Allianz Australia Insurance Limited v Kit
[2025] NSWPICMP 791
•16 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Kit [2025] NSWPICMP 791 |
CLAIMANT: | Mary Kit |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Surabhi Verma |
MEDICAL ASSESSOR: | Gerald Chew |
DATE OF DECISION: | 16 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment of single medical assessor by review panel; whether psychological injury caused by the motor accident is a threshold injury; claimant injured in a motor accident in 2022 when waiting at a bus stop; prior motor accident in 2015 with associated psychological injury; original Medical Assessor diagnosed an exacerbation of major depressive disorder and therefore not a threshold injury; Held – Review Panel found the claimant suffers a somatic symptom disorder according to DSM-5 and therefore not a threshold injury; medical certificate revoked due to differing diagnosis; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (MAI Act) The Review Panel: 1. Revokes the the certificate of Medical Assessor Sidorov dated 7 July 2023. 2. Certifies that the following injury caused by the motor accident: · somatic symptom disorder, is not a threshold injury for the purposes of the MAI Act. |
STATEMENT OF REASONS
Mary Kit (the claimant) alleges injury from a motor accident occurring on 6 April 2022.
A claim was subsequently lodged upon Allianz Australia Insurance Limited (the insurer), the compulsory third party insurer of the vehicle considered at fault. The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury for the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury, then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
Medical Assessor Alexey Sidorov issued a certificate and reasons dated
7 July 2023, which certified that the motor accident caused the claimant to suffer
exacerbation of major depressive disorder, which is a non-threshold injury for the purposes of the MAI Act.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the
MAI Act. On 22 September 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel met via video conference on 4 September 2024 and determined that a
re-examination of the claimant was required. A medical examination was arranged to take place on 7 November 2024 with Medical Assessor Verma and Medical Assessor Chew via Microsoft Teams. The examination took place as scheduled.
The Panel met via videoconference after the scheduled conference and it was noted that not all relevant material that had been before the original Medical Assessor had been provided. Directions were made in this regard.
The material has now been received.
The claimant has also lodged further material received on 13 August 2025 which includes additional material obtained after the re-examination.
RELEVANT STATUTORY PROVISIONS
The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the
MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
ASSESSMENT UNDER REVIEW
Following examination of the claimant on 8 June 2023, the Medical Assessor diagnosed a major depressive disorder as per the DSM-5. The Medical Assessor based this on the claimant’s history of experiencing a depressed mood most of the day, associated with markedly diminished interest and ability to derive pleasure form most of her activities. He also noted the claimant having a significant reduction in appetite, a significant sleep disturbance, fatigue and low energy. Also noted was a lack of motivation to do most activities, feelings of worthlessness, hopelessness and poor concentration and memory.
The Medical Assessor also noted that the claimant experienced some trauma related symptoms, including an avoidance of buses and bus stops, but did not meet the criteria for post-traumatic stress disorder.
In making the diagnosis, the Medical Assessor noted that the major depressive disorder was initially caused by a previous accident in 2015 but had been significantly exacerbated by the subject accident in 2022 and therefore has been “…in part, caused by the subject accident.”
SUBMISSIONS
Insurer’s review submissions dated 10 August 2023
The insurer submits that the Medical Assessor failed to account for pre-existing symptoms by inadequately reviewing the relevant medical evidence and documentation and therefore erred in his psychological assessment.
The insurer notes that the Medical Assessor acknowledged a lengthy pre-accident psychological history including significant childhood trauma and the claimant developing depression after an earlier motor accident of 2015 with significant low mood and regular crying.
The Insurer notes the Medical Assessor accepted complaints of low mood and emotional lability had improved and partially resolved at the time of the motor accident, however, this is then contradicted with him then stating that the pain caused by the prior accident (associated with depressive symptoms) persisted to the date of the subject accident.
The insurer submits that the current reported symptoms are exactly the same as those contained within the pre-accident evidence. The insurer references complaints made to
Dr Clark and Professor Sitharthan prior to the accident. It is noted that the claimant was diagnosed with major depressive disorder prior to the accident. Also noted that she could not return to work, had impaired cognition and her permanent impairment was then assessed at 22%.
