Al-Mosawi v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Al-Mosawi v AAI Limited t/as GIO [2023] NSWPICMP 656
CLAIMANT:	Zahra Al-Mosawi
INSURER:	GIO
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Thomas Newlyn
DATE OF DECISION:	7 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 19 December 2020 when the vehicle she was driving was rear-ended by the insured vehicle in a four-vehicle pileup; dispute whether psychological injury was a threshold injury; where the Medical Assessor at first instance found that psychological injury was not caused by the accident; Held – original assessment revoked; finding that the claimant sustained a psychological injury caused by the motor accident and that the injury was a threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury. Determination The Review Panel: 1. Revokes the certificate of Medical Assessor Atsumi Fukui dated 13 June 2022. 2. Certifies that the psychological injury caused by the motor accident is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Zahra Al-Mosawi, suffered injury in a motor accident on 19 December 2020 when the vehicle she was driving was hit from behind by two vehicles in succession. The impact caused the claimant’s vehicle to collide with another vehicle travelling in front of her.
As a result of the accident, the claimant claimed that she sustained bodily injuries as well as a psychological or psychiatric injury.
The first vehicle that collided with the rear of the claimant’s vehicle was at the material time, insured by GIO. That insurer accepted liability to pay the claimant’s statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
[2] Section 4.4 of the MAI Act.
The issue in dispute in this matter is whether the claimant’s psychological or psychiatric injury resulting from the accident was a threshold injury for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.

MEDICAL ASSESSMENT UNDER REVIEW

The dispute was referred at first instance to Medical Assessor Atsumi Fukui who issued a Medical Assessment Certificate dated 13 June 2022 (the medical assessment).[4]
[4] Insurer's bundle, p 7.
In her reasons, the Medical Assessor made the following observations:
·        the claimant does not report any psychological symptoms;
·        she has not been referred for psychological treatment;
·        she is not taking any medication and wants “a different solution”.
·        there were no documents of psychological relevance, and
·        there is no reference to psychological symptoms or impairment in the medical records of Liverpool Hospital when she was examined on 19 and
20 December 2020.
The Medical Assessor’s diagnosis of the claimant’s psychological condition was:
“[The claimant] does not have a psychiatric diagnosis and there is no evidence of psychological impairment based on her history and clinical presentation.”
In respect to causation, the Medical Assessor found that there was no psychological injury caused by the motor accident.

THE REVIEW APPLICATION

On 12 July 2022, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.

CONDUCT OF THE REVIEW

According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Gerald Chew, Medical Assessor Thomas Newlyn and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act, the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.

RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES

A threshold injury is defined in s 1.6(1) of the MAI Act:[9]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[9] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that “acute stress disorder “and “adjustment disorder” have the same meanings as in DSM-5-TR.[10]
[10] DSM-5-TR is the document entitled Diagnostic and Statistical Manual of Mental Disorders, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on and after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological 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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 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. Clauses 6.5 to 6.7 provided:
‘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 claims assessor) 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 judgment.
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.”

SUBMISSIONS

Claimant’s submissions

In her submissions of 31 July 2021 (to the Medical Assessor), the claimant submitted that she suffered a psychiatric injury, post-traumatic stress disorder as a result of the motor accident and that this is a non-threshold injury.
The claimant’s submissions of 11 July 2022 may be conveniently summarised as follows:
(a)   the original application for medical assessment was lodged without any legal advice or assistance. No supporting documents were provided;
(b)   subsequently, on 6 August 2021 her newly appointed legal representatives filed an application to admit late documents which comprised of 212 pages of supporting documents marked A1-A19. (the Late Documents);
(c)   the Late Documents were not provided to the Medical Assessor which resulted in the Medical Assessor making numerous references in her certificate to there being no psychological treating evidence, no referral to a psychologist, no documents of psychiatric relevance and no evidence of psychological impairment;
(d)   it is clear from the Late Documents that the claimant reported psychological injuries to her medical treatment providers, was referred for psychological treatment and was diagnosed with a psychiatric illness, post-traumatic stress disorder, by both her general practitioner (GP) and her psychologist, and
(e)   it is the claimant’s submission that had all the evidence been considered and given equal weight by the Medical Assessor, a determination that the claimant suffered a non-threshold psychiatric injury would have been reached.

Insurer’s submissions

The insurer’s submissions of 27 July 2022 may be conveniently summarised as follows:
(a)   the insurer conceded that the Medical Assessor does not appear to refer to the Late Documents. However, the insurer submitted this material is unlikely to make a material difference noting that the Medical Assessor observed on clinical assessment, the claimant did not report psychological symptoms;
(b)   in the Late Documents, neither the clinical notes of the GP or the psychologist documented whether the claimant satisfied each of the DSM-5-TR diagnostic criteria, which is a requirement under the AMA 4 Guidelines, for a diagnosis of post-traumatic stress disorder. Dr Lim’s referral to Insightful Mind dated
23 April 2021 only referred to “PTSD symptoms” not a post-traumatic stress disorder diagnosis, and
(c)   while the Allied Health Recovery Request completed by psychologist, Mr Carl Nielsen, dated 5 May 2021 made a diagnosis of post-traumatic stress disorder based of the PCL 5, the PCL is not a diagnostic tool like the DSM-5-TR, but rather a screening tool.

