Allianz Australia Insurance Limited v Predescu
[2025] NSWPICMP 129
•28 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Predescu [2025] NSWPICMP 129 |
CLAIMANT: | Elena Predescu |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Thomas Newlyn |
MEDICAL ASSESSOR: | Surabhi Verma |
DATE OF DECISION: | 28 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment by Medical Assessor (MA) that the claimant developed a post-traumatic stress disorder (PTSD) as a result of an accident on 25 March 2021; insurer’s application for review under section 7.25; insurer alleged the MA did not disclose his reasons or refer to the insurer’s documents which included details of pre-accident mental health issues; claimant alleged physical injuries in the accident but no referral of those injuries in the threshold dispute; previous medical assessments had found a shoulder condition not caused by the accident and that the claimant had no further need for physiotherapy in respect of her injuries; Review Panel re-examined claimant by MS Teams; Held – claimant did not satisfy the criteria for PTSD as the accident was not severe enough; claimant did satisfy the criteria for an adjustment disorder; adjustment disorder caused by the accident; disorder was a threshold injury; Medical Assessment Certificate revoked; no issue of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Robertson dated 26 September 2023. 2. Certifies that Elena Predescu’s injuries resulting from the motor accident are threshold injuries for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Elena Predescu was involved in a motor accident on 25 March 2021. She was 71 years of age at the time of the accident and will very soon turn 75 years of age. Mrs Predescu was the front seat passenger in a car driven by her son when a vehicle collided with the rear of their vehicle.
The claimant says she injured her back, neck and right shoulder in the accident and developed a psychological injury diagnosed by her treating psychologist as a post-traumatic stress disorder. Mrs Predescu made a claim for statutory benefits against Allianz, the third-party insurer of the vehicle that Mrs Predescu says caused her accident. A claim for damages was also made by the claimant against Allianz.
A medical dispute about the nature and extent of the claimant’s injury has arisen in connection with her claims and Mrs Predescu referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Robertson determined on 26 September 2023 that Mrs Predescu did have a post-traumatic stress disorder and that this is not a threshold injury.
The insurer has lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 28 November 2023, Ms Jones, then a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review.
On 19 September 2024, a delegate of the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mrs Predescu’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.[1]
[1] See ss 3.11(1)(b), 3,28(1)(b) and 4.4.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may determine the method of assessment for threshold and non-threshold injuries. The Panel notes the Guidelines[2] currently provide:
“[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.”
[2] The current version of the Guidelines is version 9, effective January 2023.
The Guidelines therefore provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not. A disorder not recognised in DSM-5-TR is a threshold injury in accordance with s 1.6(1) of the MAI Act. The method provided for in the Guidelines also includes the means of determining whether an adjustment disorder or acute stress disorder was or is present (both of which are recognised psychiatric illnesses, but which are threshold injuries in accordance with cl 4(2) of the Regulation).
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Samuell’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Robertson examined the claimant on 20 April 2023 and issued his certificate on 15 September 2023.
He notes at [2] that he was asked to determine the claimant psychiatric condition and at [3] that the claimant’s psychologist had diagnosed a post-traumatic stress disorder. He also notes at [4] that the insurer submitted the claimant’s psychologist had only made a “provisional” diagnosis.
Medical Assessor Robertson conducted an MS Teams interview with the claimant with the assistance of a Romanian interpreter.
The claimant was 73 at the time of the examination and her husband had died in 2022. Medical Assessor Robertson has a history of her birth in Romania and migration to Australia in 1982.
Medical Assessor Robertson has a history of multiple physical problems at the time of the accident including high blood pressure, borderline diabetes, morbid obesity, high cholesterol all said to be controlled or treated with medication. She had annual cardiology reviews. Medical Assessor Robertson also has a history of brief psychological distress associated with a marital breakdown which was brief and did not last. The claimant was, at the time of the examination, grieving the death of her husband.
The claimant gave a history of the accident. It was a rear-end collision. Mrs Predescu was a passenger in a car driven by her son which was struck in the rear by another car “at moderate speed.” Police and ambulance did not attend, airbags did not deploy, the car was driveable but was subsequently written off.
The claimant said she experienced back and neck pain and right shoulder pain. Her pain was said to preclude most daily activities, and her daughter has moved in to live with her.
The claimant reported a fear of driving and panic attacks. She reported initial and middle insomnia, and she has been prescribed temazepam. The claimant also reported flashbacks but not nightmares. She was a nervous passenger, reported irritability and exaggerated startle reflex. She has withdrawn from social interactions and prefers not to leave the house.
Medical Assessor Robertson notes at [11] that the claimant’s husband died of cancer which “further exacerbated her psychological distress”.
He noted the claimant had seen a psychologist but had not been prescribed with medication or seen a psychiatrist.
Medical Assessor Robertson diagnosed post-traumatic stress disorder in accordance with DSM-5 noting “she had experienced a traumatic stressor … including an accident with possible fear of physical injury or death.” He noted the condition had been present for more than 30 days and was not an acute stress disorder and the claimant’s presentation was not consistent with an adjustment disorder although he later said she “has been through a possible concurrent adjustment disorder following her husband’s death” which he considered was resolving.
