Allianz Australia Insurance Limited v Govinda

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Govinda [2024] NSWPICMP 697
CLAIMANT:	Shriharsha Govinda
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Terence Stern
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	4 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident on 5 June 2019; a medical dispute arose as to whether the psychological injury sustained was a threshold injury; the Medical Review Panel (Panel) conducted an examination and considered the claimant’ s history, the clinical findings on examination, the reports of treating practitioners and other relevant materials produced and the DSM-5 criteria; the Panel determined that the diagnosis, namely, a Generalised Anxiety Disorder was not a threshold injury; Held – Medical Assessment Certificate affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION (a) The Review Panel affirms the Certificate of Medical Assessor Jones, dated 2 March 2023, certifying that the injury caused by the accident, namely, a generalised anxiety disorder, was not a threshold injury.

STATEMENT OF REASONS

INTRODUCTION

Shriharsha Govinda (Mr Govinda), the claimant, was injured in a motor vehicle accident (the accident) on 5 June 2019.
Allianz Australia Insurance Limited ABN 15 000 122 850 (Allianz) insured the owner and driver of the motor vehicle for liability to pay Mr Govinda any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the accident.

Threshold injury dispute

The dispute is whether Mr Govinda’s psychological condition is the result of a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
The disputes were referred to Medical Assessor Jones who issued a Medical Assessment Certificate dated 2 March 2023 (the certificate). The Medical Assessor concluded that the accident had caused a generalised anxiety disorder which was not a threshold injury for the purposes of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.

THRESHOLD INJURY – STATUTORY PROVISIONS

Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” was known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 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 was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
…
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 of the insurer.
5.6 The assessment of whether an injury caused by the accident was 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.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated 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 was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was 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 was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation was 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 was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

The certificate and reasons of Medical Assessor Jones, dated 2 March 2023

The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Jones (the Medical Assessor) for assessment:
(a) psychological injury, adjustment disorder with depressed mood.
The Medical Assessor took a psychosocial history and pre-accident history at [8] and recorded the history of the accident at [9]:
“The date of the accident was reported as 5 June 2019. Mr Govinda reported that he was going to the gym, about 100 metres from his house driving on the main street in Liverpool. He was - and said that was all he remembered. For a couple of seconds, he did not know what was going on and his next clear memory was an ambulance being there and taking him to Liverpool Hospital. He was there for some time until he was discharged around midnight.”
The Medical Assessor asked Mr Govinda about any specific psychological or emotional symptoms emanating from the motor vehicle accident and he said initially he was not aware of how he was feeling and presented to Liverpool Hospital complaining of chest pain on three to four occasions. He said they informed him to keep taking the escitalopram as did his general practitioner.
He asked Mr Govinda about any other symptoms and Mr Govinda said every time he thinks about the accident he has dreams of falling off a cliff in a car and his chest gets tight (which was when he went to Liverpool Hospital). He said he changed his job where he used to drive a lot…He said he also gets shakes in his hands. He experiences bad dreams at night and on most nights. The Medical Assessor asked him specifically if he had any re-experiencing phenomena and he says he has dreams of someone colliding with him and falling off a cliff.
Medical Assessor Jones conducted a mental state examination [14]:
“Mr Govinda was a gentleman of Central Asian appearance who had neat dark hair and a short beard and moustache. He wore a dark Nike hoody with a light logo on the front. He was seen via audiovisual link through the MS Teams platform. He was polite, cooperative and attentive. He was noted to have mild hand tremors. His speech was normal and there was no evidence of formal thought disorder or delusional thought processes. He made good eye contact. There were no active thoughts of self-harm or thoughts of harm to others. When asked about his mood he said he has a lack of inspiration, no motivation to do anything and is always depressed. He says he is unable to have a good time. His affect was serious, somewhat restricted, but otherwise reactive, congruent and appropriate. There was no evidence of perceptual abnormality consistent with psychosis. He did however say that he felt like people are judging him and that people compare him to how he was before. His cognition, insight and judgement appeared intact in the context of the interview. Rapport was very good and Mr Govinda spoke openly and freely.”
The Medical Assessor set out his diagnosis and reasons at [18]:
“It has been nearly four years since the motor vehicle accident and Mr Govinda reports a narrative and history consistent with having developed significant physical problems from his injuries but also psychological symptoms warranting psychological therapy not long after the motor vehicle accident, as well as antidepressant medication. He received further psychological therapy and psychotropic medication during the period of time he was in India. Although he has recovered to the point where he is maintaining full-time employment and has in the interim become married and maintains that marriage, he has reduced his functioning in other areas including socially and recreationally, and his willingness and ability to drive long distances has declined. His social network has not extended, and he has withdrawn from social and recreational activities, partly due to physical reasons but also due to psychological and emotional reasons.
Although there are a number of diagnostic facets to Mr Govinda’s clinical presentation, the best fit diagnosis would be that he has developed Generalised Anxiety Disorder. This is manifested as anxiety related to driving and socialising, specific anxiety responses, for example a number of panic attacks for which he sought hospital treatment, and considerable stress and anxiety related to decision-making, for example regarding having surgery. Mr Govinda had no previous psychiatric history of significance. He has also at times experienced some post-traumatic symptoms however in my opinion he would not have fully satisfied criteria for Post Traumatic Stress Disorder. There were likely periods when he may have also reached a threshold for a diagnosis of a Major Depressive Episode. His clinical picture does not particularly fit the Chronic Adjustment Disorder diagnosis as his symptoms seem to persist despite changes in precipitating factors.”
The Medical Assessor concluded that the following injury was not a threshold injury:
(a) generalised anxiety disorder.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by Allianz.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of thePIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.

27.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.

