Allianz Australia Insurance Limited v CTA

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v CTA [2024] NSWPICMP 669
CLAIMANT:	CTA
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	20 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review by Medical Review Panel of medical assessment; threshold injury; assessor found the claimant suffered post-traumatic stress disorder as a result of accident; certified not a “minor” (now threshold) injury; Held – claimant suffered a pre-existing persistent depressive disorder with anxious distress; condition aggravated by accident; not a threshold injury; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificates of Medical Assessor Shen dated 4 November 2022 and certifies that the aggravation of persistent depressive disorder with anxious distress was caused by the motor accident on 3 November 2020 and is not a threshold injury.

STATEMENT OF REASONS

BACKGROUND

CTA (claimant) was involved in a motor accident at Koolewong on 3 November 2020 (accident). She has made a claim for both statutory benefits and damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer), the insurer of the other vehicle involved in the accident.
These proceedings relate to a dispute between the claimant and the insurer as to whether for the purposes of the MAI Act a psychological injury caused by the accident is a threshold injury.[1] The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
[1] The dispute was initially about whether psychological injury caused by the accident was a “minor injury”. The term “minor injury” was replaced in the MAI Act by the term “threshold injury” as a result of amendments made by the Motor Accident Injuries Amendment Act 2022. References in these reasons to “minor injury” or “minor injuries” are references taken from documents created prior to 1 April 2023.
The medical dispute was referred to Medical Assessor Shen for assessment. The Medical Assessor gave a certificate dated 4 November 2022 in which he certified that post-traumatic stress disorder was caused by the accident and was not a minor injury for the purposes of the MAI Act (Assessment).
The insurer sought a review of the Assessment under s 7.26 of the MAI Act. On 28 February 2023 the President’s Delegate determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to a Review Panel.
The Review Panel (Panel) has been constituted by the President of the Commission to conduct the Review of the Assessment (Review).

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.

DIRECTIONS

On 29 January 2024 the Panel made directions for the provision of a joint agreed indexed bundle that contained all material relied on by the parties for the purposes of the Review, together with written submissions relied on by the parties in the Review.
On 29 February 2024 the Panel informed the parties that it considered re-examination of the claimant was required, and confirmed that the examination would be conducted by Medical Assessors Barrett and Roberts on behalf of the Panel on 22 May 2024. The Panel also directed the claimant to provide it with a complete copy of Dr Rice’s clinical records from 1 January 2015 to date, together with any submissions she relied on with respect to Dr Rice’s clinical records. The insurer was given an opportunity to make submissions about Dr Rice’s clinical records.
By message to the Panel on 12 April 2024, the insurer stated “…the updated records contain no reference to psychological symptoms, complaints or diagnoses as at 26 March 2024, consistent with the insurer’s earlier submissions dated 28 February 2024.”
On 31 May 2024 the Panel directed the claimant to provide it with:
(a)    a complete copy of the clinical records held by her general practitioner(s) from 1 January 2015 to date;
(b)    a complete copy of the claimant’s Centrelink file, and
(c)    the claimant’s tax returns for the period 3 June 2018 - 30 June 2023.
The parties were given the opportunity to make submissions with respect to this material by 5 July 2024. No submissions from either party were received.
On 31 July 2024 the Panel, having received further evidence in response to the directions made on 31 May 2024, determined that a further examination of the claimant was required to clarify matters arising from that material. The further examination was conducted by Medical Assessors Barrett and Roberts on behalf of the Panel on 28 August 2024.

STATUTORY PROVISIONS

The term “threshold injury” is defined in s 1.6 of the MAI Act and includes threshold psychological or psychiatric injury. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(a).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) states that acute stress disorder and adjustment disorder are each included as a threshold injury for the purposes of the MAI Act. For the purposes of cl 4. “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl4(3) of the Regulations.
Part 5 of the Guidelines contains the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 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    …
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J held at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Shen gave a certificate and reasons dated 2 November 2024. The Medical Assessor certified that post-traumatic stress disorder was an injury caused by the accident and was not a minor injury.
The Medical Assessor’s reasons record a pre-accident history of post-natal depression, and depression after suffering from Legionnaires’ disease. The claimant had been prescribed Fluoxetine, which she ceased taking when she was 43-years-old. There was no history of “interim depression” from that time to prior to the accident, although she experienced “persistent worrying” and ruminations of being “beaten up” by her father. She had not had any psychological therapy prior to the accident. A history of a car accident four years prior to the subject accident was recorded.
The Medical Assessor recorded a history that after the accident the claimant developed symptoms of anxiety when driving. He recorded that “[she] knows she has to go to work and she gets upset beforehand, and forces herself to do it and gets nervous on the way”. The claimant reported that she experienced depressed mood every day, had constant anxiety, difficulties initiating sleep, reduced appetite, reduced concentration and motivation, and had fleeting suicidal ideations. She reported recurrent re-experiencing memories three times a week, that she dreams about the collision, experiences triggered psychological reactions, had been more irritable, hypervigilant, and experienced distress and “social impact”. She had restarted Fluoxetine, which had “helped a bit” with her pessimistic thinking and suicidal ideations.
A clinician administered depression score (MADRS) put her in the moderate range of depression (28), and a post-traumatic stress disorder score on the CAPS-5 was positive for post-traumatic stress disorder, with a total severity score of 40. The Medical Assessor found that there was some inconsistent responding by the claimant regarding the severity of her depressive symptoms and reactivity to positive experience, with some disproportionality with the severity of her purported symptoms and current functioning, and current functioning between different domains. However, she did not demonstrate non-credible performance on a performance validity test of psychiatric symptoms (M-FAST).
The Medical Assessor diagnosed post-traumatic stress disorder, having found that each of the criterion for that diagnosis had been met.