The insurer submits that contrary to the Medical Assessor’s findings there was no evidence that the claimant’s symptoms had improved prior to the accident.
The insurer also submits that the Medical Assessor failed to adequately consider causation and does not explain how the presentation after the accident differs from the claimant’s condition prior to the subject accident.
Claimant’s submissions
The claimant apparently did not lodge a reply to the insurer’s review application and therefore no review submissions have been received.
The claimant has lodged submissions dated 12 August 2025 attaching reports of Dr Way dated 19 May 2025 and 14 July 2025. The submissions go to the admission of late documents. This is discussed further below.
DOCUMENTATION
The Panel has considered the documents provided by the insurer. It is noted that the initial bundle provided did not contain all relevant material, in particular, material that was before the original Medical Assessor. A further bundle was provided on 5 May 2025 consisting of 181 pages – “Kit – Compiled List of Documentation for Review Panel (95690192.1)”. The Panel noted that the bundle did not include material referred to by the insurer in their submissions, namely a report of Dr Oldtree Clark. This report was provided to the Panel on 26 May 2025.
As noted above, the claimant lodged a bundle of documents on 13 August 2025 that consists of two reports of Dr Way dated 19 May 2025 and 14 July 2025 as part of an application to admit late documents. The insurer objects to the inclusion of that material. The Panel agrees with the objection. The material was lodged well outside the timeframe provided by the Panel in directions issued. The reports post date the re-examination and accordingly the Panel considers it not in the interests of justice to consider the additional material.
Whilst the Panel has not referenced every single document provided, the certificate and reasons have been provided in the context of the Panel considering all documents provided.
Application for personal injury benefits
This claim form lodged on 13 April 2022, details the claimant having made a previous CTP claim for an accident occurring in May 2015, lodged against AAI Limited t/as AAMI.
In respect of the subject accident the claimant lists various physical injuries to the legs, face, head, teeth, bottom and back/spine. In addition, the claimant details an injury of “psychological shock and emotional trauma”. She describes chest pain, vomiting, nausea and headache. In addition, she notes poor sleep, anxiety, post-traumatic stress due to a “near death experience”. She also noted that she has a fear to wait and travel on a bus.
She describes the accident as follows:
“On Wednesday, 6th April 2022 I was sitting on a bus stop bench looking at the time on mobile at Cabramatta train station when a car jumped kerb and destroyed the bench. I can not recall the incidence, as I was thrown airborne and woke up with psychological shock, confusion, right sided pain, face and teeth pain. On Sunday, 10th April I was admitted to Liverpool Emergency Hospital with chest pain, vomit, dizziness and vertigo. Even after a week, I still have poor sleepless nights due to the traumatic experience, the near death memories and emotional trauma pop up from time to time.”
The accompanying certificate of capacity dated 13 April 2022 completed by Dr Tom Lieng notes a closed head injury, thoracolumbar spine injury, right leg injury, teeth injury and an adjustment disorder.
NSW Police report
The crash summary details contained within this report note that a collision occurred between two vehicles, with the insured vehicle driving after the collision into a nearby bus stop.
Allied Health Recovery Requests (AHHR)
The Panel has considered an AHHR for physiotherapy dated 30 May 2022, that includes a diagnosis of a whiplash injury affecting the neck and shoulders and chest, together with a back strain with pain radiating to the right leg together with right thigh bruising.
An AHHR for exercise physiology includes a diagnosis of mid and lower back injury and a right leg injury.
An AHHR dated 16 August 2022 for psychology treatment includes a diagnosis of “anxiety, complicated with trauma. Pain associated [sic] with injury”. Symptoms are described as: “excessive worries, feeling nervous, feeling hopeless about the future, impaired attention and concentration, and other somatic complaints. Pain associated with injury.”
Liverpool Health Service – Liverpool Hospital
The records confirm the claimant presented on 10 April 2022 with chest pain and vertigo most likely due to soft tissue injures.
A history of the motor accident occurring four days prior is documented. The claimant reported right leg pain and right anterior chest pain. She complained of worsening right anterior chest pain and ongoing leg pain. A past history of anxiety and post-traumatic stress disorder is noted.