SUBMISSIONS

Allianz’s submissions dated 27 June 2024

The Panel summarises Allianz’s submissions below, by reference to paragraph number:
Part A: Pre- accident medical evidence
[1.1] Mr Govinda has been attending Myhealth Medical Centre Liverpool (MMCL) since 2015, mainly for general medical complaints. Consultation records of note include:
(a) 24 February 2015 – Mr Govinda gave a history of being involved in a rear end collision and complained of lower back pain. It was recorded that an x-ray did not reveal any bony injury.
(b) 1 April 2016 – Mr Govinda complained of left shoulder pain after lifting weights at the gym.
(c) 10 November 2016 – Mr Govinda gave a history of being involved in another rear end collision and complained of neck and lower back pain.
(d) 8 May 2017 – Mr Govinda complained of lower back pain in the context of doing 200 kg deadlifts at the gym.
(e) 30 October 2018 – Mr Govinda gave a history of migraine type headaches over the past few weeks. He reported experiencing similar headaches 10 years earlier. He also described some slowing of speech. A CT scan of the brain performed on 6 November 2018 did not reveal any significant abnormalities.
(f) 14 March 2019 – Mr Govinda complained of right sided sternal pain after being hit by a cricket ball.
Part B: Post – accident medical evidence
[2.1] Mr Govinda was attended to by ambulance service staff following the accident. On arrival, Ambulance service staff observed Mr Govinda walking around and talking on his phone. Mr Govinda reported some neck and lower back pain following the accident, but examination was unremarkable. He was transported to Liverpool Hospital
[2.2] In the Discharge Summary from Liverpool Hospital it was recorded that
Mr Govinda had been involved in the subject accident and complained of worsening neck and lower back pain. A CT scan of the cervical spine and x-ray of the lumbar spine did not reveal any acute abnormalities. It was recorded that comparison was made with a CT scan of the cervical spine undertaken on 11 November 2016. Allianz assumes that this was undertaken following Mr Govinsa’s involvement in a rear end collision on 10 November 2016 referred to in the MMCL records.
[2.3] Mr Govinda attended upon Dr Soheyl Darzikolahi at MMCL on 13 June 2019 when he gave a history of the subject accident and complained of spinal and shoulder pain. It was recorded that range of movement in the neck, back and shoulders was limited due to pain. Dr Darzikolahi referred Mr Govinda for physiotherapy and prescribed Celebrex.
[2.4] Mr Govinda returned to Dr Darzikolahi on 21 June 2019 when he complained of ongoing neck pain and upper limb numbness. On the same date Dr Darzikolahi referred Mr Govinda to neurosurgeon, Dr Renata Bazina for review of persistent neck pain and right upper limb numbness.
[2.5] Mr Govinda attended upon Dr Bazina for the first time on 4 July 2019 when he gave a history of developing neck pain following the subject accident. Dr Bazina reported that Mr Govinda was difficult to examine as he had multiple tender points over the trapezius muscle radiating into the suboccipital region. She noted that there was a limited range of movement. At the time of consultation, Mr Govinda reported that he was working from home doing limited paperwork. She formed the impression that Mr Govinda had sustained a whiplash associated disorder and referred him for an MRI scan.
[2.6] An MRI of the cervical spine performed on 16 July 2019 revealed significant spondylitic change with a significant left paracentral disc protrusion at C5/6. It was reported that this could be post-traumatic. There was also cord flattening and multilevel disc osteophytic encroachment on exit foramina.
[2.7] Mr Govinda returned to Dr Bazina on 24 July 2019 when he advised that he had been unable to return to work due to ongoing pain, neck spasm and left upper limb paraesthesia. Dr Bazina noted that an MRI scan confirmed a left paracentral disc protrusion which was distorting the left side of the cord. She gave Mr Govinda a referral for a block and prescribed Tramadol and Gabapentin. Dr Bazina also advised that Mr Govinda would need a further 6 weeks of leave from work.
[2.8] On 15 August 2019 Mr Govinda attended upon Dr Darzikolahi when he complained of ongoing neck pain.
[2.9] When Mr Govinda was examined by Dr Bazina on 4 September 2019 he reported that his symptoms had not improved with the injection but he had benefited from the Tramadol. Dr Bazina gave Mr Govinda prescriptions for Tramadol and Gabapentin. She reported that if there was no improvement in 6 months, surgery in the form of a cervical fusion could be considered.
[2.10] At consultation with Dr Darzikolahi on 14 September 2019 ongoing complaints of neck pain were noted. It was also recorded that physiotherapy had been of limited benefit. Mr Govinda then did not return to MMCL until 2 March 2021.
[2.11] Mr Govinda was reviewed by Dr Bazina on 16 January 2020 when he complained of ongoing pain. At that time Dr Bazina recommended a further MRI. She also recommended giving consideration to surgery. Following this consultation Mr Govinda did not return to Dr Bazina and it is not known if he underwent a further MRI scan.
[2.12] Although Mr Govinda did not return to Dr Bazina following his consultation on
16 January 2020, she prepared a report at the request of his employer on 8 September 2021. In that report Dr Bazina confirmed her diagnosis of an acute left paracentral disc protrusion at C5/6. She noted that Mr Govinda had been absent from work for a considerable period of time and therefore considered that his symptoms were affecting his ability to work, despite having not examined him for more than 18 months.
Dr Bazina further considered that the Claimant’s capacity for even sedentary work would be impacted until he received definitive treatment.
[2.13] When Mr Govinda returned to MMCL on 2 March 2021 (almost 18 months after his last consultation) he was treated for Shingles to the left side of his chest and back (R11). He returned for treatment of his Shingles which were noted to be spreading in a T1 Dermatome on 4 March 2021. At consultation on 30 March 2021 Mr Govinda complained of vertigo.
[2.14] At consultation at MMCL on 21 April 2021 Mr Govinda reported a long history of neck pain and advised that he was not interested in surgery. Mobic was prescribed. On 5 May 2021 (almost 2 years post-accident) Mr Govinda advised that he needed a letter for his workplace. On examination neck discomfort and a reduced range of motion was noted. The Claimant’s mood was also noted to be low, and he reported some mild suicidal ideation since about 2019. A mood disorder was suspected. As far as Allianz can tell this is the first record of psychological complaints within the treating records.
[2.15] On the same date Dr Ramjan issued a Medical Certificate certifying Mr Govinda suitable for work “as he desires – which includes working from home – limited office work (occasional mandatory office work) / no site placements” until 31 December 2021.
[2.16] At consultation at MMCL on 5 July 2021 Mr Govinda reported that his lower back pain had prevented him from going to work on Thursday and Friday. He also requested a Mental Health Plan. Escitalopram was prescribed. At consultation on 21 July 2021, it was recorded that the Claimant’s mood had improved but that he still felt anxious about work.
[2.17] On 6 September 2021 Mr Govinda presented to the Emergency Department at Liverpool Hospital with atypical chest pain and shortness of breath. Mr Govinda described a 3-week history of intermittent breathlessness. He also described feeling increasingly anxious in the last couple of weeks and reported that he was receiving psychological input and had commenced escitalopram. It was thought that his symptoms were related to his anxiety.
