Agyei v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Agyei v AAI Limited t/as AAMI [2025] NSWPICMP 383
CLAIMANT:	Adelina Agyei
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Himanshu Singh
DATE OF DECISION:	30 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury and treatment disputes; Medical Assessor certified adjustment disorder with mixed anxiety and depressed mood caused by accident was a threshold injury and referral to a psychiatrist relates to psychological injury caused by the accident and is reasonable and necessary in the circumstances; Held – post-traumatic stress disorder (PTSD) caused by the accident was not a threshold injury; MAC revoked; new certificate issued; certificates relating to treatment confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of assessment of Medical Assessor Fukui dated 8 October 2023 and certifies that post-traumatic stress disorder caused by the accident on 14 February 2021 is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017. 2. Confirms the certificates of assessment of Medical Assessor Fukui dated 8 October 2023 as to: (a) whether the request for referral for a consultation with Dr Kuljic, psychiatrist, relates to the injury caused by the accident on 14 February 2021, and (b) whether the request for referral for a consultation with Dr Kuljic, psychiatrist, is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

BACKGROUND

Ms Adelina Agyei (claimant) was injured in a motor accident at Bankstown on 14 February 2021 (accident). She subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer).
These proceedings relate to disputes between the claimant and the insurer as to whether for the purposes of the MAI Act:
(a) a psychological injury caused by the accident is a threshold injury, and
(b) referral to Dr Kuljic relates to the psychological injury caused by the accident and is reasonable and necessary in the circumstances.
The disputes are medical disputes, as defined by s 7.17 of the MAI Act, and medical assessment matters: Schedule 2 cl 2(b) and (e) of the MAI Act.
The disputes were referred to Medical Assessor Fukui for assessment. On 8 October 2023 the Medical Assessor certified that adjustment disorder with mixed anxiety and depressed mood caused by the accident is a threshold injury for the purposes of the MAI Act. The Medical Assessor also certified that the referral to Dr Kuljic relates to the injury caused by the accident and was reasonable and necessary in the circumstances.

The claimant sought a review of Medical Assessor Fukui’s assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect the assessment was incorrect in a material respect. The review application was accepted and referred to this review panel (Panel) 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.
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

On 7 February 2025 the Panel made directions for the provision of an agreed bundle that contained all material relied on by the parties for the purposes of the Review, together with written submissions relied on by the parties in the Review. A joint bundle was subsequently filed.
Despite the Panel’s explicit direction that each party should lodge only one set of written submissions, the joint bundle contains multiple sets of written submissions from each party. Parties in medical review proceedings should ensure they comply with directions made by review panels, including with respect to the provision of submissions for the purposes of the review.

STATUTORY PROVISIONS

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.
The procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act is contained in Part 5 of the Guidelines.
In respect of 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 and 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 state as follows with respect to causation of injury:
“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 held 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]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act.
An injured person is entitled to statutory benefits for the reasonable cost of treatment and care incurred in connection with providing treatment and care for the injured person: s 3.24.
No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned: s 3.24(2).
For the accident to have been causative of the need for the proposed treatment, it would have to have made at least a material contribution to the need for the treatment.
The Panel is required to consider whether the proposed treatment would not have arisen but for the occurrence of the accident: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 at [29].

