Allen v Allianz Australia Insurance Limited
[2024] NSWPICMP 672
•23 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allen v Allianz Australia Insurance Limited [2024] NSWPICMP 672 |
CLAIMANT: | Jeanette Allen |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 23 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment of single Medical Assessor; psychological injury; whether the claimant has suffered a threshold injury; claimant’s vehicle hit from behind by a truck; Held – Medical Review Panel diagnosed the claimant as suffering a reoccurrence of a major depressive disorder with anxious distress in addition to exacerbation of somatic symptom disorder with predominant pain; determined that the claimant suffers from injuries that are not threshold injuries; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel revokes the medical assessment certificate of Medical Assessor Atsumi Fukui dated 19 June 2023 and certifies that the following injuries caused by the motor accident are not threshold injuries for the purposes of the Motor Accident Injuries Act 2017: · recurrence of major depressive disorder with anxious distress, and · exacerbation of somatic symptom disorder with predominant pain. |
STATEMENT OF REASONS
INTRODUCTION
Ms Jeanette Allen (the claimant) alleges injury from a motor accident occurring on
13 July 2018. The claimant was the driver of a stationary vehicle at an intersection, that was hit from behind by a truck. She was 55 years of age at the date of the accident.
She subsequently lodged a claim upon Allianz Australia Insurance Limited, the insurer of the truck considered at fault (the insurer). The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury (previously known as “minor” injury) for the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
Medical Assessor Atsumi Fukui issued a certificate and reasons dated 19 June 2023, which certified that the psychological injury referred was not caused by the motor accident, and therefore a decision as to whether the injury was a threshold injury is not required for the purpose of the MAI Act.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act. On 30 August 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment 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) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel met via video conference on 9 July 2024 and determined that a re-examination of the claimant was required. A medical examination was arranged to take place on
4 September 2024 with Medical Assessor Baker and Medical Assessor Canaris via Microsoft Teams. The examination took place as scheduled.
The Panel reconvened via videolink for a second teleconference on 16 September 2024.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also 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 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. 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: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI 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:
“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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
ASSESSMENT UNDER REVIEW
The Medical Assessor confirmed the claimant experienced anxiety symptoms following the accident, however, she did not develop an anxiety disorder and there was no evidence for a psychiatric diagnosis under DSM-5. The reported distress was opined to be related to the claimant’s chronic pain condition and related compensation matter.
Medical Assessor Fukui took a history of the accident and noted that in addition to physical symptoms the claimant began to experience nightmares within the first week following the accident following which she would struggle to get into a car and feel edgy and jumpy when she recalled the sound of glass shattering. This took weeks to resolve, and she underwent exposure therapy with her psychologist to get comfortable in a car and resumed driving five or six months after the subject accident. However, she struggled in large crowds and found it difficult to go out preferring to work from home becoming more emotionally labile. She had poor sleep due to waking up from pain and nightmares. Her pain impeded her activity although she retained motivation and interests. She was noted to be comfort eating gaining 15kg in weight because of this and because of reduced activity. She was noted to be on Cymbalta (duloxetine) at a dose of up to 90mg daily which subsequently was reduced to 30mg daily. She had seen a pain specialist and was noted to be on opioid analgesia as well as pregabalin.
Medical Assessor Fukui noted that the claimant did not report depressive symptoms, did not report symptoms consistent with post-traumatic stress disorder, and considered that there had been no impairment in her level of functioning compared to her pre-accident situation noting that she derived most pleasure out of her grandchildren and spending time with her family while maintaining an interest in going shopping and going on holidays but with limitations arising from chronic pain. She stated that her reported distress related to her chronic pain condition and her related compensation matter. She determined that the claimant’s anxiety, which she did not consider to be a diagnosis, was not caused by the motor accident.
SUBMISSIONS
Claimant’s review submissions dated 4 August 2023
The claimant submits that the Medical Assessor applied an incorrect test as to the question of non-threshold injury, as she did not consider or adequately consider whether the claimant at any time post-accident suffered from a non-threshold injury. In this regard, the Medical Assessor noted there was no evidence of ongoing major depressive disorder. The claimant relies on the case of David v Allianz Australia Insurance Limited 2021 NSWPIC MP227 (David).
The claimant submits that applying the test of cl 6.7 of the Guidelines, the relevant question is whether the accident has caused or materially contributed to an injury to a level that is more than negligible.
Insurer’s review submissions dated 18 August 2023
The insurer agrees that there need only be a finding of an injury that is not a threshold injury at any time arising out of a motor accident, and not just at the time of the assessment.
