. Since the accidents she has experienced a greatly increased level of anxiety that has caused her to limit many of the activities of her life. In Mr Bryden-Brown’s opinion the claimant met all the criteria for post-traumatic stress disorder. She has become much more anxious generally, and reports being easily startled and hypervigilant, especially when she is in a vehicle. She has frequent disturbing memories of the incidents, especially when she is either driving or being a passenger in a vehicle. She reported re-experiencing the anxieties and feelings she experienced during the accidents when she is reminded of the events. There are number of triggers to this. She gave an example of experiencing trauma related thoughts and feelings just by seeing a red car; a red car was involved in one of the accidents. She experienced sleep disturbance and had become much more irritable generally. This was having a negative effect on relationships, particularly with her husband. There were reports of anxiousness as a passenger, startle response, distress when travelling on busy roads and in traffic tunnels. Although she had returned to driving, the claimant reported that she remains very anxious and finds it difficult to have any passengers. She has a very restricted driving range in which she feels she can manage her anxiety enough to drive, and begins worrying months before she is required to drive any longer distances. The claimant had approached her doctor regarding appropriate medications to lower her anxiety and reported that she has never used an anti-depressant in the past.
The reports of Dr Osborne, orthopaedic surgeon, relate to the claimant’s shoulders and have been considered.
Certificate and reasons of Medical Assessor Cameron
On 10 June 2023 Medical Assessor Cameron certified that soft tissue injuries to the claimant’s lumbar spine, right leg, right foot, and thoracic spine caused by the accident were threshold injuries for the purposes of the MAI Act.
The Medical Assessor’s reasons record that the claimant had been involved in two motor accidents, the first occurring on 6 February 2020. The claimant reported that the 2020 accident occurred when she was stationary at a set of traffic lights and her vehicle was hit from behind. She developed back pain that had continued. She also reported that she developed driving problems after this, with panic attacks in a vehicle, and she consulted a psychologist.
The claimant gave a history that the subject accident occurred when she was the front seat passenger in a vehicle driven by her husband. The vehicle was in a roundabout, and another vehicle impacted their vehicle in the roundabout from the passenger side. She reported that this aggravated her back pain.
The claimant reported low back pain and pain in her right leg. She was “driving a little but continues to have significant anxiety”. She had not returned to work. The Medical Assessor referred to a number of pre-existing health conditions.
In Medical Assessor Cameron’s opinion, the February 2020 accident had caused an exacerbation of low back pain. Previous vertebral compression fractures and degenerative changes were exacerbated by that accident. The subject accident resulted in a further exacerbation of her low back pain.
The Panel notes that this assessment was the subject of a review by a differently constituted panel, and that panel issued a certificate and reasons on 27 February 2024.
Report of Dr Harrington
Dr Chris Harrington, orthopaedic surgeon, reported to the insurer on 24 June 2022. The doctor took a history that the claimant experienced back pain following the February 2020 accident and exacerbated the pain as a result of the subject accident. The claimant reported that the subject accident was “far more severe” than the February 2020 accident.
The claimant reported constant back pain and symptoms in her buttock and thigh. In the doctor’s opinion she suffered an aggravation of pre-existing changes in the lumbar spine as a result of the accident. Her condition had not stabilised. The diagnosis was not clear. Her presentation was a combination of pre-existing changes and altered mechanics with foraminal stenosis at multiple levels. Neurology involving her right leg suggested an impairment at L3/4. The claimant was not fit for her pre-accident employment.