He considered the accident was “the substantial and main contributing factor” to the development of the condition but expressed the view the claimant had not had adequate treatment.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer’s submissions note that in his first certificate dated 26 April 2023, the Medical Assessor had failed to consider the insurer’s documents and that following the decision of a Principal Member of the Commission, the incomplete certificate was referred back to him to complete.
It is that completed certificate that is the subject of the application for review which the insurer says still contains errors.
The insurer notes that in his final certificate, the Medical Assessor stated, “the late documents primarily addressed the applicant’s physical health problems and had little probative value in this assessment.”
The insurer then provides a list of 11 entries from the general practitioner’s (GP) notes before the accident which refer to stress, insomnia, depression and medication including Endep, Lexapro and Temaze. There was also an entry referring to forgetfulness.
The insurer says these entries are of probative value as they disclose pre-accident psychological symptoms and complains that the Medical Assessor did not give reasons for why he says they were not relevant.
The insurer says its submissions in support of the reply noted that the claimant had been caring for her terminally ill husband in August 2021 and that he subsequently died. The insurer submits the Medical Assessor failed to provide reasons as to why the exacerbation of the claimant’s psychological distress following the death of her husband did not impact his diagnosis of a post-traumatic stress disorder.
The insurer also submits the Medical Assessor erred at paragraph 22 in indicating the presumed adjustment disorder with depressed mood or normative grief was caused by the accident when it appears to have been caused by her husband’s death.
The insurer also refers to and relies on the decision of Medical Assessor Gorman in relation to the claimant’s pain symptoms not being related to the motor accident.
Claimant’s submissions
The claimant submits the Medical Assessor has considered the documents and the insurer’s reply.
The claimant submits that the claimant’s husband died a year after the accident and that in that first year the claimant has been experiencing symptoms of post-traumatic stress disorder caused by the accident. The claimant relies on the decision of Lynch v AAI Limited t/as AAMI[5] and says at [12] that, “the Assessor need only establish that the Claimant had developed Post-Traumatic Stress Disorder at some point as a direct result of the accident.”
[5] [2022] NSWPICMP 6.
The claimant emphasises that Medical Assessor Robertson found that the claimant’s presentation did not constitute an adjustment disorder.
The claimant relies on her statement dated 9 August 2023 as evidence of her symptoms.
Procedural matters
The Panel issued directions to the parties on 20 September 2024 seeking bundles of documents noting that there was a lengthy history with several assessments.
The Panel had said in its directions:
“[5.] The Panel notes that the Medical Assessors on the Panel are required, in accordance with clauses 5.10 and 5.11 of the Motor Accident Guidelines, to determine if the claimant has a psychological or psychiatric injury caused by the accident and then make a diagnosis of that injury.
[6.] The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnoses of the treating practitioners or medico-legal experts. Having made a diagnosis, the Panel will then proceed to undertake an assessment of whether that injury is a threshold or non-threshold injury.”
The claimant provided her bundle of 30 pages on 15 November 2024. The insurer provided its bundle comprising 3,852 pages along with submission as to how to navigate the bundle.
The Panel met on 4 December 2024 and reported to the parties the same day. The Panel repeated what it had said in paragraphs 5 and 6 of the first Directions and stated:
(a) the Panel was aware of decisions made in relation to the claimant’s physical injuries and that neither had been the subject of review. The Panel advised the assessments would be considered;
(b) the Panel was aware that the claimant had lodged an application for further psychological counselling as the insurer had refused to pay for it. The Panel wished to know whether the insurer had paid for any of the claimant’s treatment and if so, details of what had been paid and when;
(c) the Panel had no medico-legal reports from the claimant and requested confirmation that there were none, and
(d) the Panel advised the parties of the re-examination date.
The Panel noted that insurer’s bundle of over 3,800 documents includes approximately 1,500 pages in relation to an application to admit a late document in one of the previous proceedings. The insurer has also included nearly 800 pages of documents submitted in an application for resolution of a dispute about physiotherapy and what appears to be the same (or similar) 800 pages of documents submitted in the dispute about the claimant’s right shoulder surgery. The Panel directed the insurer to provide a revised bundle of relevant documents eliminating the duplication.
Responses from the parties
Claimant’s response
The claimant responded to the Panel’s query confirming that the claimant did not rely on any medico-legal report from a psychologist or psychiatrist.
Insurer’s response
The insurer produced a revised bundle of 143 documents which the Panel has considered.
The insurer also confirmed:
(a) the claimant has had 42 sessions of treatment with Mr Fuller, psychologist, and
(b) the insurer has paid for all of these.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form was signed by the claimant and dated 24 June 2021.[6] The claimant gives a consistent description of the accident and lists her injuries as “Injuries to the neck, left shoulder, right shoulder, lower back with radiculopathy in both legs, right hip and psychological sequelae.”
[6] Page 53 of the insurer’s first bundle.
She discloses a diabetes diagnosis on or about 2016 and “full body arthritis” since 2014.