However, the insurer refutes the suggestion that the Medical Assessor did not turn her mind to that question. In this regard, the insurer notes the claimant had a psychological claim via workers compensation for bullying and the Medical Assessor was provided with and had regard to reports of Dr Rastogi.
It is submitted that “it is clear” that the Medical Assessor considered the whole of the claimant’s psychological condition from the time of the accident to the time of the assessment.
The insurer also agrees with the claimant’s submission in respect of the test for causation, but does not accept that the Medical Assessor did not apply the test. In this regard, the insurer submits that the Medical Assessor found that the psychological injury suffered by the claimant were not causally related to the accident, but were pre-existing.
DOCUMENTATION
Additional medical assessments
The Panel noted the certificate of Medical Assessor Ian Cameron dated 26 July 2022 determining that the claimant’s soft tissue injuries to the cervical spine, left shoulder, and head were minor (threshold) injuries for the purposes of the Act.
The Panel noted the certificate of Medical Assessor Fitzsimons dated 8 April 2023. Medical Assessor Fitzsimons determined that a soft tissue injury to her cervical spine, aggravation of prior lumbar spine disease, aggravation of prior adhesive capsulitis, and restriction secondary to her cervical injury in her right shoulder gave rise to a permanent impairment of 7%. He also determined there was no persuasive evidence of a closed head injury, injury to her thoracic spine, or direct injury to her right shoulder.
NSW Ambulance
The Panel noted the ambulance report dated 13 July 2018 that noted a three-car motor accident with the claimant suffering a secondary impact form the third vehicle. The claimant denied a head strike but complained of a headache. Cervical spine tenderness not with chest pain together with back pain.
Application for personal injury benefits
The claimant noted a number of physical injuries caused by the accident including pain in the left arm and neck and severe chest pain.
Medico legal reports
The Panel noted reports of Dr Richa Rastogi dated 30 November 2016, 30 April 2018, and 29 November 2021. Dr Rastogi recorded a history of a workplace psychological injury in the setting of what was described as a toxic workplace environment, unrealistic expectations, being excluded, and generally bullied culminating in a letter about perceived lack of achievements. In this setting, she experienced an anxiety attack. She was noted previously to have experienced an adjustment disorder in 2006 following a relationship breakdown and a motor vehicle accident following which she had been off work for nine months.
She was noted also to have a history of postnatal depression following the birth of her third child for which she was treated with counselling.
Dr Rastogi noted that the 2006 motor vehicle accident had also resulted in a nerve entrapment injury giving rise to chronic pain as well as noting her being off work for nine months following the motor vehicle accident for which she had been on workers compensation.
Dr Rastogi initially diagnosed the claimant with an adjustment disorder with anxiety and later with major depressive disorder and generalised anxiety disorder and finally with exacerbation of major depressive disorder and chronic pain disorder. She undertook three assessment of whole person impairment with an initial rating of 20% in relation to the 2016 workers compensation matter, then 22% for the same matter, and finally 13% (15% whole person impairment with a deduction of 1/10 for pre-existing impairment) in relation to the 2018 subject motor vehicle accident. Dr Rastogi’s ratings in November 2021 were Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 3 for concentration, persistence, and pace and Class 3 for adaptation.
Treating medical evidence
The Panel noted extensive documentation in the form of correspondence between her general practitioner (GP) and specialists in relation to her lower back issues for which she was on Endone, OxyContin, and pregabalin. At other times, she was on hydromorphone (Dilaudid). She had also been prescribed antidepressants such as duloxetine.
It was apparent from the documentation that the claimant had been having a frustrating journey in relation to these difficulties. Chronic pain seems to have been a major focus of attention.
Significantly, she was seen by an addiction medicine specialist on 25 June 2018 in relation to her chronic pain and opioid use arising from pain from a motor vehicle accident in 2008.
There is evidence of low mood with depression, anxiety, distress, and frequent anger with fragmented sleep because of her pain and she is noted to have stopped working because of this (South West Pain Clinic 11 April 2018) and she had high scores on the DASS 21 for depression, anxiety, and stress with low levels of self-efficacy.
She was also considered to be opioid dependent and finding that opioids were not controlling her pain. However, her lower back pain was noted to have worsened following the 2018 motor vehicle accident (eg, Dr Patel 8 November 2019). Later down the track, she had injections to her spine and a radiofrequency ablation.
The Panel also noted extensive documentation relating to injuries to her left shoulder for which she had arthroscopic surgery.
The Panel noted certificates of capacity referencing physical injuries and anxiety.