EVIDENCE

The evidence before the Panel comprises the joint bundle lodged by the parties, Dr Rice’s clinical notes,[2] documents from the Australian Taxation Office, Centrelink records, and records from NHS Australia Medical Centre. The Panel has considered all this material.
[2] Provided with an Application to Admit Late Documents dated 27 March 2024.

Claim documents

An Application for personal injury benefits dated 2 February 2021 (claim form) records that while the claimant was stationary waiting to turn into a driveway, another vehicle failed to stop, hit her vehicle “at the rear”, and pushed her vehicle onto the other side of the road and into oncoming traffic. Her vehicle was then “T-boned on the passenger’s side by another vehicle”.
The claim form records that the claimant suffered injury to her neck, left arm, left shoulder, upper, middle and lower back, left leg and psychological injuries as a result of the accident. Although the claimant marked with an X the box to indicate she was suffering an illness or injury affecting the same or similar parts of her body at the time of the accident, no details of the nature of the illness or injury are recorded. The claim form records that the claimant was employed as a full-time disability support worker at the time of the accident.
In a liability notice dated 27 April 2021, the insurer informed the claimant that it did not accept liability for payment of statutory benefits beyond 26 weeks from the date of the accident because it had determined that her accident caused injuries were minor injuries.
In a Certificate of Determination dated 17 September 2021, an internal reviewer determined that the claimant’s injuries resulting from the accident “met the definition of ‘minor injury’ as set out in the Act”. With respect to the claimed psychological injury, the internal reviewer determined that because the claimant’s general practitioner (GP) had not provided a diagnosis of any psychological injury arising from the accident, they were satisfied that she did not sustain a psychological injury as a result of the accident.

Certificate and reasons of Medical Assessor Hyde Page

Medical Assessor Hyde Page gave a certificate and reasons dated 13 September 2022. The Medical Assessor certified that injuries to the claimant’s cervical spine, left shoulder, left arm, thoracic spine, lumbar spine, and left leg, that were caused by the accident, were minor injuries.
In his reasons, the Medical Assessor recorded that the claimant continued to experience some neck and left shoulder pain, that her thoracic back pain had settled well after physiotherapy, that she had persistent left lower back pain with some stiffness, together with persistent anterior left knee pain, and ongoing painful left Achilles tendon. In the Medical Assessor’s opinion, the claimant developed musculoligamentous or soft tissue injuries to her cervical spine, left shoulder and arm, back and left knee as a result of the accident. She had also developed left Achillies tendonitis. Each of the diagnosed accident caused injuries were found to be “minor injuries”.

Medico-legal reports

Dr Bodel, orthopaedic surgeon, reported on 20 June 2023. The claimant reported intermittent neck pain, low back pain, pain with prolonged sitting, bending, twisting or lifting, knee pain, left ankle and foot pain, and stiffness in her Achillies tendon. The doctor diagnosed left rotator cuff pathology, and “probably, at the very least” a partial thickness tear of the supraspinatus tendon, together with musculoligamentous injuries to her neck and back. In the doctor’s opinion, as a result of her injuries the claimant had restrictions associated with activities involving her arms and back. She “should be able to contemplate” work of
20-25 hours a week in permanently modified light to moderate manual tasks. Her activities of daily living had been moderately compromised by the effects of her injuries. Her prognosis was guarded. Dr Bodel assessed a 5% permanent impairment of the claimant’s cervicothoracic spine, a 5% impairment of her lumbosacral spine, and a 6% impairment of her left arm.
Dr Rastogi, consultant psychiatrist, reported on 27 April 2023. The claimant reported that since the accident she struggled with flashbacks of the accident, recurring dreams, and physiological responses with fear of death. She experienced “immense anxiety” driving, is very aroused and hypervigilant, is easily startled, sensitive to loud noises, hates driving and has lost confidence. She was “on edge and uneasy” being a passenger, avoids the accident site if possible, and displayed marked avoidance behaviours.
A history of postnatal depression, from which the claimant made a full recovery, is recorded together with the development of depression in her late 20’s, that lasted for 10 years. There was a low back injury in 1987, and a motor accident four years prior to the subject accident. There is a strong family history of bipolar disorder. Her two children have “ADHD” and one child has Aspergers Disorder.
The claimant reported having one psychologist session post-accident, and that she was due to have more. She had been prescribed Fluoxetine by her GP since 2021.
Dr Rastogi diagnosed post-traumatic stress disorder that was caused by the accident. Each of criteria for that diagnosis were, in her opinion, satisfied. The claimant’s symptoms had intensified over the preceding “few months”, causing impact on her driving, cognitive deficits, poor stress coping, and poor emotional regulation. She was unfit to work, and needed treatment to determine her vocational prognosis. The claimant’s prognosis was guarded. In the doctor’s opinion the claimant had not reached “maximal medical improvement”. That being the case, no assessment of whole person impairment was provided by the doctor.