MEDICAL ASSESSMENT UNDER REVIEW

On 8 October 2023 Medical Assessor Fukui certified that adjustment disorder with mixed anxiety and depressed mood caused by the accident is a threshold injury for the purposes of the MAI Act, and that the referral to Dr Kuljic relates to the injury caused by the accident and was reasonable and necessary in the circumstances.
The Medical Assessor recorded that the claimant denied significant medical history. There was no psychiatric history. Following the accident the claimant reported pain. She was prescribed medication and referred for physiotherapy. Her symptoms did not improve, and she was subsequently referred to a pain specialist.
The claimant “could not continue her job because of pain and stopped driving for a year because she felt ‘scared’”. She also reported feeling a “bit scared to go on the road” and experienced flashbacks of the accident when in the car. She was worried that someone would rear-end her again and felt nervous in the car. She stated that she is not as anxious when she is a passenger in a car as she has no responsibility.
The claimant reported that she was referred to a psychiatrist and had seen them on three occasions. She was prescribed an antidepressant medication, and started seeing a psychologist, Dr Chee, sometime during 2022 due to increased emotional distress. She stated that prior to that her mother was her primary support.
The claimant reported that she feels low in mood because of the losses in her life since the accident with less enjoyment and she worries every day about life. She lacks energy and finds it difficult to socialise.
The Medical Assessor determined that the claimant’s psychological condition is consistent with an adjustment disorder with mixed anxiety and depressed mood. She developed anxiety and depressive symptoms in response to the stress of the accident and her chronic pain continues to be a stressor. Her symptoms did not, in her opinion, meet the DSM-5 diagnosis for major depressive disorder, post-traumatic stress disorder, or an anxiety disorder.
The Medical Assessor was satisfied that the referral to Dr Kuljic was both causally related to the psychological injury sustained in the accident and reasonable and necessary in the circumstances.

EVIDENCE

The documentary evidence relied on by the parties in the Review is contained in a joint bundle filed in accordance with directions made by the Panel on 7 February 2025. The Panel has considered all the material contained in the joint bundle.
At the direction of the Panel the referral from Dr Oreb to Dr Kuljic dated 9 November 2021 was also filed. The direction was made because, while reference is made to the referral in the written submissions, it was not included in the joint bundle.
A discharge referral from Bankstown Lidcombe Hospital records that the claimant attended the hospital on 14 February 2021 and reported being involved in a motor vehicle accident. The referral records:
“…driver of stationary car, was rear ended at low speed
hit a car in front
Nil LOC
has neck pain
unable to mobilise well after the incident
was wearing seat belt
air bags not deployed
I neck pain, lower thorasic [sic] spine
S stable vitals…”
In her undated application for personal injury benefits the claimant provided the following description of the accident:
“I was stopped at traffic lights when a car suddenly rear ended me. An ambulance came to take me & my sister to hospital. The force of the impact from behind caused us to hit the car in front.”
In addition to physical injuries, the claimant recorded that she received “psychological trauma” as a result of the accident.
Dr Oreb’s referral letter to Dr Kuljic dated 9 November 2021 refers to the accident, flashbacks, and poor concentration. It also records “? Post traumatic stress disorder”.
In a report dated 25 February 2022 Dr Kuljic recorded that the claimant suffered intrusive memories, flashbacks, and nightmares related to the accident. In the doctor’s opinion the claimant presented with symptoms of post-traumatic stress disorder. She required further treatment, including medication.
Various reports from Dr Manohar, radiological reports, and certificates of capacity have been considered by the Panel. A certificate dated 31 December 2021 includes reference to “depression”. There is a reference to low back pain, left knee pain, and neck pain in

