Bastola v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Bastola v Allianz Australia Insurance Limited [2024] NSWPICMP 589
CLAIMANT:	Nischal Bastola
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Christopher Canaris
DATE OF DECISION:	21 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury; psychological injury; Medical Assessor (MA) Rickard-Bell considered psychiatric condition – post-traumatic stress disorder, found that the injury caused by the motor accident was adjustment disorder and was a minor or threshold injury; MA Rickard-Bell Found post-traumatic stress disorder was not caused by the accident; re-examination by Medical Review Panel (Panel); Panel found post-traumatic stress disorder was not caused by the accident; Panel found persistent depressive disorder that was not a minor or threshold injury; Held – Panel found persistent depressive disorder that was not a minor or threshold injury; Panel revoked the earlier certificate and issued a new certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate dated 30 December 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

On 3 October 2021, Nischal Bastola (the claimant) sustained injury in a motor vehicle accident (the accident).
Nischal Bastola described the accident as follows:
“He was riding his motorbike his girlfriend a pillion passenger. He was headed for the 7-11 near the Princes Highway. He was close to the 7-11 when he was hit from the rear. His hands slipped from the handlebars and the bike kept going for another 5 to 15 metres. He was unable to regain control and fell on his left side. He did not lose consciousness. His right elbow was painful, and he rolled over to see his girlfriend lying on the ground. He was focused on trying to help his girlfriend and did not particularly notice his physical injuries. A fire truck followed by the police and ambulance attended. He was taken by ambulance to St George Hospital and discharge the same day.”
Allianz Australia Insurance Limited (the insurer) is the relevant insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against (the insurer). The legislation provides a scheme of statutory benefits (under part 3) and lump sum damages (under part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
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 available. Some statutory benefits are limited if the only injuries sustained by the injured person are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented 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 “threshold injuries” 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 “threshold injuries”.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for “threshold injuries” have increased.
Accordingly, an injury which does not fall within the definition of “threshold injuries” (“non-threshold injuries”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, a greater entitlement to statutory entitlements.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
Chapter 7, division 7.5 of the MAI Act provides for medical assessments by the Personal Injury Commission (Commission) including provisions relevant to an original medical assessment, further medical assessments and the Review of medical assessments by this Panel.
This dispute is in relation to whether the injury caused by the motor accident is a minor injury.
This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Christopher Rickard-Bell who subsequently provided a certificate dated 30 December 2022 (the Initial Assessment).

The Medical Assessor’s Certificate

The injury referred by the Commission to Medical Assessor Christopher Rickard-Bell for assessment was:
· psychiatric condition – post-traumatic stress disorder.
The Medical Assessor found that the injury caused by the motor accident was:
· adjustment disorder.
The Medical Assessor found that the following injury was not caused by the accident:
· post-traumatic stress disorder.
The Medical Assessor determined that the psychological injury of adjustment disorder is a ‘minor’ injury for the purposes of the Act.

The Review

The claimant lodged an application for review of the assessment of Medical Assessor Christopher Rickard-Bell.
On 13 March 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new provisions apply.
The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Panel met on a number of occasions and provided Directions to the parties.
The Review is a process involving the Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission for assessment:
· psychiatric condition – post-traumatic stress disorder.

Material before the Review Panel

On or about 16 January 2024 Directions were issued by the Review Panel and the claimant was examined by Medical Assessor Christopher Canaris and Medical Assessor Michael Hong on behalf of the Review Panel on 26 March 2024.
The parties provided documentation to the Review Panel.
The insurer provided:
“R1-Bastola - Insurer_s PIC reply - application for review of Assessor Rikard-Bell determination” being 6 pages”
The claimant provided:
“A2-Submissions for Application for a review of a medical assessment by Assessor Dr Christopher Rikard-Bell (04302096xA24F4)” being 7 pages; and
“A1-PIC Index - Review of a Medical Assessment by Assessor Rikard-Bell (combined paginated) (04303146xA24F4)” being 49 pages.
The claimant relied upon submissions dated 24 January 2023.
The insurer relied upon submission dated 21 February 2023.
Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Christopher Canaris and Medical Assessor Michael Hong would conduct the medical examination of the claimant for the purposes of the review.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.