[2.18] At consultation at MMCL on 8 September 2021 Mr Govinda described panic attacks and reported having presented to Hospital. It was also recorded that
Mr Govinda was keen to return home. On the same date Dr Ramjan issued a letter in support of Mr Govinda travelling to India to care for and be cared for by his family.
Dr Ramjan also recorded that during Covid the Claimant’s anxiety and mood disorder had “flared”.
[2.19] At consultation at MMCL on 14 September 2021 it was recorded that Mr Govinda had not attended work since 18 August 2021 and requested a Medical Certificate. He was advised that the Certificate could not be back dated. It was also recorded that Mr Govinda was feeling better now that he was planning to return home. Dr Ramjan issued a Medical Certificate when he noted that Mr Govinda would be unfit for work from 13 September to 15 October 2021. He also recorded that Mr Govinda had told him that he had been off work for mental health issues and his neck injury since 18 August 2021.
[2.20] Clinical Psychologist, Mrs Shashi Naidu reported on 12 October 2021 that she had been treating Mr Govinda since July 2021 when he reported symptoms of Post-Traumatic Stress Disorder including flashbacks, vivid images and memories of the accident (R13). She also reported that Mr Govinda was experiencing symptoms of generalised anxiety and panic attacks and had recently presented to the emergency department following one of these attacks. She noted that the current pandemic had not assisted. She diagnosed Generalised Anxiety, Panic Disorder, PTSD, social anxiety and secondary depression which she considered were caused by the subject accident.
[2.21] At consultation at MMCL on 3 November 2021 it was recorded that Mr Govinda had an income protection claim. Mr Govinda also reported that his mood was improving. The Claimant’s mood was again noted to be stable on 18 November 2021 when it was recorded that he was waiting to travel to India.
[2.22] Mr Govinda next attended MMCL for a telehealth consult on 26 July 2022 when it was recorded that he had moved to Goulburn and had not been working. He requested a letter from Dr Ramjan to advise that he still had ongoing back pain stating that it was required to terminate his employment.
[2.23] On 5 August 2022 Dr Ramjan wrote to the Mr Govinda’s employer to advise that as a result of his neck pain Mr Govinda had advised him that he was unable to sit or stand for long periods or attend job sites and as such would like to tender his resignation. He further confirmed that “His last presentation prior to today was 11/2021 as he tells me he was overseas. He has not had further imaging to assess progress”.
[2.24] Mr Govinda presented to Kempsey District Hospital on 20 August 2023 with heart palpitations. It was queried whether the complaints were due to anxiety. It was recorded that Mr Govinda recently returned from a trip to Vietnam and had also been in Wollongong and Sydney. He also advised that he was working at Nestle and in a petrol station and had been working 7 days per week.
Part C: Surveillance
[3.1] During the first surveillance period brief surveillance was captured of Mr Govinda attending work at Nestle in the early hours of Friday 28 July 2023.
[3.2] A further period of surveillance was conducted in October 2023. Mr Govinda was observed driving to and attending work at the BP Service Station in Nambucca Heads on Saturday 14 October and Sunday 15 October 2023. He was observed working at the Roadhaven café within the service station serving customers on both days. The surveillance provided suggests that Mr Govinda worked from approximately 8 am until 4pm on both Saturday and Sunday.
[3.3] Surveillance of Mr Govinda conducted between 14 and 16 June 2024 showed
Mr Govinda departing from Nestle in the afternoon of Friday, 14 June 2024.
Mr Govinda was then observed to work at the BP Service Station in Nambucca Heads on Saturday 15 June 2024 and Sunday 16 June 2024.
Part D: Allianz’s medical evidence
Report of Psychiatrist, Dr John Honey dated 15 March 2024
[4.1] Dr Honey examined Mr Govinda at Allianz’s request on 14 March 2024.
[4.2] Mr Govinda gave a history of the accident and confirmed that he subsequently experienced left sided neck pain and back pain. He noted that cervical spine surgery had been recommended by Dr Bazina.
[4.3] Mr Govinda described feeling scared and alone following the accident. He also described feeling depressed and anxious and advised that in this context he was prescribed escitalopram and referred to a psychologist. He advised that he did not find this treatment helpful.
[4.4] Mr Govinda confirmed having worked from home following the accident but advised that his employment was subsequently terminated. He also confirmed having married on his return to India. Whilst in India he reportedly attended upon a Psychiatrist and was prescribed some medication. He confirmed he had not attended a Psychiatrist in Australia alleging that this treatment was unavailable. He reported continuing to take Escitalopram in varying doses as well as Tramadol.
[4.5] Dr Honey noted that Mr Govinda had returned to driving but remained apprehensive and fearful and described some panic attacks. He also described a depressed mood, lack of interest and ongoing nightmares.
[4.6] Dr Honey observed that Mr Govinda was well groomed but conveyed an air of hopelessness. He described his marriage in negative terms.
[4.7] Mr Govinda told Dr Honey that he was working for Nestle as a line manager but advised it was not going well. He advised that his requests to work from home had been declined. He reported having no social life, advising that he and his wife do not go out on weekends.
[4.8] Notwithstanding some inconsistencies in Mr Govinda’s presentation, and his failure to recall 2 previous motor vehicle accidents, Dr Honey accepted that Mr Govinda was suffering from PTSD and chronic major depressive disorder secondary to the effects of the physical injury and his unhappy marriage.
[4.9] Dr Honey assessed a 6% Whole Person Impairment.
[4.10] Allianz notes that it is significant that Mr Govinda failed to advise Dr Honey that he was working at the BP Service Station on weekends and instead gave the impression that he was struggling to maintain his employment with Nestle.
[4.11] Mr Govinda has also did not advise Dr Honey of his trip to Vietnam or his visits to Sydney and Wollongong in 2023. Supplementary Report of Dr Honey dated 7 May 2024.
[4.12] Dr Honey was subsequently provided with the Kempsey Hospital Discharge Summary dated 20 August 2023.
[4.13] Following review of the Discharge Summary, Dr Honey noted several inconsistencies between the history given by Mr Govinda at consultation and that provided to Kempsey Hospital Staff, particularly regarding his work and travel arrangements.
[4.14] In view of these inconsistencies, so far as his previous diagnosis of PTSD and chronic Major Depressive Disorder was concerned, Dr Honey considered that he could no longer rely on Mr Govinda’s account of his symptomatology. He also considered that he was unable to provide an assessment of Whole Person Impairment given the unreliability of the history provided by Mr Govinda.
Part E: PIC Certificates
a) Certificate of Medical Assessor Kenna dated 29 December 2019
[5.1] Mr Govinda was assessed by Medical Assessor Kenna for a Threshold Injury Dispute on 18 December 2019.
[5.2] At assessment Mr Govinda complained of central neck pain radiating towards the left shoulder and left arm with intermittent pins and needles involving the thumb, index and middle fingers. He denied ongoing symptoms involving the right shoulder and described only mild lower back pain.