Commission’s medical assessments
The Panel notes the certificate of Medical Assessor Paul Nichols dated 13 June 2025 that determined that the injuries referred (dental) were not caused by the motor accident. The Medical Assessor noted no mention of dental injuries in the police or hospital notes.
The Panel has considered the medical assessment of Medical Assessor Ian Cameron of
30 June 2023 related to a threshold dispute for physical injuries. He certified that various injuries referred were soft tissue injuries and therefore threshold injuries for the purposes of the MAI Act.
In his reasons, the Medical Assessor noted the claimant to be consistent in her presentation. He found there to be no evidence of a closed head injury or traumatic brain injury, noting there was no verified loss of consciousness or other indicators of brain injury. All other injuries referred were considered to be caused by the accident (diagnosed as soft tissue injuries).
The Medical Assessor found moderately and symmetrically reduced range of motion of the cervical spine, thoracic spine and lumbar spine. A full range of motion was noted in the extremities. The claimant was noted to use a walking stick and walked slowly.
Medical Assessor Micael McClynn provided a certificate dated 28 June 2023 that certifies a facial injury, soft issue injury and bruising as a being a threshold injury for the purposes of the MAI Act.
The Medical Assessor described the claimant’s presentation to be inconsistent in that the sensory changes affecting the entire left side of the face in the distribution of the left trigeminal nerve is inconsistent with the facial soft tissue injury, the history of the incident and the documents seen. In this regard, it was noted that the hospital records noted examination on 10 April 2022 to report normal facial sensation and normal facial muscle movement indicating no injury to either trigeminal nerve or facial nerve being sustained in the motor accident.
Report of Dr Oldtree Clark dated 24 October 2016
The report was prepared at the request of the claimant’s legal representatives in respect of an earlier motor vehicle accident that occurred on 5 March 2015. It includes a description of the claimant being involved in a three way line up motor accident and she was the driver of the middle car.
The doctor took a history of early trauma including the claimant being raised under the Khmer Rouge regime after Pol Pot. She only reached year 4 in education and was made to work as a child labourer in the jungle. There were also notes of the claimant having physical altercations with her husband, and her husband eventually leaving with another woman. The divorce is noted to be “harrowing”.
The doctor also took a history of the claimant complaining of trouble with her teeth and it was said that teeth had fallen out since the accident. She also complained of trouble with her neck and back and she was taking Codalgin.
The claimant was noted to have seen a psychiatrist for the previous 12 months. She was taking Avanza one at night and also Pregabalin or Lyric and Seroquel at night.
The claimant described being irritable with people and she becomes jittery, feels unhappy, terribly empty, worthless, anhedonic, and unable to sleep.
She was described as being very paralogic, and was unable to reply directly to a question. He described her general orientation and recent memory to appear okay, although he noted her remote memory to be quite mixed up and not able to reply to some of the fundamental questions.
On emotional state examination, the claimant said that she was suicidal and unable to sleep.
The doctor states:
“This state is known as a Major Depressive Disorder, having all the characteristics. She has lost all her self-care. She cannot work she says. She does not like to travel by herself. There is no prospect on future relationships. Her overwhelming depression affects her concentration and she cannot go back to her prior work because of her absolute loss of any motivation and feelings of depression.”
Dr Clark described the claimant as suffering severe depression, and she needed constant company from her son insisting he join her at the assessment. He assessed the claimant as suffering a 22% whole person impairment.
RE-EXAMINATION
The following are the clinical examination findings of the Medical Assessor following their examination of the claimant.
Psychosocial history and pre-accident history
Ms Kit is a 61-year-old female who lives in Cabramatta by herself. She has three children aged 42, 41 and 32 years and three grandchildren. Two of her sons live in Canley heights and one in North Ryde. She has been single since 2008. She is currently single and has been since 2008, when she divorced her husband. Ms Kit was born and grew up in Cambodia with her four siblings. Her parents are now deceased. Ms Kit was separated from her parents at the age of 11 years due to the Khmer Rouge regime coming to power in Cambodia. She experienced traumatic incidents, including falling into a mass grave and being punished by starvation and excessive hard work; however, she was later reunited with her parents after the end of the regime. However, Ms Kit did not experience any ongoing mental health symptoms.
