Aleksic v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Aleksic v QBE Insurance (Australia) Limited [2023] NSWPICMP 482
CLAIMANT:	Katica Aleksic
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Alexey Sidorov
DATE OF DECISION:	28 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute related to whether psychological injury was a threshold injury; claimant involved in a motor accident on 24 February 2020 when a kangaroo collided with the vehicle; previous injury on 1 February 2020 from sideswipe collision; claimant had pre-existing major depressive disorder in remission which was aggravated by the previous motor accident; claimant re-examined; effects of each motor accident must be considered separately; sufficient if motor accident aggravated, accelerated or exacerbated the pre-existing psychological condition; AAI Ltd v Hoblos and Todev v AAI Ltd applied; contemporaneous clinical records showed increase in psychological symptoms following motor accident; clinical expertise of Medical Assessors from Panel examining claimant supported finding that motor accident aggravated pre-existing psychological condition; nature of motor accident capable of causing or aggravating psychological condition; Held – original assessment revoked; claimant assessed as suffered from non-threshold psychological injury.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act *2017* The Review Panel revokes the certificate dated 10 May 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Ms Katica Aleksic (the claimant) suffered injury in a motor vehicle accident on
[1] Claimant’s bundle, p 2.
24 February 2020 when a kangaroo collided with her vehicle (the motor accident).[1]
The claimant also suffered injury in a motor accident on 1 February 2020 when the insured vehicle collided with the passenger side of the claimant’s vehicle (the previous motor accident).
QBE Insurance (Australia) Ltd (QBE) insured the owner and driver of the other motor vehicle for liability to pay Ms Aleksic any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
AAI Ltd (GIO) is the insurer for the vehicle involved in the previous motor accident.
The issues presently in dispute are whether Ms Aleksic’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act caused by the motor accident. There is also a medical dispute concerning whether the previous motor accident caused a threshold injury.
The Panel is issuing separate reasons for the motor accident and the subsequent motor accident. However, the Panel has adopted and repeated the summary of evidence, submissions and some findings in the reasons for the subsequent motor accident.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Samuell who issued separate Medical Assessment Certificates dated 10 May 2022 in respect of the motor accident and the previous motor accident. Medical Assessor Samuell concluded that Ms Aleksic sustained a minor psychological injury for the purposes of the MAI Act caused by the motor accident and the previous motor accident.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
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”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.

Statutory amendment

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.