The Panel noted general practice’s notes from MacArthur General Practice from
12 August 2013 to 23 July 2020. The Panel noted ongoing prescriptions for hydromorphone and pregabalin from 2013 onward in the setting of “severe pain in lower abdomen and back” (15 November 2013), a chronic wound dehiscence following surgery in 2008 for which she had had a wound revision resulting in “repeat massive dehiscence”, right knee pain following a partial ACL tear following a fall in 2013, and a note on 30 July 2014 described her as “still in severe pain, depressed” and she is said to be “Struggling with pain issues. Crying a lot. Feels this has gone on for too long” and she was prescribed Cymbalta (duloxetine).
A comment on 22 September 2014 states that she had been started on hydromorphone by a pain clinic in Randwick following an injury in a motor vehicle accident resulting in a fracture to T12 and a disc prolapse at L5/S1.
In December 2015 she is noted to be feeling very stressed with the new job.
In May 2016, she was being referred to a pain specialist and she was reportedly not happy about a call from drug and alcohol services and unhappy about the prospect of coming off her hydromorphone.
On 19 May 2016, she is reported to have ongoing symptoms of anxiety with “persecutory thoughts when in public” because she “feels people think she is fat and stupid” as well as “persecutory dreams” in which she is “being hunted”.
There is a reference to work-related stress, and she is noted to be seeing a psychologist. There are many notes in 2016 relating to her workers compensation claim with symptoms of anxiety and depression as well as ongoing back pain.
However, mental health seems to be replaced by presentations relating to physical symptoms from late 2016 although in March 2017 she presented saying that her husband was leaving her with which she was “not coping very well” and needed to see a psychologist. She was noted to be applying for the disability support pension.
On 8 June 2017, she presented with back pain and to her pain and was noted to be very anxious and teary throughout the consultation saying she was worried about her mother. By 4 July 2017, her relationship with her husband had improved and on 14 February 2018 was noted to have improved pain control.
On 16 April 2018, her GP had a long discussion with her about mental health in that she felt very depressed and anxious while feeling betrayed by her family and husband who did not understand her situation and whom she perceived to be unsupportive. There are references to anhedonia, worthlessness, anxiety, and to not adjusting well to pain.
The first entry relating to the motor vehicle accident appears on 16 July 2018 and a note on 30 July 2018 documents, in addition to physical issues, that she “has been struggling about getting back into the car, crying with added impact of the accident, worries about losing her job”.
On 3 August 2018, she “continues to complain of aches and pains” and is “still finding it difficult to get back to driving” with “lots of tears and worries about her job”.
On 22 August 2018, she is noted to have started driving but to have “worsening neck and arm pain”.
On 24 August 2018, she had run out of hydromorphone as she had taken more than she was supposed to and was prescribed Endone.
On 28 September 2018, she had gone to accident and emergency because of symptoms of opioid withdrawal.
On 24 October 2018, she had taken time off work because of her brother’s sudden unexpected death for which she had to travel to Dubbo and her pain was noted to have worsened following her bereavement and stress. Subsequent entries relate predominantly to physical issues including pain with which she said at various times not to be coping well.
RE-EXAMINATION
Pre-accident history
The claimant is 61-year-old sales representative who has been off work since 29 April 2024 and has since been made redundant. She is right-handed.
She had experienced bullying at work around 2008. She “had a lot of treatment but I didn’t have as much as I should have and so it wasn’t approved”. She “definitely” saw a psychologist but could not recall seeing a psychiatrist and “I was on the Cymbalta back then – I can’t remember how much…”. She may have been on another antidepressant. She does not recall having pain issues saying, “I was really, really active back then”.
Her current depression is “pretty similar” to what she had experienced back in 2008.
She had a fall a couple of weeks after being made redundant and she had been suspected of having a fractured scaphoid.
Her physical health included hypertension, diabetes type 2, Hashimoto’s thyroiditis, hypercholesterolaemia, and arthritis. She is also on Oroxine 150 mcg, Coveram 10/10, amitriptyline 10mg at night. She is on codeine and gabapentin and has been on Endone in the past.
She does not drink alcohol. She does not smoke. She does not use drugs. She does not gamble.
She denied any history of problems with the law. She had no other claims history.
She knew of no formally diagnosed family history of psychiatric illness but wonders if her mother may have had some issues.