She immigrated to Australia in 1994 with her husband and children, and she later owned the cleaning business and had another contractor work for the business. She cleaned offices and houses and worked around five to six hours daily, five days a week. She had to close her company in 2015 when she was involved in a motor vehicle accident. She reported that her vehicle was hit on the right side. The accident impacted her mental and physical health. She received treatment in the form of physiotherapy and medications and had to see various specialists. She reported that her mental health gradually improved. She was asked twice about her functioning before and after the motor vehicle accident in 2015. However, she was not providing clear answers. She gave equivocated answers and said ‘improvement in health’ both before and after despite explaining the matter to her multiple times.
The interpreter tried to rephrase the question regarding her symptoms after the motor vehicle accident in 2015. However, we did not get a clear answer regarding that. She then said that she was “trying to get better and trying to get her license back.” However, she did not get her license back and could not return to work after the accident in 2015. She added that her licence was suspended and later said that her doctor had advised her not to drive as she was on a high dose of medication. She has been on Centrelink payments since 2015. The Medical Assessors inquired into what sort of payment she was receiving, to which she said that she was unsure. The Medical Assessors even inquired about the reason for being on Centrelink and not working when her mental health had improved, to which she said, “The doctor thinks that I need strong medication to help with pain and feel better.”
She reported that she was on a low dose of anti-depressants which she took inconsistently. She was also on medications for high blood pressure and cholesterol at the time of the index accident. The Medical Assessors clarified what she meant by that, to which she answered that she would take half dose of the anti-depressant medications daily.
She reported that before the accident in 2022, she was “happy” and used to think that the future looked bright. She denied experiencing any significant depression or anxiety at that time. She said that she used to help out her children and grandchildren.
History of the motor accident
Ms Kit was involved in a motor vehicle accident on 6 April 2022. She was sitting and waiting for the bus and looking at her phone and the photo of her dog when a car suddenly came and crashed at the bus stop. She reported that she was thrown on the ground and remembered “seeing a lot of heads surrounding her.” The bus stop and the bus area were damaged. The ambulance came, but she did not attend the hospital as she did not want to leave her dog alone for a long time and wanted to go home. She recalled bleeding from her mouth and swelling around her legs and pubic area and was dropped home.
History of symptoms and treatment following the motor accident
Ms. Kit saw her GP the following day, and he was quite concerned since her face was swollen, asking her to go to the hospital. Over the next two days, she began experiencing significant pain and was taken to Liverpool Hospital. Since then, she has reported substantial mental health symptoms. Her mood has been low, and she struggles to walk straight. The pain has greatly affected her mood, leading to increased depression. She is limited in performing day-to-day tasks such as going up a flight of stairs, cleaning, or even touching her toes. Additionally, she has experienced other somatic symptoms, including weakness in her legs, feeling trembly, and an inability to do household chores. She cannot carry more than
2kg in weight.
Her sleep was disturbed, and she had to rely on sleeping medications. She feels dependent on these medications and mentioned that her blood pressure increases if she does not get enough sleep. Initially, she lost weight, but now she is gradually gaining it back. She attributed her initial weight loss to not eating much. Recently, however, she has been consuming more nutritious food and drinking more milk. Her current weight is 63kg, which is also her pre-accident weight. When asked about her current complaints, she said, “the most difficulty is when she gets up, as the right side of her body hurts and her knees are often swollen.” The Medical Assessors tried to clarify the relationship between her mental health and her pain, to which she agreed that her mental health would significantly improve if the pain improved. Her attention and concentration are poor, and she often feels forgetful and confused. She experiences headaches regularly, which impact her ability to focus on any task.
She has lost interest in engaging in previously pleasurable activities, and her energy levels have dropped as well. She lacks motivation even to perform day-to-day tasks. There are strong themes of helplessness and hopelessness. At times, she also experiences passive death wishes but denies having any suicidal ideas, plans, or intent.
On a typical day, she wakes up, washes her face, and feeds her dog. Later, she cleans up after her dog and makes her breakfast. She mops the floors with wipes on days when she does not experience pain. Occasionally, she visits Cabramatta Mall for exercise. She has “good days and bad days depending on my pain.” She manages household chores, but if her pain increases, she avoids any household tasks. The Medical Assessors asked her if she wanted to add anything regarding her symptoms, and she expressed that she was in a very difficult situation and wanted to return to cleaning and improve her condition.