REASONS OF MEDICAL ASSESSOR

The Medical Assessor issued separate certificates for the motor accident and the previous motor accident.
The diagnosis of the psychological condition by the Medical Assessor was:[5]
“There is a lengthy history of psychological difficulty that pre-dates and post-dates the subject incident. The appropriate diagnosis is that of a Persistent Depressive Disorder with Anxious Distress. There is chronic, long-term mood that is clinically significant over a protracted period.”
[5] GIO bundle, p 16.
In respect of causation, the Medical Assessor found:[6]
“The Persistent Depressive Disorder pre-dated the subject accident. The subject accident aggravated the Persistent Depressive Disorder with Anxious Distress, however, it did not cause it. It is noted that the pre-existing condition was so severe as to warrant a long-term disability support pension.”
[6] GIO bundle, p 16.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were 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.[7]
[7] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[8] Section 7.26(5A) of the MAI Act.
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.[9]
[9] 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. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The Panel was constituted to determine the issue of threshold injury in respect of the motor accident and the subsequent motor accident and issued an initial direction to the parties requiring the provision of respective bundles of documents.
In the initial Direction the Panel advised the parties as follows:
“Both matters are being heard by the same Panel and the evidence in one review will be evidence in the other. Accordingly, the insurers are to serve their respective bundles on each other as well as the claimant.
The Panel also advised all parties that:
“For the purposes of narrowing issues, the parties are to consider whether they accept the findings of the previous Review Panels on the physical injuries caused by the motor accident, insofar as they may be relevant to any psychological injury caused by either of the motor accidents.
Further, in the event that the findings of the previous Panels (to the extent that they may be relevant) are not accepted, whether there is any objection to the Principal Member sitting on the present Panels.”
The claimant submitted that the prior Panel findings on the physical injuries were irrelevant to any psychological injury caused by either motor accident and/or were otherwise not accepted. No objection was taken to the Principal Member sitting on this Panel.[11]
[11] Claimant’s further submissions dated 22 March 2023.
The Panel issue a further direction to the parties dated 20 June 2023 which relevantly provided:
“1. The parties are referred to the decision of AAI Ltd v Hoblos [2023] NSWPICMP 210 at [141] – [181] specifically that:
(a)The effects of each motor accident must be considered separately (at [149]); and
(b)The effects of a particular motor accident are evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation (at [179]).
2. The parties are to address whether an aggravation of a psychological condition caused by the motor accident (where that condition is not a threshold psychological injury as defined) means that the claimant sustained a non-threshold psychological injury.”
In a letter dated 13 July 2023, GIO responded:
“In response to paragraph 2, GIO concedes that an aggravation of a psychological condition caused by the motor accident (where that condition is not a threshold psychological injury as defined) means that the claimant sustained a non-threshold psychological injury.”
The QBE response was in the following terms:
“1.     The insurer makes the following further submissions in response to the Directions of Member [sic] Harris dated 20 June 2023.
2.      The Review Panel has requested the parties “address whether an aggravation of a psychological condition caused by the motor accident (where that condition is not a threshold psychological injury as defined) means that the claimant sustained a non-threshold psychological injury”.
3.      The insurer relies on its submissions dated 11 July 2022.
4.      The insurer makes the following additional submissions addressing the Panel’s query:
(a) Whilst Assessor Samuell determined that the “subject accident aggravated the Persistent Depressive Disorder with Anxious Distress”, he assessed that the subject accident was not the cause of the diagnosis.
(b) The insurer submits that the ‘aggravation’ symptoms as noted by Assessor Samuell was clearly not sufficient to warrant a diagnosis and therefore, a threshold assessment by the Assessor was not required.
(c) Ultimately, Assessor Samuell determined that the claimant’s Persistent Depressive Disorder was not caused by the subject motor vehicle accident. The ‘aggravated’ symptoms themselves do not result in a non-threshold diagnosis.
(d) The insurer submits that the Assessor appropriately and sufficiently dealt with the issue of causation by determining that the Persistent Depressive Disorder was not caused by or materially contributed to by the subject motor vehicle accident.
5.      The insurer reiterates its position that there are no errors in Assessor Samuell’s Certificate capable of having a material effect.”
This was not a response to our direction but simply a reiteration that the reasons of
Medical Assessor Samuell were correct. This submission is inconsistent with established authority that the Panel is required to make a new assessment.
The claimant noted the concession from GIO, appeared to accept that Hoblos was correctly decided and submitted that the QBE submission was inconsistent with authority. Reference was otherwise made to the opinion of Dr Canaris that there was a re-emergence of a major depressive disorder caused by the motor accidents.
The claimant filed updated clinical notes without leave. The claimant relevantly submitted:
“The clinical notes are relevant to the issue in dispute and are documents which are ordinarily taken into consideration when claimants are assessed.”
Those documents are rejected. The claimant failed to explain how the further documents were relevant and did not refer to any particular entry in the clinical notes. Contrary to the initial direction, the claimant otherwise did not seek permission from the other parties or seek leave to file the documents.

OTHER ASSESSMENTS

A differently constituted Panel determined that the claimant sustained minor (threshold) physical injuries for the motor accident and the previous motor accident.[12]
[12] Aleksic v AAI Ltd [2022] NSWPICMP 417; Aleksic v QBE Insurance (Australia) Ltd [2022] NSWPICMP 416.