The insurer has provided photographs of the two cars. The car in which the claimant was travelling[7] has deformation of the passenger side of the bumper and the rear upper panel and rear hatchback door. The bumper has come away from the upper rear but not by much. None of the rear lights appear damaged. The other car (a utility) has a front bull bar. There are some scratches on the front of this on the passenger side but the photos do not show any obvious panel or other damage.
[7] Pages 39 to 45 of the insurer’s revised bundle.
The insurer has also provided a copy of the police report which was made by the claimant’s son (said to be due to the claimant’s age and lack of mobility) on 24 June 2021.[8] It says:
“About 16:40pm 25th of March 2021, VEH2 [the vehicle in whicch the claimant was a passenger] was driving in lane 1 of 4 eastbound along Hart Dr, Constitution Hill. VEH2 stopped at the intersection of Hart Dr and Old Windsor Road. The vehicle in front of VEH2 turned left and VEH2 proceeded to move up. VEH2 stopped to give way to traffic on Old Windsor road. VEH1 was directly behind VEH2. VEH1 has continued to drive forward and VEHl's front bumper has collided with the VEH2's rear bumper. DRI1 and DRI2 stopped and exchanged details.”
[8] Page 46 of the insurer’s revised bundle.
The report states that neither vehicle was towed.
Claimant’s statement
The claimant relies on a statement dated 9 August 2023.[9] She says at [4] she lives with her daughter.
[9] Attached to her reply to the review application.
She says at [6] she had previous physical injuries and headaches, and all these conditions were under control. At [7] she says she had a brief episode of mental distress in the context of a brief marital separation.
The claimant describes the accident as a rear end collision and that she was scared and shocked and she experienced physical symptoms of fast heartbeat, shaking and mouthwatering. She said she experienced “immense pain in my back and neck.”
She says at [13] before the accident she was retired and receiving the Pension but was busy and active driving her husband to his medical appointments and driving from Sydney to Melbourne. She says she would drive herself to the shops and she loved to cook.
Mrs Predescu says before the accident she would watch the tennis, perform all household duties and gardening. She says she would see friends weekly, go out for coffee or lunch and to church.
The claimant complains of ongoing pain in her back, radiating to both legs, an inability to walk for any length of time and that she now tends to lie down for most of the day. She also has ongoing neck pain.
The claimant refers to her right shoulder surgery and says she has been prescribed Endone ad Panadeine Forte. The claimant says she is shocked at the large scar from her right shoulder surgery and says it is a constant reminder of the accident.
She says she sees a psychologist every month, but she says she is petrified to go back in the car. She says she is like a vegetable, takes medication but it does not improve her mood.
The claimant says she has panic attacks, flashbacks and is fearful of another accident.
She says she no longer watches movies or tennis.
She says she has sleep disturbance due to pain in her back neck and shoulders, has flashbacks, nightmares and is always tired.
The claimant says her daughter has moved in with her and does everything for her. She has a shower chair and her daughter showers her and helps her go to the toilet. She is ashamed at this loss of dignity.
The claimant says she can no longer cook or prepare food as a result of her physical injuries. She says she cannot go on social outings, and she no longer sees anyone.
Treating medical records and reports
The insurer, in its original submissions had noted at [12] that the claimant first reported psychological symptoms on 3 August 2021, four months after the accident.
In its review submissions, the insurer documents some pre-accident psychological complaints from the clinical notes of the Rainbow Medical Practice as follows:
(a) 12 June 2008 – Stress with daughter;
(b) 24 September 2010 – Stress, insomnia, and depression. Prescribed Endep;
(c) 9 February 2011 – Depressed and was in tears. Looked after grandchildren as their mother would not look after them. Potential drug user. Her husband left her 1 year prior with a younger woman. Potential depression. Scored 54 on DASS test. Prescribed Lexapro 10mg and Temaze 10mg;
(d) 30 March 2012 – Stress (family issues), depression, and insomnia. Prescribed Endep 10mg;
(e) 4 April 2012 – Depressed as husband left her recently;
(f) 21 April 2012 – Severe left knee pain, very distressed;
(g) 5 September 2012 – Very upset and depressed;
(h) 11 November 2019 – Suffering insomnia. Prescribed Endep 25mg;
(i) 18 March 2020 – Anxiety related insomnia;
(j) 9 April 2020 – Uncontrolled diabetes, and
(k) 10 March 2021 – Forgetful.
The accuracy of this summary has not been challenged by the claimant.
In addition, the Panel notes that in a GP Management plan dated 10 March 2021,
Dr Vakeeswaran notes that the claimant lives with her daughter, is taking Endep and Lyrica.[10] The Rainbow Practice notes also record on 19 March 2021 left arm radiating pain.[10] Page 269 of the insurer’s original bundle.