MATERIAL BEFORE THE PANEL

The claimant considered the claimant’s paginated and indexed bundle of 222 pages. The bundle included the Late Documents (212 pages). Upon review of that material, it was apparent to the Panel that the Late Documents were not before the Medical Assessor.
The insurer did not file any documents and relied upon its submissions dated 27 July 2022.

SUMMARY OF THE EVIDENCE BEFORE THE PANEL

The claimant’s personal injury claim dated 4 February 2021, did not refer to a psychological injury.[13]
[13] Claimant’s bundle – p.24.
A certificate of fitness dated 4 June 2021 referred to a diagnosis of the claimant’s physical and psychological injuries which included “PTSD (PCL-5:50)[14]. The management plan included a referral to a “Psychologist; Psychiatrist”.
[14] Claimant’s bundle – p. 15.
An “Initial Assessment” report from general practitioner, Dr Eric Lim dated 23 April 2021 referred to the diagnoses of the claimant’s physical and psychological injuries which included “PTSD (PCL – 5:50).[15] The report recorded:
“[The claimant] is anxious as a result of the accident and hypervigilant when she is driving. She has difficulty sleeping due to pain. She denies having any flashbacks or night terrors.”[16] Symptoms included “difficulty sleeping, anxious, hypervigilant.”[17]
[15] Claimant’s bundle – p.57.
[16] Claimant’s bundle – p.57.
[17] Claimant’s bundle – p.57.
Dr Lim recorded that the claimant requires ongoing medical treatment which included a treatment referral to a psychologist/psychiatrist.[18]
[18] Claimant’s bundle– p.58.
A psychologist referral issued by Dr Lim to Insightful Mind dated 23 April 2021 stated:
“Herewith Ms Zahra Al-Mosawi # who has psychological distress with PTSD symptoms, for psychological therapy.”[19]
[19] Claimant’s bundle – p.60.
An Allied Health Recovery Request for Mr Carl Nielsen of Insightful Mind dated 5 May 2021 noted a diagnosis of:
“Post-Traumatic Stress Disorder – PCL5 = 50/80” on clinical assessment.”[20]
[20] Claimant’s bundle – p.63.
A clinical assessment by Mr Nielsen on 5 May 2021 recorded the following:
“Past psychological history – aggravating factors unremarkable. Diagnosis – relation (sic) to the injury. Post Traumatic Stress Disorder.”[21]
[21] Claimant’s bundle – p.63.
A clinical note dated 18 May 2021 referred to Dr Lim observations of the claimant’s symptoms to be that of:
“low mood, irritability impaired memory and concentration, anxious and depressive cognitions, sleep disturbance, intrusive and unwanted memories pertaining to MVA.”[22]
[22] Claimant’s bundle – p.122.
In a clinical assessment by a psychologist on 18 May 2021, the following clinical notes were recorded:
“Diagnosis – relation to the injury
PTSD
Symptom – patient experience
PT reported
- ‘When he opened up about the accident. I hate bringing it up.’
- ‘The car wasn’t affected so much. My head was’.
- ‘I wake up with head pain. Its like a throbbing’.
- She is finding “I’m over sensitive. If they speak to me, family at home”.
- ‘I can’t bend I can’t move neck’.
- She is anxious about her life and what her life will be like.
- ‘If I yell or cry the pain gets worse. It’s a heat inside’.
Examination/Mental State – presentation
Mood: Low
Speech: Flat
Engaged: Actively
Risk: Pt denied any current suicidal thoughts, plan and urge. Pt reported that she had the thoughts following the accident due to pain. Pt reported after she was put on medication she found that they stopped.
Pt deemed low risk.
- ‘Yes very first stage’.
- ‘I had to go to appointments’.
[23] Claimant’s bundle – p.124.
- Getting thoughts ‘What is life’.”[23]

According to the clinical notes of Wyong Doctors, the claimant attended further treatment session with the psychologist on 1 June 2021, 16 June 2021, 29 June 2021 and
[24] Claimant’s bundle – p.125-128. It appears that the treating psychologists were Mr Carl Nielsen and Mr Tim Campiciano.
13 July 2021.[24]
A certificate of fitness issued on 2 July 2021 referred to a diagnosis of post-traumatic stress disorder.[25]

RE-EXAMINATION FINDINGS
[25] Claimant’s bundle – p.148. See Certificate of Fitness.

The Medical Assessors of the Panel examined the claimant at 1.30pm on 4 October 2023 via telehealth using the Microsoft Teams application. The claimant was located in her car parked outside her home. She was unaccompanied. She was located in her car as her house was being painted.
The claimant is a 26-year-old woman who lives in Mount Pritchard with her mother, two younger sisters and a younger brother. Her father and another brother are currently living in Canberra for work.
The claimant is not involved in a relationship and has no dependent children. She is not working and in receipt of Centrelink benefits.

