Azeez v AAI Limited t/as GIO
[2024] NSWPICMP 166
•20 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Azeez v AAI Limited t/as GIO [2024] NSWPICMP 166 |
| CLAIMANT: | Fatek Azeez |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Matthew Jones |
| DATE OF DECISION: | 20 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered physical and psychological injuries in a motor accident on 13 June 2020 when a vehicle collided with the vehicle he was driving, causing it to collide with the vehicle in front of it; dispute as to whether the claimant’s psychological injury caused by the accident is a minor injury for the purposes of the Act; Medical Assessor (MA) issued certificate when the relevant term was “minor injury”; Motor Accident Injuries Amendment Act 2022; minor injury now described as a threshold injury; MA determined that the claimant had an adjustment disorder caused by the accident and that this is a minor (threshold) injury; issue as to whether the claimant suffered from a post-traumatic stress disorder caused by the accident, which is not a threshold injury; claimant re-examined; Review Panel determined that the claimant meets the assessment criteria under DSM-5 for the diagnosis of an adjustment disorder caused by the accident but does not meet the assessment criteria for a diagnosis of post-traumatic stress disorder; Held – certificate of MA affirmed; Review Panel certified that the psychological injury caused by the accident is a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel affirms the certificate of Medical Assessor Samuell dated 31 August 2021. 2. The Review Panel certifies that the psychological injury caused by the accident is a threshold injury for the purposes of the Motor Accidents Injuries Act 2017. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Fatek Azeez, suffered physical and psychological injuries in a motor accident on 13 June 2020, when a vehicle collided with the rear of the vehicle Mr Azeez was driving causing it to collide with the vehicle in front of it on Cowpasture Road at Len Waters Estate in Sydney, New South Wales (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
GIO (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the MAI Act.
GIO accepted liability to pay the claimant statutory benefits under the MAI Act for the first 26 weeks after the accident.
At the time of the subject accident, statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the motor accident were minor injuries.
There was a dispute as to whether the claimant’s psychological injury caused by the accident is a minor injury for the purposes of the MAI Act which was referred to Medical Assessor Doron Samuell for assessment.
Medical Assessor Doran Samuell issued a certificate dated 31 August 2021 in which he certified that the following injury caused by the motor accident is a minor injury for the purposes of the MAI Act:
(a) Adjustment Disorder.
The claimant has sought a review of the certificate of Medical Assessor Samuell.
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to 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” is 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.
The certificate of Medical Assessor Samuell was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions of the parties and certificate of Medical Assessor Samuell were written at a time when the term was “minor injury”. We have used this term in these reasons as it was used by the parties or the Medical Assessor. However, the issue in dispute in this matter is whether the claimant’s psychological or psychiatric injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Pursuant to 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 the Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor,[1] and pursuant to s.7.26 of the MAI Act, on review, by a Review Panel.
[1] Section 7.20 of the MAI Act.
THE MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Samuell assessed the claimant on 24 August 2021 and issued a certificate dated 31 August 2021.
The following injuries were referred to Medical Assessor Samuell for assessment:
(a) psychiatric condition – whether psychological injuries relating to the accident with symptoms of post-traumatic stress disorder, anxiety and depression caused by the motor accident are a minor injury for the purposes of the MAI Act.
Medical Assessor Samuell reviewed the documentation provided to him and clinically examined the claimant and made the following diagnosis:
“The subject accident did not satisfy the first criteria for a Post Traumatic Stress Disorder. The described symptoms are better accounted for by an Adjustment Disorder with Mixed Disturbance of Mood. The subject accident satisfies the trauma criterion for an Adjustment Disorder. Mr Azeez is preoccupied about the ongoing physical changes associated with the subject accident and the impact that it has had on his life, including erectile dysfunction. The Adjustment Disorder is chronic.”[2]
[2] At par 19.
Medical Assessor Samuell determined that there was no diagnosed psychiatric disorder before the subject accident and that the subject accident had the potential to cause psychological difficulty, and further that no other cause of psychological difficulty was identified and the subject accident caused psychological difficulty, as was conceded by the insurer.
Medical Assessor Samuell found that the following injuries were caused by the motor accident:
(a) Adjustment Disorder.
Medical Assessor Samuell determined that the claimant’s Adjustment Disorder is a minor injury for the purposes of the MAI Act.
THE APPLICATION FOR REVIEW
On 5 October 2021, pursuant to s 7.26 of the MAI Act, the claimant made an application to refer the medical assessment to a review panel (the Panel) for review. It is not in issue that the application was made within the time prescribed by s 7.26(10) of the MAI Act.
On 17 February 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act; insurer’s bundle p.1.
