BJQ v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BJQ v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 408
CLAIMANT:	BJQ
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Wayne Mason
DATE OF DECISION:	24 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; whether psychological injury caused by the motor accident is a threshold injury; Medical Assessor diagnosed an adjustment disorder secondary to pain and certified that the injury was a “minor injury”; Held – the claimant suffers from an adjustment disorder with anxiety as a result of the accident; injury is a threshold injury; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Rikard-Bell dated 21 February 2023.

STATEMENT OF REASONS

BACKGROUND

BJQ (claimant) was involved in a motor vehicle accident on 13 October 2021 (accident). He subsequently made a claim for statutory benefits on Insurance Australia Limited t/as NRMA Insurance (insurer).
A dispute arose between the claimant and the insurer as to whether for the purposes of the Motor Accident Injuries Act 2017 (MAI Act) his psychological injury caused by the accident was a minor injury, the insurer having determined on 13 January 2022 that it was. The insurer’s decision in this regard was affirmed by an internal reviewer on 21 March 2022.
The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and is a medical assessment matter: Schedule 2 cl 2(e). The medical dispute was assessed by Medical Assessor Rikard-Bell (Medical Assessor). The Medical Assessor gave a certificate dated 21 February 2023 wherein he certified that Adjustment Disorder secondary to pain was caused by the accident and is a minor injury (Medical Assessment).
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and replace it with the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ are references taken from documents created prior to the amendment.

THE REVIEW

The claimant sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (Review). On 27 April 2023 the President’s Delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to this Review Panel (Panel).
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the Medical Assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.

DIRECTIONS

The Panel made directions for provision of a joint agreed indexed and paginated bundle that contained all material relied on by the parties for the purposes of the Review, together with submissions for the purposes of the Review,[1] The parties eventually provided an agreed bundle and submissions on 27 March 2024.

STATUTORY FRAMEWORK

[1] Directions dated 30 January 2024 and 21 March 2024.

Threshold injury

The term ‘threshold injury’ is defined in s 1.6 of the MAI Act and includes 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(1)(b).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (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: cl4(3) of the Regulations.
Part 5 of the Motor Accidents Guidelines (Guidelines) contains the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3    The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    …
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11, and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Causation

Causation is dealt with in Part 6 of the Guidelines at [6.5]-[6.7] as follows:
“Causation of injury
6.5    An 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 the Personal Injury Commission) in considering such issues.
6.6    Causation 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.
6.7    There 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.”
In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J reasoned as follows 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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply.[2]
[2] See s 3B(2) of the Civil Liability Act, 2002.

ASSESSMENT UNDER REVIEW

As recorded earlier, the Medical Assessor gave a certificate and reasons dated 21 February 2023. The Medical Assessor recorded that the claimant was:
“…quite preoccupied with his physical symptoms following the accident which included a pulsating feeling in the right hand side of his head with some headaches, tingling feelings in his left leg and arm, poor concentration and loss of social interests. There was no previous history of anxiety, depression or need for treatment from mental health care professionals. The claimant denied that there were any previous motor vehicle accidents. He reported a subsequent accident that “was most likely in mid-2020”.
While noting that Dr Abaie, psychologist, had diagnosed Post-traumatic Stress Disorder and insomnia, the Medical Assessor found that Post-traumatic Stress Disorder was not caused by the accident. The Medical Assessor determined that the claimant developed an Adjustment disorder secondary to head and neck pain that was causally related to the accident. The Medical Assessor certified that the Adjustment Disorder was a minor injury.