Clinical notes
The records of Hunter River Medical Centre have been considered by the Panel. The notes were printed on 25 July 2024. The first entry is dated 23 April 2019, and the last entry is dated 14 June 2024. The notes include reference to the following matters:
· various pre-accident conditions and health issues including diabetes mellitus type 2, rheumatoid arthritis, vertigo, “GORD”, and asthma;
· 26 November 2019 – “had an MVA las[t] sunday 24th wa[s][hit] at the back while stationary…complaining of neck pain limitation of motion on movement [can] do 10 degrees of [f]lexion and extension…”
· 3 December 2019 – “…neck pain has increased in the neck movement…”
· 8 February 2020- “stationary on the light last thursday running 70kph then hit the brakes slower hit at the back of car…history of bulging disc repaired 2x [last] was 7 years ago…tenderness at the back all examination including neurological is normal…”
· 12 February 2020 – “Pain continues in back following car accident on 6.2.10 with pain travelling right leg. Is now anxious when driving and wishes to discuss this further with doctor…”
· 19 February 2020 – “…stress about the car accident she finds it hard occasionally to drive or even as a [passenger] she feels tensed about it…advised psychologist…
· 15 July 2020 – “Reason for visit: back pain Stress Anxiety…”
· 2 November 2020 – “…back pain is worst after back was moved ridding the bus…”
· 17 November 2020 – “…back pain has resolved…”
· 12 January 2021 – “…back pain more on movement…”
· 23 April 2021 – “…back pain…increasing pain”
· 5 May 2021 - "…still having headache and right ankle pain had confusion yesterday had a fall last [Saturday]…”
· 24 May 2021 – “…severe back pain going to the back of the legs…”
· 7 July 2021 - "…car accident last [Saturday] 3rd of [J]uly running 40 [kph] and the lady running 60 [kph] hit the passe[n]ger side of the car…tender on the lumbar area and gluteal area…”
· 11 August 2021 – “…attachked [sic] her at the bus by a 17 year old client while at work hit on the left shoulder…left shoulder pain…”
· 15 September 2021 – “…back pain is still there…”
· 25 October 2021 – “…severe back pain retired from work because [of] it…anxiety from driving is on and off coping ok…”
· 22 November 2021 – “…chronic back pain exacerbation…”
· 1 December 2021 “…feeling sad an[d] teary eyed because of pain…’
· 8 December 2021 – “…back pain gettign [sic] worst feeling down with pain…”
· 2 May 2022 – “…severe back pain difficulty in standing for a long time….”
· 18 October 2022 – “…anxiety with [driving] difficulty in coping sometimes avoiding driving wakes up sometimes afraid…keen to see a psychologist…Mental Health Treatment Plan…Letter to Mr Philip Bryden-Brown… ”
· 23 November 2022 – “…stress with family…”
· 7 March 2023 – “…having back pain…advised [about] possible anxiety will have fentanyl…”
· 16 June 2023 – “…chronic neck pain on going for one month difficulty in moving the neck on the side sometimes has pins and needle sensation severe pain when moving…”
· 11 July 2022 – “…Mini Mental State Examination: Score 23. This result indicates that mild cognitive impairment is present…”
· 21 July 2023 – “…Diagnosis: Anxiety…”
· 23 August 2023 – “…still having [s]evere stress and trauma whenver [sic] driving and even as a passanger [sic] when there is someone who is close to her she pulls over not driving far K10 Assessment: Score 14…Letter to Mr Philip Bryden-Brown printed…”
· 14 November 2023 – “…Had a fall 5 weeks ago. On chunks of concrete at a garage sale. Landed on face. Fractured 2 ribs and cheekbone. Been in a lot of pain…seeing Phillip [sic] Brydon [sic] Brown today…”
· 19 December 2023 – “…back pain…chornic [sic] exacerbate of chronic…”
· 19 March 2023 – “…Patient has TCA in place with the following providers…psychology…still having back pain problems…”
· 14 May 2024 – “…Recommendations/Actions…continue psychology sessions with Phillip [sic] Bryden Brown…”
· 11 June 2024 – “…Pt was involved in a car accident 2 years ago which injured her back…complaining of pain from her lower back that radiates towards the R leg up to her foot Pain started about 3/52 ago Pt states that there is no improvement…”
Certificates of capacity
The Panel has considered the certificates of capacity dated 15 July 2020, 18 September 2020, 2 November 2020, 15 September 2021, 25 October 2021, 1 December 2021 and
30 December 2021.
The certificates dated 15 July 2020, 18 September 2020, 2 November 2020, 15 September 2021, and 25 October 2021 record a date of injury/accident of 6 February 2020 and refer to a diagnosis of “exacerbation of chronic back pain secondary to the accident, Anxiety with driving”, and record that there had been a referral to a counsellor. The certificate dated
18 September 2020 records that there had been referral to a psychologist.
The certificate dated 15 September 2021 records that the claimant “has no current capacity for any work” from 15 September 2021 – 15 October 2021. Anxiety with driving is again listed as a diagnosis.
The certificate dated 25 October 2021 records that the claimant “has no current capacity for any work” from 25 October 2021 – 25 November 2021.