Pursuant to s 7.26(5)(A) of the MAI Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC 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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
On 27 April 2023, the claimant was examined by Medical Assessors Chew and Jones.
STATUTORY PROVISIONS AND GUIDELINES
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act:[7]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[7] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulation provides that “acute stress disorder” and “adjustment disorder” have the same meanings as in DSM-5.[8]
The Motor Accident Guidelines
[8] DSM-5 is the document entitled Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
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 is a threshold injury for the purposes of the 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, Part 5 of the Guidelines provides:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
In respect of threshold psychological or psychiatric injury the Guidelines also 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.
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.”
Causation of injury
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
[9] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] [2021] NSWSC 13 (Raina) at [65].
In Briggs v IAG Limited trading as NRMA Insurance[11] his Honour Justice Wright stated at [35]:
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE PANEL
The Panel issued directions dated 12 July 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the claimant uploaded to the portal at AD3 a bundle of documents which were indexed but not paginated, however, it identified documents from A1 to A16 (CB). The insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 65 (IB).
On 3 November 2022, the claimant lodged an Application to Admit Late Documents being records of the claimant’s treating psychologist, Klara Georgees. It was submitted that these documents were not in the claimant’s possession at the time of filing the application for review, being received on 1 November 2022 and served and lodged on 3 November 2022. The Panel has determined pursuant to Rule 67 of the PIC Rules and Procedural Direction PIC–34, that leave be granted to the claimant to lodge and rely upon these documents on this review.
The Panel has read and considered the documentation as identified in paragraphs 36 to 38 above in making its findings and determinations.
SUBMISSIONS
Claimant’s submissions in support of a review of Medical Assessor Samuell’s Certificate[12]
[12] CB at A1.
The claimant submits that the findings of Medical Assessor Samuell are incorrect in a material respect and that the claimant’s complaints, as recorded in the certificate, satisfy the criteria for a post-traumatic stress disorder pursuant DSM-5 and that that diagnose ought to have been made.
The claimant then makes submissions as to how, on the basis of the findings of Medical Assessor Samuell on clinical examination of the claimant, the claimant satisfies each of the criteria for a diagnosis of post-traumatic stress disorder pursuant to the DSM-5, including:
(a) Criteria A – exposure to actual threatening death, serious injury or sexual violence;
(b) Criteria B – the presence of one, or more, intrusive symptoms associated with a traumatic event, beginning after the traumatic event occurred;
(c) Criteria C – persistent avoidance of stimuli associated with a traumatic event, beginning after the traumatic event occurred;
(d) Criteria D – negative alterations in cognitions and mood associated with a traumatic event, beginning or worsening after the traumatic event occurred;
(e) Criteria E – marked alterations and arousal and reactivity associated with the traumatic event, beginning or worsening after the traumatic event occurred;
(f) Criteria F – duration of the disturbance (criteria for B, C, D and E) is more than one month;
(g) Criteria G – the disturbance causes clinical significant distress or impairment in social, occupational or other areas of functioning, and
(h) Criteria H – the disturbance is not attributable to the physiological effects of a substance or another living medical condition.
Insurer’s submissions in reply to an application for review of a medical assessment[13]
[13] IB p1.
The insurer refers to the determination of Medical Assessor Samuell in respect of diagnosis at page 6 of his certificate and submits that it is abundantly clear that the Medical Assessor specifically considered whether the claimant’s condition fulfilled the criteria for post-traumatic stress disorder, and that he clearly outlined his reasoning in determining that it did not fulfil those criteria. It submits that Medical Assessor Samuell notes that the claimant “did not satisfy the first criteria” for post-traumatic stress disorder, and further that the claimant’s condition was “better accounted for” with a diagnosis of Adjustment Disorder.
The insurer submits that Medical Assessor Samuell is a qualified psychiatrist who has used his clinical reasoning and judgment to consider the claimant’s condition and come to the appropriate diagnosis in compliance with DSM-5. It submits that the author of the claimant’s submissions is not a qualified psychiatrist and cannot comment on diagnosis, particularly given that the author is relying on the findings made by the Medical Assessor to formulate a diagnosis, whilst at the same time disagreeing with the conclusions made by a qualified Medical Assessor – who actually examined the claimant – as to diagnosis.
The insurer submits that the claimant has failed to demonstrate reasonable cause to suspect that Medical Assessor Samuell made any error, material or otherwise, as required by s 7.26(5) of the MAI Act and that the application for review ought to be dismissed.
Insurer’s submissions to the Dispute Resolution Service[14]
[14] IB p.3.
These submissions were made by the insurer in reply to the claimant’s application to the Dispute Resolution Service (DRS) pertaining to a “minor injury” dispute.