EVIDENCE

The Panel has considered all the material in the joint bundle lodged by the parties for the purposes of the Review.
On 24 May 2023 Medical Assessor Herald certified that soft tissue injury to the cervical spine with radiation to the left shoulder, left upper limb, and head giving headaches, and soft tissue injury to the lumbar spine with left leg radiation were caused by the accident and were threshold injuries for the purposes of the MAI Act. The reasons record that the claimant reported neck pain with radiculopathic symptoms, tingling, and numbness radiating down to the left shoulder blade and all the way down to the left hand, together with back pain and stiffness with pain radiating down his left leg, shock and flashbacks, as well as headaches. While he was not having any treatment for his physical condition he reported having psychologist and psychotherapy sessions.
The claim form dated 16 October 2021 contains a description of the accident, and records that the claimant suffered injury to his neck, “spinal cord”, lower back and right shoulder.
A police report dated 19 October 2021 records that the accident was reported on the day it occurred, and contains a description of the accident. Reference is made to “DRV2” (the claimant) suffering from lower back and neck pain.
A schedule of injuries and disabilities includes reference to physical injuries and “shock”. There is also reference to Post-traumatic Stress Disorder, depression, and a range of associated symptoms.
A referral from Dr Ghonemi to Dr Abaie dated 18 October 2021 refers to severe Post-traumatic Stress Disorder with insomnia. Other referrals relate to the claimant’s physical injuries.
Dr Abaie, a psychologist, reported to Dr Ghonemi on 15 December 2021. Post-traumatic Stress Disorder and insomnia were diagnosed and were due to the accident. Psychotherapy, antidepressant medication, and counselling were recommended.
There are various allied health recovery requests that refer to Post-traumatic Stress Disorder, severe stress and insomnia. A range of symptoms are referred to and have been considered, as have the entries related to capacity and the recovery plans contained in the requests. Other requests relate to the claimant’s physical injuries.
The reports from Dr Darwish, neurosurgeon, have been considered. The reports refer to neck and back pain, together with pain in the left arm and hand and left leg. A report dated 29 March 2022 refers to MRI scan findings of a disc protrusion at C5/6 level and degenerative changes at L4/5 and L5/S1.
A CT scan report dated 19 January 2022 refers to degenerative changes in the cervical spine. A CT scan report of the lumbar spine of the same date refers to findings of “minimal degenerative spondylosis of the lumbar spine”. An MRI scan report dated 10 March 2022 records findings with respect to the cervical and lumbar spine. This is the radiology referred to by Dr Darwish in his report.
The rehabilitation reports, that include progress reports, have been considered. A report dated 21 January 2021 records that the claimant reported that he had returned to driving independently. A report dated 31 March 2022 records that the claimant had upgraded his work capacity to up to 18 hours a week. It is also recorded that his work visa caps his work hours to 25 hours a week. Work capacity was subsequently downgraded. A closure report dated 1 June 2022 records that the claimant had capacity for nine hours work a week.
The certificates of capacity have been considered. A certificate dated 16 October 2021 does not include reference to a psychological injury, but does refer to psychotherapy, “CBT” and referral to a psychologist. A certificate dated 25 October 2021 refers to “PTSD”, a diagnosis that is referred to in subsequent certificates.
The clinical records from Isra Medical Services have been considered by the Panel. The notes cover the period 3 July 2020-17 June 2022. The notes record that the claimant attended on 15 December 2020 with complaints of chest, neck, and back pain following a motor vehicle accident three days earlier. X-rays of the chest, right shoulder, cervical and lumbo-sacral spine were ordered. Notes relating to some subsequent attendances contain reference to mental state examinations, and discussions about “the mental condition” and its impact. The notes record that the claimant attended the practice on 14 October 2021. There is a reference to a motor vehicle accident, and whiplash, back injury, back muscle strain and neck pain. X-rays of the cervical and lumbo-sacral spine were ordered.
The Panel has also considered the records relating to property damage claims. Those records comprise over 200 pages, and include photographs that depict damage to various vehicles, repair quotes, invoices and other material relating to property damage claims made following motor vehicle accidents on 27 June 2019, 19 December 2019 and 20 November 2021.

SUBMISSIONS

Claimant’s submissions

The claimant argues that Medical Assessor Rikard-Bell did not “take due consideration” of the findings of Dr Abaie, and the questions asked during the assessment “were of a limited scope” which “lack[ed] satisfactory comprehensiveness” to properly determine his injuries.
The claimant argues that the criteria for Post-traumatic Stress Disorder are met. He relies on Dr Abaie’s opinion that he is suffering from that condition, and refers to his report of 15 December 2021 in this regard. He submits that a finding should be made that he suffered Post-traumatic Stress Disorder as a result of the accident, a non-threshold injury.

Insurer’s submissions

The insurer’s submissions refer to the claimant’s involvement in motor accidents both before and after the accident to which this claim relates (27 June 2019, 19 December 2019, 12 December 2020 and 20 November 2021) and the documents relating to those accidents that are contained in the joint bundle. The insurer argues that the claimant failed to disclose these accidents to Medical Assessor Rickard-Bell. Reference is also made to the records from treating practitioners. The insurer argues that the claimant’s subjective reporting “must be diligently scrutinised”, that the accident does not satisfy criterion A for Post-traumatic Stress Disorder, and that his symptomatology “at any stage” following the accident did not satisfy the criteria for Post-traumatic Stress Disorder.