Records, reports, and other material from treatment providers

The Panel has considered the left Achilles ultrasound and the thoracic and lumbar spine MRI report dated 1 April 2021. The MRI report records that the claimant had major claustrophobia, and could not be scanned with her head in the MR gantry. The left hip X-ray and ultrasound report dated 27 April 2021 has also been considered.
The Panel has considered the Certificates of Capacity contained in the joint bundle. The first certificate is dated 8 November 2020, five days after the accident, and was completed by Dr Rice. The certificate records a diagnosis of “Whiplash/Neck and Back sprain”. The claimant was certified as having no capacity for any work. A certificate dated 25 March 2021 refers to the same injuries, and records that the claimant had no work capacity. A certificate dated 19 April 2021 is in the same terms.
An Allied Health Recovery Request (AHRR) dated 27 April 2021 relates to physiotherapy to treat a lumbar spine injury and left Achillies tendinopathy, as is a request dated 1 June 2021.
An AHRR, completed by Ms Gayle, dated 4 September 2023 relates to psychological treatment, and records that the claimant attended an initial psychological therapy session on 19 May 2023 and that she had sustained psychological and physical injuries as a result of the accident. Reference is made to the claimant suffering anxiety symptoms following the accident, including excessive worrying, and avoidance leaving her home and driving her car.
A report from Ms Miller, rehabilitation consultant at Greenlight Human Capital, dated 26 May 2021 focuses on the claimant’s physical injuries, the nature of her pre-accident employment, and her post-accident work capacity. The report records that the claimant’s pre-injury duties as a disability support worker/trainee are sedentary to light in nature, and that her medical restrictions support her ability to resume her pre-injury activities, although for a reduced number of hours and days. Her prognosis “appears excellent”. The report records that the claimant “also reports being on antidepressant medication which she advised she commenced about 8 months ago”.
A further report dated 11 August 2021 records that the claimant’s work capacity had increased, that her treatment program continued, and that Dr Rice supported an update to her work capacity. It is recorded that the claimant was cleared to resume her normal roster with some minor restrictions. The report records that at a case conference on 11 August 2021 the claimant confirmed that she was working well without complaint, and that while there had been a slight reduction in her available work hours this was related to the COVID-19 situation and not her injuries. It is recorded that, as the claimant had returned to work, the rehabilitation provider’s involvement would cease.
A NSW Fitness to Drive Medical Assessment, that includes a referral dated 13 October 2020, records (among other things) a response of “no” to the question: Does the patient have mental health issues that may impact on safe driving?
Reports of Ms Robyn Hughes, physiotherapist, have been considered by the Panel. The reports record that the claimant was referred for treatment by Dr Rice. The focus of treatment was on her thoracic lumbar spine and left Achillies tendinopathy. During the course of treatment the claimant’s pain and range of motion improved and she steadily increased her work duties. In a report dated 20 September 2021 it is recorded that she “can now tolerate her usual work role.”
The various sets of Dr Rice’s records have been considered. In an entry on 19 April 2021 there is reference to back and hip pain. An entry on 29 June 2021 records that the claimant was “now ready for her normal rostered hours she feels”. On 11 August 2021 it was recorded that the claimant “has been doing her pre-injury work now for the past 1/12 and managing this with no issues”.
Records of NHS Australia Medical Centre Blue Haven have been reviewed by the Panel. These records contain some of Dr Rice’s clinical notes, including those referred to above. Certificates of Capacity that are contained in these records refer to “Whiplash/Neck and Back sprain”. The certificates are neither signed nor dated. There is a certificate that records she is fit for pre-injury work from 13 November 2020. There is a further certificate that records the claimant has the capacity to undertake suitable duties for normal contracted hours between 29 June 2021 and 13 July 2021. A subsequent certificate records the claimant is fit for pre-injury work from 11 August 2021.
The NHS Australia Medical Centre documents include an entry on 4 November 2020 that records that the claimant had been involved in a motor vehicle accident the day before. The entry records that after the accident the claimant was “a little shaken up initially”. She awoke with a stiff neck and low back. There was no history of “LBP”. The notes record “prob whiplash injury”.
An entry on 24 March 2021 refers to mid and lower lumbar tenderness, and that the claimant “feels she cannot work for now as has [i]gnored her pain for some time”. Entries on 25 March 2021, 1 April 2021, 19 April 2021, and 4 May 2021 refer to physical symptoms.
Pre-accident notes, that commence on 22 July 2019, have been considered. Entries on 24 June 2020 and 13 October 2020 record that Fluoxetine had been prescribed. The prescription records state that a script for Fluoxetine was given by Dr Rice on 19 December 2019.
Records of Your Strengths Psychology have been reviewed by the Panel. The notes are hand written, and some entries are difficult to read. An entry dated 19 May 2023 is the first in the notes. A history of the accident is recorded. Notes recorded on 30 August 2023 refer to “sleep trouble”. On 30 August 2023 it was recorded that the claimant was sacked the day before, and that she had been on sick leave since December. A note taken on 14 September 2022 records “concerned re ‘OCD’ tendences”. It seems likely to the Panel that reference to 2022 should be to 2023, as the other entries are all dated 2023. Further, the initial AHRR for psychological treatment is dated 2 September 2023, and refers to the initial session occurring on 19 May 2023.
Records of Hammond Road Medical Centre have been considered by the Panel. A New Patient Form is dated 22 July 2019. A Transport for NSW doctor certification, completed by Dr Karalasingham, dated 10 December 2021 records, in response to the question “Does the patient have mental health issues?”, that the claimant suffers from chronic depression, for which she had been prescribed Fluoxetine. A box for “PTSD” has not been ticked.
A discharge referral from Wyong Hospital records the claimant was admitted on 18 December 2022 for community acquired pneumonia, and that she was to be discharged on 26 December 2022.
A discharge referral from St George Hospital records that the claimant was admitted on 4 January 2023, having been transferred from Wyong Hospital with “frank haemoptysis”. She was to be discharged on 13 January 2023.
A mobility parking scheme application, completed by Dr Fermanis, dated 21 April 2023 refers to “multiple co-morbidities”. The box “No” is ticked in response to the question: Does the patient have a mental health/nervous disorder?
A Centrelink medical certificate dated April 2023 refers to “PTSD” with date of onset “2 years”.
There are progress notes from the medical centre that commence on 20 October 2022. The last entry is dated 13 December 2023. The records include the notes of Dr Fermanis and Dr Tsouroutis. The notes also include some of the claimant’s records from previous practices, that are undated.
The patient notes include the following undated entry:
“Prev long hx. Depression
can feel it coming back again
a lot of family bereavements this year
some fleeting thoughts of not wanting to be here, but no intent or plans
only momentary
would not do anything
used to be on fluoxetine
Keen to resume
Has seen psychologist over the years
Found meds most helpful
Restart fluoxetine
Supportive chat
See 1/12 to see how getting on with this”
On 21 April 2023 the notes make reference to “[m]ultiple problems”, record that referrals were requested and that it was proposed to “[r]eactivate her Third Party Claim”. A note on 27 November 2023 records “PTSD-depression- needs Centrelink Cert”.
The records of Dr Rice, that have been provided in addition to those in the joint bundle, have been reviewed and considered by the Panel. The material includes the same notes that are referred to earlier. The last entry relating to an attendance by the claimant is dated 29 April 2022. On 14 December 2022 it was recorded that the claimant’s clinical record was exported. The records include investigations, radiology reports and certificates of capacity.
Records from Centrelink have been considered. They include details of payments made. An Employment Services Assessment Report dated 5 October 2023 refers to conditions that include severe middle lobe pneumonia, lung abscess with pseudoaneurysm, and type II diabetes. It is stated that the claimant’s “baseline work capacity” had reduced to 8-14 hours a week because she has permanent conditions that impact on her ability to regularly maintain full time work. With “disability specific intervention”, her work capacity will increase to
15-22 hours a week.
The claimant’s Australian Tax Office (ATO) records include notices of assessment from the year ending 30 June 2016 – 30 June 2022. There are also a number of payment summaries and individual returns that have been considered by the Panel.