The insurer refers to the internal review it conducted which sets out the available medical evidence alongside the reasons pertaining to why the insurer made its determination that the following injuries fall under the definition of “minor injury” pursuant to the MAI Act:
(a) cervical spine/neck;
(b) lumbar spine;
(c) male reproductive – erectile dysfunction, and
(d) psychological injury.
With regards to the claimant’s psychological injury, the insurer notes that after the accident the claimant was seen by Dr Manlio Fabio Felix Ruiz, general practitioner, who provided a diagnosis of Adjustment Disorder with Depression and Anxiety and that subsequently the claimant was seen by another general practitioner, Dr Khalil Alokia, who did not provide any diagnosis pertaining to a psychological injury.
The insurer further notes that Dr Ruiz referred the claimant to the psychologist, Ms Rinda Abdulsayed, in October 2020, due to the claimant experiencing constant anxiety/stress, difficulties to initiate sleep and nightmares following the motor accident. The insurer submits that it is unknown as to whether the claimant consulted the psychologist as it has not received a copy of any psychological reports or any Allied Health Recovery Requests to date.
The insurer also notes that the claimant’s physiotherapist reported a diagnosis of Adjustment Disorder with Depression/Anxiety but submits that this diagnosis is not made in line with the physiotherapist’s qualification.
The insurer acknowledges that the claimant may be suffering from psychological symptoms due to the accident, but submits that for the claimant’s injuries to be considered non-minor, diagnosis must be made under the DSM-5 and that it is not in possession of any medical evidence to confirm that a diagnosis under the DSM-5 has been made.
The insurer further submits that a diagnosis of Adjustment Disorder is included as a minor injury for the purposes of the MAI Act and accordingly that the claimant’s psychological injuries sustained in the accident fall under the definition of “minor injury” pursuant to the MAI Act, the Guidelines and the Regulation.
RE-EXAMINATION
The claimant was examined by Medical Assessors Chew and Jones on 27 April 2023. The examination report is as follows:
“Medical Assessors Matthew Jones and Gerald Chew conducted the assessment of the claimant on 27 April 2023 by audiovisual link rather than in person as previously planned because the claimant was partially vaccinated for COVID-19.
Mr Azeez was interviewed utilising the Microsoft Teams platform, organised by the Commission. The quality of communication was sufficient to undertake the assessment.
Psychosocial history and pre-accident history
Ms Azeez is a 21 year-old man who lives at home with his parents, two sisters and brother. He has another sister who is married and lives out of home.
He reported that he was not currently working and spent most of his time in his room at home.
He was born in Iraq and migrated to Lebanon when he was ten years old, then on to Australia with his family in 2013 or 2014. He said that he was a permanent resident of Australia.
He denied a history of abuse or developmental trauma.
He reported that he left school after Year 12 having completed his Higher School Certificate. He then completed a Certificate IV in Building at TAFE.
There is no significant family history of psychiatric illness.
There is no past psychiatric history.
There is no prior significant medical history.
He denies the use of alcohol or illicit drugs. He said that prior to the accident he occasionally drank alcohol at parties.
History of the motor vehicle accident on 13 June 2020
Mr Azeez reported that on the evening of 13 June 2020 he was driving a motor vehicle in a 70 km per hour zone when the car in front slowed down. He slowed down too and was hit by a car from behind which pushed his vehicle into the car immediately in front of him. That car hit the car in front resulting in a four-car pile-up. He said that the passenger and driver’s airbag in his vehicle were deployed. He said that the horn of his car was jammed on. He reported that a tow truck arrived after about 15 to 20 minutes and towed his car from the scene. No emergency services attended. He reported that he called his brother-in-law who took him home. He said that he was taken to his general practitioner that evening because he “wasn’t feeling good” with pain, dizziness and nervousness. He said that the doctor reassured him that he would get better.
Symptoms and treatment following the accident on 13 June 2020
Mr Azeez reported that his symptoms persisted and a number of weeks later he again attended his general practitioner.
He reported that he continued to work 10 to 15 hours a week until the COVID pandemic.
He reported that he developed erectile dysfunction after the accident which was investigated and has been treated with Cialis.
He reported that he has attended several sessions with various psychologists.
He has not seen a psychiatrist or taken psychotropic medication.
He reported that his girlfriend of three years left him because of his erectile dysfunction.
Current symptoms and treatment
Mr Azeez reported ongoing low mood. He reported decreased appetite and weight loss. He reported that he is unable to drive at all. He reported that he tries to read books but cannot concentrate. He reported that he spends time scrolling through Facebook and “keeping up to date with what’s happening in the world”. He nevertheless reported that his memory was extremely poor with “no concentration at all”. He reported poor sleep and ruminating about the accident particularly when the sun came down. He reported frequent suicidal ideation about jumping off the balcony. He said that his parents are aware of this and “don’t let him out”. He reported that he has told his young siblings about his suicidality and mental health issues but is unable to tell his friends as he fears they will judge him.