RE-EXAMINATION

The claimant was assessed by Medical Assessors Barrett and Mason (Medical Assessors) on 5 June 2024 by videoconference using Microsoft teams. He was located at his home. His friend was present in the room as a support person, although was not viewed on camera as the claimant stated that they were asleep.

Brief personal details

The claimant is a married man, who lives with friends in a unit. He married three years ago and his wife lives overseas, where she is studying. The claimant came to Australia in 2018 on a student visa. He studied at a private college and completed his course in late 2022. He is currently on a work visa and working 30 hours/week as an Uber driver. He intends to return to India, where he will be reunited with his wife, when his visa expires in December 2024.

Psychosocial history

The claimant was born in India. He reported normal birth and achievement of milestones. He has a brother who lives in India and runs a business.
His parents had a positive marriage. He experienced significant loss as a child, with his father dying when he was about 9 or 10-years-old, of unknown cause. When he was about 15-years-old, his mother died in a motor scooter accident. After his parent’s death, he and his brother went to live with his uncle, who he described as kind. He denied any other history of trauma.
Whilst still at school he started working as a clerk in accounting. He completed high school as a student of average academic attainment. He then completed a Bachelor of Commerce at university, fulltime, over three years, whilst working part-time in retail. After completing his degree he worked for two years in a role in accounts receivable.
The claimant came to Australia in 2018 on a student visa. He described it as a “dream”, and received financial support from his uncle to do so. He enrolled in a diploma, then an advanced diploma, in Leadership and Management at a private college, where he studied part-time, whilst working four to five hours a week.
He met his wife at school and they stayed in contact. They had a religious marriage ceremony, and have never lived together. The first in-person contact he had with his wife after their marriage was in 2022 when he travelled to India for three weeks.
The claimant has lived with friends in different homes in Sydney. He has lived in the current home, with a friend, for 1.5 years. He has no family in Australia. He identifies as following the Islamic faith. He attends the Mosque on Fridays if his pain allows.
The claimant denied any previous workers compensation or CTP claims. He denied any forensic history. He is a non-smoker, who does not use alcohol or other drugs. He denied any family history of psychiatric illness. The claimant recalled a history of a single episode of palpitations in 2019, occurring without trigger, and associated with feeling faint. An ambulance was called, and ambulance officers apparently performed some investigations, pulse oximetry and electrocardiogram (ECG), which were normal. They advised that he did not need to attend hospital. He attended follow-up with his general practitioner (GP) and was further investigated with a Holter Monitor, which was normal. He denied subsequent episodes.

The claimant recalled one previous motor accident, that he said “must have been 2020”. He was driving his Hyundai Getz, travelling straight, when a car in the opposite direction turned and collided with the driver’s side of his car. Passers-by called emergency services and police, ambulance and fire brigade attended. He recalled experiencing pain in his chest and abdomen but was able to self-extricate. Ambulance officers assessed him for a period of 15 to 20 minutes and offered him transport to hospital, but he declined, stating that he did not think it was necessary. His car was towed away and then written off. The accident occurred a street away from his home. He called friends and went home. He attended the GP the next day with pain. He reported that the pain resolved over a period of four to five days.
The Medical Assessors raised with him the additional history of two previous motorbike accidents, contained in the documentation. He responded “Don’t remember” “Can’t remember”, but accepted the records indicated that he had two previous motorbike accidents, each in 2019. He described these accidents as “not major” and said that he did not sustain any physical injuries other than a grazed hand and painful knee, which healed after a few days.
Of relevance, he denied any psychiatric symptoms after either motorbike accident. He denied any psychiatric symptoms after the 2020 motor accident, stating he did not have a car for four or five days, but that he then bought a Toyota Echo. He denied any other past psychiatric history.
Prior to the subject accident he was living in Punchbowl with four friends. They each shared the household chores, taking turns cooking, cleaning and going to the supermarket. He would shower daily. He attended the Mosque most Fridays. He had little free time. He was studying his Advanced Diploma at college, part-time, two days a week, and was passing his course. He was working as a delivery driver for Uber Eats, 40 to 50 hours/week. Alternatively, he was also working casually at a warehouse, 8 to 20 hours/week, and on those weeks he worked 25 hours for Uber Eats. Whilst driving for Uber Eats he would talk to his wife on WhatsApp.