[5.3] On examination Medical Assessor Kenna noted that Mr Govinda was “well developed” and that he acknowledged that he had been a body builder in the past but had not done any body building for the past six months. Examination of the cervical spine did not reveal any evidence of muscle spasm or non-verifiable radicular complaints. There was an asymmetrically reduced range of motion and some altered sensation in the C6 dermatome but no other evidence of radiculopathy. Examination of the shoulders revealed a reduced range of motion on the left side. Examination of the lumbar spine revealed a symmetrically reduced range of motion. There was no neurological deficit on examination of the lower limbs.
[5.4] Although Medical Assessor Kenna accepted that there were neurological signs in the upper limbs, he did not find evidence of radiculopathy as required by Clause 5.8 of the Guidelines. He therefore concluded that the subject accident had caused a soft tissue injury to the cervical spine. He also accepted that the subject accident caused soft tissue injuries to the lumbar spine and left arm. Although he also found that the subject accident caused soft tissue injuries to the shoulders, he noted that there was no discrete injury to either shoulder. In respect to the left shoulder, he noted that there were referred symptoms from the cervical spine. In respect of the right shoulder, he noted that any injury had essentially resolved.
[5.5] Medical Assessor Kenna ultimately found that the Claimant’s physical injuries were limited to soft tissue injuries and were therefore “threshold” injuries for the purposes of the Act.
b) Certificate of Medical Assessor Mason dated 3 March 2020
[5.6] Mr Govinda was examined by Psychiatrist, Medical Assessor Mason on 24 January 2020 for the Threshold Injury Dispute. Mr Govinda told Medical Assessor Mason that he was no longer working and relied upon his family in India for financial support.
[5.7] Medical Assessor Mason recorded that following the accident Mr Govinda developed immediate pain in the left hand side of his neck, left shoulder and lower back. Mr Govinda denied any psychological or trauma symptoms immediately following the accident. However, he reported that he began to feel depressed and useless when he was unable to play cricket or attend the gym and his weight increased significantly. He described social withdrawal and poor concentration.
[5.8] Mr Govinda told Medical Assessor Mason that cervical spine surgery had been recommended but that he could not proceed with the surgery as he did not have any family support in Australia. He also did not want to tell his family about this recommendation as he believed that they would force him to return to India.
Mr Govinda advised that since being recommended surgery his mood had deteriorated, he felt hopeless, and his sleep had significantly deteriorated.
[5.9] On examination Medical Assessor Mason observed that Mr Govinda walked slowly with a slight limp and was depressed in appearance. He became tearful when questioned about suicidal thinking.
[5.10] Following review of the documentation provided, Medical Assessor Kenna noting that there was nothing within the documentation to support the development of a psychiatric condition. However, Medical Assessor Mason accepted that Mr Govinda had developed an Adjustment Disorder with Depressed mood arising from the pain symptoms caused by the accident. He certified that this was a threshold injury.
[5.11] Medical Assessor Mason also considered that Mr Govinda displayed symptoms consistent with a major depressive disorder with melancholia but that this was due to Mr Govinda not wanting to inform his family that he had been recommended surgery. In Medical Assessor Mason’s opinion this condition was not caused by the subject accident.
c) Certificate of Medical Assessor Jones dated 2 March 2023
[5.12] Mr Govinda was assessed by Medical Assessor Jones for a Further Assessment of a Threshold Injury on 2 March 2023 via audio visual link.
[5.13] Mr Govinda told Medical Assessor Jones that he was now living in South West Rocks on the mid north coast of New South Wales with his wife, having moved there in November 2022.
[5.14] He advised having returned to India for 7 months in September or October 2021. During this period, he met and married his wife. He told Medical Assessor Jones that between 500 and 600 people attended his wedding. Mr Govinda also told Medical Assessor Jones that he commenced full-time work for Nestle as a line manager in September 2022.
[5.15] Medical Assessor Jones took a history of the subject accident and recorded that Mr Govinda described increasing pain in his neck and shoulder in the days following the accident. Mr Govinda also described experiencing stress dealing with his physical injuries.
[5.16] As to psychological treatment received following the accident, Mr Govinda advised that he attended upon a psychologist prior to leaving for India. He also reported having attended upon a psychologist in India and having continued to take escitalopram.
[5.17] Mr Govinda told Medical Assessor Jones that he had attended upon Liverpool Hospital for chest pain and had been advised to continue taking escitalopram. In respect to other psychological symptoms, Mr Govinda described bad dreams, chest tightness, shakiness of the hands and worrying about the “what ifs”. He reported losing his job with TEXO as he no longer wished to travel. Apparently, his job involved a lot of travel. He also described reduced motivation and described himself as “always depressed”.
[5.18] As to his current symptoms, Mr Govinda described ongoing nightmares and some fluctuating appetite. He did not report any problems with energy levels and Medical Assessor Jones noted that the Claimant’s memory and concentration appeared intact, particularly given that he continued working full-time in a managerial role.
[5.19] Medical Assessor Jones noted that Mr Govinda reported a narrative and history consistent with having developed psychological symptoms warranting psychological therapy “not long after the motor vehicle accident”. He noted that Mr Govinda had withdrawn from social and recreational activities on account of both physical and psychological symptoms.
[5.20] He went on to find that:
[5.21] “Although there are a number of diagnostic facets to Mr Govinda’s clinical presentation, the best fit diagnosis would be that he has developed Generalised Anxiety Disorder. This is manifested as anxiety related to driving and socialising, specific anxiety responses, for example a number of panic attacks for which he sought hospital treatment, and considerable stress and anxiety related to decision-making, for example regarding having surgery.”
Part E: Insurer’s response to the medical evidence
[6.1] As noted above Allianz continues to rely upon its previous submissions, particularly those dated 3 May 2023 addressing the errors in Medical Assessor Jones’ Certificate.
[6.2] Allianz maintains that the subject accident did not cause a psychological injury and that if it did, such injury was limited to a threshold injury. In support of it’s position, Allianz notes the following:
(a) Mr Govinda did not report any psychological symptoms following the subject accident until his attendance at MMCL on 5 May 2021, almost 2 years following the subject accident.
(b) Mr Govinda first sought psychological treatment with Ms Naidu in July 2021, more than 2 years following the accident. He then appears to have only attended upon her on a few occasions.
(c) Any history provided by Mr Govinda should be treated with caution given the inconsistent histories previously provided and the claimant’s failure to disclose:
(i) that he is presently working two jobs and appears to have done so since mid 2023;
(ii) that he participated in a Cricket Competition in May 2023, shortly after his assessment with Medical Assessor Jones, and
(iii) his travels to Vietnam, Sydney and Wollongong in 2023, also shortly following his assessment with Medical Assessor Jones.