Dr Manohar’s reports. On 9 August 2021 Dr Manohar recorded that the claimant was unable to sleep because of pain and was “very traumatised”.
A report from Dr Oreb dated 3 July 2021 records that the claimant presented for the first time on 1 March 2021 with a history of being involved in a motor accident on 14 February 2021. She reported headaches, neck, back, chest, and bilateral knee pain. The doctor diagnosed “post traumatic mechanical derangement” of the cervical spine, thoracic lumbar spine, right knee and right hip. The Panel infers that reference to “P.T.M.D” in the diagnosis section of certificates completed by the doctor is a reference to “post traumatic mechanical derangement”.
Handwritten clinical notes from Dr Oreb include reference to the following:
(a)    22 March 2021 – stressed with pain;
(b)    22 April 2021 - stressed with pain in neck and back;
(c)    20 May 2021 – stressed with pain;
(d)    17 June 2021 – pain focussed;
(e)    20 July 2021 – stressed with pain in back, and
(f)    17 August 2021 – stressed with pain.
The photographs in the joint bundle have been considered by the Panel. The photographs depict the vehicles involved in the accident in situ at the accident scene. Damage to the rear of the silver Toyota can be clearly seen, as can damage to the front of a black Mazda.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 25 August 2021. The submissions record that in addition to experiencing difficulties with managing ongoing pain in her neck and back which causes stress, anxiety, low mood, negative thoughts, and insomnia, the claimant also experiences post-traumatic episodes, which include fear of driving and the scene of the accident.
She argues that the clinical notes of Dr Oreb reveal regular reports of disproportionate and persistent thoughts about the seriousness of her symptoms and anxiety and stress caused by her pain which are met with regular requests for treatment, management and investigation of her reported symptoms which has been persistent since the accident. In this regard, reference is made to various entries in Dr Oreb’s clinical notes.
The claimant argues that her reported psychological symptoms are indicative of a somatic symptom disorder and/or post-traumatic stress disorder, which are “non-minor” psychiatric injuries for the purposes of the MAI Act.
In written submissions dated 1 February 2022 the claimant submitted that she suffers physical and psychological symptoms following the accident. Her case is that her symptoms include post-traumatic episodes, such as fear of driving and the scene of the accident.
The claimant relies on her report of “psychological trauma” in her claim form, and references in Dr Oreb’s notes to her being “stressed”. She also relies on reference by Dr Oreb in his referral to Dr Kuljic to “flashbacks, insomnia, and poor concentration”, and that she may be suffering from post-traumatic stress disorder.
The claimant submits that her psychological symptoms have persisted since the accident, and “are indicative of a somatic symptom disorder and/or post-traumatic stress disorder which need to be investigated and treated by a psychiatrist”.
In written submissions dated 3 November 2023 the claimant argues that “substantial and fundamental failures” on the part of Medical Assessor Fukui resulted in her assessment being “incorrect in…demonstrable and material respects”. Those failures related to the Medical Assessor’s questioning of the claimant, her reasoning, and her findings.
The claimant’s case is that she satisfies the diagnostic criteria for post-traumatic stress disorder, a “non-threshold” injury.
The claimant’s submissions at [18] – [24] address the psychiatric impairment rating scale (PIRS). That scale is used to assess permanent impairment arising from a psychological injury, not the diagnosis of a psychological condition; the DSM-5-TR is used for that purpose.

Insurer’s submissions

The insurer’s written submissions dated 28 February 2022 relate to a dispute about whether consultation with Dr Kuljic is “reasonable and necessary in the circumstances” and relates to the injury caused by the accident.

The insurer submits that while the clinical entries of Dr Oreb noted some stress, they failed to provide any evidence indicative of depressed mood and the first reports of the claimant experiencing poor concentration, insomnia and flashbacks was in the form of a referral to a psychiatrist received in November 2021.
The insurer further submits that the claimant was not referred for any psychological intervention with a counsellor or psychologist before the referral to the psychiatrist, and therefore “other treatment methods have not been pursued”. Accordingly, the insurer argues that the request for a consultation with a psychiatrist will not assist with the claimant’s recovery and therefore should remain denied.
Further, in the absence of any contemporaneous medical evidence to support a diagnosis in accordance with DSM-5 in relation to the accident, the insurer submits that the claimant’s alleged psychiatric injury is not related to the accident and a consultation with a psychiatrist is not reasonable and necessary in the circumstances.
In written submissions dated 24 November 2023 the insurer argued that, for the reasons set out at [6]-[9] and [15]-[32] the claimant had failed to identify any material error in the Assessment. In the insurer’s submission, the Medical Assessor: provided sound and thorough reasoning when reaching her diagnosis; considered the relevant evidence and alternative non-threshold diagnoses of post-traumatic stress disorder, major depressive disorder and anxiety disorder, and recorded a comprehensive description of the claimant’s symptoms and history.
With respect to the claimant’s submissions that the Medical Assessor should have diagnosed post-traumatic stress disorder, the insurer submits that while there may be a reference to “?PTSD” in a referral to a psychiatrist, there has been no “formal” diagnosis of post-traumatic stress disorder by any treating practitioner.

RE-EXAMINATION

The claimant was re-examined on 30 April 2025 by Medical Assessor Singh and Senior Medical Assessor Mason via MS teams.