The certificate dated 1 December 2021 records a date of accident/injury of 3 July 2021 and refers to “chronic back pain due to previous accident”. It is recorded that the claimant “stopped working on 14 October [2021] because of severe back pain”. She was certified as having no current capacity for any work from 1 December 2021 – 3 January 2022. The certificate dated 30 December 2021 is in similar terms.
Other evidence
An application for personal injury benefits dated 16 November 2021 relates to the accident. The application includes the following description of the accident:
“Was a passenger in my car was on a roundabout half way through when a lady came through and hit passenger side my car was a right off”.
The application also records:
“at the time I was not shour [sic] if I had injuries as I have ongoing back injuries from a car accident witch [sic] happen on 6-2-2020 as I have to stop working”.
The claimant recorded that the accident had made her back pain worse. It is also recorded that the claimant had been off work for various periods following the accident.
The messages between the Commission and the parties have been considered[2], as has the internal review certificate dated 10 June 2022.
[2] Pages 67 – 69 in the joint bundle.
Documents from Insurance Australia Ltd - accident on 6 February 2020
As recorded earlier, the insurer relies on documents relating to the 2020 accident.
The application for personal injury benefits dated 16 July 2020 records that on 6 February 2020 the claimant was involved in an accident at East Maitland. She described the accident in the following terms:
“I was waiting at traffic light to turn green. Wen [sic] a car hit me at the back”
The application records that as a result of the accident the claimant injured her back. She recorded that “it has affected my driving as I have panic attack [sic] wen [sic] driving”.
Particulars from the claimant’s solicitor addressed to the insurer’s solicitor record that in addition to physical injuries the claimant suffered post-traumatic stress disorder, and suffers from “anxiety, flashbacks and poor sleep”. The balance of the particulars provided have been considered[3].
[3] The request for particulars to which the particulars relate is dated 16 July 2024.
A certificate from Dr Salaria dated 11 February 2021 refers to back pain, as does a certificate from Dr Demesa dated 2 November 2020.
There is a report from Brooksight Investigations addressed to QBE Limited dated 8 February 2021. The contents of the report have been considered by the Panel. An unsigned statement from the claimant dated 14 January 2021 records as follows:
“16 I was on the New England Highway and stopped at the lights of Chelmsford Road. I was in the left lane and I was on my own at the time. I was a couple of cars back from the lights.
17 I was waiting for the lights to change green. I was there for about 1 minute.
18 While stationary I looked in my mirror and could see a car coming from behind. The car was coming at speed and I thought to myself at that time she wasn’t going to stop. When I first saw it she was only about 30 feet from me as she had just come over the crest of the hill.
19 I gripped the steering wheel and she whacked the back of my car. I don’t think the driver used the brake at all. The jolt moved me forward but not into the car in front. I had my seat belt on at the time and I think my chest may have hot the steering wheel. My airbags did not activate. The car lifted at the back and I reckon she was doing 50kph…”
The statement goes on to record that police did not attend, an ambulance was not required, and she drove home. Damage to the vehicle was repaired at a cost of “around $4,000”. The statement records at [25] that on the afternoon following the accident she “might have been in a bit of shock”. She also experienced back pain that “got worse and worse”.
It is recorded at [36] that:
“I also started to speak to a Psychologist by phone about 6 weeks after the accident. I went to Samantha Jones … I was and am still suffering from anxiety now when I drive.”
A rehabilitation plan dated 4 June 2021 recorded (among other things) that the claimant experienced “ongoing anxiety with independently driving.”
In a report dated 13 April 2021 Dr Salaria referred to back and right leg pain and noted the MRI scan findings. A report from the doctor dated 11 May 2021 referred to “disabling” back and right leg pain. Surgery had been discussed. Dr Salaria reported on 1 June 2021 that because the claimant’s back and right symptoms had deteriorated, she wanted to have surgery “as soon as possible”.
A rehabilitation report dated 27 May 2021 records that the claimant was working part-time. There was a past history of a left shoulder replacement in September 2020 and back surgery for a bulging disc “7-8 years ago”. The claimant reported difficulty standing and driving her car due to back pain and right leg pain. The findings and the claimant’s self-reported functional capacity, including activities of daily living, have been considered by the Panel, as have the recommendations made by the occupational therapist who prepared the report.
The rehabilitation closure report dated 15 October 2021 records that the claimant had not returned to “pre-accident level of employment” due to functional decline in both legs and pain.