Claimant’s reply submissions, dated 14 June 2023

The Panel summarises Mr Govinda’s submissions below, by reference to paragraph number:
Part A: Causation
[5] Mr Govinda disputes Allianz’s submission that Medical Assessor Jones did not adequately address the factual determination of causation, being that the accident did cause the Claimant’s injury.
[6] In making this submission, Allianz relies on the fact that Mr Govinda did not seek any psychological treatment until approximately two years post-accident.
[7] Mr Govinda disputes this submission and submits that the length of time between the subject accident and the commencement of treatment is irrelevant to the determination of causation, particularly given that dispute F-M10513155/22 was lodged on the grounds of deterioration of the Claimant’s psychological condition.
[8] Mr Govinda draws the PIC’s attention to Paragraph 10, Page 5 of Medical Assessor Jones’ Certificate wherein he recorded that “I asked Mr Govinda about any specific psychological or emotional symptoms emanating from the motor vehicle accident and he said initially he was not aware of how he was feeling and presented to Liverpool Hospital complaining of chest pain on three to four occasions. He said they informed him to keep taking the escitalopram as did his general practitioner. He said he was also told to “slow down a bit”.
[9] Mr Govinda notes that he did not have any pre-existing psychological conditions and was not familiar with somatic symptoms of anxiety prior to the accident. He subsequently sought treatment of his physical symptoms, rather than his psychological condition following the accident. Indeed, this is acknowledged by Medical Assessor Jones who records that Mr Govinda presented to a cardiologist, as well as to the Liverpool Hospital Emergency Department on multiple occasions for treatment of anxiety manifesting as chest pain.
[10] Mr Govinda draws the PIC’s attention to the ED Discharge Referral from the Liverpool Hospital Emergency Department dated 6 September 2021 which recorded that the Claimant: “… described the last 3 weeks intermittently feeling breathless, which settled when he is distracted. He gets a left sided achy chest pain, with no radiation and no associated symptoms”. “He described feeling increasingly anxious the last couple of weeks, he is having psychology input and has started escitalopram”. “He was advised that his symptoms are likely a component of his anxiety”.
[11] Mr Govinda accordingly submits that his delay in commencing psychological treatment was the result of undiagnosed somatic symptoms of anxiety and the Claimant’s unfamiliarity with the symptoms associated with Generalised Anxiety Disorder.
[12] Furthermore, Mr Govinda also notes that the DSM-5 explicitly states that “Symptoms [of PTSD] usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. There is abundant evidence for what DSM-IV called "delayed onset" but is now called "delayed expression," with the recognition that some symptoms typically appear immediately and that the delay is in meeting full criteria”.
[13] Mr Govinda also relies on Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6 wherein the Review Panel found at [72] “That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5”.
[14] As submitted in the Claimant’s initial submissions for dispute F-M10513155/22 and later confirmed by Medical Assessor Jones, the Claimant’s psychological condition deteriorated significantly after Medical Assessor Mason’s determination. Mr Govinda accordingly submits that it is not unexpected that the need for psychological treatment did not arise until 2021 when, as evidenced by his clinical records, the claimant’s psychological condition began to deteriorate.
[15] Mr Govinda notes that evidence of this deterioration, namely the ED Discharge Referral from Liverpool Hospital dated 6 September 2021 and the report of Psychologist, Ms Shashi Naidu dated 12 October 2021 were provided to and reviewed by Medical Assessor Jones.
[16] Mr Govinda accordingly submits that Medical Assessor Jones has considered all evidence before him, including the history given by the Claimant, in order to correctly conclude that the claimant’s diagnosis of Generalised Anxiety Disorder was caused by the subject accident.
Part B: Inadequate Reasoning
[17] Mr Govinda disputes Allianz’s allegation that Medical Assessor Jones failed to provide adequate reasoning with respect to causation.
[18] Mr Govinda highlights that in Allianz Australia Insurance Limited v Sprod [2012] NSWCA 281 at [24], Hoeben J determined that: "The appropriate test when examining the reasons of an assessor is that of clarity. It has to be clear how the assessor reached his or her decision and what process of reasoning was involved. It is not however that each step in that reasoning process be enunciated if it is otherwise clear how the assessor arrived at his or her conclusion."
[19] In Allianz v Sprod, Barrett JA made it clear that there was no requirement for assessors to “prepare elaborate statements of reasons and explanation of assumptions".
[20] In Paragraph 18 of his Certificate, Medical Assessor Jones stated that:
“It has been nearly four years since the motor vehicle accident and Mr Govinda reports a narrative and history consistent with having developed significant physical problems from his injuries but also psychological symptoms warranting psychological therapy not long after the motor vehicle accident, as well as antidepressant medication. He received further psychological therapy and psychotropic medication during the period of time he was in India. Although he has recovered to the point where he is maintaining full-time employment and has in the interim become married and maintains that marriage, he has reduced his functioning in other areas including socially and recreationally, and his willingness and ability to drive long distances has declined. His social network has not extended and he has withdrawn from social and recreational activities, partly due to physical reasons but also due to psychological and emotional reasons. Although there are a number of diagnostic facets to Mr Govinda’s clinical presentation, the best fit diagnosis would be that he has developed Generalised Anxiety Disorder. This is manifested as anxiety related to driving and socialising, specific anxiety responses, for example a number of panic attacks for which he sought hospital treatment, and considerable stress and anxiety related to decision-making, for example regarding having surgery. Mr Govinda had no previous psychiatric history of significance. He has also at times experienced some post-traumatic symptoms however in my opinion he would not have fully satisfied criteria for Post Traumatic Stress Disorder. There were likely periods when he may have also reached a threshold for a diagnosis of a Major Depressive Episode. His clinical picture does not particularly fit the Chronic Adjustment Disorder diagnosis as his symptoms seem to persist despite changes in precipitating factors”.
[21] In Paragraph 19 of his Certificate, Medical Assessor Jones went on to conclude that “given the time, nature and development of symptoms, the motor vehicle accident was at least a more than negligible cause in the development of Mr Govinda’s Generalised Anxiety Disorder”.
[22] Mr Govinda accordingly submits that the above shows a clear pathway of reasoning. In so far as there are any steps missing in the pathway of reasoning, the findings made by Medical Assessor Jones are implicit in his reasons. In accordance with Allianz v Sprod, it is submitted that the Medical Assessor was under no obligation to set out each and every step of reasoning provided the reasons were sufficiently clear for those affected by the decision, and those reviewing it, to understand the reasoning process involved. It is clear to any third party observer that Medical Assessor Jones found that the motor vehicle accident was at least a more than negligible cause in the development of the Claimant’s Generalised Anxiety Disorder.
[23] It is clear that Allianz has failed to establish that Medical Assessor Jones failed to provide a clear pathway of reasoning. Mr Govinda submits that in light of the above, Medical Assessor Jones correctly determined that accident was causative of Generalised Anxiety Disorder.
Part C: Diagnosis
[24] Mr Govinda disputes Allianz’s submission that Medical Assessor Jones did not properly apply the DSM-5 when making his diagnosis of Generalised Anxiety Disorder.
[25] As stated by Allianz, DSM-5 requires that a diagnosis for a Generalised Anxiety Disorder requires that the anxiety and worry are accompanied by at least three of the following physical and cognitive symptoms:
(a)Edginess or restlessness
(b)Tiring easily; more fatigue than usual
(c)Impaired concentration or feeling as though the mind goes blank
(d)Irritability (which may or may not be observable by others)
(e)Increased muscle aches or soreness
(f)Difficulty sleeping (due to trouble falling asleep or staying asleep, restlessness at night or unsatisfying sleep).
[26] On Page 5 of his Certificate, Medical Assessor Jones recorded that Mr Govinda presented to Liverpool Hospital complaining of chest pain on three to four occasions. Mr Govinda accordingly submits that this satisfies criterion (e).
[27] On Page 5 of his Certificate, Medical Assessor Jones also recorded that Mr Govinda “said every time he thinks about the accident he has dreams of falling off a cliff in a car and his chest gets tight (which was when he went to Liverpool Hospital)…He experiences bad dreams at night and on most nights. I asked him specifically if he had any re-experiencing phenomena and he says he has dreams of someone colliding with him and falling off a cliff”. Mr Govinda accordingly submits that this satisfies criterion (f).
[28] On Pages 5 and 6 of his Certificate, Medical Assessor Jones also recorded that Mr Govinda “did not want to go outside and he was in constant fear. He said there were no traffic 4 rules and it caused him anxious distress”. Mr Govinda submits that constant fear and anxious distress are symptoms of edginess and that criterion (a) is therefore satisfied.
[29] Mr Govinda accordingly submits that Medical Assessor Jones’ Certificate records that Mr Govinda has at least three of the physical and cognitive symptoms listed in the Diagnostic Criteria C for Generalised Anxiety Disorder (DSM-5) and it was subsequently well open to Medical Assessor Jones to diagnose Mr Govinda with Generalised Anxiety Disorder as a result of the accident.
[30] In the event that the PIC determines that Medical Assessor Jones failed to record three or more of the above symptoms, Mr Govinda draws the PIC’s attention to the Claimant’s signed statement dated 12 June 2023, which is attached to this application.
[31] In Paragraph 22, Mr Govinda states “I was incredibly anxious and had a hard time focusing on tasks”, thereby satisfying criterion (c).
[32] In Paragraph 27, Mr Govinda states “lack the motivation and energy to fight with my insecurities and go outside”, thereby satisfying criterion (b).
[33] In Paragraph 28, Mr Govinda states “Every time I think about the accident, my chest feels very tight and I will have a dream that night of falling off a cliff in a car. This makes sleeping very difficult”, thereby satisfying criteria (e) and (f).
[34] In light of the above, Mr Govinda submits that Allianz has failed to demonstrate that Medical Assessor Jones did not properly DSM-5 when making his diagnosis of Generalised Anxiety Disorder.
Part D: Medical history
[35] Mr Govinda submits that Allianz has not demonstrated any material error in relation to Medical Assessor Jones’ findings in relation to the Claimant’s post-accident history.
[36] Mr Govinda submits that the Claimant’s post-accident history, namely that he was married in India in late 2021, relocated to Southwest Rocks with his new wife, and obtained a new full-time job role with Nestle is irrelevant to the Claimant’s diagnosis of Generalised Anxiety Disorder.
[37] The Diagnostic Criteria for a diagnosis of Generalised Anxiety Disorder under the DSM-5 does not make any reference to the individual’s social and recreational activities. Accordingly, the initiation of a new romantic relationship, the relocation of premises or commencement of new employment are irrelevant to a finding of a diagnosis of Generalised Anxiety Disorder (DSM-5).
[38] Mr Govinda accordingly submits that Allianz has advanced a baseless argument in relation to the Claimant’s post-accident history and there are no merits to Section 4 of Allianz’s submissions.