The motor accident

When asked to describe the motor accident, the claimant said on 19 December 2020 she was slowing down when she was hit by another car from behind at speed. Her car hit the car in front which hit another car. The car behind was rear-ended by another car. She was driving an Audi hatchback with her sister in the passenger seat.
The claimant said that she was in “shock” when it happened. All the drivers exited their vehicles and exchanged details. She said that around 20 minutes after the impact she started experiencing pain in the right side of her head and neck.
All vehicles were able to be driven from the scene. The claimant said that she drove from the accident to Liverpool Hospital where she remained for a number of hours. She was discharged later that evening. She said that when she was at Liverpool Hospital she vomited and developed a severe headache. She said that she was diagnosed with whiplash and discharged home with GP follow up.

Symptoms

The claimant reported that the pain predominantly in her neck has persisted and has not got any better. She said that she also developed tingling like pins and needles around her neck. She said that the pain restricts her movement, for example, she cannot lie on her right side. She cannot bend her head to pray or perform day to day activities that require this movement.
The claimant said that because of the pain and the impact that it was having on her function, she has developed a depressed mood. She said that she is more “sensitive” and cries more often. She reports that she is also more irritable.
The claimant reported that this year she tried to study for a Bachelor of Design, however she was unable to continue because of the pain.
The claimant reported that she avoided driving. She was able to drive if necessary but preferred not to. She said that even as a passenger she experienced some anxiety.

Treatment

The claimant said that she was referred for massage, but this made the pain worse. She said that she was prescribed medication for the pain, but she does not take it as she found it ineffective.
The claimant attended psychological treatment from April to July 2021. She has not attended psychiatric treatment.

Current and proposed treatment

There is no current or proposed psychological or psychiatric treatment.

Current medications

Nil.

Past psychiatric history

The claimant denied a history of any prior psychiatric treatment.
The claimant admitted that the disappearance of her brother six years ago was difficult for her and her whole family and they maintained some hope he was still alive.

Past medical history

The claimant denied any significant prior medical history.

Substance use

The claimant denied the use of alcohol and recreational drugs.

Personal history

The claimant reported that she was born in Saudi Arabia. She migrated with her parents to Australia when she was an infant. She is an Australian citizen.
The claimant is of Persian heritage. Her parents lived in Iraq, migrating to Saudi Arabia because of the conflict and for work opportunities. Her mother is a home maker. Her father works in construction.
The claimant is a practising Muslim.
The claimant left school after Year 10 and subsequently attended university to study teaching however stopped because her brother went missing.
A brother went missing six years ago after being caught in a riptide. This affected the family significantly.
Prior to the accident, the claimant worked casually in childcare. She has not worked since the accident.
The claimant is able to perform some domestic duties that don’t involve bending of the neck for example washing the dishes. Her other family members perform the other duties. She said that she is able to keep her room tidy.
The claimant said that she sleeps a lot and doesn’t go out as much. She watches TV and goes for walks.
The claimant sees her friends every few weeks. Prior to the accident she saw them every week.
The claimant still messages her friends regularly.
The claimant maintains a good relationship with her family.
The claimant showers every day and maintains good hygiene.

Mental state examination

The claimant appeared well groomed with culturally appropriate headdress. She engaged freely and easily. She had reactivity of her affect. She described her mood as low and depressed. Her speech was of normal rate, rhythm, volume, and prosody. There was no formal thought disorder. There were no delusions and no hallucinations. Her cognition was grossly intact, and she was oriented to time, place and person. She had no thoughts of self-harm. There were no clear intrusive symptoms.

Diagnosis and reasons

The claimant suffers from an adjustment disorder. She meets DSM-5-TR criteria for this condition as follows: -
Criterion A. she suffers from emotional symptoms in response to an identifiable stressor (the accident and pain).
Criterion B. the symptoms are clinically significant and cause her distress.
Criterion C. The disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing disorder.
Criterion D. the symptoms do not represent normal bereavement.
Criterion E. the symptoms persist in the context of pain from the accident.
The claimant does not meet DSM-5-TR criteria for post-traumatic stress disorder. In particular, there does not exist the required intrusion symptoms (Criterion B).

Causation

According to the evidence before the Panel, the claimant has sustained bodily injuries in the motor accident which caused pain. The pain has been ongoing, and the Panel accepts that this in turn has caused an adjustment disorder.

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or non-threshold as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen[26] and Insurance Australia Ltd v Marsh.[27]
[26] [2021] NSWCA 287 at [40], [41] and [45].
[27] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusion of the Panel’s Medical Assessors.
The Panel finds that the claimant suffers an adjustment disorder as a result of the motor accident. This a threshold injury for the purposes of the MAI Act.

CONCLUSION

For these reasons, the Panel concludes that the certificate issued by Medical Assessor Fukui is revoked. The Panel issues a replacement certificate which forms part of this determination.

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Citations

Al-Mosawi v AAI Limited t/as GIO [2023] NSWPICMP 656

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

[2023] NSWPICMP 656

7 December 2023