History of the accident
On the day in question (13 July 2018), she was headed for the office for an afternoon sales meeting. She was on her way to Botany. She stopped to get a sandwich. She stopped to allow a car to exit a parking spot. She was hit from behind by a 5-tonne truck followed by a 32-tonne heavy truck. She initially didn’t know what happened. Her car lunged forward. She had her hands on the steering wheel, and she had “instant pain”. She heard the glass shattering in the back of the car “and that’s what haunts me”. She rolled forward a fraction to reduce the impact. She said five cars all up were involved in the accident.
She was shaken up and in a lot of pain. She tried to get out of the car but was in too much pain. She was clutching her chest.
An off-duty police officer called an ambulance. She remained in hospital until around midnight.
She sustained “grade three whiplash”. She already had a left frozen shoulder “but it made it completely unusable”. She had lower back and pelvic pain.
She ended up having surgery on her shoulder which was successful. She had ongoing physiotherapy for her back. She has headaches for which she has been seeing a neurologist.
I asked how she felt in herself. She replied that she had improved over the five years.
She had several weeks off work following the subject motor accident and said her employer was supportive of her limitations. She added in this context, “Covid was a blessing”. Other than that, she had had two weeks off work in August 2019 for pain management as well as when she had her shoulder surgery which she did just before the Christmas shutdown. She went off work after she had to do two big trips for work a week apart. On her second trip, she dropped a price book from her car and bent down to pick it up “and the pain” in her lower back and right leg was “next level”. She had to be picked up by her husband who drove to Canberra to pick up her car. She was about eight weeks off work before she was made redundant.
She said she found being made redundant distressing and this has contributed to a recurrence of symptoms. She has felt worthless after her redundancy “especially after working my whole life”.
She spoke of nightmares “where someone is chasing me”. These had begun “in the first few days after the accident – I was quite jumpy – any loud noises make me jump still – when I’m in the car and I hear brakes, I get very anxious – the last couple of years my husband had been doing the country trips with me because I wasn’t confident driving”. That said, she was able to make longer trips on her own such as to Canberra from Camden though a trip to the South Coast was beyond her due to a combination of physical problems and anxiety.
Her mood over the weeks and months after the accident was “not great” and “it took me weeks to get back into the car – I had to see a psychologist and she worked out a way of getting me back in the car”. She went on to describe a graded exposure program which “got me to be able to do short trips – my role back then was to look after the city – the longer trips I didn’t do back then…”.
She found it hard to face people back then feeling as though people would be judging her with which she coped because she tried to focus on the product. She would make excuses not to go out and see customers and her sales started to decline and that had been “consistent over three last two and a half years” and she had been pulled up for it a couple of times. She found it particularly daunting if she had to see a new group of customers.
She has contended with “bouts of being sad – of anxiety that bad that I’ve thought if a truck comes at me, I’d be happy to be taken off the road – I’ve had those moments”. She had “just had the thoughts” and saw herself as restrained from trying to harm herself by her grandchildren.
She would “only average four hours a night” usually woken by bad dream though sometimes she has had to get up to go to the bathroom saying she had issues with incontinence. Sometimes, she is woken by pain.
She sees her anxiety as something that “stops me from doing things I should do more… even grocery shopping – I order it online…”.
She has become indecisive which is not like her (“I managed a $6 ½ million company for years, so I had to make decisions for everybody”.
She sees Elizabeth Hayes in Wollongong as part of a pain management program. She sees her every fortnight. She has been working on mindfulness and works on strategies to manage her anxiety.
She is on Cymbalta 90mg daily which is prescribed by her GP. She has found it helpful although it leaves her feeling “as though my thought processes are delayed”.
Mental state examination
The claimant was interviewed via Microsoft Teams. A good audiovisual connection was established. She was at her home. She presented as a woman of appearance consistent with her stated age who provided the history documented above. Her narrative was coherent and consistent. She acknowledged that her current depressed mood was similar to what she had experienced in the past.
Her demeanour was depleted, and she was often teary or close to tears as she spoke.
There was no evidence of psychosis or cognitive impairment.
The claimant was orientated in time, place and person. She reported suicidal thoughts whilst driving. She had no intent to harm herself. Her judgment was normal. She was insightful into her condition.
Consistency
There was no evidence of any inconsistency. Whist the claimant spoke about suffering from anxiety. She did not provide sufficient anxiety symptoms for a DSM-5-TR diagnosis of an anxiety disorder to be made during this re-examination.
Current functioning
She has gained some 15kg since the accident saying she tends not to make good decisions about what she is eating. She had also been a very active woman up until her accident.
This leaves her feeling tired and she said she found herself having microsleeps on the road or having to nap during the day.