In the Rainbow Practice notes, it is recorded that the claimant attended the day after the accident complaining of lower back, right hip, neck, right chest wall and left shoulder pain. There is no record in this note of vomiting. Mrs Predescu returned on 7 April 2021 to discuss radiology, and the lower back and left shoulder was the subject of complaints and physiotherapy was recommended. The claimant attended with her daughter for physiotherapy by Mr Leon Li. He took a report of osteoarthritis for many years and had difficulty in the past with activities of daily living and her daughter assisted. The daughter was said to be the carer for her father and for the claimant. Therapy was provided. The claimant returned on 26 April 2021 with her daughter to see the doctor (with back pain) and she saw Mr Li and again treatment was provided.
The claimant saw the doctor on 17 May 2021 with her son. She was seen in respect of chronic back pain and her son was said to be her carer. Dr Vakeeswaran saw the claimant on 25 May 2021 in relation to a letter from the claimant’s lawyer. The claimant said she had never had lower back pain before but had back, neck and left shoulder pain since the accident. Again, on 4 June 2021 Dr Vakeeswaran was asked about previous back complaints. The claimant denied any significant back problem after 2012. On 17June 2021 the claimant was seen again by Dr Vakeeswaran for the purposes of the CTP form.
The claimant was referred to Mr Li, psychologist on 3 August 2021. The referral states that the claimant was a passenger in a vehicle who was involved in an accident and that she suffers from chronic pain and anxiety, has stopped driving a car and fears sitting in a car as a passenger.
The claimant and the insurer rely on a report from Mr Fuller, psychologist dated 23 August 2021 addressed to her GP.[11] He reports that the claimant has:
[11] Page 14 of the claimant’s bundle and page 55 of the insurer’s bundle.
(a) recurrent and intrusive distressing images of the car accident;
(b) distressing dreams;
(c) flashbacks;
(d) intense distress;
(e) avoidance of driving;
(f) fear when a large vehicle is near her;
(g) easily startled;
(h) fear as a passenger;
(i) depressed
(j) sleep disturbance;
(k) negative affect and difficulty experiencing positive affect, and
(l) loss of interesting in hobbies and activities.
He made a “provisional PTSD diagnosis according to DSM 5 criteria”. He recommended further treatment.
The notes record:[12]
(a) 23 August 2021 – car accident, not driving since accident, panicking, shaking and driven around by son. Has difficulty caring for husband, sleep disturbed, thoughts racing, was able to sleep through before accident – would like to return to driving by herself;
(b) 6 September 2021 – physical responses to driving or thoughts about driving; “sleep is okay albeit broken due to husband’s illness”, and
(c) 20 September 2021 – “struggling to be inside a car and felt to scared to drive (nauseous, mouth-watering and headache”. She thought feeling better might help her feel less scared.
[12] Page 56 of the insurer’s bundle.
Mr Fuller wrote again on 17 April 2023[13] noting the claimant had attended 15 appointments. He says she “has responded well to therapy, progressing in her ability to drive and reducing her physiological arousal related to driving”. He did however say he was still treating her symptoms of post-traumatic stress disorder and depression. He records that she attended on the day with thoughts about suicide.
[13] Page 15 of the claimant’s bundle.
The claimant relies on a certificate of capacity dated 2 August 2023[14] which in addition to the shoulders, neck pain, lower back and hip pain includes “? PTSD”.
[14] Page 24 of the claimant’s bundle.
In an Allied Health Recovery Request (AHRR) dated 2 February 2024[15] Mr Fuller sought a further five sessions with the claimant noting that 27 had occurred to date.
[15] Page 25 of the claimant’s bundle.
Medico-legal reports
Dr Cipriani provided a report to the insurer dated 27 November 2021[16] after a 1.5 hour interview with the claimant and her daughter on 22 November 2021.
[16] Page 2948 of the insurer’s first bundle.
Mrs Predescu acknowledged pre-existing conditions and “minor arthritis” and her daughter (who was present) said the accident had aggravated these. The claimant’s daughter (Nicole) then reported her mother had recently fallen walking to the mailbox and that her father had fallen and hit her mother’s head.
The claimant was “not very happy” with her husband being ill with liver cancer and in palliative care and Nicole volunteered he was often angry which stressed her mother.
The claimant reported she had not worked since 1995 when her husband was diagnosed with sclerosis of the liver.
She described the accident as a big car hitting them twice. Her son asked if she wanted an ambulance, but she said no. She felt heat in her back, but it increased in her shoulder, neck, hips and back that night. The claimant reported a sore right knee since her fall and a sore left knee before the accident.
She was fearful of driving due to anxiety. She said even sitting in the car causes anxiety.
He records:
(a) she had dreams but not accident related for two to three weeks after the accident and then nothing no further dreams;
(b) the claimant reported disturbed sleep before the accident due to husband;
(c) the interview was terminated as the claimant’s daughter had to return home;
(d) Dr Cipriani notes the claimant had no difficulty walking after sitting for one and a half hours, and
(e) she reported loss of positive feelings, motivation and initiative, overreacting and worrying due to her husband’s serious illness and her anxiety with driving.
Dr Cipriani diagnosed an adjustment disorder with anxiety.
The insurer relies on a medico-legal report from Dr Roldan, clinical psychologist[17] dated
11 October 2024. He had not interviewed the claimant or assessed her. He points out at 1.7 what documents he had (and more importantly what documents he did not have).[17] Page 3844 of the insurer’s initial bundle.