SUBMISSIONS

Claimant’s submissions

In written submissions dated 17 January 2023 the claimant argued that while Medical Assessor Shen has not specifically referred to DSM 5, he relied on the CAPS 5 method of determining the diagnosis and has therefore “indirectly” referred to DSM 5. It is argued that the CAPS 5 is the “gold standard in PTSD assessments”. In the claimant’s submission, the Medical Assessor addressed the diagnostic criteria for post-traumatic stress disorder, including the development of symptoms, her treatment, and the circumstances of the accident.
The claimant submits that the Assessment does not demonstrate any material error, that the Medical Assessor provided his path of reasoning in determining that she suffers from post -traumatic stress disorder, and that the insurer’s application for review of the Assessment is “without merit”.
The claimant did not provide further submissions, as directed by the Commission on 29 January 2024.

Insurer’s submissions

In submissions dated 3 November 2021, the insurer argued that: the claimant’s GP had not provided a diagnosis of a psychological injury; the claimant had not requested any treatment in relation to a psychological injury; in the absence of a diagnosed psychological injury by a treatment provider, she did not sustain a psychological injury as a result of the accident.
The insurer’s submissions dated 2 December 2022 were made in support of its application for review of Medical Assessor Shen’s assessment. The insurer argued that the Medical Assessor failed to undertake an assessment in accordance with the Guidelines because he assessed the claimant using the CAPS-5 and not the DSM-5 criteria. It was further argued that the Medical Assessor failed to set out their path of reasoning for making a diagnosis of post-traumatic stress disorder in accordance with DSM-5, and failed to address each criterion for that diagnosis. In the insurer’s submission, there was reasonable cause to suspect that significant errors had been made by the Medical Assessor, and that it is entitled to a review of the assessment under s 7.26.
The insurer’s written submissions dated 28 February 2024 record that the insurer disputes the claimant suffers from a recognised psychiatric disorder pursuant to the DSM-5 as a result of the accident. The insurer submits that the claimant has a relevant pre-accident medical history of psychological symptoms and use of anti-depressant medication in the months and weeks prior to the accident occurring. In this regard, the insurer relies on the records from Hammond Road Medical Centre (referred to at [10]) and argues that, noting the claimant was prescribed Fluoxetine prior to the accident, the Panel ought to accept that the undated entry in the clinical notes was recorded before the accident.
The insurer points to the absence of reference to psychological symptoms in various records, including Dr Rice’s notes, the initial Certificate of Capacity dated 4 November 2020, Certificates of Capacity dated 25 March 2021 and 24 April 2021, and the Hammond Road Medical Centre records for the period August 2021-17 March 2023.
The insurer argues that Dr Rastogi’s opinion is premised on an inaccurate and incomplete medical history, and that the Panel ought to give careful consideration to the medical history before accepting Dr Rastogi’s findings. In the insurer’s submission, many of the symptoms recorded by Dr Rastogi had not been previously raised by the claimant or her treatment providers.