On 9 November 2023 Medical Assessor Rikard-Bell certified that the claimant had a post-traumatic stress disorder caused by the accident on 6 February 2020 that was not a threshold injury.
In his reasons the Medical Assessor recorded that prior to the 2020 accident the claimant was caring for herself well, her relationship with her partner was good, and was able to concentrate well. She socialised regularly and was able to work five hours a day, five days a week as an assistant travel officer. The claimant could travel without any problems. There was no prior history of anxiety, depression or need for treatment from mental health care providers.
Following the 2020 accident the claimant’s relationship with her husband had been strained, there were some difficulties with concentration, and she was unable to socialise as much. She missed work due to pain and anxiety. While able to travel, she restricted her driving as she does not like going past the site of the accident. She received psychological treatment. There was then an accident on 4 July 2021 that made her “very nervous and anxious”.
The Medical Assessor recorded that the claimant’s:
“…main perception was that she was involved in two motor vehicle accidents and there is anxiety which significantly restricts her life…the main issue she is struggling with currently is the chronic pain, anxiety in relation to her back injury, anxiety when driving and intrusive recollections.”
The Medical Assessor stated that the claimant “never fully recovered from the accident of
6 February 2022 which made her symptoms worsen following the second motor vehicle accident of July 2021”. The Panel infers that reference to an accident on 6 February 2022 is a typographical error, and that the Medical Assessor intended to refer to the accident on
6 February 2020.
The Medical Assessor found that the claimant developed post-traumatic stress disorder as a result of the 2020 accident that had been aggravated by the 2021 accident.
SUBMISSIONS
Insurer’s submissions
The insurer relies on written submissions dated 29 November 2024. The submissions refer to the claimant’s involvement in a previous motor vehicle accident on 6 February 2020. The insurer argues that while Mr Bryden-Brown diagnosed the claimant with post-traumatic stress disorder “there is no apportionment offered between the accidents” and he did not “suggest any increase in symptoms following the subject accident.” In the insurer’s submission, if the post-traumatic stress disorder “arose as a result of the first accident, it cannot be accepted that the post-traumatic stress disorder arose as a result of the subject accident.”
The insurer argued that the records from Hunter River Medical Centre establish that the claimant has suffered a number of ongoing medical complaints and chronic health conditions unrelated to the accident, and that “those comorbid health conditions would reasonably be expected to affect the claimant’s overall mental health.”
The insurer refers to the possibility that the claimant was involved in a motor accident in 2019. At [15]-[19] the insurer identifies evidence that refers to this accident.
At [20]-[27] the insurer identifies evidence relating to the 2020 accident that refers to psychological symptoms and treatment following that accident.
With respect to the subject accident, the insurer argues that there is a:
“lack of reference to psychological symptoms in the GP file, or for that matter, in the context of the subject accident. The records show the claimant frequently attends the GP practice, sometimes every couple of days.”
The insurer submits that despite the frequency of her visits, and multiple symptoms recorded, there was no reference to any psychological symptoms following the accident “for some time”. In this regard, the insurer refers to the following:
(a) an “Adult Health Assessment” dated 9 March 2022 which listed multiple medical conditions, but “does not appear to have referenced any psychological symptomatology”;
(b) the first GP Mental Health Treatment Plan to mention psychological symptomatology was not created until 18 October 2022, approximately 15 months post-accident. The provisional diagnosis was anxiety, with the following history recorded:
“[the claimant] had car accident 3x in 2 years. She started to have anxiety with driving, she feels uncomfortable and sometimes has sleepless nights because of it. She sometimes avoid driving long distances.”
The insurer notes that the document does not identify which accident may have caused those symptoms;
(c) a clinical entry of 18 October 2022 noted “pain is disabling declined by insurance company” further “anxiety…with driving, difficulty in coping sometimes, avoiding driving, wakes up sometimes afraid.” The insurer noted that when the claimant attended on this occasion, she had attended her GP approximately 62 times between 4 July 2021 and 18 October 2022;
(d) after 18 October 2022, the GP records do not appear to document any other psychological symptoms attributed to any of the motor vehicle accidents until 23 August 2023, despite the claimant attended the practice on approximately 33 times between 18 October 2022 and 23 August 2023, and
(e) after 23 August 2023, there was no reference to any further psychological symptoms related to any of the accidents, up until the time records were produced in August 2024.
The submissions also refer to the history in the GP notes recorded on 11 August 2021 that the claimant had been attacked on a bus by a 17-year-old client while at work.