He has reviewed the documentation and commented on some of the evidence. For example, he notes Medical Assessor Robertson had an interpreter present but Dr Cirpriani did not. He notes that Dr Cipriani was not able to conduct a full assessment as the claimant’s daughter (who accompanied the claimant) terminated the appointment as they needed to return home to care for Mr Predescu.
Dr Roldan tried to speak with Mr Fuller but was unable to do so before finalising his report. He made the following observations:
(a) his reading of the documents was that the accident was a minor one that had not caused long term physical stressors for the claimant;
(b) she had pre-accident physical complaints and stressors unrelated to the accident;
(c) the accident was likely to be a “low psychological” impact accident and it was puzzling the claimant was reporting post-traumatic stress type symptoms two and a half years after the accident;
(d) the post-traumatic symptoms have persisted without change dispute 40 treatment sessions with a psychologist. He would have expected improvement or complete resolution of symptoms with that level of treatment;
(e) the claimant is likely to have a number of unrelated medical and personal stressors contributing to her psychological state;
(f) the current interventions from Mr Fuller are “not working” and it is unlikely any further consultations would assist, and
(g) there is no clinical justification for the sessions to continue.
Other assessments
Medical Assessor Rappaport examined the claimant on 28 February 2023 and issued a certificate dated 3 March 2023 certifying that a right shoulder rotator cuff surgical repair was not related to the motor accident and was not reasonable and necessary in the circumstances.
He has a history of pre-accident bilateral carpal tunnel surgery, bilateral osteoarthritis of the claimant’s knees and treatment for her left shoulder. The claimant is said to have “denied that she had any previous investigations, treatment or symptoms arising from her right shoulder.”
Medical Assessor Rappaport has a consistent history of the accident noting that the claimant remained in the car after the collision while her son exchanged particulars with the at fault driver and that she got out of the car with the assistance of her son when they later arrived at home.
Medical Assessor Rappaport has a history of the claimant’s right shoulder treatment.
Medical Assessor Rappaport says:
“There is an abundance of evidence that a full thickness tear of the right supraspinatus tendon pre-dated the motor vehicle accident and that the injury to the right shoulder was not causally related to the motor accident.”
He notes references to right shoulder complaints as far back as 2008 in the GP notes.
Medical Assessor Rappaport also says:
“… there was no mechanism by which a shoulder injury sufficiently powerful to cause a rotator cuff tear could plausibly have occurred and no contemporaneous reporting of a right shoulder injury to her GP on the day following the accident was made.”
He found the proposed surgery not related to the injuries caused by the accident or reasonable and necessary in the circumstances.
The Panel understands there was a review lodged in respect of that decision but that the application for review was subsequently dismissed. The Panel understands the claimant had the shoulder surgery either as a public patient or she paid for it herself.
Medical Assessor Gorman examined the claimant on 30 March 2023 and issued a certificate on 23 July 2023 in respect of physiotherapy treatment for the cervical spine, lumbar spine, left shoulder and right shoulder.
He has a pre-accident history of the claimant’s physical complaints including “arthritis” in her hands and left knee. He also noted radiology for the claimant’s lumbar spine in February 2006, a rotator cuff tear reported in 2008, left shoulder radiology in August 2009, severe neck and shoulder pain reported in January 2010, back pain in 2011 and 2012 and right shoulder pain in June 2020.
Medical Assessor Gorman records that the claimant has had 24 session of physiotherapy and had been taught exercises to manage her symptoms and that she “had the physical and psychological stress of caring for her husband.”
Medical Assessor Gorman has a history of a fall in November 2021 when the claimant hit her head, hands and knees which worsened her pain. He has a report from the claimant of her being “stressed” by driving and that she had a further appointment with a psychologist. He refers to a report of Mr Cipriani, psychologist dated 27 November 2021 diagnosing an adjustment disorder.
He considered the claimant’s ongoing symptoms were more likely related to the underlying degenerative disease than any effects of the accident and found therefore that the need for physiotherapy was not related to the accident.
RE-EXAMINATION FINDINGS
Medical Assessors Newlyn and Verma conducted a re-examination of the claimant on
13 February 2025. Mrs Predescu attended with a Romanian interpreter. The re-examination occurred by way of a MS Teams tele-health type appointment. There was good connectivity throughout the re-examination.The following are the findings of the Medical Assessors.
History provided by the claimant
Psychosocial history and pre-accident history
Mrs Predescu is a 74-year-old female who currently lives with her daughter. She reported that she has two children, a 50-year-old daughter and a 53-year-old son and five grandchildren. She is widowed her husband having passed away in 2022. She is in receipt of a government pension.