RE-EXAMINATION

The claimant was assessed by Medical Assessors Barrett and Roberts (Medical Assessors) by Microsoft Teams, on 22 May 2024. She was at home. Her partner was intermittently present for the assessment. She was subsequently assessed on 28 August 2024 so that matters arising from additional documentation could be clarified.
The claimant lives in her own home with her partner and her two adult sons. She last worked as a Disability Support Worker in December 2022 and has since been supporting herself on a Centrelink, Newstart, payment.
She was born in Sydney, and described normal birth and early achievement of milestones, such that she started school at 4-years-old. She was one of three daughters. Her older sister was reported to have had a Pertussis vaccine related injury, causing hypoxic brain injury. She was non-verbal and needed full-time care and was placed into care when the claimant was a toddler. The claimant’s mother had a serious medical complication of pregnancy, placenta previa, and was hospitalised for three months, when the claimant was toddler age.
She described intergenerational trauma, with her father having been placed into institutional care in England and sent to Australia at 6-years-old. She further reported witnessing her father perpetrating domestic violence in the form of emotional abuse towards her mother, and being a victim of his physical abuse from her early teens until she was about 18-years-old. Her parents divorced when she was about 18 or 19-years-old, after which she maintained contact with her father.
Despite having performed well academically at school, she reported that her father refused to allow her to continue years 11 and 12, with the claimant explaining, “Then I would be smarter than him”. She left school after completing year 10 and then worked in a coffee shop before taking the public service exam. She was successful in the exam and worked for Australia Post for 10 years. She then helped her former husband run his business, performing the accounts and administrative tasks. She later cared for her younger sister, who had a history of substance abuse and bipolar disorder, and who lived with the claimant for 14 years, until her death in about 2018.
The claimant had first married at 18-years-old. The marriage was characterised by emotional abuse and one incident of physical abuse, in which her nose was broken and police were involved. She has three adult children from her marriage. She regards herself as having a fourth child, a son, who she has cared for since he was 12-years-old. She had a second relationship, for five years, and is now in a three year relationship with her current partner, meeting in 2021 and becoming engaged in mid 2023.
There is a significant family history of psychiatric illness. Her maternal aunt is described as having bipolar disorder, her younger sister had bipolar disorder and substance abuse disorder, and her mother and maternal grandfather had alcohol use disorder. All three of her biological children are reported as having Attention-deficit/hyperactivity disorder (ADHD), diagnosed in childhood by a child psychiatrist and treated with stimulants, and one daughter has been diagnosed with an autism spectrum disorder.
She is a former smoker, on and off for 40 years, who quit in December 2022. She uses alcohol only occasionally, at celebrations, and denied any drug use history.
She denied any forensic history. She had a previous worker’s compensation claim about 38 years ago, when she fell down stairs. After about two weeks off work, the injury completely resolved. There was a previous motor accident, a rear-end collision, about five or six years ago, causing whiplash, but no psychiatric injury. Her physical symptoms resolved completely.
She had been diagnosed with type II diabetes at about 50-years-old, treated with metformin. She has hypercholesterolemia.
Despite the history of childhood trauma, she denied a past history of post-traumatic stress disorder symptoms. She acknowledged that she had a history of poor self-esteem and that she was distrusting of people, “more wary of people, more guarded”.
She had become seriously unwell with Legionnaire’s Disease in her late 20’s, requiring a one month hospitalisation, including over a week in the intensive care unit (ICU). After discharge, she remained deconditioned for a year. Her restrictions caused isolation and feelings of inadequacy, as she could not care for her children as she had. Her husband was unsupportive and critical of her. Other than low energy, she denied other physiological symptoms of depression. She was diagnosed with post-natal depression. She was treated with the SSRI antidepressant, Fluoxetine 20mg daily, from her early 30’s until her late 30’s, then switched to another medication, the name of which she could not recall, which she took for about five years, until cessation when she was 43-years-old. She denied treatment with a psychologist or psychiatrist. She reported improvement after 10 years, when she separated from her husband. The Medical Assessors raised with her that her account of cessation of treatment with an antidepressant at 43-years-old, many years prior to the accident, was inconsistent with the records of the GP which revealed a prescription for an antidepressant in the months prior to the accident. The claimant responded “Maybe I was,” and explained she had “issues with remembering stuff”. She later acknowledged that she was taking Fluoxetine in the period prior to the accident.
Whilst she initially denied recalling any psychiatric symptoms in the pre-accident period, later in the assessment she reported that she felt a lack of support from managers in the workplace and resultant impact upon her mental health, causing insomnia and irritability.
In the period before the accident, she was living in the same home, alone. She was cooking meals most nights, completing chores and showering daily. She went out with friends, to bingo or for a meal, once or twice a week. She saw her adult daughters weekly. She was able to drive without restriction. She initially stated she was single in the period before the accident, explaining that she was, “not bloody interested”. Later in the assessment she reported having been in a relationship at the time of the accident. When this inconsistency was raised with her, she said that she was in a relationship, but had already decided to end the relationship before the accident. She had enrolled in a Certificate 4 in individual support (disability) 18 months prior to the accident. She was studying online, part-time, once every two weeks, and was passing the course. She was working as a disability support worker, 70 hours a week, including four overnight shifts per week. The work shifts involved cooking a meal, driving the person requiring care to appointments or taking them on outings and sometimes providing personal care.