The insurer also relies on written submissions dated 18 December 2024. Those submissions were provided in response to the Panel’s direction dated 12 December 2024. In addition to matters addressed in the insurer’s 29 November 2024 submissions, the insurer’s further submissions refer to the claimant’s involvement in an accident on 6 February 2020, some 15 months prior to the accident the subject of this assessment. The submissions refer to:
(a) a report dated 24 June 2020 in which it was recorded the claimant walked “with a limp because of her lumbar degenerative scoliosisasymmetric disc collapse vacuum phenomenon and widespread spondylosis changes along with T12 osteoporotic fracture”;
(b) a report of Dr Salaria dated 16 December 2021 that refers to the claimant having undergone a lumbar canal decompression 7 to 8 years prior;
(c) the MRI lumbar spine findings recorded in a report dated 17 March 2021, and
(d) various reports from Dr Salaria that record details of the claimant’s complaints, treatment, and progress in relation to her back complaints.
The insurer argues that the claimant was “symptomatic” at the time of the accident, noting that lumbar spine fusion surgery had been recommended a short time before the accident.
The insurer argues that pathology identified in post-accident radiology (CT scan report dated 8 July 2021, MRI scan report dated 26 November 2021, EOS of the full spine performed on 11 January 2022, bone scan dated 10 January 2022, and CT scan of the lumbar spine dated 6 May 2022) is “no different to that detected on pre-accident imaging.”
The insurer also relies on Dr Harrington’s opinion that the claimant’s back condition was “chronic”, and consistent with underlying spinal changes which had been aggravated by the accident.
The insurer provided written submissions addressing why Medical Assessor Rikard-Bell’s assessment was incorrect in a material respect, including: that he assessed the wrong accident (6 February 2020), referenced the wrong submissions from both the claimant and the insurer, and referred to a report that was not before him. The insurer argued that the Medical Assessor failed to provide sufficient reasons for his decision, failed to disclose his pathway of reasoning, and did not provide any explanation as to why the claimant suffered an exacerbation of post-traumatic stress disorder as a result of the accident.
The insurer argued that the injuries suffered by the claimant as a result of the accident are threshold injuries, and that any non-threshold injuries are a result of the claimant's pre-existing injuries.
In written submissions dated 30 January 2025 the insurer refers to the following matters:
(a) in the Application for Personal Injury Benefits dated 16 June 2020 the claimant stated the 2020 accident “has affected my driving has I have panic attack wen [sic] driving”;
(b) in her unsigned statement dated 14 January 2021 the claimant noted that six weeks after the accident she spoke to a psychologist, Samantha Jones, and noted that she continued to suffer from anxiety when driving, and
(c) a Rehabilitation Plan of Rehabilitation Services dated 4 June 2021 records that the claimant reported she was experiencing ongoing anxiety when independently driving.
At [11]-[14] the insurer identifies what it argues are errors in Medical Assessor Rikard-Bell’s reasons.
The submissions at [15]-[20] address causation of injury. The insurer submits that any psychological symptoms that may have emerged following the subject accident fall into Oakley “category 2”. In the insurer’s submission the records demonstrate the claimant reported ongoing psychological symptoms following the 2020 accident, namely anxiety and panic attacks while driving.
The insurer submits that the pre-accident records of Dr Salaria, specifically the reports dated 11 May 2021, 13 April 2021, and 1 June 2021, record that the claimant reported: her physical injuries were affecting her ability to walk; that she was confined to her home; and that she was gradually feeling disabled. She also noted that “because of the increasing pain and disability which is affecting all aspects of her life and she is restricted to stay home now”.
The insurer argues that “the pathway of the claimant’s psychological symptoms beyond
6 February 2020 would have remained regardless of the occurrence of the subject accident”.
At [21]-[27] the insurer addresses “exacerbation of an injury”. The insurer submits that:
(a) s 1.6 of the MAI Act and cl 5.11 and 5.12 of the Guidelines “render it clear that the claimant must establish that she has suffered a recognised psychiatric illness pursuant to the DSM-V as a result of each motor vehicle accident”;
(b) this requirement is necessary regardless of whether there is a pre-existing psychiatric illness at the time of the motor accident, and
(c) should the Panel accept the claimant sustained an “aggravation” or “exacerbation” of a pre-existing psychiatric illness in the accident, the Panel “must still consider, pursuant to Section 1.6 of the Act and Clause 5.12 of the Guidelines, whether the ‘aggravated symptoms’ amount, by themselves, to a recognised psychiatric diagnosis pursuant to the DSM-V”.