The claimant’s submissions

The claimant’s submissions address causation by making reference to Criterion A, maintaining that the post-traumatic stress disorder was caused by the motor accident.
The claimant’s submissions notes that the certificates of capacity completed by the claimant’s general practitioner (GP) diagnosed post-traumatic stress disorder. The claimant was suffering from symptoms including nightmares, sleep disturbance, flashbacks, anxiety, stress, hypervigilance, fatigue and concentration disturbance. The claimant’s psychologist, Mr Carl Nielsen, affirmed the claimant’s GP’s diagnosis of post-traumatic stress disorder.
The claimant’s submissions then address the specific aspects of the criteria for post-traumatic stress disorder.

The insurer’s submissions

The insurer maintained that the Medical Assessor’s decision was correct.
The Insurer submitted that whilst a diagnosis of PTSD was provided by the Claimant’s GP and psychologist, that diagnosis is not determinative in the Assessor’s examination and forming of opinion.
The Assessor is not required to provide reasons as to why his diagnosis differs from that provided by either the Claimant’s GP or Mr Neilsen.
Assessor Rikard-Bell clearly had regard for the differing diagnosis of PTSD and determined that the Claimant does not suffer from such a diagnosis.

Re-examination of the claimant

Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Christopher Canaris and Medical Assessor Michael Hong would conduct the medical re-examination of the claimant for the purposes of the review.
Nischal Bastola attended the examination by video on 26 March 2024 was examined by Medical Assessor Christopher Canaris and Medical Assessor Michael Hong.
The interpreter engaged by the Commission, Rak Bok, was present for the duration of the assessment.

Psychosocial and pre-accident history

The claimant is a 28-year-old partnered man formerly employed as a cleaner who was involved in a motor vehicle accident on 3 October 2021.
He denied any previous history of psychiatric illness although he had been previously involved in a significant motor vehicle accident with his girlfriend in which his girlfriend was hurt. He saw his girlfriend hit by a car and she sustained injuries including fractures to her back. She was hospitalised for three days possibly in ICU or an emergency. He said of this, “Of course I felt worried – sad – I was strong” and he “just felt like loving and taking care of her”. He emphasised that he was able to keep looking after his girlfriend but still going out feeling able to enjoy himself.
He had been hitherto medically well.
He had drunk alcohol sparingly although now he is not a drinker. He is an occasional smoker. He does not use any drugs.
He had no history of problems with the law. He had no prior claims history.
He denied any family history of psychiatric illness.
He has one older and one younger sister. The elder sister is in Sydney while the younger one is in Nepal. His father is now deceased. His parents had a driving school and the claimant worked for his father in Nepal in the business. He recalled, “I used to instruct customers in riding motorbikes”.
After leaving school, he went to university and started a bachelor’s degree in accounting but put this on hold having decided to come to Australia in 2018 with his wife whom he had married two years previously. He was looking for a better future. The marriage ended around 2019 or 2020. He met his current partner around 2020 or 2021. She had worked in housekeeping for Meriton but had just quit her job because of back pain. He has no children from either relationship.
He informed us that he had undertaken a course related to the automotive industry (an automotive and light mechanics course according to the documentation on hand) and indicated that he had attained a Certificate III and Certificate IV over a two-and-a-half-year period. He said that the course duration had been two and a half years (although the documentation indicated that he may have failed a subject because of problems with concentration).
He portrayed himself as a happy and outgoing man before his accident.

History of the motor vehicle accident

He was riding his motorbike his girlfriend a pillion passenger. He was headed for the 7-11 near the Princes Highway. He was close to the 7-11 when he was hit from the rear. His hands slipped from the handlebars and the bike kept going for another 5 to 15m. He was unable to regain control and fell on his left side. He did not lose consciousness. His right elbow was painful, and he rolled over to see his girlfriend lying on the ground. He was focused on trying to help his girlfriend and did not particularly notice his physical injuries. A fire truck followed by the police and ambulance attended. He was taken by ambulance to St George Hospital and discharge the same day.