History of the motor accident

The claimant recalled that the accident occurred in October 2021, but he could not remember the date. He was driving his Toyota Echo, working in his role as an Uber Eats delivery driver. He was travelling along a road when a car reversed out of a driveway and hit his passenger side, causing a scrape down the side of the Echo. He stopped the car and felt dizzy for two minutes, before self-extricating. He exchanged details with the other driver. He acknowledged that at the time he “thought [it was a] minor issue”. He did not contact emergency services nor report the accident to police. He messaged the customer that he had been involved in an accident and would not be able to complete the delivery and drove home. At the time he held only CTP insurance and his car was not repaired.

History of symptoms and treatment following the motor accident

The claimant reported neck, lower back and shoulder pain. The day after the accident he attempted to perform his Uber Eats delivery role, but had tingling sensation and pain in his left shoulder, causing him to abandon work after about 30 mins to 1 hour. He attended a local GP clinic, which he had never attended before.
He reported that for a period of five to eight months after the accident “[he] was not driving”, which he clarified to mean that he drove infrequently, once a week, for 5 to 10 mins, because when he started driving he experienced pain. As a result, he did not work for five or six months. Pain restricted his ability to perform household chores. He recalled that he took a break from his studies, but could not remember how long he suspended studying his course, before he resumed his studies.
He had treatment with a physiotherapist, and was referred to Dr Darwish, neurosurgeon, who recommended a steroid injection.
In regard to psychiatric sequelae, the claimant reported that following the accident he had “blackout”, by which he meant short term memory lapses, such as forgetting where he put his phone. He reported feeling “very scared” when driving, if another car was approaching fast and would need to pull over and take a break. He reported that he was “just remembering that car accident”. As a result, he did not want to see friends or socialise by going to the movies. When attempting to initiate sleep, he would “get eyes open” due to the accident “getting in [his] mind”. He denied any additional psychiatric symptoms, but late in the assessment he added “In the beginning, I don’t want to live anymore”, and that he was getting “backflash” by which he meant that he was remembering the accident and that he was having nightmares of the accident.
He was referred to a psychologist for treatment, but could not recall the timing of this. He reported that he was encouraged by a rehabilitation consultant to drive.
The claimant reported that he had a subsequent accident eight to nine months after the accident. The Medical Assessors raised with the claimant that that time frame was inconsistent with the records, which indicated the subsequent accident was about a month after the subject accident. He responded that he thought it was about six months later, but accepted, “maybe 4 or 5 weeks, I don’t remember”. This issue was explored in some depth by the Medical Assessors. The claimant maintained that he had remembered the subsequent accident as having occurred six months later.
In the subsequent accident, the claimant was driving the same car involved in the subject accident, which had not been repaired. He drove to the park. He was preparing to turn right when the car in front stopped suddenly. He braked, could not stop in time, and collided with the car in front of him. He was then hit from the rear. Police, fire brigade and ambulance attended the scene. He was assessed by ambulance officers but did not go to hospital. His car was written off.
He acknowledged that his psychiatric symptoms worsened after this accident. He was continuing to see the psychologist regularly for a period of about six months. He described the content of the sessions as exploring “past things” and “how was your day today?” He ceased psychological treatment after six months when the insurer ceased funding the treatment.
After the subsequent accident he rented a Toyota Camry and resumed driving for Uber Eats. Currently, he reports ongoing shoulder pain, requiring him to take a rest from driving after four to five hours. He does not use analgesics regularly, but will use simple analgesia, paracetamol, when he experiences pain, estimating this is at a frequency of once every 10 to 15 days.
He said that when driving in normal circumstances “I don’t have mental issues”. Infrequently, if cars approach rapidly, he experiences some anxiety, palpitations and shortness of breath, leading to him taking a break for two to three minutes. On the M1 freeway, he stays in the left lane and drives slowly, 65kmph in an 80kmph zone. He avoids driving on 110kmph freeways.
Although he initially described his mood as “good” the claimant subsequently reported that he was more irritable because he “can’t focus”. He sleeps five to six hours each night. He wakes once or twice overnight, but was unsure what wakes him. His appetite was described as “70% normal” and “don’t feel like”. He had not weighed himself but offered that he might have lost some weight because his clothes are a bit loose. He is able to enjoy himself, but feels remorseful after an argument caused by his irritability. He still has “blackout” absent mindedness, but reports this now occurs less frequently. He denied any recent suicidal thoughts.
He passed and completed the advanced diploma in Leadership and Management, that involved four to five hours for two days a week, at the end of 2022. The Medical Assessors asked him how he was able to do so given his reported short term memory problems. He responded that he was getting extra help from the lecturer, although he accepted that the work was his own. He works 30 hours/week as an Uber driver. He communicates with his wife via WhatsApp each morning and night. His wife came to Sydney to visit him for a month in 2023 when he took her to tourist spots. He described the visit positively. He continues to attend the Mosque on Fridays, when his pain permits. He plans to return to India in December 2024.
On mental state examination, the claimant presented as a casually dressed man, with a neat hair and beard. He was late to join the assessment, attributing this to being unable to find the link, and then his connection froze on a number of occasions, requiring him to exit and rejoin repeatedly. He managed these challenges well, without any evidence of frustration. He interacted in a confident, animated and warm style throughout the assessment, frequently smiling. There were no psychomotor changes. His speech was normal in rate, volume and rhythm, without reluctance. His affect was cheerful and reactive throughout the assessment. His mood was euthymic.
He reported “backflash”, by which he meant memories of the accident, as well as nightmares. He did not describe excess fears of another accident, stating that usually he “don’t have mental issues”. He was positive about his future, enthusiastically describing his contact with his wife and relaying plans to return to India late this year. He did not express any delusions and there were no perceptual abnormalities. There was no formal thought disorder. He denied current suicidal ideation.
The claimant was well focused throughout the assessment and did not need prompting or reassurance. He was objectively able to concentrate well for the assessment, even despite some interruptions due to his connection problems. He considered that he needed more sessions with the psychologist.