MEDICAL EVIDENCE AND RELEVANT DOCUMENTS

The Panel has considered the medical evidence and other relevant documents within the parties’ respective bundles of documents. The Panel provides the following summary, which is not exhaustive of all of the documentation of the parties’ respective bundles of documents.

Delegate’s decision of 14 August 2023

The President’s delegate produced the following determination on 14 August 2023:
“FINDINGS
7. The insurer particularises various grounds in the application which it says result in reasonable cause to suspect that the medical assessment was incorrect in a material respect.
8. The insurer submits that the Assessor failed to provide adequate reasons for his findings as to causation.
9. The insurer also submits that the Assessor failed to properly apply the DMS-5 when diagnosing Generalised Anxiety Disorder. The insurer notes that DSM-5 requires that anxiety and worry are accompanied by at least three physical and cognitive symptoms in order for a diagnosis of Generalised Anxiety Disorder to be made.
10. The Assessor does not appear to refer to the DSM-5 criteria for Generalised Anxiety Disorder or indicate how this criterion is satisfied.
11. I am satisfied, having regard to the particulars set out in the application, that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.
12. The review application is accepted and will be referred to a Review Panel.”

Police report

The police report of 5 September 2019 provided the following crash summary details:
“At about 6:10pm on Wednesday 05/06/2019 veh 1 was driving south on Nagle Street, Liverpool. Veh 1 stopped at a Give Way Sign and line on Nagle Street at the intersection off Mill Road. Veh 2 was eastbound on Mill Rd. Veh 1 has rolled forward into the intersection, failing to comply with the Give Way sign two metres over the Give Way line. Veh 2 has moved to avoid Veh 1 causing veh 2 to swerve and the rear nearside door of veh 2 collided with the front offside of veh 1. Veh 2 then spun and stopped. Veh 2 moderate damage and Veh 1 minor damage.”

Application for personal injury benefits, dated 9 June 2019

In the Application for person injury benefits form, Mr Govinda described the accident as:
“I was driving on Mill Road and I was t-boned at the rear end of passenger side by another vehicle right at the Nagle Street and Mill Road intersection.”

Mr Govinda’s statement of 12 June 2023

In his statement of 12 June 2023, Mr Govinda recounted the events of the accident:
“7. On 5 June 2019, I was involved in a motor vehicle accident which resulted in traumatic physical and psychological injuries. These injuries have had a devastating impact on my life.
8. On the date of the subject accident, I was driving and passing through an intersection when another car failed to give way and t-boned my vehicle.
9. I remember feel pain all over my body and feeling very confused about what had happened. Police and ambulance attended the scene, and I was taken to Liverpool Hospital.
10. As a result of the accident, I sustained injuries to the following:
a) Injury to the neck including disc protrusions,
b) Injury to the lower back,
c) Injury to the left arm;
d) Depression;
e) Anxiety; and
f) Post-traumatic Stress Disorder.”
He continued at [28]:
“28. I am constantly consumed by thoughts of the accident. Every time I think about the accident, my chest feels very tight and I will have a dream that night of falling off a cliff in a car. This makes sleeping very difficult. On days when I cannot sleep, I take extra escitalopram or Anxit. I hate that I have become dependent on this medication as I do not want to become addicted, however it is almost impossible for me to get a good night’s sleep without it. 29. I am scared and uncertain about the future. I have no purpose, and no goals. I have nothing in my life and I feel like everything has been taken away from me.”