The accident occurred on 3 November 2020. She was driving a new small sports SUV. She was stationary with her right blinker on, awaiting to turn into the workplace driveway, when she was hit from the rear. She was pushed into oncoming traffic and then hit by a second car on the passenger side in a T bone collision. The airbags did not deploy, although she indicated that she thought that they should have. Police and ambulance were called. She sat for about 15 mins in the car before she exited the car, stating she was, “shaking so much” she thought she would not be able to get out of the car. The at-fault driver approached and apologised. Eventually, she extricated with the assistance of an ambulance officer holding her arm. She reports that because of her fear due to the COVID19 pandemic, she was reluctant to go to hospital. She was in pain, but reported that she did not think she had been seriously injured. Her car was towed away and then written off. She bought a new car, of the same model, in December 2020, stating she was satisfied with the safety of the car given she “didn’t die and hit hard”.
She reported that she sustained physical injuries, impacting her lower back, in the accident. She had lower back pain, radiating into both legs. She uses Tramadol 50mg on average three times a week, and alternates between Panadol or Neurofen, two tablets most days. She continues to report pain impacting her most days, restricting her from heavy household chores without pacing by taking rest periods.
She took two weeks off work after the accident, before returning on restricted duties and hours, due to both pain, as well as anxiety whilst driving.
In the period between the accident and her purchase of a replacement car in late December 2020 she was driving a hire car. She reported “I can drive alright if someone’s with me”. Because of this, she reported only subsequently becoming aware of anxiety when she drove alone. When driving alone, she felt nauseated and experienced muscular tension. She would, “get very anxious” and would need to spend one to two hours motivating herself before each journey. When she arrived at her destination, she felt relief “that I made it”. When driving with a passenger, she felt markedly less anxious, “it’s like night and day”, and that she had, “just a little bit” of anxiety. It was raised with her that it would be expected to be much more stressful to drive with a person who had major mental illness as a passenger, but she maintained that her anxiety doing so was less severe and that she persevered because she felt responsible for the participants. Her anxiety driving was also reduced by moving to a new workplace location, so that she did not need to return to the accident scene.
She reported that her concerns generalised and that she tended to catastrophise, thinking “crashes are going to happen”. She avoided leaving the house because “it involves cars”. She is anxious as a passenger in the car. She overreacts to loud sounds, responding with yelling or screaming, then remaining on edge, “jumpy”, for the next hour.
Her sleep is impacted by initial insomnia “brain’s going 100 miles per hour” with “thoughts of car accidents”, and several times a week “reliving the accident”. She does not initiate sleep until 3.00am, then sleeps through till about 10.00am.
She reported that she was continuing to work 18 hours per week until a serious stressor of a potentially life threatening medical illness in December 2022, two years after the accident. She had pneumonia, complicated by lung abscess and aneurysm. She was admitted to the local hospital, before being transferred by helicopter to a tertiary hospital. She required three surgeries and was hospitalised for about three weeks and had a further week of rehabilitation. She accepted this was a frightening experience, “I thought I’d totally freak out”, but reports that her response was proportionate “oh, I was, but within reason”.
She has not returned to work since. Her mood has been impacted since, “the fact that I feel I can’t work”. She described her mood is “up and down” and she is unmotivated. She would like to go on walks but does not, saying “I’d like to but I don’t”. Her appetite is normal, but she has gained weight which she described as her body’s usual response to stress. She reported hopeless and helpless thoughts, feeling despondent.
She was first referred to a psychologist in 2023. When asked when she first relayed her symptoms to her GP, Dr Rice, she responded that she did so a few weeks after the accident. When asked why referral for treatment was delayed for about 3 years, she responded that Dr Rice was, “One foot out the door and one foot on a bar of soap” and then he relocated. She explained that the referral only occurred when she changed GPs, to Dr Tas.
She has been seeing her psychologist since 2023, at variable frequency, once every two to four weeks. Although she says the sessions involve “strategies”, “working on not being overweight”, instead her description of talking, “about how things are going” an “gentle encouragement” is more consistent with a model of therapy of emotional venting. There has been no formal graded exposure program or homework tasks. A few months ago, her GP increased her pre-accident dose of Fluoxetine from 20mg to 40mg.
She reported that after the accident she disengaged from chores because of poor motivation and fatigue. It was raised with her that her account was inconsistent with her having maintained paid work, by her account, 18 hours a week, for two years after the accident. She then acknowledged she was still cooking for residents and was maintaining a minimum standard of cleaning in her home. She reported that she does not go to the supermarket alone, or goes late in the day after motivating herself. She would “work [herself] up to it”. She showers three times a week. Despite attempts to clarify, the Medical Assessors were unable to understand the reasons for the reduction in self care, especially as she described being motivated to shower. She met her partner in 2021 and they have lived together since October 2023. She reports the relationship between them is going “very well”. She goes out with him to play poker, which she enjoys, as long as she leaves the venue within one hour. She reports that she no longer drives alone, stating that she only previously did so because “I had to have a reason”. Prior to ceasing work in December 2022 when she became unwell with a lung abscess, she said “I had to work because I had to eat” and that she did not know that she could access CTP payments.
On mental state examination, she was casually dressed. She had an animated style of interaction and engaged cheerfully with the Medical Assessors and with her partner when he entered the room. Her speech was normal in rate and rhythm.
She had a warm, vivacious and enthusiastic affect, making jokes at times, which was incongruent with her reported mood and anxiety symptoms. At the second assessment on 28 August 2024 she presented as mildly irritable when the inconsistencies were raised with her and responded in an assertive, confident style.
She reported memories of the accident and fears “being afraid” from the accident. When asked why the accident has impacted her, and the life threatening illness has not, she responded “I feel the way I am for the other thing is not within reason”, referring to the accident. She explained that she felt “no control” in the accident, but could not explain why this was not also the case when she was in hospital. She did not describe delusions or perceptual abnormalities and there was no formal thought disorder.
She appeared objectively able to concentrate well during assessment. At the second assessment, she was able to relay specific details of her hourly rate in 2019 and 2022, as well as additional allowances, and specific dates related to her commencement of work.
She described herself as hopeless and helpless, but did not describe suicidal plan or intent. She is engaged with psychological treatment and compliant with an antidepressant.
The claimant provided a contradictory history at times, which was not internally consistent and which was not plausibly explained when raised with her. Attempts to clarify inconsistencies generated additional material, but did not resolve inconsistencies. Given this, the Panel requested additional documentation to assist in confirming the pre-accident and post-accident functioning. Centrelink and ATO records were requested and subsequently provided to the Panel. A second assessment was then conducted by the medical members of the Panel on 28 August 2024 by MS Teams.
At the second assessment she was at home, alone. The ATO records were raised with her, specifically, that her 2019/2020 income from work was $42,032, the 2020/2021 income from work was $38,238 (+ $4,871 from Allianz) and the 2021/2022 income from work was $44,096. It was raised with her that this was not consistent with her account of having worked 70 hours a week prior to the accident, then reducing to 18 hours a week prior to her serious medical illness in December 2022. She responded that in 2019 her hourly rate was $19/hour, but that by 2022 she was earning $27/hour, and $35/hour on afternoon shifts, plus an overnight allowance of $70/night. She added that she did not suddenly reduce her hours, but did so gradually, and had taken all of her sick and annual leave.