Current and proposed treatment
Ms Kit was unable to remember the names of the medications she was taking. However, she confirmed that she had stopped taking mirtazapine and was probably on a different antidepressant. She sees her psychologist once a month and her physiotherapist once every three months.
Current functioning
Self-care: Ms Kit can perform household chores, such as light work at home. On days when she does not experience significant pain, she can shower and brush her teeth regularly, but she does so slowly due to discomfort.
Travel: She leaves home to attend medical appointments and visit Cabramatta Mall for sugarcane juice and to exercise in the park. She uses the bus and public transport without difficulty. However, she avoids the bus stop where the accident occurred. Her children often come to pick her up when she wants to visit her grandchildren, and she did not report any difficulties with sitting in the car. Recreational Activities: Before the accident, she enjoyed exercising and going for long walks. She continues to exercise in the park once or twice a week and also does exercises at home. She walks at home whenever she can, at least once or twice a week.
Social Functioning: Ms Kit lost most of her friends after closing her business in 2015. She reflected that she was unwell, unemployed, and struggling financially, which led them to distance themselves from her. She visits Wat, a temple, on special occasions.
Relationship: She maintains good relationships with her children. She mentioned that her daughter comes to pick her up once a week. However, her children have become busy; her elder son, a businessman, is preoccupied with work, and she understands that running a business is challenging. Her daughter is also busy with work and family responsibilities. On the other hand, her younger son has not tried to help and support her as much.
Work and Education: Ms Kit reported that she is unable to work due to ongoing pain in her back and neck.
Clinical examination
Mental state examination
Ms Kit was reviewed via video. She engaged well during the assessment and was cooperative. She presented as a middle-aged female of Cambodian background who looked her stated age. She was well-groomed and not overly dishevelled. She appeared teary and visibly emotional when discussing the impact of the accident on her life. However, she provided equivocal answers and often referred to the index accident when questions were asked about the incident in 2015. She stood up to demonstrate the area of pain during the assessment.
She reported her mood as low, and her affect was reactive, with Ms Kit smiling at times. Her speech was spontaneous and normal in volume and tone. Her thoughts were logical and goal-directed. She currently reported ongoing difficulties in performing various day-to-day activities due to persistent pain. There was no evidence of any manic, psychotic, or perceptual abnormalities. She demonstrated insight into her mental health, and her judgment was intact. She was help-seeking and continued to engage with her treatment. She scored 3/3 on the 3-word repeat and 3/3 on the 3-word recall. She was able to state the days of the week in both forward and backward order.
Comments of consistency
Ms Kit’s presentation was internally consistent. Ms Kit, however gave equivocated answers when clarifying her mental health after 2015 accident and before the accident in 2022. The Medical Assessors repeatedly attempted to engage the claimant in this regard.
DETERMINATION
Diagnosis, causation and reasons
The Panel discussed the above clinical examination findings following the re-examination of the claimant at the post examination teleconference. The Panel collectively agreed with the clinical examination findings and agreed to adopt same within these reasons.
Ms Kit was involved in a motor vehicle accident in 2015, for which she lodged a CTP insurance claim that was later finalised. She was rear-ended by another vehicle while driving, experiencing pain in her right side and depression. Although she took her medications inconsistently and at half the prescribed dose, she received treatment that stabilised her symptoms.
The Panel notes the findings of Dr Clark in his report of 2016. He diagnosed a major depressive disorder and described the claimant suffering severe depression. The Panel observes that the symptoms outlined within that report are not substantially reflective of her current presentation. It can be reasonably concluded that even after the 2022 motor accident, the claimant’s psychological presentation differs from when Dr Clark examined the claimant. The Panel notes the insurer’s submission that the presentation is the same, however, for instance, it is noted that the claimant is able to travel and attend to activities unaccompanied, yet in 2016 it is noted that she required constant company. In addition at re-examination by the Medical Assessors there was no report of suicidal thoughts.