HISTORY

Psychosocial history and pre-accident history

The claimant was born in Ghana. She had a normal full-term birth, normal growth and denied any delay in milestones. She was very independent growing up and she did everything by herself. The claimant stated that she grew up with her dad and her younger sister and had aunties, uncles and grandparents. She does not know her biological mother.
The claimant denied any trauma, bullying, or abuse growing up. She finished year 12 and then she went to further study a diploma in nursing. She was in her third year and could not finish it because her dad got married and they moved to Australia.
The claimant moved to Australia in 2018. She did a Certificate IV in aged care. She applied for university but could not afford to go due to the fees. She got her first job at Kmart and then she worked with an agency looking after people with disability. She did a warehouse store person job later which was a full-time role and she was working from Monday to Friday and sometimes on weekends as well.
The claimant stated that she was in a relationship and had a boyfriend in Ghana and they stayed connected via electronic media for some time after she moved to Australia but they broke up later on. She had not been in any relationship since then. The claimant stated there is no past psychiatric history.
The claimant stated there is no past history of any physical illness. There is no history of previous surgery or history of receiving long-term treatment.
The claimant denied any previous motor vehicle accident claims and previous work-related injuries. She denied any forensic history and denied any drug and alcohol issues.

History of the motor accident

The claimant stated that she had a motor vehicle accident on 14 February 2021 sometime in the afternoon. She was with her younger sister who was in the front passenger seat. They stopped at a traffic light to turn right. They were waiting and it was a 60km zone when their stationary car was hit from behind. Her car was pushed forward and hit the car in front and there were two cars in front of her which got hit as well.
There were four cars involved in the accident. The claimant stated that she does not know what happened after that. She stated that her airbags were deployed. She was the driver of the car. She felt something in her head after the crash and does not know what happened. Someone opened her door and they checked on her. She stated she does not remember what happened and probably they were the ambulance paramedics. She next found herself in the ambulance. She could hear what was going on but she could not do anything about it. She was helped by people and was in the ambulance and taken to the hospital. She felt neck and right knee pain.
She stated she later discovered she had bruises and cuts but she does not remember that. At hospital she was given a support collar for her neck to make it stable and also given a temporary wheelchair. She was admitted overnight in the hospital and had some scans. She was sent home the next evening after she was investigated and given pain relief. Following the accident she was in severe pain, mainly in her neck, knee on the right side and lower back. She took time off work and saw her general practitioner (GP) every now and then and was taking medications.

History of symptoms and treatment following the motor accident

The claimant stated that everything changed following the accident. She was in chronic pain. Her parents helped her with a lot of things. She needed help to climb the stairs in the house and she became dependent on her parents for basic things at home. The pain would come and go but it was quite severe. She was prescribed medication such as Panadeine Forte and another pain medication and was referred for physiotherapy. She had a few sessions of physiotherapy but did not have much improvement, so she was later referred to a pain specialist and had injections in her back. The injections did not help much.
The claimant stated that the pain symptoms continued. One year after the accident, she tried to go back to work with the help of the agency. However, she could not work full time. She struggled to stand and meet the physical demands of work. She also continued to struggle with her mental health. She tried to go to TAFE to do a diploma in community services. It took her three years to complete a 12-month diploma course as she struggled to concentrate.
The claimant stated that a lot of things changed following the accident. She did not want to do anything. She experienced periods of low mood with no energy for anything. She felt depressed and anxious about what happened. She initially thought that she would be okay and things would be fine, but it did not get any better. She kept thinking that things would be back to normal. She continued to struggle with her sleep, which was very bad due to the neck pain, as she could not lie down for a long time and had to often change her position. She also struggled with her appetite. Initially her appetite was normal. However, later she lost her appetite because of the pain. She also lost a lot of weight as well.
The claimant stated that she had nightmares where she would wake up in the night screaming and sometimes crying as well. She would remember the nightmares at times or would wake up because of the nightmare. She also had a lot of flashbacks especially while in the car. If her mother or someone else drove her, she would have panic attacks. She would often look behind if there was another car close to her and would feel scared. She would not feel comfortable inside a car. She struggled to drive. It took her almost a year before she started to drive.
She only started to drive in the local area after the accident and was not going on highways or freeways. Her driving ability would depend on her mood. Her parents or her siblings took her for her appointments. She struggled to read and focus while she was doing her course due to poor concentration. She also struggled with self-harm thoughts. She would feel like driving and crashing herself and had thoughts of death. She felt worthless and a burden on her parents. She would think of using kitchen knives to hurt herself. She stated that one day it was too much for her. She was very angry. She did not want to talk to anyone and wanted to crash her car while driving. However, she did not want to attempt suicide and did not want to harm herself.
She denied any self-harm or suicide attempts. She denied any admissions to public or private mental health units. The claimant started to see her GP following the motor vehicle accident. She later started to see a psychologist. She has had sessions for almost three years now. She often does not want to attend the appointments and forgets her appointment. She would often feel like not going out to attend the sessions. The sessions have mostly been on the phone and roughly three to four times in a month. She also saw a psychiatrist in the beginning. However, it was not of much help. So, she stopped the follow-ups. She was prescribed medications, which she stopped a long time ago. She developed side effects where she became very dizzy, and the medication did not help her with her mental health. She also had fear that she might become dependent on the medications.