Dr John Honey, psychiatrist

Dr Honey reviewed Mr Govinda on 14 March 2024 and wrote the following report on
15 March 2024:
“Examination
He was a well-groomed, neatly-dressed man who had a very slowed manner. There were frequent "I don't remember" answers. However, there were no difficulties evident with concentration. He conveyed an air of hopelessness. He reports that he has no treatment because none is available. When asked to display the packages of medications so that I could identify them accurately, he said that he had none to hand. He made frequent references to his perceived need to be "looked after". During the interview, there was no sign of pain-related behaviour. He spoke negatively about his marriage and reported that it was an arranged marriage, as his "parents said my condition would get better if I married ... to look after me". He says that their relationship is not a happy one because "she had different expectations"
He provided his professional opinion:
“I note that Mr Govinda has been variously diagnosed as suffering with posttraumatic stress disorder, an adjustment disorder and with a major depressive disorder. There are some inconsistencies in the account, for example, those relating to his failure to remember two previous accidents and despite his self-described state there is an apparent avoidance of having any ongoing treatment for his psychological conditions.”
Dr Honey came to the following diagnosis:
“However, despite the above, I think that he has suffered with some symptoms of a posttraumatic stress disorder arising out of the event of the accident and with a chronic major depressive disorder secondary to the effects of his physical injury.”

Letter from Shashi Naidu, senior clinical psychologist, dated 12 October 2021

Ms Naidu reviewed Mr Govinda and wrote:
“Presenting issue: Harsha presents with post traumatic stress disorder, Generalised anxiety disorder, panic disorder, social anxiety and secondary depression triggered by a MVA accident in June 2019.
I have seen Harsha since July 2021. Harsha was involved in a car accident in June 2019 and suffered spinal injury, whiplash and shoulder injury. He experienced symptoms of post traumatic stress disorder since the car accident which includes flashbacks, vivid images and memories of the accident. He is also experiencing symptoms of generalised anxiety disorder which includes symptoms of difficulty breathing, palpitations, difficulty swallowing, chest pain, hot and cold flushes and being worried. He is also experiencing panic attacks and he recently presented to ED with one of these attacks. Symptoms of depression include feeling sad, lack of motivation, disrupted sleep, feelings of hopelessness and helplessness. He is finding the pain very debilitating to work and to get on with his day to day life. Current pandemic has not helped him to socialize or to be mobile. He is losing his overall confidence and finding the situation very challenging.
Harsha is doing well in the sessions. He would have benefited from psychotherapy sessions soon after the accident as it has been two years now. Nevertheless, the current sessions are helping him to engage in anxiety management and pain management. Harsha struggles to engage completely in the therapy tasks and there is some resistance in understanding the Bio psycho social model of pain management. He would benefit from long term therapy sessions and referral to Liverpool pain clinic to further complement his therapy with myself.”

Certificate of Medical Assessor Wayne Mason, dated 3 March 2020

Medical Assessor Mason took note of Mr Govinda’s current functioning:
“Mr Govinda said that since December 2020 he no longer goes outside. He has been unable to play cricket with his team, which he said was successful in winning a T20 premiership and he regrets not having been able to be part of it. He continues to shower daily but is not concerned about his appearance and his clothing. He said he does not go anywhere and has withdrawn in shame. He continues to experience pain down his left arm and pins and needles in his left forearm. He said he does his own shopping at a nearby store, but sometimes uses Uber Eats or Menu Log to get food. He no longer eats meat or chicken and survives largely on uncooked fruit and vegetables. Socially he said he has gone into a shell. He has not driven since the motor accident partly because of pain and partly because of the use of opioid analgesics. He is unable to work because of pain. He does not read or watch television. His concentration is poor, and he cannot focus because of headache and because he keeps drifting off. He rarely sees his friends and he has not been fully truthful with his family about his condition. As noted above there has been one parasuicidal gesture.”
Medical Assessor Mason made the following diagnosis and reasons:
“Immediately after the motor accident Mr Govinda suffered no psychological injuries. He specifically denied trauma related symptoms and stated that he expected he would be fine when his pain settled down. In fact, this did not happen and he went on to develop an Adjustment Disorder with Depressed Mood (DSM-5) caused by his pain symptoms arising from the motor accident.
The depressed mood was caused by his inability to participate in his pre-existing sporting and gymnasium activities as well as outings with friends.
However, when neurosurgery was suggested he became extremely depressed and displayed symptoms consistent with a major depressive disorder with melancholia. He was suicidal in his thinking and made one suicidal gesture. This deterioration was caused because his neurosurgeon required the presence of his family before she would operate and he did not want his family to know the seriousness of his condition. In my opinion this condition is not a direct result of the motor accident, but a result of the particular family situation in which Mr Govinda is enmeshed.”
Dr Mason summarised his determination on ‘causation’:
“I am satisfied that Mr Govinda developed an Adjustment Disorder with Depressed Mood (DSM-5) secondary to the physical injuries sustained in a motor accident. In this regard I note the certificate of Assessor Kenna confirming soft tissue injuries. In my opinion the subsequent development of a Major Depressive Disorder with Melancholia is the result of his particular life circumstances rather than the subject motor accident.”

Discharge referral ED, Liverpool Health service, 11 November 2016

Liverpool emergency reported the following history:
“At 6pm today, was stationary turning right and was rear ended by a car travelling about 60 kmph
Had immediate onset of cervical spine pain, worse on the right side
Delayed onset of lumbar back pain
…
Impression: Likely flexion- extension injury of the neck”

Discharge referral ED, Kempsey District Hospital, 21 August 2023

The Discharge Referral noted that Mr Govinda presented to ED with chest discomfort and reported he felt “off’ whilst driving. He had an episode of “being aware of his heart beat”. He also noticed “chest tightness – radiating up to throat”. Dr Orr noted that there was an unclear cause for presentation and commented “? Anxiety component”.

General practitioner notes of Dr Don Ramjan

On 8 September 2023, Dr Ramjan reported:
“Panic attacks
ED presentation
Advice and listening
Seeing psychologist”

THE REVIEW PANEL

At the first Medical Review Panel (MRP) meeting on 23 July 2024, the Panel agreed that a medical examination would be necessary to address the parties’ submissions.
Medical Assessor Gerald Chew and Medical Assessor Michael Hong examined Mr Govinda on 11 September 2024 via audio-visual MS Teams.
Mr Govinda was unaccompanied. He was identified by his NSW Drivers Licence.
Mr Govinda was located in India at his parents' home where he had been for a “couple of weeks”. He had travelled there with his wife and was planning to stay for one month.

Psychosocial history and pre-accident history

Mr Govinda was a 38-year-old man who usually lives in Southwest Rocks, NSW with his wife. He has no dependent children. He works for Nestle as a manager involved with the raw materials for production of Milo where he manages 10-12 staff.
Mr Govinda was born in India and migrated to Australia in 2011. He is an Australian Citizen. His father works in a bank and his mother is a homemaker. He has two older sisters who live in India. He said that his childhood was “good” and he denied any exposure to trauma or violence. He completed a bachelor’s degree in engineering in India and subsequently a master’s degree in engineering.
He was married around two years ago in India in an arranged marriage.
He had worked in several engineering jobs prior to Nestle where he has worked for nearly two years.
He denied any medical or psychiatric history prior to the motor accident.
He did not drink alcohol or use cannabis or recreational drugs.