On 6 April 2022, she was involved in another accident while waiting at a bus stop when a car crashed into it. She reported experiencing significant body pain and headaches, which have affected her mood and led to impairments in different areas of her life functioning.
Her mood often depends on her level of pain and therefore fluctuates. She did not report experiencing persistent low mood. She has been able to engage in activities she previously enjoyed, such as exercising and going for walks. The Panel noted that she does not walk as often or for as long, as her pain limits her. Additionally, the Panel observed that there has been no impairment in her friendships or her relationship with her children. She lost all her friendships after she stopped working in 2015, before the index accident. She maintains a close relationship with her children and visits her children and grandchildren as she did before. The panel also noted that she was not employed even prior to the subject accident and was receiving Centrelink payments. She has been limited in completing her household chores but can manage them on days when she does not experience pain. She has been receiving psychological interventions and help.
With respect to the physical injury, the Panel observed that the injuries she sustained to her face were threshold injuries Medical Assessor Cameron and Medical Assessor McGlynn also indicated that the physical injuries sustained were considered threshold. The Panel acknowledged the traumatic experiences that Ms Kit endured as a child. However, the Medical Assessors agreed that Ms Kit does not have post-traumatic stress disorder, as she had been functioning well throughout her life and did not experience any mental health issues prior to the accident in 2015. It was clarified that Ms Kit experienced pain and was on pain relief medications before the index accident in 2022. She denied experiencing any mental health symptoms at that time and was taking medications inconsistently, often at half the prescribed dose.
The Medical Assessors are of the opinion that as a result of the 2022 accident, the claimant began experiencing symptoms consistent with a diagnosis of somatic symptom disorder. This diagnosis is based on the DSM-5 criteria, which has been highlighted in bold,
DSM5-Somatic Symptom Disorder
A. One or more somatic symptoms that are distressing or result in significant disruption of daily life.
B. Excessive thoughts, feelings, or behaviors related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
1.Disproportionate and persistent thoughts about the seriousness of one’s symptoms.
2.Persistently high level of anxiety about health or symptoms.
3.Excessive time and energy devoted to these symptoms or health concerns.
C. Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than 6 months).
Specify if:
· With predominant pain (previously pain disorder): This specifier is for individuals whose somatic symptoms predominantly involve pain.
Specify if:
· Persistent: A persistent course is characterized by severe symptoms, marked impairment, and long duration (more than 6 months).
The Panel noted that the pain symptoms are quite distressing and have resulted in significant disruption of Ms Kit's daily life. She experiences excessive thoughts and behaviour related to her pain and has a persistently high level of anxiety about her pain symptoms and disproportionate thoughts about the seriousness of her symptoms. She has experienced these symptoms for more than six months. The Panel did not believe that her depression has been exacerbated as there was no persistent low mood or lack of interest in activities. She does experience symptoms of lack of motivation and energy, which could be primarily attributed to her pain symptoms. Ms Kit had clarified during the assessment that her mental health was dependent on the pain symptoms and that if the pain were to go away, her mental health too would improve.
The Panel respectfully disagrees with the diagnosis in respect of the motor accident of exacerbation of major depressive disorder, as the symptoms that Ms Kit experiences are more centred around her pain and how it has impacted her life rather than affective symptoms.
The Panel acknowledges that the claimant was suffering from significant physical symptoms prior to the motor accident, however, on the balance of probabilities is sufficiently satisfied that the subject motor accident has given rise to the somatic symptom disorder, rather than it being a pre-existing disorder, on the basis of the evidence available and the clinical judgment of the Medical Assessors at examination. The Panel accepts that since the accident of 2015, and since the assessment of Dr Clark in 2016, several years had passed and accept the claimant’s account that there was an improvement in her symptomatology. Indeed, many of the symptoms described by Dr Clark are no longer part of the claimant’s current presentation. The Panel also notes the certification of a Medical Assessor that the claimant has suffered various soft tissue injuries caused by the accident. The Panel notes the circumstances of the accident are not insignificant.
CONCLUSION
As the findings of the Panel differ from that of Medical Assessor Sidorov and accordingly the medical certificate of 7 July 2023 is revoked and a new certificate is provided at the beginning of these reasons.
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