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

The claimant denied any relevant injuries or conditions sustained since the accident.

Current symptoms

The claimant stated she continues to experience low mood. She is not looking after herself. She feels ashamed and does not go out with her friends. She feels useless and feels it is too much. She could not continue to work because of the physical demands of it, also because of her low motivation and energy and poor focus. She struggled and it was difficult to look after people in aged care. She struggles with memory loss. She forgets what she is looking for when she enters the room. She also has reported poor concentration. When she did her diploma, it took her a long time to finish as she would often get distracted and lose track of what she was trying to read. She has no motivation and no energy to keep up with the tasks.
The claimant stated she still has nightmares when she thinks about life and also about the accident. It is like a loop in her dreams. When she is driving, she will have flashbacks and thinks that she may have a crash again and is not able to focus on driving. She is not able to sleep and often may wake up crying or screaming in her sleep. She gets a lot of flashbacks, especially in the car and panic attacks in the car as well, where she may scream in the car if a speeding car passes by. She described her flashbacks as being a memory and an image of her being in the accident and in the car at the time of impact. She also gets triggered by an ambulance siren which makes her feel scared and it takes her back to the same moment. She struggles to watch a movie.
She cannot follow a movie as she gets distracted and has to watch it a few times to get the context of it. She continues to be scared to drive. Her father often says to her that she is not good to drive and should avoid driving. She reported having good days and bad days. Her good days are when she had enough rest, she has showered and has some motivation. Mostly she does not have a good day and is isolated in her room.

Current and proposed treatment

The claimant continues to take Panadol when she has severe pain. She continues to have neck, right knee pain and back pain. She cannot stand or bend for long. She is in pain all the time and it can be very severe. Her neck starts to hurt and then she needs to lie down. She continues to see her psychologist for phone sessions three to four times a month. She is currently not on any medication, and she follows up with a GP. She is not seeing a psychiatrist currently.

Mental state examination

The claimant attended the re-examination by herself. She appeared clean and dressed appropriately. She was calm and cooperative during the assessment. She maintained good eye to eye contact and rapport was established. There were no signs of agitation or retardation. She described her mood as low and anxious. Her affect was reactive and mood congruent. She described her sleep and appetite as disturbed. She described low levels of energy and motivation. She reported lack of enjoyment. She reported repeated memories of the accident.
She reported nightmares, flashbacks and avoidance behaviour related to the accident and avoiding triggers that would make her anxious and make her think about the accident and relive the accident. She denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts of harming others. She did not describe any grandiosity, racing thoughts or increased energy levels. There was no evidence of formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. She described her attention and concentration as poor. She had a reasonable insight and her judgment was intact.