Diagnosis and reasons

There were multiple inconsistencies at assessment, and recorded at previous assessments. Firstly, the inconsistencies related to the pre-accident psychiatric history reported when assessed by the medical members of the Panel, Medical Assessor Shen, and Dr Rastogi, specifically, that she had ceased antidepressant treatment at about 43-years-old, some14 years prior to the accident. However, the contemporaneous records from the treating medical practice document the prescription of the SSRI antidepressant, Fluoxetine 20mg, for six months supply on 19 December 2019, a script from Dr Padmakaran for one months supply on 8 July 2020, a script from Dr Rice for one months supply on 7 August 2020, and a script from Dr Rice for six months supply on 13 October 2020. When these records were raised with her, in particular that she was prescribed an antidepressant within a few months of the accident, she acknowledged that she was using an antidepressant, and that she had symptoms of insomnia and irritability in the context of work stressors.
There were general inconsistencies in regard to her reported post-accident psychiatric symptoms, compared to her apparent maintenance of functioning, which are not consistent with clinical experience. This was also commented upon by Medical Assessor Shen, who wrote:
“There was some inconsistent responding regarding the severity of her depressive symptoms and reactivity to positive experience, with some disproportionality with the severity of her purported symptoms and current functioning, and current functioning between different domains”.
There are inconsistencies between the claimant’s reported post-accident 2022 working hours of 18 hours/week, relayed at our assessment and to Dr Rastogi, compared to that of working up to 30 hours/week recorded by Medical Assessors Shen and Hyde Page in 2022. Further, the ATO records are neither consistent with a reduction in work hours from 70 hours/week to 30 hours/week, nor from 70 hours/week to 18 hours/week, prior to the unrelated medical event. While she was afforded an opportunity to respond to the inconsistencies, her explanation did not fully resolve the inconsistencies, such that there was no objective evidence of a significant reduction in work hours. Furthermore, the most proximal records prior to the medical condition in late 2022 recorded that any reduction in work hours was also the result of the loss of a client, in Medical Assessor Shen’s certificate, and pain, in Medical Assessor Hyde Page’s certificate. The contemporaneous records of Dr Rice indicate pain-related work restrictions in 2021, followed by return to pre-injury work by July 2021, with review on 11 August 2021 commenting “managing this with no issues, feeling well”.
Finally, relying upon their clinical judgment, it was the conclusion of the medical members of the Panel that the findings on mental state examination, specifically, but not limited to, her cheerful and bubbly affect, were not consistent with her reported severity of symptoms and functional impairment.
The Medical Assessors found that there was a pre-accident history of persistent depressive disorder with anxious distress. The claimant fulfilled the DSM 5 criteria as she had a longstanding history of symptoms of depression, causing distress, such that she had taken treatment over many years. DSM 5 defines this condition as one of depressive symptoms which have persisted for more than two years. The GP notes record a “previous long history of depression”, fleeting suicidal thoughts, and she acknowledges chronic poor self-esteem. Her condition had fluctuated with stressors, and was symptomatic at the time of the accident, noting she described irritability and insomnia in the context of work stressors.
The Medical Assessors considered the history of post-accident psychiatric symptoms given to them by the claimant when she was re-examined for the purposes of the Review, in particular anxiety driving. The Medical Assessors also took into consideration that these symptoms are not recorded in the contemporaneous records of her treating GP, Dr Rice. When this was raised with the claimant, she reported that she had revealed her symptoms to Dr Rice, that he was “half way out the door”, and took no action. The Medical Assessors noted that her GP recorded pre-accident psychiatric symptoms in the clinical notes, and took steps to manage those symptoms. The Medical assessors also took into consideration that the claim form, completed in February 2021 referred to the claimant having suffered psychological injuries as a result of the accident. Having re-examined the claimant on two occasions, the Medical Assessors were ultimately satisfied, exercising their professional judgement and experience, that the claimant did experience new symptoms of mild anxiety driving following the accident.
The Medical Assessors are satisfied that the pre-existing persistent depressive disorder was aggravated by the accident, in the context of pain, as well as the emotional impact of the accident. The Medical Assessors accept that pain could aggravate a pre-existing persistent depressive disorder, and that the severity of the accident, noting her car was written off, could cause anxiety symptoms. After the accident she reported new symptoms of mild anxiety driving, but not at a severity to cause avoidance of driving. The Medical Assessors consider this is consistent with the post-accident symptoms which Medical Assessor Shen recorded in November 2022, namely: “She has developed symptoms of anxiety when driving, and knows she has to go to work and she gets upset beforehand, and forces herself to do it and gets nervous on the way. She denied any other psychiatric symptoms”, although later in his assessment the Medical Assessor recorded a history of dreams of the accident, avoidance, hypervigilance and exaggerated startle response. The Medical Assessors therefore consider the accident did cause an increase in anxious distress, consistent with an aggravation of persistent depressive disorder. As she continues to report anxiety when driving, this aggravation continues.
The Medical Assessors note that the claimant has subsequently experienced a life-threatening medical condition in late 2022, requiring air ambulance transfer between hospitals, and associated with frightening symptoms of shortness of breath and haemoptysis, coughing blood, after which she has not returned to work. These medical events would have been a sufficient stressor to cause a psychiatric condition and impairment in work capacity, even if the accident had not occurred. The first Centrelink medical certificate after the medical event, dated 9 April 2023, by Dr Tas Fermanis, certified the claimant unfit to work from 2 March 2023 due to “respiratory disorder – other”. The first Centrelink medical certificate indicating a psychiatric cause of work incapacity was dated 27 November 2023, three years after the accident.
The Medical Assessors were not satisfied that the criteria for post-traumatic stress disorder were met. There were no symptoms of post-traumatic stress disorder recorded in the contemporaneous records of the treating GP prior to 2023, and there was no avoidance of driving, evidenced by continued driving to work, as well as maintenance of close to normal work hours for more than two years after the accident. DSM 5 requires the presence of both psychiatric symptoms and distress or functional impairment to meet the threshold for psychiatric diagnosis. Even if there were undisclosed symptoms, the absence of significant distress or impairment would preclude a diagnosis of post-traumatic stress disorder being made.
The Medical Assessors found that there is no evidence of distress or functional impairment prior to the medical event in 2022. The claimant’s symptoms of anxiety driving did not cause avoidance of driving. There was no impairment in social functioning, given her ability to form a new relationship in 2021, or occupational functioning, noting the maintenance of her work hours when the impacts of pain and work availability are excluded.