STATUTORY PROVISIONS

“Injury” is defined in s 1.4 of the MAI Act to mean:
“personal or bodily injury and includes--
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
“Motor accident” is defined in s 1.4 of the MAI Act to mean:
“an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where 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.”
A threshold injury is defined in s 1.6(1) of the MAI Act:[13]
“(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.”
[13] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment of same meaning as DSM -5.
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 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“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    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 (DSM-5), Fifth Edition, 2013, 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.[14] In Raina v CIC Allianz Insurance Ltd[15] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

SUBMISSIONS

Claimant’s submissions dated 25 February 2021[16]

[14] See s 3B(2) of the Civil Liability Act 2002.

[15] [2021] NSWSC 13 (Raina) at [65].

[16] Claimant’s bundle, p 81.

The claimant referred to the opinion of Ms Novella-McMahon who diagnosed depression, anxiety and stress and Dr Canaris who opined that there was a re-emergence of a major depressive disorder.
The claimant noted the first accident involved a threat to her grandson and that the further psychological injury from the second accident “was greater because of the aggravation of the earlier injury”.[17]

Claimant’s submissions dated 7 June 2022[18]

[17] Claimant’s bundle, p 87.

[18] Claimant’s bundle, p 88.

These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor failed to apply the correct test of causation. Specifically, the Medical Assessor accepted that that the motor accident aggravated the depressive disorder but failed to consider the nature and extent of the aggravation when determining the issue of causation.
The claimant submitted that the last entry in the clinical notes about the pre-existing condition was dated 23 August 2018 when the claimant was suffering from poor sleep and depressed mood and irritability. However, the claimant was not experiencing early morning wakening, her self-esteem was normal, she had no relationship problems, no irrational fears, panic attacks, compulsive behaviour or delusions.

In a report dated 30 June 2020 the psychologist noted the claimant had been experiencing depression, anxiety, stress, dismay, disbelief, bewildered, shocked forgetfulness, flashbacks, traffic phobia comment traumatic thoughts involving injury to a grandson and on some days being able to unable to get out of bed.
The K10 Black Dog assessment measured depression, anxiety and stress and showed scores in the extremely severe range. While such a diagnosis is not made under DSM-5, it otherwise shows that the clinical presentation by the claimant after the motor accidents is markedly different consistent with accidents causing or materially contributing to the claimant psychological injury. Accordingly, it is submitted that the evidence is consistent with a re-emergence of a major depressive disorder because of the motor accidents in accordance with the opinion of Dr Canaris.
The claimant referred to the decision of Lynch v AAI Ltd[19] and submitted that the diagnosis made by Dr Canaris described a psychiatric condition diagnosed under DSM-5.

Claimant’s submissions dated 7 June 2022[20]

[19] [2022] NSWPICMP 6.

[20] Claimant’s bundle, p 92.

These submissions were filed seeking leave to review the decision on minor injury for the subsequent motor accident and were largely repetitive of the submissions seeking review for the motor accident.

GIO submissions dated 30 March 2021[21]

[21] GIO bundle, p 5.

GIO submitted that it was unclear from the available medical evidence with the motor accident, the subsequent motor accident or a cumulative effect of many distressing life events cause the psychological condition. It submitted that the opinion of Dr Canaris was that the subsequent motor accident was causative of the psychological condition.
GIO note a diagnosis under DSM-5 and that some of the problems such as being unable to cook, garden and grocery shop are not from psychological issues but from the physical injuries. Diminished concentration was present prior to the motor accident.

GIO submissions dated 24 June 2022[22]

[22] GIO bundle, p 2.

GIO submitted that the Medical Assessor determined that the psychological injury was not causally related to the motor accident.

QBE submissions dated 23 March 2021[23]

[23] QBE bundle, p 15.

QBE referred to the various evidence and submitted that the claimant had a longstanding depressive condition dating back to 2007 and had experienced a variety of factors unrelated to the subsequent motor accident which impacted on her mental health.
QBE submitted that the claimant reported psychological symptoms following the motor accident, and any psychiatric symptoms do not relate to the subsequent motor accident.

QBE submissions dated 11 July 2022[24]

[24] QBE bundle, p 13.