Current functioning

Self-care and personal hygiene: The claimant stated that she finds it hard to manage her days. She finds it hard to leave her bed. She mostly spends time checking social media and does not do anything at home. She may put her laundry in the laundry room and her sister may do it or she may do it sometimes, but she mostly does not have the motivation. Her dad cooks and she will go to the kitchen and eat. She may go one or two days without showering.
Social and recreational activities: The claimant denied engaging in her hobbies. She used to love cooking which she has stopped now. She used to have followers on social media, on Instagram, TikTok and often would do videos and dress up and go out. She was about to have a YouTube channel and that has all stopped and she is not engaging actively on any social media platform. She may just scroll through her phone during the day. She is not cooking and not doing the videos.
Travel: The claimant does not like to go out. She has started to drive and drives in the local area. However, she still feels anxious. She is still not able to go on freeways and motorways due to her anxiety and she feels anxious even if someone else drives her. She has not been on the road for a long drive. She flies to Melbourne with her dad when she stays with him. She does not like going out to the shops and to crowded places and often overreacts.
Social Functioning: The claimant has a good relationship with her dad and stepmother and with her siblings. She is not in a romantic relationship currently and was not in one at the time of the accident. She does not engage much with people. She mostly spends time at home. She does not go out to any family functions or social gatherings. The claimant has a good relationship with her family however, she is always rude and grumpy.
Concentration, Persistence and Pace: The claimant stated that she struggles with her focus and concentration. She struggled to finish her course which was a 12 month diploma, and she did it in three years. She could not focus. She was not able to use her brain as well as she used to. She struggled with planning and organising herself. It was an online TAFE course which she eventually finished in three years.
Adaptation: The claimant is currently not working. She could not continue further due to the physical and psychological demands of work. She currently does not have capacity to return to any form of employment. The claimant stated that the pain restricts her from dressing herself and that she struggles to have energy to shower and to do something that she would like to.
She is not doing anything for herself. She does not go out for meals or to attend social gatherings. She hates noises. She cannot think ahead and is not planning her future. She wants to be better, but she does not see that happening. Treatment so far included pain medications, antidepressants, two cortisone injections for the back and physiotherapy which had not helped her much up until now and her symptoms are ongoing.

Comments on consistency

Her presentation was consistent with the history given during the clinical interview, documentation received and mental state examination.

Diagnosis and reasons

The claimant has sustained a psychological injury as a result of the accident on

14 February 2021. She was the driver of the car which was rear ended and hit another two cars in front. She sustained injuries to her back, right shoulder and neck for which she received treatment with minimal improvement. She has received treatment in the form of follow up with a GP, psychologist and psychiatrist. She was briefly on antidepressant medications which she could not tolerate because of the side effects. She has continued to receive psychological intervention. In spite of the treatment received, her symptoms have not remitted, are ongoing, and causing impairment in her functioning.
The claimant currently meets the DSM-5-TR criteria of post-traumatic stress disorder. She continues to present with the following symptoms.
She was exposed to a serious injury in the accident where she directly experienced the traumatic event.
She continues to have intrusive symptoms in the form of intrusive distressing memories and nightmares of the accident. She reported periods of anxiety and psychological distress when she is exposed to cues which remind her of the accident, along with flashbacks where she experiences panic attacks along with hypervigilance.
She has persistently avoided driving on freeways and motorways and has been avoiding the area where the accident happened. She does not feel comfortable to live in Sydney and has moved to Melbourne. She also avoids crowds, sitting in a car with someone else driving, especially on fast roads, and being in crowded situations.
She reported being in a state of anxiety. She also reported inability to remember the accident. She has lost interest in significant activities such as her hobbies and social activities. She is not able to experience happiness and satisfaction in her life and she feels detached.
She reported periods of anger and irritability and being grumpy with her family. She also had self-harm and suicidal thoughts although denied any attempts. She reported problems with her concentration. She has sleep disturbance where she struggles to sleep.
The symptoms have continued for more than a month.
The disturbance has caused clinically significant distress or impairment in social, occupational and other important areas of functioning. She has not been able to work and sustain her job.
The disturbance is not attributable to the physiological effects of a substance or another medical condition.

Causation and reasons

The claimant was involved in a serious motor accident, which resulted in psychiatric symptoms consistent with post-traumatic stress disorder. The symptoms are continuing despite the treatment she has received. The diagnosed post-traumatic stress disorder was caused by the accident.
The claimant does not have an adjustment disorder. She has been exposed to a traumatic event consisting of a four-car collision in which her level of consciousness was altered. This met criterion A of post-traumatic stress disorder, as she was exposed to a serious injury in the accident, when she directly experienced the traumatic event. Her symptom profile and severity meet the criteria of post-traumatic stress disorder rather than an adjustment disorder. Her symptoms have continued for more than four years, which is a much longer period than one would expect in an adjustment disorder for the symptoms to last. The claimant meets the criteria for another mental disorder, post-traumatic stress disorder. As the claimant meets both criterion A and the symptom threshold for post-traumatic stress disorder, she is not diagnosed with adjustment disorder.