History of symptoms and treatment following the motor accident

He subsequently had pain in his back and leg. He has not had physiotherapy but did have 10 to 12 sessions with a psychologist which he had found helpful.
When questioned as to psychological symptoms, he stated that he had had “a few pressures going on” and that he was worried about his girlfriend who had been previously in an accident saying that she had hydrotherapy and physiotherapy for fractures in her back.
In the aftermath of the accident, he said he found himself feeling “fed up with everything I was doing” saying that he would keep pushing himself “but things weren’t going right”. Whereas he had been a very cheerful person before the accident, he felt increasingly tense and kept thinking about the accident. He said of all this, “I had a lawyer things – treatment things – I didn’t heal myself – I was scared of losing my job”.
He stopped working because he was both physically and mentally not up to it. He nominated pain as the principal obstacle saying that he would struggle to pick up a mop and squeeze it.
He felt “as though there is no good thing happening on this earth” and that “everything is going bad” because of which he “just trying to keep up”.
He has not ridden his bike since the accident. He drives wherever he has to go saying, “I’m not confident that I push myself” and that he is “sometimes uncomfortable but I’m keeping up”. He feels uncomfortable when he sees motorbikes.
Whereas before he had often visited that particular 7-11, he has avoided going there saying, “I did not want to remember that street… I didn’t want to be on the street”.
For some time, his sleep was quite poor. He found it difficult to get to sleep saying that there would be “something sometimes flashing in the head” saying, “I think there is no progress in my life – I worry how I might be in three years’ time – I see my girlfriend beside me – she had the same issue”. As best could be ascertained, he had difficulty sleeping because of anxiety about his life situation rather than because he was re-experiencing the accident. He says his sleep has improved since then but has not yet normalised and his energy levels have been low.
When asked about dreams and nightmares, he said, “Normally I don’t remember my dreams, but I had one dream… An unusual dream… It was like something black near me coming to get me” which he felt was linked to the accident because it seemed as though someone was trying to hurt him. He recalled that the next day he had pain in his leg.

Details of any relevant injuries or conditions sustained since the motor accident

None in evidence.

Current symptoms

As above.

Current and proposed treatment

None currently in evidence.

CLINICAL EXAMINATION

Mental state examination

The claimant was interviewed via Microsoft Teams. A good audiovisual connection was established. He was sitting in his car using his mobile phone. His head and shoulders were visible. He presented as a dark-complexioned man with dark hair and a dark beard. He provided the history documented above. His narrative was coherent and consistent. However, he did not endorse a range of specific post-traumatic stress disorder symptoms such as intrusive memories, recurrent nightmares specific to the accident, although as noted above he avoided riding motorcycles, avoided the scene of the accident, and had some anxiety driving.
His demeanour was depleted and burdened consistent with some restriction of affect. He was much focused on physical symptoms but also on concerns over his life situation in his future.
No evidence of psychosis or cognitive impairment emerged.

Current functioning

He is currently looking for work and wants to find a job in the automotive area.
He rates his concentration and memory as now better saying, “I’m pushing myself with everything” recalling that he “did the best I could” at the time and after the accident and did not stop his studies although he reduced his hours of work. He emphasised that he had pushed himself trying to be strong alluding to his physical problems. Even so, his capacity for concentration has not returned to its previous level.
He spoke about his relationship with his partner saying, “We had some issues in the relationship – we were really happy before… planning to get married… Now I wonder if we are compatible”. He reported arguments saying, “There’s a lot of things going on – she expects some help – I expect help”. He said that they seem to be “losing our spark… our bond”.
As noted above, he avoids the vicinity of the accident, feels nervous when he sees motorbikes, and tends to be an anxious driver.
He now goes out much less socially saying that he finds it easier to lie and rest at home. He added, “I’m not confident enough to meet people… to go to new places… When friends talk about happy things, I don’t know why but I don’t like hearing about those things now – I don’t like company… I don’t like crowds… because everyone is happy, and I have something that’s killing me inside”.
When asked about self-care, he reported that he had had some difficulties showering. After the accident and that he had found it difficult tying his shoelaces because he found it painful to bend over. However, he denied current problems in this area.

Comments on consistency

There was no evidence of any inconsistency.