The insurer submits that the Panel should distinguish between the claimant’s symptoms and diagnosis resulting from the 2020 accident and those arising from the 4 July 2021 accident, “while also considering the provisions of section 1.9(2) of the Act”[4].
[4] Section 1.9 of the MAI Act states as follows:
“1.9 General restrictions on application of Act
(cf s 3A MACA)
(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”
The insurer argues that the provisions of the Act and Guidelines “necessitate that the claimant must satisfy the DSM-V criteria for a recognised psychiatric disorder for each accident in order to establish a non-threshold psychiatric condition attributable to same”.
Claimant’s submissions
The claimant’s written submissions dated 9 January 2024 address the submissions filed by the insurer in support of its application for a review of Medical Assessor Rikard-Bell’s assessment. The submissions respond to each ground relied on by the insurer in support of its argument that the assessment was incorrect in a material respect. The claimant submitted that the application should be dismissed.
The claimant relies on written submissions dated 9 December 2024. Those submissions refer to cl 6.5-6.7 of the Guidelines, and from [5]-[12] refer to decisions of the Supreme Court and the Commission that address the test to be applied with respect to causation.
In addition to addressing the test of causation she submits should be applied by the Panel, the claimant argues that:
(a) with respect to the insurer’s submission that her unrelated health complaints and chronic health conditions “would reasonably expected to affect [her] overall mental health”, there is no requirement for the accident to be a sole cause of the post-traumatic stress disorder. Even if she suffered unrelated health complaints and chronic health conditions, and even if these were co-contributors to the worsening of the pre-existing post-traumatic stress disorder, this does not prevent the accident from having made a material contribution to the worsening of the post-traumatic stress disorder, thereby establishing the necessary causal link;
(b) the evidence does not support a finding that the incident in which she was attacked on a bus and/or the 2019 motor accident are “responsible for” her post-traumatic stress disorder symptoms;
(c) the insurer’s submissions addressing the absence of psychological complaints recorded in the GP notes “should not be attributed any weight or significance”, and
(d) the opinion of Mr Bryden Brown is significant and persuasive with respect to causation.
The claimant argues that the evidence of Mr Bryden Brown supports a finding that the accident materially aggravated and worsened the post-traumatic stress disorder caused by the 2020 accident. In her submission, the Panel should find that her post-traumatic stress disorder caused by the 2020 accident was aggravated and worsened as a result of the accident.
The claimant’s written submissions dated 4 February 2025 are in response to the insurer’s submissions dated 30 January 2025 and the evidence filed with those submissions, and address causation. The submissions refer to and rely on the reasons expressed by a Review Panel in QBE Insurance (Australia) Ltd v Hoblos [2023] NSWPICMP 209 at [150] and [179]. In the claimant’s submission “all that is required” is that the accident made a material contribution to her worsened but pre-existing post-traumatic stress disorder.
RE-EXAMINATION REPORT
The claimant was re-examined on 7 April 2025 by Medical Assessors Chew and Doris via MS Teams. She was unaccompanied for the interview although her granddaughter was present briefly to help her set up the technology. The claimant was located in the lounge room at her home.
Psychosocial history and pre-accident history.
The claimant lives with her husband of 58 years. She had four children however lost a child 14 years ago who died after complications of an accident. She has three daughters who she is close to, grandchildren and great grandchildren. She said that she was in almost daily contact with all of them by phone and they often popped in.
She reported that she is in receipt of the Aged Pension and last worked around a year after the accident.
The claimant reported that she was born and raised in Sydney. Her mother passed away when she was around 29 and her father passed away when she was in her mid-60’s. She has three brothers, two of whom passed away recently.
She described a good and happy childhood with lots of friends. She left school aged 14 because her mother was unwell and looked after her younger brothers. Her mother had psychiatric hospitalisations and required Electro Convulsive Therapy. She was unsure of the diagnosis. Despite this stressor, she viewed her adolescence as good and was happy to take on the role and responsibility. She entered the workforce young and has worked on and off in labouring work most of her life. Her last job was as a transport assistant for the Department of Education, helping with the transport of children with disabilities. She married age 19 and had significant time off with her children as a homemaker.