He continues in psychological therapy monthly.
He is not seeing a psychiatrist.
He does not take psychotropic medication.
Mental state examination
Mr Azeez had an appearance consistent with his ethnic origin and age. He had freshly barbered hair and a substantial beard that had been styled. He was wearing casual athletic clothing and was well presented. He was evasive with questioning at times and gave many evasive responses of “I don’t know”. At other times he appeared to provide excessive information superfluous to the question asked that, appeared rehearsed. He gave improbable explanations for some behaviour, for example, that he did not do anything or go anywhere because his parents will not let him, and that he told his youngest siblings, who are around three or four years old, about his suicidality because he wanted to make himself feel understood, but was unable to tell his friends about it for fear of being teased. His speech was of normal rate, rhythm, volume and prosody and there was no evidence of formal thought disorder or delusional thought processes. He reported his mood as depressed. His affect was reactive, displaying ability to change his emotional state congruent with content. He denied any perceptual disturbance. He was oriented to time, place and person and cognition appeared grossly intact despite his claims of memory difficulties. He was able to concentrate for the duration of the interview which was over an hour.
Determinations
In the opinion of the Panel, Mr Azeez meets the assessment criteria under DSM-5 for the diagnosis of an Adjustment Disorder which is temporally related to the accident.
He developed emotional and behavioural symptoms in response to the accident, occurring within three months (Criterion A).
The symptoms are clinically significant causing what he reports as marked distress and impairment in function (Criterion B).
The disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing disorder (Criterion C).
The symptoms do not represent normal bereavement (Criterion D).
Whilst the symptoms are persisting, the consequences of the accident are still persisting including ongoing proceedings about the accident (Criterion E).
However, Mr Azeez does not meet the assessment criteria under DSM-5 for a diagnosis of post-traumatic stress disorder.
In the clinical experience of the Panel, the subject accident is not of a nature that typically induces post-traumatic stress disorder as the accident did not involve exposure to actual or threatened death or serious injury As such Mr Azeez does not meet Criterion A.
He does not meet Criterion B because he does not describe sufficient intrusion symptoms associated with the traumatic events. He does not report typical nightmares or flashbacks.
He does demonstrate avoidance symptoms according to his self report however these are generalised to areas not associated with the motor accident. (Criterion C).
He does report negative alterations in cognitions and mood (Criterion D).
He does report some alterations in arousal and reactivity such as sleep disturbance and concentration difficulties (Criterion E).
The duration of the disturbance is more than a month (Criterion F).
The disturbance does cause clinically significant distress and impairment (Criterion G).
The disturbance is not easily attributable to substances or another medical condition (Criterion H).
In order for there to be a diagnosis of post-traumatic stress disorder, all of the assessment criteria under DSM-5 must be met[15]. Because on clinical examination the claimant does not meet criteria A and B, the Panel does not diagnose post-traumatic stress disorder.”[15] Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022, at page 21
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment was a determination of the dispute in this matter as to whether the claimant’s psychological and psychiatric injury caused by the accident is a threshold injury for the purposes of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[16] and Insurance Australia Limited v Marsh.[17]
[16] [2021] NSW CA 287 at [40], [41] and [45]
[17] [2022] NSW CA 31 [11], [21] and [64]
We adopt the reasoning in Lynch v AAI Ltd[18] that the claimant bears the onus of proof in establishing that an injury is not a threshold injury for the purposes of the MAI Act.
[18] [2022] NSW PICMP 6 at [44]-[62]
The Panel adopts the examination report of Medical Assessors Chew and Jones in its reasons and adds the following further reasons.
Diagnosis and causation
There is no evidence that the claimant had any prior psychiatric issues. On the evening of the accident, he reported pain, dizziness and nervousness, and on 10 July 2020, four weeks after the accident, his general practitioner, Dr Ruiz diagnosed, in addition to pain in his lumbar spine radiating to both buttocks, both knees and the upper back and shoulders, an Adjustment Disorder with Depression/Anxiety, and he subsequently developed erectile dysfunction for which he was treated.
The claimant continues to undergo psychological therapy for his mental condition.
The Panel has determined that the claimant meets the assessment criteria under DSM-5 for the diagnosis of an Adjustment Disorder which is temporally related to and caused by the accident. This is a threshold injury for the purposes of the MAI Act.
However, the Panel has determined on clinical examination of the claimant that he does not meet the assessment criteria for a diagnosis of a post-traumatic stress disorder.
CONCLUSION
For the reasons set out above, the Panel affirms the certificate of Medical Assessor Samuell dated 31 August 2021.
0
2
0