REVIEW OF DOCUMENTATION

Summary of relevant documentation

The Commission’s certificate of Medical Assessor Rikard-Bell was noted.
Certificates of Capacity/Fitness initially to physical injuries only. Subsequent certificates referred to post-traumatic stress disorder symptoms with a management plan comprising psychological stabilisation with referral to a psychologist and psychiatrist. He was initially certified as fit for pre-injury duties but on 14 March 2022 is certified as having capacity for four hours per day three days per week.
An initial assessment by his GP, Dr Eric Lim, dated 14 March 2022 noted him to be working 12 hours per week. He was noted to have frequent nightmares, not to have ridden the bike since his accident, and to be anxious driving and to be very hypervigilant. Other symptoms noted including flashbacks, being stressed, hypervigilance, fatigue and difficulty concentrating with a referral to Insightful Mind Psychology on the same date.
The allied health recovery request by Carl Nielsen of Insightful Mind Psychology dated
6 April 2022 states that he had sustained post-traumatic stress disorder following the motor vehicle accident that he had been exposed to psychological trauma threatening serious injury/death, that he had repeated disturbing and unwanted memories pertaining to the motor vehicle accident and specifically of the sound of the collision on of his hand slipping from the motorbike causing him to lose control, to be avoiding riding motorbikes, to avoid social interactions, and to have negative changes and thoughts of mood. He had negative thinking characterised by anxious and depressive cognitions as well as an appetite disturbance resulting in 5kg of weight loss. He was noted to have hypervigilance interspersed with irritability and low mood with symptoms being present for more than one month, causing him considerable distress, and not to be due to another medical condition or to the effects of a substance.
His psychologist’s report of the same date to the GP reiterates this history.

DETERMINATIONS

Diagnosis and reasons

A diagnosis of post-traumatic stress disorder was considered but rejected. He did not endorse a range of specific symptoms of post-traumatic stress disorder such as nightmares or flashbacks despite several attempts to elicit these. A diagnosis of a specific phobia of driving was also considered. However, his anxiety driving did not have the intense and overwhelming character consistent with a phobia.
He did, however, show evidence of persistent depressive disorder (dysthymia) with anxious distress. In relation to DSM-5-TR criteria for the diagnosis, there was evidence of depressed mood for most of the day for most days than not (Criterion A) with problems sleeping, difficulties with concentration, low energy, and feelings of hopelessness as exemplified by his comment that he found himself thinking there was nothing good in this world (Criterion B). He has never been without the symptoms for any significant time (Criterion C) although criteria for a major depressive disorder are currently not present though these are not essential to the diagnosis (Criterion D). He has never had a manic or hypomanic episode nor was there evidence of a cyclothymic disorder (Criterion E) and there was no evidence of a schizoaffective disorder, schizophrenia spectrum, or other psychotic condition (Criterion F). There was no evidence his symptoms were attributable to the physiological effects of a substance or to another medical condition (Criterion G) and his symptoms course in clinically significant distress and psychosocial impairment (Criterion H). The anxious distress qualifier captures his post-traumatic symptoms.

Causation and reasons

Persistent depressive disorder (dysthymia) with anxious distress was caused by the subject motor vehicle accident. The claimant was well before that event and his current symptoms are specific to the accident.

Summary of injuries referred by the parties

The following injuries WERE caused by the motor accident:
· persistent depressive disorder (dysthymia) with anxious distress.

Threshold injury

Section 1.6(1) of the MAI Act states that:
“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.”
Section 1.6(3) of the MAI Act sates:
“A Threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Part 1 cl 4 (2) of the Regulation states:
“2) Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of the Act
a) acute stress disorder
b) adjustment disorder
3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)”

CONCLUSION – THRESHOLD INJURY

The following injuries are not threshold injuries:
· persistent depressive disorder (dysthymia) with anxious distress.
The Panel accepted the examination report from Medical Assessor Christopher Canaris and Medical Assessor Michael Hong, set out above.
The Panel accepted and adopted the findings and clinical opinions of Medical Assessor Christopher Canaris and Medical Assessor Michael Hong, set out above.

Issues for the Review

Schedule 2, cl 2(e) of the MAI Act, involves a determination of two issues:
· whether the injury (was) caused by the motor accident, and
· whether the injury (caused by the motor accident) is a threshold injury.