Mrs Predescu was born in Romania and grew up with her brother, who passed away about 10 years ago. She denied witnessing any traumatic incidents, experiencing adverse events, or facing domestic violence during her upbringing. She immigrated to Australia on
7 October 1982 with her husband and reported that she worked in Australia “checking materials.” She last worked in 1986 and has since been financially dependent on her husband, who was a carpenter.When asked, Ms Predcescu denied experiencing any mental health symptoms before the accident. She was then taken through her past history of mental health issues from 2008 to 2019, as summarised from the clinical records by the insurer, to which she responded, “I cannot remember exactly, but I think when I found out that he [a reference to her husband] was very sick, I was stressed.” She stated that she did not take any medications and only visited her GP and denied seeing a psychologist at any time. The Medical Assessors note that Mrs Predescu was prescribed Escitalopram and Temazepam. She was prescribed Endep in September 2010, Lexapro in 2011, Endep 10 mg in 2012, and Endep 25 mg in November 2019. On 10 March 2021 the claimant was still prescribed Endep.
Mrs Predescu confirmed an extensive history of medical comorbidities, including morbid obesity, metabolic syndrome, hypertension, borderline type 2 diabetes, and dyslipidaemia. She reported being medicated for these medical issues. Mrs Predescu mentioned that she had “serious problems with her back and pain that radiates to her back currently.”
She denied drinking alcohol, using illicit drugs, smoking cigarettes, or gambling. She stated that she used to smoke cigarettes when she was younger but stopped just before immigrating to Australia.
She has undergone surgical interventions, including median nerve decompression surgery for bilateral carpal tunnel syndrome, ovarian cystectomy, and an injection for arthritis in her left shoulder.
History of the motor accident
Mrs Predescu was involved in a motor vehicle accident on 25 March 2021. She was the front passenger in her Hyundai sedan and her son was driving. She said they were at the intersection of Hard Drive and Old Windsor Road in Constitution Hill. Her son stopped at the red traffic light when, “all of a sudden, we were rear-ended by another vehicle.” She reported losing her balance and leaning toward her son shortly after experiencing a second impact from the vehicle. She said airbags in the vehicle did not deploy and police and ambulance did not attend the scene.
Mrs Predescu reported that after the accident, her son spoke with the driver, but she was very scared and unable to move. Her son then drove the car home. Once they arrived home, she said she began to experience neck and back pain and started vomiting.
History of symptoms and treatment following the motor accident
Mrs Predescu saw her GP the next day due to this pain and vomiting. She reported experiencing continuous back pain ever since, for which she received treatment in the form of physiotherapy and pain relief medications.
She feared driving, especially when there were too many cars around. She stated that each time she got into the car, she felt intense anxiety accompanied by nausea and vomiting. She experienced the same symptoms even when trying to take her car out of a parking lot. We attempted to clarify the main cause of her inability to drive, as she had previously indicated that it was pain affecting her daily functioning, to which she replied, “Pain prevents me from driving.” She added that before the accident she could drive from Sydney to Melbourne. However, since the accident she has only been able to drive for up to five minutes.
She reflected on how her ability to do household chores had changed; previously, she could handle all household tasks, including cooking for herself and her grandchildren. However, after the accident, she could not perform chores like changing bed sheets, as it was “physically not possible.” She mentioned that her daughter moved in to assist with daily activities and she needed to help her with “showering and dressing because of pain in her shoulder and back.” Mrs Predescu stated that she could not visit her friends due to their distance and her pain, which made her avoid visits. She remarked, “I was very happy before the accident as I was very independent,” but afterward, she disliked depending on others, even for showering.
She was asked how she was sleeping, and she said her sleep was “very effective.” However, she reported experiencing “bad dreams at night.” She frequently dreamt of the accident and other unpleasant incidents. Since she struggled to sleep, she also felt difficulty and lethargy.
Her husband passed away in 2022 from liver cancer. We tried to clarify how her mental health was impacted by his death. When asked she replied, “it did not have a big impact on us, as he was diagnosed with liver cancer in 2000. We were fighting the disease, and the doctor had advised us to prepare; we were all prepared and at peace.”
A few months after the accident, she was referred to a psychologist named Dylan Fuller, whom she saw regularly.
Mrs Predescu did not report any subsequent accidents or the development of other conditions.
Current state
Current symptoms
Mrs Predescu reported that her mental health has been “pretty much the same.” She said that some days are “good and some are bad.” Her sleep continues to be disturbed, and she relies on Temazepam to help her sleep. Her appetite is “worse every day.” She said that she currently weighs 94 kg and earlier used to weigh about 107 kg. She was unsure of the reason for the weight loss.
She added “my biggest problem is pain in my right leg and right shoulder”. Mrs Predescu said she continues to be impacted by this chronic pain which also impacts on her ability to do her day-to-day activities.
On a typical day, she wakes up in the morning. She has her breakfast and takes her medication. She then goes in the backyard and watches her dog. She goes out for shopping with her daughter. She reported that she is “unable to do any household chores without her daughter's help.”
She did not report any prominent nightmares or flashbacks of the accident.
Current and proposed treatment
She has now stopped seeing Mr Fuller and last saw him about six months ago.
She is not taking any anti-anxiety or anti-depressant medications currently.