The claimant denied any psychological or psychiatric history prior to a motor accident on 6 February 2020.
She described that accident on 6 February 2020. She was a seat belted driver of her vehicle stationary at traffic lights. An older car hit her from behind. No airbags were deployed. She said that she was “jolted over the steering wheel”. She got out of the car and said that the driver of the other car was yelling abuse. She was able to drive the car home. She called work to say she couldn’t come in. She said that she developed back pain and saw her GP around two days later. She said that she continued to drive and function and the impact to her mental health was relatively minimal after this more minor accident.
History of the Motor Accident
The subject accident occurred on 4 July 2021. The claimant reported that she was a passenger in the same vehicle involved in the 2020 accident. Her husband was driving, and they were delivering a cake for her grandson’s birthday. They were “halfway through a round about” when a car came from their left and struck the vehicle in between the left front and back doors. They got out of the vehicle. Initially the vehicle couldn’t be driven however a bystander helped bend the car back to a drivable condition. They drove home. The car was later written off.
History of Symptoms and Conditions Following the Motor Accident
The claimant reported that within 24 hours her back pain got worse. She also noticed that she became increasingly scared and worried about driving or being in a car. She avoided driving or being a passenger. She however preferred being a passenger to driving herself. She has a great deal of anticipatory anxiety if she has to go anywhere. She wakes up in sweats from bad dreams relating to accidents. She gets anxious in cars and has had panic attacks.
Injuries or Conditions since the accident
There have been no other significant injuries, conditions or stressors identified after the motor accident. The history in the clinical notes of the claimant being attacked by a client in August 2021 has been noted and considered.
Current and Proposed Treatment
The claimant reported that she attends her GP regularly. She attends a psychologist every
3-4 weeks and has done so for “over 2 years”. She uses fentanyl patches for back pain and takes medication for hypertension. She uses “puffers” for mild asthma and takes 500mg metformin daily for type II diabetes. She does not take any psychotropic medication.
Mental State Examination
The claimant appeared her stated age and was reasonably groomed. She had a reactive effect. She reported her mood was ok but that she was anxious and stressed when having to get in a car. Her speech was of normal rate, rhythm, volume and prosody. There was no abnormal psychomotor activity. There was no evidence of psychosis. She was oriented to time, place and person. There were no suicidal thoughts.
Current functioning
The claimant is independent with self care and activities of daily living. Her husband does most of the cleaning because of her back pain. She does most of the cooking and does the bed. She is able to drive in the local area with significant anxiety.
She has managed to enjoy an eight day cruise. The claimant said that they were picked up in a limousine which was extremely anxiety provoking however the cruise itself caused no issues.
The claimant has reduced social activity because of her decreased ability to travel, however she maintains good relationships with family and friends. She previously regularly attended bingo and this has now reduced.
Her concentration is subjectively reduced however there were no deficits noted during interview. She crochets at home as a hobby and enjoys watching movies and crossword puzzles. She has not been able to maintain her job because of the need to travel.
Consistency of Presentation
Her history and presentation were internally consistent.
Diagnosis
The claimant has a specific phobia (cars) 300.29 (F40.248).
Criterion A: She presents with marked fear and anxiety about driving or travelling in a car.
Criterion B: Driving or travelling in a car almost always provokes immediate fear or anxiety.
Criterion C: She avoids driving or being a passenger at times and at other times she endures it with intense fear and anxiety.
Criterion D: The fear and anxiety is out of proportion to the actual danger posed by the situation.
Criterion E: The symptoms are persistent and have lasted more than 6 months.
Criterion F: The symptoms cause clinically significant distress and have caused impairment in functioning
Criterion G: The disturbance is not better explained by the symptoms of another mental disorder.
The specific phobia was caused by the accident on 4 July 2021. The claimant has a persistent fear of the situation of being in a car and of sustaining further physical injury with exacerbation of her chronic pain.
The medical members of the Panel are not satisfied that the claimant suffers from post-traumatic stress disorder as a result of the accident on 4 July 2021. In particular she does not meet criterion D with the requisite negative alterations in cognitions and mood. The claimant has prominent fear of exposure to the aversive situation of being in a car in the future consistent with a phobia of that situation rather than typical re-experiencing phenomena due to a past event characteristic of post-traumatic stress disorder. Diagnostically the more significant discriminating factor between post-traumatic stress disorder and specific phobia is whether criterion D for post-traumatic stress disorder is met or not.