Treatment and care

The claimant has sustained a psychological injury as a result of the accident. She developed psychological symptoms in response to the accident and the consequences of the accident. The proposed treatment and care, referral for a consultation with Dr Kuljic, psychiatrist, is causally related to the injury sustained in the accident.
The claimant is suffering from post-traumatic stress disorder for which she was referred to a psychiatrist by her GP. It is the opinion of the Medical Assessors that given her diagnosis, the referral is reasonable and necessary in the circumstances.

DETERMINATION

There is no dispute that the claimant was involved in a motor vehicle accident on

14 February 2021. The Panel is satisfied that the claimant’s stationary car was hit from behind, pushed forward, and hit the car in front. She was taken by ambulance to hospital and admitted overnight.
The photographs taken at the accident scene clearly depict damage to the rear of the car driven by the claimant. There is also damage to the front of the Mazda situated behind the claimant’s vehicle.
The Panel is satisfied that as a result of the accident the claimant suffered physical injury.
The Panel gives weight to the claimant’s reported symptoms including feeling scared of driving, flashbacks of the accident, low mood, feeling depressed and anxious, nightmares, and panic attacks.
The insurer submits that while there may be a reference to “?PTSD” in a referral to a psychiatrist, there has been no “formal” diagnosis of post-traumatic stress disorder by any treating practitioner. That submission is not consistent with the evidence before the Panel; in his report of 25 February 2022 Dr Kuljic recorded that the claimant “presented [with] symptoms of posttraumatic stress disorder related to an accident which happened a year ago.”
The Panel finds that criterion A for post-traumatic stress disorder is satisfied; the claimant was directly exposed to actual serious injury as a result of a traumatic event (the accident). For the reasons given by the medical members of the Panel in their re-examination findings, with which the Panel agrees, the claimant satisfies each of the other diagnostic criterion for post-traumatic stress disorder. The Panel finds that the claimant suffers from post-traumatic stress disorder.
The Panel is satisfied there was no pre-accident psychiatric history, and that the claimant did not have a psychiatric condition before the accident. She developed psychological symptoms following the accident. Having evaluated the circumstances in which the accident occurred the Panel is satisfied that the accident could have caused a post-traumatic stress disorder. The Panel is also satisfied that but for the accident the claimant would not have a post-traumatic stress disorder. The Panel finds that the post-traumatic stress disorder was caused by the accident.
For the reasons given by the medical members of the Panel in their re-examination findings the claimant does not have an adjustment disorder.
Post-traumatic stress disorder is not a threshold injury. The Panel revokes Medical Assessor Fukui’s certificate dated 8 October 2023 and certifies that post-traumatic stress disorder caused by the accident on 14 February 2021 is not a threshold injury for the purposes of the MAI Act.
The Panel is satisfied that the accident has made a material contribution to the need for the referral to Dr Kuljic, psychiatrist. As a result of the accident the claimant has a post-traumatic stress disorder. But for the accident the referral to a psychiatrist would not have been required. The Panel finds that the referral relates to the post-traumatic stress disorder caused by the accident.
The Panel finds that the referral to Dr Kuljic was both reasonable and necessary in the circumstances. Given the symptoms reported by the claimant it was appropriate for her to be assessed by a psychiatrist and for psychiatric opinion to be sought with respect to the management of her psychological symptoms. For these reasons the Panel confirms Medical Assessor Fukui’s certificates of assessment dated 8 October 2023 as to:
(a) whether the request for referral for a consultation with Dr Kuljic, psychiatrist, relates to the injury caused by the accident on 14 February 2021, and
(b) whether the request for referral for a consultation with Dr Kuljic, psychiatrist, is reasonable and necessary in the circumstances.

[2025] NSWPICMP 383

30 May 2025