These submissions oppose the application to review the assessment for the subsequent motor accident. QBE submitted that the Medical Assessor “determined the claimant’s Persistent Depressive Disorder was long-standing chronic condition that was pre-existing at the time of the accident” and otherwise determined that the condition was not caused by the subsequent motor accident.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

Ms Aleksic has suffered from psychological symptoms since 2007.
In September 2014 Dr Nikola Tomic, psychologist, opined that the claimant suffered from “Major Depressive Disorder, with Longitudinal Course, Chronic” caused by the loss of her husband in 2007 and financial hardship.[25]
[25] GIO bundle, p 253.
In a letter dated 25 November 2016 the general practitioner (GP) noted the claimant was suffering from severe depression since the death of her husband nine years previously.[26]
[26] GIO bundle, p 178.
In 2018 the GP noted the claimant was suffering from “severe depression” since 2015.[27]
[27] GIO bundle, p 152.

Medical evidence

The clinical note dated 5 February 2020 referred to a motor vehicle accident when the claimant was hit from the side, referred to finance problems and that the claimant could not sleep.[28]
[28] Claimant’s bundle, p 10.
A certificate of capacity dated 14 February 2020 referred to the previous motor accident and proposed treatment for “referral for psychologist for post traumatic disorder”.[29]
[29] QBE bundle, p 11.
A referral dated 18 February 2020 referred to management for depression after a car accident.[30]
[30] Claimant’s bundle, p 2.
The clinical note of the GP dated 10 March 2020 referred to the accident with the kangaroo on 24 February and that the claimant was “very scare [sic] of driving” and “anxious worse”.[31] A mental health plan was created at that time.[32]
[31] Claimant’s bundle, p 11.
[32] Claimant’s bundle, p 55.
A report from Ms Novella-McMahon, clinical mental health practitioner, dated 18 March 2020 referred to the claimant situation as “hapless and challenged”.[33]
[33] Claimant’s bundle, p 57.
A referral dated 21 May 2020 referred the claimant for “opinion and management of anxiety and PTSD after the MVA in February 2020”.[34]
[34] Claimant’s bundle, p 3.
The Allied health recovery request for counselling dated 22 May 2020 noted depression, anxiety and stress and nominated a date of injury on 1 February 2020.[35]
[35] Claimant’s bundle, p 5.
A clinical note of the GP dated 18 June 2020 again referred to the subsequent motor accident and repeated the history from the consultation on 24 February 2020.[36]
[36] Claimant’s bundle, p 15.
A report from Ms Novella-McMahon dated 30 June 2020 noted that the claimant had attended four sessions commencing on 10 March 2020. The psychologist referred to the traumatic circumstances involving the two motor accidents and noted that the claimant “has been experiencing depression, anxiety, stress, dismay, disbelief, bewilderment, shock”.[37]
[37] Claimant’s bundle, p 71.
A further report from Ms Novella-McMahon noted that there was psychological distress with regards to depression, anxiety and stress which were described in the “extremely severe range”.[38]
[38] Claimant’s bundle, p 72.
The GP provided a report dated 4 August 2022 to QBE in relation to the subsequent motor accident.[39] The doctor noted that the claimant was suffering from physical and mental injuries from that accident and that her “mood was low and her anxiety had worsened”.
[39] Claimant’s bundle, p 47.

Claim forms

The claim form dated 26 February 2020 noted the previous motor accident caused physical injuries and “shock and anxiety and depression”.[40]
[40] GIO bundle, p 19.
The claim form dated 11 March 2020 for the motor accident stated that it caused “injury to back, shock, post traumatic stress”.[41]
[41] QBE bundle, p 2.