She is currently on Lyzalon (for pain), Exforge (for high blood pressure), Lipitor (for high cholesterol), Clonac (for rheumatoid arthritis), she was also prescribed Donepezil (for memory loss and confusion), which she took for two months and then ceased due to experiencing side effects and it was changed to Temazepam.
Clinical examination
Mental state examination
Mrs Predescu presented as a 74-year-old female of Romanian background. She was casually dressed and reasonably well groomed. Her affect was slightly dysphoric. There was no evidence of any psychomotor agitation or retardation, no ticks or mannerism were noted.
Her speech was spontaneous and normal. Her thoughts were logical and goal-directed. She currently reports ongoing fluctuation in her moods, some sleep disturbance (due to pain), social withdrawal, changes in appetite, weight and fatigue. There was no evidence of any manic, psychotic or perceptual abnormalities. She had insight into her physical and mental health condition and her judgment was intact. She denied having any thoughts of harming herself, suicidal ideas, plans or intent. She was able to focus and pay attention during the one-hour long assessment and there was no evidence of any gross impairment of her cognitive functioning.
In terms of self-care, Mrs Predescu says she needs help with household chores “because of my shoulder.” She needs help with cooking and cleaning “because of my shoulder” and relies on her daughter for that.
As for driving, she is able to drive to her medical appointments on her own but said, “I only drive to small distances up to Parramatta.” She reported that she does not drive on motorways. She denied having any vacations, country or interstate travels.
She earlier enjoyed cooking and used to cook for long hours. She said that she is unable to cook now because of “pain in her shoulder.” She said she gives instructions to her daughter who then follows the instructions.
Her friends visit her now and then. She said that her children and grandchildren visit her, and she enjoys their company. She reported that she is an Orthodox Christian and attends church most Sundays unless she has other commitments. She said that after the service she talks to other church members about her children and grandchildren.
She reported that she has a “very good relationship with her family members, and they have been very supportive.” She also maintains a “quite good” relationship with her friends.
Apart from her denial of previous mental health conditions and pre-accident anxiety and depressive medication, Mrs Predescu’s presentation was internally consistent. There was no evidence of any malingering or pain behaviors.
CONSIDERATION OF THE ISSUES
Diagnosis and reasons
In light of the documentation in the file and the information provided by the claimant at the re-examination, it is the clinical judgment of the Medical Assessors on the Panel that the claimant’s presentation is consistent with a diagnosis of adjustment disorder. The diagnosis of adjustment disorder is based on the DSM-5-TR criteria listed on page 319 which are listed and discussed below:
(a) Criterion A - the development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of the onset of the stressor – the claimant’s accident occurred on 25 March 2021. The claimant was not referred to a psychologist on 3 August 2021, four and a half months after the accident. The claim form completed on 24 June 2021 just short of three months after the accident records “psychological sequelae.” The Panel accepts that the claimant developed symptoms at some time before the claim form was completed.
(b) Criterion B these symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
(i)marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
(ii)significant impairment in social, occupational, or other important areas of functioning.
There is evidence of both. The claimant’s response to the minor accident is out of proportion and she says she stopped driving and developed anxiety in and around motor vehicles which is a significant impairment to her ability to independently access the community.
(c) Criterion C - the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.
(d) Criterion D - the symptoms do not represent normal bereavement. The claimant’s husband died after the accident and after a long illness. It is clear from the records and the claimant’s own evidence that the lead up to her husband’s death was stressful however he has died, the claimant says she was prepared for it and the clinical judgment of the Panel is that she is no longer grieving for him.
(e) Criterion E - once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months. According to the history from the claimant the stressor (the accident and her injuries) has not ended and her symptoms are continuing. For this reason, the Medical Assessors are of the view the claimant’s Adjustment Disorder is of the persistent (chronic) sub-type permitted within the DSM-5-TR.
In the light of the submissions from the parties and Medical Assessor Robertson’s diagnosis, the Medical Assessors considered whether the claimant fulfills the criteria for a post-traumatic stress disorder. It is the clinical judgment of the Medical Assessors that this is not an appropriate diagnoses in Mrs Predescu’s case as the motor vehicle accident is not a stressor sufficient to fulfill criterion A. The diagnostic features of such a disorder requires there to be an exposure to a traumatic event which the commentary in the DSM-V-TR lists as war, actual or threatened physical assault, being kidnapped or taken hostage, torture incarceration and “severe motor vehicle accidents.” Mrs Predescu’s motor vehicle accident was not severe in nature. The car was rear-ended and there were two impacts, the airbags did not deploy, photographs of the vehicles show no shattered glass or intrusion into the part of the vehicle where the claimant was seated. Both cars were driven away. Mrs Predescu did not sustain any significant physical injuries such as broken bones, internal injuries or significant blood loss from lacerations or abrasions. She appears from the medical records to have sustained soft tissue injuries and exacerbations or aggravations of previous conditions which appear to be causing chronic pain.
While there are some avoidance symptoms, these are not “significant” as Mrs Predescu reports she is now able to drive albeit locally. It is also notable that Mrs Predescu attributes her difficulties driving to the level of her pain rather than any psychological distress associated with driving.