Causation

The Motor Accident Guidelines set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.
Sections 5D and 5E of the Civil Liability Act 2002 also apply to the MAI Act, see Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There 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…”
In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The Panel adopts the reasoning in Lynch v AAI Ltd [2022] NSWPICMP 6 that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
We also adopt the reasoning in Lynch that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
We adopt the reasoning in AAI Ltd v Hoblos [2023] NSWPICMP 210 that the psychological condition is evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
The diagnosis of post-traumatic stress disorder under DSM-5 requires satisfaction of various criterion, which are separately referenced back to the trauma. Given the requirements under DSM-5 for the assessment of post-traumatic stress disorder, we accept that each criterion must be caused by the motor accident.
The DSM in relation to adjustment disorder includes:
“A The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
1. 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.
2. Significant impairment in social, occupational, or other important areas of functioning.
C The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
D The symptoms do not represent normal bereavement.
E Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.”
The DSM in relation to post-traumatic stress disorder includes:
“A Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
B Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
2.Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
3.Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
4.Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5.Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).”
There are further criterion in C, D, E, F, G and H.
The DSM in relation to persistent depressive disorder includes:
“A Depressed mood for most of the day, for more days than not as indicated by either subjective account or observation others for at least 2 years.
B Presence, while depressed, of two (or more) of the following:
1.   Poor appetite or overeating.
2.   Insomnia or hypersomnia.
3.   Low energy or fatigue.
4.   Low self-esteem.
5.   Poor concentration or difficulty making decisions.
6.   Feelings of hopelessness.
C During the 2 year period of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
D Criteria for a major depressive disorder may be continuously present for 2 years.
E There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
F The depression is not better explained by a persistent schizo-affective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
G The symptoms are not attributable to the physiological effects of a substance (eg, a drug of abuse, a medication) or another medical condition (eg, hypothyroidism).
H The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

Whether the psychiatric condition – post-traumatic stress disorder (was) caused by the motor accident?

The insurer’s submissions do not directly take issue with causation. The focus of the submissions is on the diagnosis and the question of “threshold injury”.
The claimant’s submissions in relation to causation provide:
“Criterion A: Exposure to psychological trauma threatening serious injury/death: Mr Bastola was the rider in an MVA where his motorbike was struck from behind by a motor vehicle.”
As noted above, the DSM in relation to post-traumatic stress disorder includes “A Exposure to actual or threatened death, serious injury, or sexual violence …”
The claimant does not set out the basis upon which it is asserted that he was exposed to serious injury.
Medical Assessor Christopher Rickard-Bell formed the view Mr Bastola developed an adjustment disorder from the stress with his partner. It is apparent from the assessment of Medical Assessor Christopher Rickard-Bell that he reviewed the features according to DSM-5 and identified the “stressor” as the motor accident.
Medical Assessor Christopher Rickard-Bell noted:
“The impact knocked them to the ground and Mr Bastola suffered light injuries and grazing to his left hand. He said it was great shock and particularly distressing for his partner who had previously been involved in a serious motor vehicle accident with admission to intensive care.
After the accident, Mr Bastola tried to assist his girlfriend who was crying and distressed. He noted pain and at the time he decided not to seek help as he was more focused on his girlfriend.”
The description of the accident recorded by Medical Assessor Christopher Rickard-Bell is consistent with that recorded by Dr Lim and by Carl Nielsen.
The description of the accident recorded by Medical Assessor Christopher Rickard-Bell is consistent with that recorded by Medical Assessor Christopher Canaris and Medical Assessor Michael Hong.
It is clearly not contended that the claimant had exposure to actual or threatened death, or sexual violence.
We had to consider whether the claimant experienced “exposure to serious injury”.
We accepted that the claimant experienced “exposure to injury”.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the symptoms.
We reviewed the various medical opinions provided.
Whilst the claimant’s GP diagnosed post-traumatic stress disorder and the claimant’s psychologist, Mr Carl Nielsen, affirmed the claimant’s GP’s diagnosis of post-traumatic stress disorder. These did not set out the factual basis for the finding within Criterion A that the claimant was exposed to serious injury.
It was apparent that at the time of the accident the claimant was aware of his partner. He was aware that she had previously been involved in a serious motor vehicle accident with admission to intensive care.
It was apparent that at the time of the accident the claimant did not consider this to be a serious motor vehicle accident and did not consider that he was exposed to serious injury.
The onus of proof was on the claimant. The claimant had not established on the balance of probabilities that the claimant was exposed to serious injury.
Medical Assessor Christopher Canaris and Medical Assessor Michael Hong made a medical determination that the motor accident could have (in differing factual circumstances) caused or contributed to the injury, post-traumatic stress disorder.
Whilst Medical Assessor Christopher Canaris and Medical Assessor Michael Hong made a medical determination that the motor accident could have (in differing factual circumstances) caused or contributed to the injury, post-traumatic stress disorder, they made a medical determination that within the terms of DSM-5TR the claimant was not exposed to serious injury.
Medical Assessor Christopher Canaris and Medical Assessor Michael Hong made a medical determination that the motor accident could have caused or contributed to the injury, persistent depressive disorder.
We accepted the medical determination of Medical Assessor Christopher Canaris and Medical Assessor Michael Hong that the alleged factor could have caused or contributed to the injury, persistent depressive disorder.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the injury, persistent depressive disorder.
The Panel made a factual determination in the circumstances of the motor accident that the claimant was not exposed to serious injury.
We did not accept, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the injury, post-traumatic stress disorder was satisfied.
We did not accept, on the balance of probabilities, that the motor accident caused the injury, post-traumatic stress disorder.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the injury, persistent depressive disorder was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the injury, persistent depressive disorder.
The Panel finds that but for the accident the claimant would not have developed this condition.
The Panel is satisfied on the balance of probabilities that the accident was a necessary condition of the occurrence of the persistent depressive disorder.