Consistency of Presentation

The Medical Assessors considered that there were a number of inconsistencies, the most substantial of which related to the subsequent accident of November 2021. The claimant’s initial narrative, that the subsequent accident was eight or nine months after the subject accident, was markedly inconsistent with the actual date of the accident. The Medical Assessors spent substantial time exploring this issue with the claimant, who then said the subsequent accident was five or six months after the subject accident. When his attention was drawn to the records related to the November 2021 accident, he responded, “Maybe 4 or 5 weeks, I don’t remember”. In the opinion of the Medical Assessors, this did not explain this inconsistency, and was not consistent with his ability to otherwise provide a detailed account of the circumstances of the November 2021 accident. Further, the claimant did not provide a history that included the accidents in 2019.

Formulation

The claimant is a psychologically robust man, who had experienced the death of his parents in childhood, but who had no past psychiatric history and had succeeded in completing his education, forming relationships and meeting the challenge of moving to Australia to study and work, where he had no family. Further, he had not experienced any psychiatric symptoms following the stressors of two previous motorbike accidents or the accident in 2020, which was a more serious accident where emergency responders were called, his car required to be towed from the scene, and was written off.
He was involved in the subject accident in October 2021. He acknowledged that he considered the accident a “minor issue” which was additionally evidenced by him only attending for medical assessment the next day, after he had physical symptoms when he commenced his usual work. The Medical Assessors concluded that the accident was minor, noting that the claimant was able to self-extricate and exchange details, drive himself home and that the damage to the car was never repaired. In the clinical judgement of the Medical Assessors the accident does not fulfill DSM 5 criteria A for Post-traumatic Stress Disorder, which requires the accident to be one in which the victim is directly exposed to, or witnesses, serious injury or death. As the accident fails to meet DSM 5 criteria A for Post-traumatic Stress Disorder, the claimant cannot have Post-traumatic Stress Disorder caused by the accident.
The claimant’s predominant complaints following the accident relate to pain. He also describes memories of the accident, anxiety when driving and avoidance of frequent or long distance driving, but not total avoidance. The Medical Assessors note the subsequent accident a few weeks later, sleep disturbance, short term memory lapses and loss of interest in socialising, as well as nightmares and desperate thoughts. Although he used the term, “backflash”, he was not experiencing flashbacks as the term is defined by psychiatrists. The Medical Assessors accept that he was experiencing some psychiatric symptoms prior to the subsequent accident in November 2021, noting the GP’s referral to the psychologist was dated 18 October 2021.
The Medical Assessors found that the claimant now has mild psychological symptoms related to driving, noting he is working 30 hours a week as an Uber driver, with only infrequent anxiety in some driving situations. Although he reports some irritability, mild loss of appetite, and occasional absent mindedness, the clinical examination findings on mental state examination were not consistent with any significant psychiatric disorder. Further, his reported functioning of returning to, passing and completing his pre-accident studies, maintaining relationships and returning to substantial work in his pre-injury role, is not consistent with the presence of any substantial ongoing psychiatric illness.
The Medical Assessors note the referral of the treating GP to the psychologist, Dr Abaie for “severe post-traumatic stress disorder and insomnia”. The GP does not record specific symptoms or the basis for this diagnosis in either the referral or the clinical notes. However, given the referral is just three days after the subject accident, the claimant could not meet the duration criteria for Post-traumatic Stress Disorder.
The Medical Assessors carefully considered the report of the psychologist, Dr Abaie. Dr Abaie does not provide details of the specific symptoms reported, nor how he considered the claimant meets the diagnostic criteria for Post-traumatic Stress Disorder. Additionally, Dr Abaie was apparently unaware of the subsequent and more serious accident in November 2021, despite apparently seeing the claimant three times up to and including on 15 December 2021. The Medical Assessors do not agree with the conclusions of Dr Abaie in regard to diagnosis or causation.