Qualified evidence

Dr Canaris, psychiatrist, was qualified by the claimant and provided a report dated
22 October 2020.[42] The doctor provided the following opinion:
“Your client was involved in two motor vehicle accidents in February this year in which she sustained physical injuries which from what she tells me seem to have aggravated pre-existing physical problems as well as giving her lower back pain. She reports considerable disappointment that she received no money for her vehicle which was under finance. She says she is now teary, upset, and irritable complaining of insomnia saying that she dreams about her accidents. She has withdrawn socially and lacks energy. Her concentration is poor, and her weight fluctuates while her affect at interview is labile. She has been seeing a psychologist.
She has been on an antidepressant for a long time and continues to take this. Her presentation is consistent with re-emergence of a major depressive disorder with anxious distress and she has some features of posttraumatic stress disorder but not the full syndrome. Her diagnosis is made using the DSM-5.”
[42] Claimant’s bundle, p 73.
Dr Canaris concluded that the mood disturbance was related to both motor vehicle accidents and concluded that “the aggravation of her major depressive disorder in the two accidents is NOT a minor injury as defined in the Motor Accident Injuries Act 2017” (emphasis in original).

RE-EXAMINATION

Ms Aleksic was examined by both Medical Assessors on 30 August 2023.
The medical examination findings of the Medical Assessors are:
“Who attended the assessment
Katica Aleksic attended the assessment via audio-visual link from her solicitor’s office in Liverpool, New South Wales. She was examined by Assessor Alexey Sidorov and Assessor Gerald Chew, who were both in their Sydney rooms. The assessment took approximately one hour.
Psychosocial history and pre-accident history
Ms Aleksic is a 63-year-old woman residing in Picton, New South Wales, alone in Department of Housing accommodation. She was widowed 16 years ago after her husband died at the age of 53. She explained that he died at work due to a heart attack. She has not re-partnered since then. She has been in receipt of a disability support pension since 2009 for depression that she developed after her husband died.
Ms Aleksic was born in Serbia. She arrived in Australia on 28 November 1977. She finished her schooling in Serbia and met her husband there at the age of 16 and came to Australia together with him. She denied any history of childhood trauma or abuse. She has two sons, aged 41 and 44. Prior to her medical retirement, she worked in a variety of positions, including as a labourer in a telephone company and in a pharmaceutical company.
Ms Aleksic stated that, after her husband’s death, she developed significant depressive symptoms and was treated with an antidepressant medication, Lexapro. She also saw a psychologist for four to five years after his death. She described that gradually her depression had resolved, and she returned to her normal functioning, although it was unclear as to why she remained on a disability support pension.
Ms Aleksic denied smoking tobacco cigarettes, consuming alcohol, or using illicit drugs. She also denied gambling.
Ms Aleksic denied any insurance claims for personal injury prior to or subsequent to the two accidents in 2020.
Ms Aleksic stated that six or seven years ago she was diagnosed with breast cancer and underwent a left mastectomy and chemotherapy. She has been in remission since then for the past six to seven years. She also underwent two total knee replacements, with the last one in September 2019. She has also been diagnosed with type II diabetes mellitus, hypertension, and elevated cholesterol, as well as hypothyroidism. She explained that her hypertension, elevated cholesterol, and hypothyroidism are controlled with medications. She also takes Ozempic for her type II diabetes.
Ms Aleksic denied any family history of mental illness.
Account of Accident on 1 February 2020
Ms Aleksic stated that, at the time of this accident, she was driving and her grandson, aged 10, was in the front passenger seat. As she was turning into a petrol station, a car came out of a side street and impacted Ms Aleksic’s car on the rear passenger side. She was wearing a seatbelt. Airbags were not deployed. Her car was ultimately written off. She described it as a sudden impact and she experienced significant shock. She recalled that her grandson was screaming as he was very scared. She was primarily worried about his safety. She stated that, ‘If something happened to him I would kill myself.’ Police and ambulance did not attend the scene. Her car was towed by a tow truck.
Account post-first accident
Ms Aleksic stated that, at the time of the first accident, she recently had had a total knee replacement. The accident caused her significant back pain, as well as bilateral hip and legs pain. She saw her general practitioner and x-rays were ordered. She described that it was found that she had arthritis, however, stated that she developed new pain following the subject accident. She described that she felt, particularly given the shock that she felt in the context of fearing for her grandson’s safety, she experienced poor sleep and felt upset, with a resulting drop in her mood. Her sleep was also disturbed.
Account of accident on 24 February 2020