Threshold injury

A “threshold injury” is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”.
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act and includes a ‘threshold psychological or psychiatric injury’. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(3).
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 minor psychological or psychiatric injury.
Section 1.6 provides that the regulations may exclude or include a specified injury from being a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation (Regulations) 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 Regulations.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a minor injury.
Part 5 of 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 a motor accident is a threshold injury for the purposes of the MAI Act.
The Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.”

Whether the psychiatric condition is a minor injury?

As noted above, having considered criteria A for post-traumatic stress disorder (the causation aspect) we have formed the view that post-traumatic stress disorder was not caused by the motor accident. This was because criteria A for post-traumatic stress disorder was not satisfied.
We accepted that the persistent depressive disorder was caused by the motor accident.
Despite our finding in relation to criteria A for post-traumatic stress disorder (the causation aspect), we then considered the other criteria.
The claimant’s submission were to the effect that the other criteria was satisfied.
Again, whilst the claimant’s GP and psychologist, Mr Carl Nielsen, diagnosed of post-traumatic stress disorder. These did not set out the factual basis for the finding that all of the relevant criteria were satisfied.
In relation to Criterion B the claimant noted intrusive symptoms repeated disturbing and unwanted memories pertaining to the motor vehicle accident and specifically of the sound of the collision and of his hands slipping from the motorbike causing him to lose control of it.
In relation to Criterion F Symptoms more than a month Mr Bastola’s symptoms have lasted for more than one month in duration.
The certificate dated 14 March 2022 includes reference to post-traumatic stress disorder symptoms (PCL-5:60). Whilst some of the Certificates of Capacity/Fitness referred to post-traumatic stress disorder symptoms, we did not accept that diagnosis because, the certificates did not set out the material necessary to support such a conclusion and specifically did not address Criterion A.
The allied health recovery request by Carl Nielsen of Insightful Mind Psychology dated
6 April 2022 states that he had sustained post-traumatic stress disorder.
Carl Nielsen, in the report dated 6 April 2022 noted:
“Repeated disturbing and unwanted memories pertaining to the MVA and specifically of the sound of the collision and of his hands slipping from the motorbike causing him to lose control of it. Mr Bastol noted avoiding riding motorbikes and has not ridden since the MVA. He also avoids social interactions. Mr Bastola reported experiencing negative thinking characterized by anxious and depressive cognitions regarding his poor memory and concentration as well as his appetite disturbance having lost five (5) kgs since the MVA. Mr Bastola reported fluctuations in arousal characterised by hypervigilance to irritability and low mood. As a result of his MVA Mr Bastola has been rendered unable to return to his pre-injury hours. He is unable to ride motorbikes and has become socially withdrawn.”
We did not accept that diagnosis because, the report did not set out the material necessary to support such a conclusion. Specifically, the report does not contain the factual material that would satisfy Criterion A and did not address Criterion A. Whist some other aspects of the other elements were established we did not consider that the claimant reported a range of specific symptoms of posttraumatic stress disorder such as nightmares or flashbacks despite several attempts to elicit these.
The report from Dr Lim of 14 March 2022 noted “He has frequent nightmares”. It further provides “Symptomatology Nightmares, trouble steeping, flashbacks, anxious, stressed, hypervigilant, fatigued, trouble, concentrating”.
The report of “frequent nightmares”, “nightmares” and “flashbacks” noted by Dr Lim were not noted by any of the other medical professionals.
Medical Assessor Christopher Canaris and Medical Assessor Michael Hong questioned the claimant on this issue and the claimant did not maintain a history of “frequent nightmares”, “nightmares” and “flashbacks”.
We did not accept that diagnosis because, the report did not set out the material necessary to support such a conclusion. Specifically, the report does not contain the factual material that would satisfy Criterion A and did not address Criterion A.