History of the motor accident

The accident occurred on 5 June 2019 in the late afternoon. He was driving a sedan seat belted and unaccompanied. He was hit by a car from the left-hand side roughly in between the front and rear passenger doors. Airbags were not deployed. He was taken to Liverpool Hospital by ambulance and discharged later the same day.

History of symptoms and conditions following the motor accident

He continued to experience significant pain in his neck, shoulder and back. He has consulted with a neurosurgeon who has recommended surgery in January 2020.
He said that after surgery was recommended, he lost some hope, and his mental health deteriorated. He said that he was frustrated and “couldn’t do the things I usually do”. He felt worthless and worried constantly.
He developed chest pain and other somatic symptoms and presented to the Emergency Department several times. No underlying medical cause was found, and it was presumed to be related to anxiety.
Around 2021 he saw a psychologist for around 6-7 months. He is unsure if it was of significant benefit and also said that cost was an issue.
While in India in 2021 he sought help and was prescribed a medication “anxit” with limited benefit.

Injuries or conditions since the accident

Nil reported or identified.

Current symptoms

He continued to experience pain particularly in his neck and shoulder.
He felt anxious and nervous all the time. He felt worthless and felt like people were judging him. He experienced heart palpitations and chest tightness and often felt like it was hard to catch his breath. He said that his sleep was often poor and disrupted by worry. He said that he thought his concentration was worse and while he was able to work he felt that this had affected his performance although he had not had any formal performance feedback. He reported that he was less motivated to do things and spent most of his time outside of work at home. He rarely went out and apart from his wife he had no contact with many people or friends outside of work. He said that he struggled to drive long distances or to unfamiliar places and preferred not to drive although he was able to drive to work when needed.

Current and proposed treatment

Mr Govinda was under the care of a general practitioner and took Citalopram 40mg daily.
He was not seeing a psychologist or psychiatrist.

Mental state examination

He appeared his stated age and was reasonably groomed. He had some psychomotor retardation and latency of response. He reported his mood as anxious and his affect was flat with little, if any reactivity. There was no evidence of psychosis. He was oriented to time, place and person. There were thoughts of worthlessness but no active thoughts of harm to self or others.

Current functioning

Mr Govinda reported that he worked through the week with a combination of working from home and driving to work. He said that he did not socialise with people outside of his wife. He said that he was more anxious about driving. He said that his concentration was poor and when he was watching TV he often lot focus. His wife did the meals, and they did the shopping together. He spoke to his parents daily on the phone. Around two years ago, he was in India for his marriage where he stayed for 6-7 months.
In 2023, he participated in a cricket competition and also travelled to Vietnam, Sydney and Wollongong.

Consistency of presentation

His history and presentation were internally consistent today.
The Panel notes that Mr Govinda did not present for treatment for psychological symptoms until nearly two years after the subject accident. When this was put to the claimant, the history he gave was a focus on physical symptoms and a belief that the psychological symptoms were physically based. His reports of ED presentations for chest pain were likely psychologically based.
The previous inconsistencies in his history were put to him. Regarding the reports about his work function, he corroborated evidence that he in fact had been working significant amounts since at least mid-2023. He confirmed participation in a cricket competition and travels to Sydney, Vietnam and Wollongong in 2023. At the time of the assessment, he had travelled to India.

Diagnosis

Mr Govinda had generalised anxiety disorder.
As a result of the motor accident and the resultant pain and dysfunction he presented with clinically significant anxiety and worry associated with impaired concentration, edginess and difficulty sleeping.
He met DSM-5 criteria as follows:
A - He has excessive anxiety and worry occurring more days than not for at least six months about a number of events or activities such as driving and work.
B – He finds it difficult to control the worry.
C- the anxiety and worry are associated with feeling on edge, easily fatigues, difficulty with concentration and sleep disturbance.
D- the symptoms cause clinically significant distress.
E- the disturbance is not attributable to a substance or another medical condition.
F- the disturbance is not better explained by another mental disorder.

Addressing Allianz’s submissions

Allianz submitted that the accident did not cause a psychological injury and that if it did, such injury was limited to a threshold injury.
In support of its position, Allianz noted the following:
(a)     Mr Govinda did not report any psychological symptoms following the subject accident until his attendance at MMCL on 5 May 2021, almost two years following the subject accident.
(b)     Mr Govinda first sought psychological treatment with Ms Naidu in July 2021, more than two years following the accident. He then appears to have only attended upon her on a few occasions.
(c)     Any history provided by Mr Govinda should be treated with caution given the inconsistent histories previously provided and Mr Govinda’s failure to disclose:
(i) that he is presently working two jobs and appears to have done so since mid-2023;
(ii) that he participated in a Cricket Competition in May 2023, shortly after his assessment with Medical Assessor Jones, and
(iii) his travels to Vietnam, Sydney and Wollongong in 2023, also shortly following his assessment with Medical Assessor Jones.
The Panel noted Allianz’s concerns surrounding Mr Govinda’s history following the accident. The Panel arranged to discuss with Mr Govinda his pre-accident medical history and his post-accident symptoms. This occurred on 11 September 2024 by video link between
Mr Govinda and the two Medical Assessors. On the day of the examination by the Panel, the Medical Assessors found Mr Govinda’s history and presentation to be internally consistent and consistent with the material available.
The Panel refers to the history of symptoms and conditions [60] provided by Mr Govinda, including that he developed chest pain and presented to the Emergency Department several times. At [61] and [65], Mr Govinda told the Medical Assessors that in 2021, he saw a psychologist for around 6-7 months.
The Panel considered Mr Govinda’s current symptoms as significant:
“He felt anxious and nervous all the time. He felt worthless and felt like people were judging him. He experienced heart palpitations and chest tightness and often felt like it was hard to catch his breath.”

Causation

The generalised anxiety disorder developed in response to the accident. In the months after the accident, he was focussed on physical symptoms and pain. After surgery was recommended in January 2020 for his physical symptoms, psychological symptoms became more predominant, and the symptoms have particularly manifested as generalised anxiety disorder. The generalised anxiety disorder was caused by the accident, and it was not negligible in its causative impact.

Conclusion

The Panel held a post – examination conference on 25 September 2024. Both Medical Assessors were of the opinion that Mr Govinda had a generalised anxiety disorder, that it was not a threshold injury and that the certificate of Medical Assessor Jones should be confirmed.

Determination

The Review Panel affirms the Certificate of Medical Assessor Jones, dated 2 March 2023.

[2024] NSWPICMP 697

4 October 2024