Ms Aleksic stated that this accident occurred in the early morning. She was driving at the time and her neighbour was sitting in the front passenger seat. She stated that it was her neighbour’s car. Her husband was in the rear seat. Ms Aleksic stated that a kangaroo impacted into their car, causing significant damage on impact. She stated that the police and a tow truck arrived. Ms Aleksic stated that she felt shocked and was crying and upset as she was involved in another accident just three weeks following the first accident. She recalled that the kangaroo was injured so the police shot the kangaroo, which she also found stressful and confronting.
History of Symptoms and Treatment Following the Motor Accidents
Ms Aleksic described that her depression became even worse after the second accident. She experienced significant sleep disturbance where she would get up in the early hours of the morning and would experience a low daily mood. She stated that she was mostly affected by the first accident, however, the second accident has caused a further deterioration in her mood. She described experiencing flashbacks relating to both the first and second accidents and, when she would sit in a car, she would feel scared. Her energy level would be significantly low at times, at times of particularly low mood, but would generally vary. She also feels agitated and cannot keep still. She has been deriving significantly less enjoyment from her usual activities and has consistently worried about her grandson’s well-being. She always worries about something bad happening. At times, she feels helpless and worthless. She denied suicidal ideations or thoughts of self-harm. She described that her appetite has been lower, although stated that she has lost significant weight, up to 20 kilograms, although stated that this was also due to being on the Ozempic injections.
She started seeing a psychologist after the two accidents in 2020 and has been seeing them every two to three weeks. There have been no antidepressant changes since the accident. She stated that she wants to see a psychiatrist but is unable to afford to do so. There has been no evidence of the emergence of menial or psychosis. She did not describe any other trauma related symptoms.
Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
None.
Current Symptoms
Ms Aleksic described experiencing a pervasive low mood, with a significantly diminished interest and ability to derive pleasure from most of her activities most days and ongoing significant appetite and sleep disturbance, as well as feeling fatigued and low on energy most days, as well as feelings of worthlessness, low self-esteem and ongoing worries and anxiety.
Mental State Examination
Ms Aleksic presented as a woman appearing of stated age. There was no overt evidence of self-neglect. She was generally cooperative and settled. There is no evidence of psychomotor disturbance or abnormal movements. Her affect was depressed and restricted. She described her mood as ‘depressed’. There was no evidence of formal thought disorder. She denied any thoughts of self-harm, suicidal ideations, or thoughts of harm to others. There were no psychotic symptoms present, such as delusions or hallucinations. She was oriented to time, place, and person. She had good insight and a good degree of rational judgment.
Current Functioning
Ms Aleksic denied any problems with personal hygiene. She stated that she is independent with her activities of daily living and general household tasks. She is able to leave home independently but stated that she is usually driven by her sons. Her shops are local, so she is able to walk there. She does not like driving in the context of anxiety around being involved in another accident but will do so if required. She was driven to this assessment by her friend. She tends to her garden at home, from which she derives some enjoyment, but it is limited. She stated that, in the past, she engaged in tapestry, but is not motivated to do so in recent years. She stated that she generally stopped after the first accident. She denied any relationship problems with her husband. She feels that she has become more forgetful and has been finding it more difficult to focus and concentrate. She has not worked since her husband’s death.
Comments of Consistency
There were no inconsistencies noted in Ms Aleksic’s history or presentation.
Diagnosis and Reasons
Based on the history presented by Ms Aleksic, her presentation and review of provided documentation, she meets the diagnostic criteria for a Major Depressive Disorder, as per DSM-5. This is based on a history of Ms Aleksic experiencing a depressed mood most of the day, nearly every day, with a markedly diminished interest and ability to derive pleasure from most of her activities, significant sleep and appetite disturbance, feeling fatigued and low on energy most days, feelings of worthlessness and low self‑esteem, a diminished ability to think and concentrate and memory difficulties.
Ms Aleksic also presents with some features of a Posttraumatic Stress Disorder, but does not meet the full diagnostic criteria for the condition.
Causation and Reasons
Ms Aleksic has had a pre-existing Major Depressive Disorder that developed following her husband’s death. Her Major Depressive Disorder appeared to be in at least partial remission at the time of the first accident. Subsequent to the first accident, her depressive symptoms worsened and were further exacerbated by the second accident, after which time she experienced a full relapse of her Major Depressive Disorder, which has continued to the time of this assessment.
Conclusion
Ms Aleksic experiences significant symptoms of her Major Depressive Disorder. Her treatment has not been optimised as she has only received psychological therapy and her antidepressant medications have not been changed since prior to the accidents in 2020.”