Neither Medical Assessor Shen nor Dr Rastogi were aware of the pre-existing psychiatric condition. Each proceeded on the basis that prior to the accident she was euthymic, and had not used an antidepressant since she was 43-years-old. Medical Assessor Shen wrote: “There were no records of pre-existing mental conditions”. Dr Rastogi did not have access to the records which were available to the Panel. Instead, the contemporaneous records indicate that she had been on an antidepressant, Fluoxetine, continuously in the pre-accident period.

DETERMINATION

The Panel is satisfied, on the balance of probabilities, that the claimant suffered a pre-existing persistent depressive disorder with anxious distress. We find that the claimant fulfilled the DSM 5 criteria for this condition as she had a longstanding history of symptoms of depression, causing distress, such that she had taken treatment over many years. DSM 5 defines this condition as one of depressive symptoms which have persisted for more than two years. The GP notes record a previous “long history of depression”, fleeting suicidal thoughts, and the claimant acknowledged chronic poor self-esteem. The Panel is satisfied, for the reasons given earlier by the medical members of the Panel, that the condition fluctuated with stressors, and was symptomatic at the time of the accident.
The Panel has taken into consideration that Dr Rice’s clinical notes do not contain any reference to psychological symptoms following the accident. While the presence or absence of a contemporaneous record of a complaint is relevant, it must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint: Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 at [32], Bugat v Fox [2014] NSWSC 888 at [31], Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 at [4].
The Panel notes that the claim form dated 2 February 2021, three months after the accident, refers to “psychological injuries”. When the medical members of the Panel raised with the claimant that Dr Rice’s records did not make reference to psychological symptoms following the accident she reported that she had revealed her symptoms to Dr Rice, and that he took no action. The medical members of the Panel re-examined the claimant on two occasions and were satisfied, exercising their professional judgement, that the claimant did experience psychological symptoms following the accident, including new symptoms of mild anxiety driving.

The Panel agrees with and adopts the reasons given by the medical members of the Panel for their conclusion that the accident could have caused, and did cause, an aggravation of the persistent depressive disorder with anxious distress. We are satisfied that both the pain associated with physical injuries sustained in the accident, and the circumstances in which the accident occurred, could aggravate a pre-existing persistent depressive disorder.
The Panel is satisfied, on the balance of probabilities, that the accident did cause an aggravation of the pre-existing persistent depressive disorder; the claimant reported, and the Panel accepts, that she experienced new symptoms of mild anxiety driving, consistent with an aggravation of that condition.
We find that the accident caused an aggravation of pre-existing persistent depressive disorder with anxious distress that was more than negligible, and that the aggravation persists.
Neither persistent depressive disorder with anxious distress nor the aggravation of that condition are threshold injuries. That being the case, we find that the aggravation of persistent depressive disorder with anxious distress caused by the accident is not a threshold injury for the purposes of the MAI Act.
Because the Panel has found the claimant suffered, as a result of the accident, a different psychological condition to that diagnosed by Medical Assessor Shen, we revoke the Medical Assessor’s certificate and issue a new certificate certifying that the aggravation of persistent depressive disorder with anxious distress is not a threshold injury for the purposes of the MAI Act.
Because these reasons contain sensitive personal information the Panel directs that the reasons be de-identified in accordance with rule 132 of the Rules.

[2024] NSWPICMP 669

20 September 2024