The claimant also reports sleep disturbances, however, does not have any other marked alterations in arousal and reactivity associated with the traumatic incident. There is no evidence of any irritable behaviour, reckless or self-destructive behaviour, hypervigilance, exaggerated startled response or problems with concentration. There is also a pre-accident history of sleep issues and post-accident disturbance of sleep relating to her husband’s disturbed sleep while he was alive.
There is no clinically significant distress or impairment in social, occupational or other important areas of functioning because of these symptoms. Mrs Predescu continues to socialize with her children, her grandchildren, church members as before. She has not been able to do her household chores which she herself attributed to chronic pain (accident and non-accident related) rather than the psychological symptoms.
Causation and reasons
The Medical Assessors are aware that the claimant had multiple medical conditions before the accident, although on her report these did not impact on her ability to function at home or in the community. The Medical Assessors also note the claimant has disclosed in her claim form arthritis throughout her body since 2014, previous complaints of knee pain, lumbar spine pain, neck pain and pain and restriction of motion in both shoulders and that two Medical Assessors have determined physiotherapy treatment and proposed surgery were not related to the injuries caused by the motor accident but are related to these current conditions.
There is also a past history of depression, which could have predisposed Mrs Predescu to develop the current episode of adjustment disorder.
There is no recent history before the accident of significant mental health issues.
Mrs Predescu was on a small dosage of Endep which in the clinical judgment of the Medical Assessors would be sufficient to calm her and aid sleep but does not indicate a serious anxiety or depressive disorder.While Medical Assessor Rappaport found no relationship between the accident and the claimant’s right shoulder surgery and condition, Medical Assessor Gorman’s did not make a finding that the claimant has sustained no injury at all. The Medical Assessors on this Panel are satisfied that the claimant sustained some physical injuries in this accident. It is the clinical judgment of the Medical Assessors that Mrs Predescu’s current diagnosis of adjustment disorder has been materially contributed to by the motor vehicle accident and the physical injuries the claimant sustained.
Whether the effect of those injuries has passed, leaving the claimant with symptoms related only to her pre-accident or unrelated conditions is not necessary for this Panel to determine in the light of the finding of an adjustment disorder.
Does the claimant have a threshold injury?
As the Medical Assessors have diagnosed an adjustment disorder, the Panel determines that the claimant currently has a threshold injury.
Has the claimant ever had a non-threshold injury?
In David v Allianz Australia Insurance Ltd,[18] at [84 – 105] the Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” The Panel found at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time after the accident, the injured person falls outside the definition of ‘minor (now threshold) injury’.
[18] [2021] NSWPICMP 227.
In Lynch v AAI Limited t/as AAMI,[19] the Medical Panel there considered the same issue in respect of a psychiatric injury. At [68-69] the Panel concluded that Ms Lynch suffered from a specific phobia of driving which is a non-minor (non-threshold) injury. She was also found to suffer from a major depressive disorder which was in remission, but which was diagnosed after the accident. This was also non-threshold. After citing David, and considering cl 5.10 -5.11 where the word “present” is required for a psychiatric injury, the panel said at [72]:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
[19] 2022 NSWPICMP 6.
David was cited in the recent judicial review proceedings of Allianz Australia Insurance Limited v Susak.[20] While there appears to have been no argument in Susak about the correctness or otherwise of David, the premise that radiculopathy at one time satisfies a finding of non-threshold injury formed the basis of Acting Justice Griffiths’ decision. The Panel agrees with and approves the reasoning of the Panel in in David and Lynch.
[20] [2024] NSWSC 1359 (Susak).
The Medical Assessors have expressed the view that the claimant does not satisfy the Criterion A for a post-traumatic stress disorder primarily on the basis of the nature (lack of severity) of the claimant’s accident. It is the Panel’s view therefore that at no stage could the claimant have satisfied Criterion A.
The Panel notes Mr Fuller made a “provisional” diagnosis of post-traumatic stress disorder in August 2021 but he has not provided any formal report which makes a final diagnosis with reasons or reference to the criteria for that or any other psychiatric disorder.
The claimant has not consulted a psychiatrist and does not rely on any medico-legal report in relation to her mental health issues.
Having considered all of the material before the Panel, the Panel is not satisfied that at any stage since the accident has the claimant fulfilled the criteria for a post-traumatic stress disorder. The accident was not severe enough to satisfy Criterion A and therefore while the claimant may have had symptoms of stress after the accident as a result of the accident, she could never have been diagnosed with a post-traumatic disorder because of her inability to satisfy the severity criteria.
The Medical Assessors are of the view that the claimant has, since soon after the accident, an adjustment disorder which is chronic with mixed anxiety and depressed mood. The Medical Assessors are of the view that the documentary evidence and the claimant’s history does not support a diagnosis of any other condition after the accident.
On the basis of that finding, the Panel is not satisfied that the claimant has fulfilled the criteria for a non-threshold psychiatric or psychological injury, at any time since the accident.
CONCLUSION
As the Panel has come to a different view to that of Medical Assessor Robertson, it follows that his certificate must be revoked, and the Panel is required to issue a fresh certificate.
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