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 minor or non-minor 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: Insurance Australia Group Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[45] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[45] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[46] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[46] at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.
We adopt the reasoning in Hoblos and apply our summary set out in an earlier direction to the parties, that is:
· the effects of each motor accident must be considered separately (at [149]), and
· the effects of a particular motor accident are evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
Since the reasons were published in Hoblos, the Supreme Court has held that a psychological injury was established if the motor accident aggravated, accelerated or exacerbated a psychological condition.[47] Accordingly, consistent with the reasons in Todev, the reference in the second bullet point above should read “albeit by way of aggravation, acceleration or exacerbation”.
[47] Todev v AAI Limited t/as GIO [2023] NSWSC 836 (Todev) at [50]-[53].

Injury

We are satisfied that the claimant’s pre-existing psychological disorder was aggravated and exacerbated by the motor accident noting that we have found in the related proceedings that the psychological condition as aggravated by the previous motor accident. We base our conclusion on the clinical records and particularly the clinical expertise of the Medical Assessors who examined the claimant. The nature of the motor accident involving the shock of a collision with a kangaroo in circumstances where the claimant was vulnerable having just suffered a recent motor accident was sufficient to be capable of aggravating a psychological condition.

The clinical records following the motor accident show a contemporaneous complaint of an exacerbation of psychological symptoms.
We agree with the claimant’s submissions[48] that the clinical records show an exacerbation of symptoms following both the previous accident and the motor accident from a psychological condition that was in partial remission. We agree with the claimant’s submission that she as particularly vulnerable following the previous motor accident.
[48] See [50]- [52] herein.
Whilst we are not bound by any medical opinion, we note the opinion of Dr Canaris which supports the diagnosis of an aggravation of the pre-existing psychological condition caused by both motor accidents. The problem with that opinion is that Dr Canaris did not address whether either accident separately aggravated the pre-existing psychological condition.
Medical Assessor Samuell appeared to accept that both motor accidents aggravated the pre-existing psychological condition. The Medical Assessor then applied an incorrect test of causation by failing to consider the proper test of causation to the definition of threshold injury.
In Briggs v IAG Ltd (No 2)[49] Wright J noted that the question of causation of injuries is addressed in Part 6 of the Guidelines. His Honour noted that whilst Part 6 of the Guidelines related to the 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”.[50]
[49] [2022] NSWSC 372 (Briggs (No 2).
[50] Briggs (No 2) at [35].
Clause 6.6 of the Guidelines refers to page 316 of AMA 4 which in part relevantly provides:
“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”.
Clause 6.7 of the Guidelines refers to both the injury and the associated impairment and provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
Consistent with the above, we are satisfied that the motor accident aggravated a pre-existing major depressive disorder which were not transient and otherwise of sufficient severity. The psychological injury is a major depressive disorder diagnosed under DSM-5. This injury is not a threshold injury as defined in the MAI Act and the Regulations.
Accordingly, the claimant’s injury caused by the motor accident is a non-threshold injury.

CONCLUSION

For these reasons, the Panel concludes that the certificate issued by Medical Assessor Samuell is revoked. The new certificate is attached at the commencement of these Reasons.

OTHER MATTER

After the claimant has been examined by the Medical Assessors, the claimant’s solicitors filed a further report from Ms Sestic, psychologist dated 22 August 2023. The report was forwarded to the Panel on 19 September 2023.
No consent was obtained from either insurer.
The late filing of this evidence in circumstances where the claimant had been examined is unsatisfactory. The further materials are rejected.

[2023] NSWPICMP 482

28 September 2023