The 2020 accident caused an adjustment disorder with anxiety. It did not cause post-traumatic stress disorder. Having considered the history of the accident reported by the claimant when she was re-examined, and the documentary evidence containing descriptions of the accident, the medical members of the Panel determined that the accident was not of the nature to fulfil criterion A for post-traumatic stress disorder.
With respect to the 2020 accident, the claimant experienced a significant stressor when struck from behind by another vehicle while stationary at traffic lights. She developed anxiety symptoms which caused a significant impairment in social function with strains in the relationship between the claimant and her husband, and some reduction in her general socialisation. The symptoms and impairment following the 2020 accident indicated the development of an adjustment disorder with anxiety, as criteria for no other mental disorder were met, and symptoms did not indicate exacerbation of a pre-existing disorder or a reaction to bereavement.
The November 2019 accident did not result in a psychological injury.
Causation
The specific phobia was caused by the subject accident. Prior to the accident she did not meet criteria for specific phobia as she continued to work as a transport support officer and criterion C was not met. There are no other precipitating causes identified which could have caused the specific phobia. The temporal development of her symptomatology is consistent with the 2021 motor accident causing the specific phobia. The accident is the predominant factor in the causation.
DETERMINATION
The Panel, comprised of two specialist medical practitioners and a Member, is not required to choose between competing medical opinions and is required to form its own opinion: Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91 at [78] per Adamson JA (Payne and Stern JJA agreeing).
The Panel finds that the 2019 accident did not result in a psychological injury. The Panel gives weight to the report of Dr Cody dated 17 July 2020 in which the doctor recorded a history that it was after the 2020 accident she experienced psychological symptoms. The Panel has also given weight to the absence of psychological symptoms recorded after the 2019 accident in the Hunter River Medical Centre clinical notes.
The Panel has evaluated the evidence relating to the 6 February 2020 accident. That evidence includes the opinions of Medical Assessor Rikard-Bell, Dr Cody, and Mr Bryden-Brown, who found that as a result of the 2020 accident the claimant developed post-traumatic stress disorder.
The Panel gives weight to the clinical judgement of its medical members and their opinion that the 2020 accident does not meet criteria A of the diagnostic criteria for post-traumatic stress disorder, and that the claimant’s symptoms following that accident are better explained by an adjustment disorder with anxiety.
The Panel finds that the claimant does not suffer from post-traumatic stress disorder as a result of the accident on 4 July 2021. The Panel agrees with and adopts the opinion of its medical members that:
(a) the claimant does not meet criterion D for post-traumatic stress disorder with the requisite negative alterations in cognitions and mood, and
(b) the claimant has prominent fear of exposure to the situation of being in a car in the future consistent with a phobia of that situation rather than typical re-experiencing phenomena due to a past event characteristic of post-traumatic stress disorder.
Having weighed the totality of the evidence the Panel is satisfied that as a result of the accident on 4 July 2021 the claimant suffered a psychological injury diagnosed as specific phobia (cars). The Panel gives particular weight to the opinion of its medical members that the claimant fulfills the diagnostic criteria for this condition, and that it was caused by the accident. The finding by the medical members of the Panel that the accident caused a specific phobia (cars) was reached following their re-examination of the claimant and review of the medical evidence before the Panel.
For the reasons given by the medical members of the Panel in their re-examination report, the Panel is satisfied that prior to the accident on 4 July 2021 the claimant did not meet the diagnostic criteria for specific phobia (cars). Prior to the accident she continued to work as a transport support officer, a factor that the medical members of the Panel considered was significant in terms of this diagnosis.
The temporal development of the claimant’s symptomatology is consistent with the accident on 4 July 2021 causing the specific phobia. The Panel finds that the accident was a necessary condition of the occurrence of the specific phobia (cars), and but for the accident, the claimant would not have developed this condition.
Specific phobia (cars) is not a threshold injury. Accordingly, the Panel finds that specific phobia (cars) caused by the accident is not a threshold injury for the purposes of the MAI Act.
The Panel’s finding that the claimant suffers specific phobia (cars) as a result of the accident differs from Medical Assessor Rikard-Bell’s assessment, as recorded in his certificate dated 9 November 2023. For this reason, the Panel revokes the Medical Assessor’s certificate and certifies that specific phobia (cars) caused by the accident on 4 July 2021 is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017.
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