She has not found other work and continues to get weekly benefit payments. She finds it difficult to see how she could work in her current condition. Fortunately, she had downsized her home and so now has “virtually no mortgage”.
If she were pain free, she would probably get back to work and try to get out into nature more. She added that she misses cooking. She used to enjoy rock and roll dancing. She had hoped that her anxiety would then decrease because she would not be worried about being in pain. For example, her husband wanted to book a trip to Hawaii, but she begged him not to, worrying how she would be as a tourist.
She has some conflict with her husband, and they have no intimacy “and when you didn’t have intimacy… it puts a lot of emphasis on other things” partly because of pain and partly because she “does not feel like an attractive human”.
She spoke of her tendency to self-sabotage what with “being a bit OCD” or putting things off till the last minute causing her to be often late. This had been a problem at work.
PANEL FINDINGS
Diagnosis and reasons
The claimant has a history of depressive symptoms both before and after the subject motor vehicle accident. At the same time, the accident was an event of a kind that carried a significant probability of precipitating a psychiatric injury. Since the subject accident, she has contended with anxiety, depressed mood, and chronic pain. She appears to have deteriorated since being seen by Medical Assessor Fukui.
Her presentation is consistent with a recurrence of major depressive disorder with anxious distress DSM-5-TR F33.1.
In terms of DSM-5-TR criteria, there is evidence of depressed mood for most of the day for nearly every day for an extended period with markedly diminished interest and pleasure in most activities, insomnia, fatigue, indecisiveness, and occasional thoughts of suicide (Criterion A). Her symptoms cause her clinically significant distress and impairment in psychosocial functioning (Criterion B) and are not attributable to the physiological effects of a substance or to another medical condition (Criterion C). There is no evidence of a schizoaffective disorder, schizophrenia, or other schizophrenia spectrum/psychotic disorder (Criterion D) and there has never been a manic or hypomanic episode (Criterion E). While post-traumatic symptoms were evident, the Panel considered that these were captured by the anxious distress specifier and did not think there was sufficient evidence to warrant a diagnosis of post-traumatic stress disorder or anxiety disorder.
The Panel considered a diagnosis of persistent depressive disorder (dysthymia). However, she did not have a history of depressed mood for most the day for most days than not for at least two years. Rather, there was evidence of depressive illnesses from which she had made a substantial recovery with subsequent recurrences. The Panel took note in this regard of her presentation to Medical Assessor Fukui.
The Panel considered the nature and duration the claimant’s chronic pain. Whilst various pain related conditions were considered, the DSM-5-TR diagnosis of somatic symptom disorder with predominant pain DSM-5-TR F45.1 was confirmed at this re-examination. This does not imply that her pain is without pathophysiological basis. Rather the extent to which pain dominates and intrudes upon the claimant’s life has been considered.
Causation and reasons
The claimant’s psychological injury, major depressive disorder with anxious distress comprises a recurrence of a pre-existing condition which has arisen as a consequence of the subject motor vehicle accident partly in response to stresses associated with that event and partly in response to her experience of chronic pain and losses emanating from her physical injuries. The loss of her job has also contributed. The Panel noted continuing symptoms emanating from the subject accident. The Panel also noted that the claimant while fully acknowledging a prior history of depressive episodes had also made substantial recovery from the pre-existing depression and then returned to her primary substantive role in which she continued to work at the time of the subject motor accident.
The claimant’s somatic symptom disorder with predominant pain also predated the subject motor vehicle accident. The available history suggests that this has been exacerbated in the setting of actual physical injuries sustained as a result of the accident. The exacerbation is more than negligible.
The Panel found that the subject motor accident could cause definable psychological injury using DSM-5-TR criteria. The definable psychological injury is a recurrence major depressive disorder with anxious distress and somatoform symptom disorder with predominant pain.
The Panel determined that the subject motor accident did cause the psychological injury as defined by DSM-5-TR in compliance with the guidelines.
Threshold injury
Recurrence of major depressive disorder with anxious distress, and exacerbation of pre-existing somatic symptom disorder with predominant pain are recognised psychiatric conditions for the purposes of the MAI Act. The psychological injury diagnosed as major depressive disorder with anxious distress, and exacerbation of pre-existing somatic symptom disorder with predominant pain were caused by the subject motor accident are not threshold injuries.
CONCLUSION
The following injuries are not threshold injuries:
· recurrence of major depressive disorder with anxious distress, and
· exacerbation of somatic symptom disorder with predominant pain.
It follows, therefore, that the original medical assessment is revoked by the Panel and a certificate is attached to the beginning of these reasons.
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