Whilst Carl Nielsen recorded “Repeated disturbing and unwanted memories pertaining to the MVA and specifically of the sound of the collision and of his hands slipping from the motorbike causing him to lose control of it”. This was not contained in the report of Dr Lim or Medical Assessor Christopher Rickard-Bell.
Whist some other aspects of the other elements were established we did not consider that the claimant reported a range of specific symptoms of post-traumatic stress disorder such as nightmares or flashbacks despite several attempts to elicit these.
Medical Assessor Christopher Rickard-Bell noted:
“There was psychological treatment with Carl Nielson for up to 12 sessions which were helpful. Following the accident, Mr Bastola stated his confidence levels have reduced and there is still occasional pain. He would like to regain his confidence with regards to studying and he would like further treatment with physiotherapy. Mr Bastola stated the main issue is worrying about whether there will be pain and coping with his partner, as well as whether he will be able to continue to complete his studies in Australia.
Currently Mr Bastola is waking up twice at night, however his sleep has improved. There were two panic attacks and anxiety levels have also improved. Mr Bastola’s mood is good but he does feel upset in relation to the insurance company and he worries as to whether he will be able to support himself and his partner financially. He is fearful that the insurance company will use what he says against him. Mr Bastola avoids the site of the accident and will chose a different route. In addition, he avoids motorbikes. He worries about ongoing physical injuries that may reoccur and he believes he requires further treatment with physiotherapy as there is pain in his back and he finds it difficult to raise his arms above his head or do activities such as vacuuming.”
Medical Assessor Christopher Rickard-Bell noted treatment with Carl Nielson who noted post-traumatic stress disorder symptoms, despite being aware of this Medical Assessor Christopher Rickard-Bell did not accept that diagnosis.
Medical Assessor Christopher Canaris and Medical Assessor Michael Hong considered a diagnosis of post-traumatic stress disorder but rejected it. This was because the claimant did not endorse a range of specific symptoms of post-traumatic stress disorder such as nightmares or flashbacks or other symptoms that would satisfy Criterion B despite several attempts to elicit these.
Even if we accepted the account of Dr Lim of “frequent nightmares” it remained uncertain about the frequency of these and whether that would have satisfied the requirement in Criterion B (2) of “Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event”.
We considered the DSM-5-TR criteria for the diagnosis of persistent depressive disorder.
There was evidence of depressed mood for most of the day for most days than not (Criterion A).
There was evidence of problems sleeping, difficulties with concentration, low energy, and feelings of hopelessness as exemplified by his comment that he found himself thinking there was nothing good in this world (Criterion B).
The evidence was that the claimant had never been without the symptoms for any significant time (Criterion C).
The criteria for a major depressive disorder are currently not present though these are not essential to the diagnosis (Criterion D).
DSM-5-TR Criterion D uses the word “may”. As a result, it is not essential to satisfy Criterion D for a diagnosis of persistent depressive disorder.
In most chronically depressed patients, symptoms wax and wane in severity. Most patients with persistent depressive disorder (dysthymia) do not have evidence of major depressive disorder most of the time though sometimes their depression is severe enough to reach the threshold for a major depressive episode/disorder.
The evidence was that the claimant had never had a manic or hypomanic episode nor was there evidence of a cyclothymic disorder (Criterion E).
There was no evidence of a schizoaffective disorder, schizophrenia spectrum, or other psychotic condition (Criterion F).
There was no evidence his symptoms were attributable to the physiological effects of a substance or to another medical condition (Criterion G).
There was evidence that his symptoms course in clinically significant distress and psychosocial impairment (Criterion H).

Conclusions

The Panel finds that the claimant does not satisfy the DSM-5-TR criterion for post-traumatic stress disorder. Specifically, he does not meet criterion A and B.
The Panel finds that the claimant does satisfy the DSM-5-TR criterion for persistent depressive disorder.
The Panel finds that the persistent depressive disorder, is NOT a threshold injury for the purposes of the MAI Act: s 1.6 MAI Act and cl 4 Regulations.
Given the Panel’s findings, Medical Assessor Christopher Rickard-Bell’s certificate of assessment dated 30 December 2022 is revoked.

[2024] NSWPICMP 589

21 August 2024