Diagnosis and causation

The Medical Assessors are satisfied that there was some anxiety following the accident, which caused distress, and which would have fulfilled DSM 5 criteria for an Adjustment Disorder with anxiety. The claimant fulfils DSM 5 criteria for Adjustment Disorder, with anxiety, because he developed emotional (anxiety when driving, memories of the accident, insomnia, concentration impairment causing incidents of short term memory problems and desperate thoughts) and behavioural symptoms (lack of interest in socialising) in response to an identifiable stressor, within three months of the onset of the stressor (the accident and its related impacts). To arrive at this diagnosis the Medical Assessors have taken a comprehensive history, performed a mental state examination, carefully considered the documentation and applied their clinical judgement.
In regard to causation, the Adjustment Disorder predominantly arose as a consequence of the stress of pain, but was also contributed to by non-pain stressors, including temporary reduction in work and study capacity caused by the impact of the accident.

DETERMINATION

The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination and specific findings pertaining to diagnosis.
The Panel finds that the accident does not fulfill DSM 5 criteria A for Post-traumatic Stress Disorder, which requires (relevantly) exposure to actual or threatened death or serious injury in one or more of the ways set out at A1-4 of the diagnostic criteria. Having failed to meet DSM 5 criteria A for Post-traumatic Stress Disorder, the Panel finds that the claimant does not suffer from Post-traumatic Stress Disorder that was caused by the accident.
Further, the Panel adopts the reasons given by the Medical Assessors for not agreeing with Dr Abaie’s and Dr Ghonemi’s diagnosis of Post-traumatic Stress Disorder.
The Panel finds that the claimant fulfils DSM 5 criteria for Adjustment Disorder, with anxiety, because he developed emotional and behavioural symptoms in response to an identifiable stressor (the accident), within three months of the onset of the stressor.
The Panel is satisfied that the accident could have caused the Adjustment Disorder, and that but for the accident the claimant would not have suffered that condition. The Panel is satisfied on the balance of probabilities that the accident was a necessary condition of the occurrence of the Adjustment Disorder.
The Panel finds that the Adjustment Disorder, with anxiety, is a threshold injury for the purposes of the MAI Act: s 1.6 MAI Act and cl 4 Regulations.
The certificate issued by Medical Assessor Rikard-Bell uses the term ‘minor injury’. The Panel has found that the claimant’s psychological injury is a ‘threshold injury’. As recorded earlier in these reasons, the term ‘minor injury’ has been replaced with ‘threshold injury’ in the MAI Act. The Panel considers that this is a change of terminology only, that does not require it to issue a new certificate.
The Panel has found that the claimant suffers from Adjustment Disorder, with anxiety, as a result of the accident, whereas Medical Assessor Rikard-Bell diagnosed Adjustment Disorder secondary to pain. As the diagnosis remains one of Adjustment Disorder, a “threshold injury”, the Panel considers that a new certificate is not required.
The statutory question the Panel is required to answer is whether the injury caused by the accident is a threshold injury for the purposes of the MAI Act. The Panel has found that it was. Given the Panel’s findings, Medical Assessor Rikard-Bell’s certificate of assessment dated 21 February 2023 is confirmed.

[2024] NSWPICMP 408

24 June 2024