BSR v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 430
•29 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BSR v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 430 |
| CLAIMANT: | BSR |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Alexey Sidorov |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 29 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Panel Review of decision of single Medical Assessor (MA) as to whether accident-related psychological injury is a threshold injury for the purposes of the Act; claimant involved in a motor accident when an out of control vehicle smashed into her home, in which she was occupying; single MA determined that the claimant had suffered an adjustment disorder with anxiety and therefore a threshold injury for the purposes of the MAI Act; claimant has a long history of psychological issues; claimant has a pre-accident diagnosis of borderline personality disorder; issue of whether an aggravation of pre-existing disorder is to be considered an injury; panel found the claimant has suffered a material aggravation of the pre-existing psychological condition; determined that an aggravation satisfies the definition of injury; claimant determined to have suffered a psychological injury caused by the motor accident that is not a threshold injury; Held – original medical certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review panel revokes the certificate of Medical Assessor Samson Roberts dated 13 May 2022 and issues a new certificate determining that: The following injury caused by the motor accident is not a threshold injury for the purposes of Motor Accident Injuries Act 2017. · Aggravation of Borderline Personality Disorder |
REASONS
BACKGROUND
BSR (the claimant) is a 42-year-old female who alleges injury as a result of a motor vehicle accident which occurred on 30 December 2020. She was asleep in bed when a motor vehicle crashed into her home.
The claimant subsequently lodged an application for personal injury benefits with the insurer of the vehicle, Insurance Australia Ltd t/a NRMA (NRMA), on or about 24 March 2021. She alleges having suffered psychological injury as a result of the motor accident which is not a threshold injury within the meaning of the Motor Accident Injuries Act 2017 (MAI Act).
The issue in dispute between the parties is whether any psychological injury caused by the accident is a threshold injury.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26 weeks and an entitlement to claim common law damages is opened.
Liability for statutory benefits was initially accepted by the insurer. However, by way of notice dated 27 September 2021, the insurer denied liability for ongoing statutory benefits after 26 weeks on the basis that the claimant’s injury was a minor injury (now known as a “threshold injury”) for the purposes of s 3.28 of the MAI Act.
The claimant is currently unrepresented, but her legal representatives at the relevant time disputed this decision and requested an internal review. An internal review decision of 21 October 2021 affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (the Commission) to determine the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act.”
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the claimant’s accident caused psychological injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Samson Roberts (Medical Assessor). The Medical Assessor gave a certificate dated 13 May 2022 wherein he certified that the claimant suffered an adjustment disorder with anxiety, and was a minor injury (now known as threshold injury) for the purposes of the MAI Act.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 9 November 2022 the President’s Delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
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 new decision-maker. A “new decision maker” 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 review provisions apply.
The new review provisions provide[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[1] Section 7.26(5A) of the MAI Act.
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 PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
On 28 February the insurer, noting that the claimant is not represented, was directed by the Panel to upload to the Commission portal a complete bundle of all documents relied upon by 10 March 2023. A bundle was provided in compliance with such direction in addition to three copies of video footage of the accident scene.
By a report dated 15 March 2023 the Panel informed the parties that it considered a re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined on 15 May 2023 via videolink (Microsoft Teams).
In addition, the Panel requested the insurer to obtain the clinical files of a number of the claimant’s treating psychiatrists and upload same to the portal by 5 May 2023.
No response has been received from the various psychiatrists, except for Dr Lachlan McPhail who advised he has no record of the claimant having been seen at his practice.
The claimant advised Commission staff that she has not attended upon the various listed doctors, except for Dr Nathan Fleisch and Royal Prince Alfred Hospital. Despite repeated and sustained attempts by the insurer, neither Dr Fleisch or the Royal Prince Alfred Hospital have provided documents. Following the re-examination of the claimant, the Panel conferred and it was agreed that such documents would not make a material difference to the outcome. Accordingly, the certificate and reasons is provided in the absence of same.
Unfortunately, on 15 May 2023 technical difficulties were encountered and the appointment was abandoned. A further re-examination was arranged for 20 July 2023 to be conducted via videolink (Microsoft Teams). To ensure the claimant did not encounter any difficulties, arrangements were made for her to attend the Commission rooms for the re-examination. The re-examination was conducted by Panel Members: Medical Assessor Chew and Medical Assessor Sidorov.
Statutory provisions
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4. ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
Part 5 of 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 a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Assessment under review
The Medical Assessor provided a certificate dated 13 May 2022. He certified that an injury resulting from the motor accident of Adjustment Disorder with Anxiety was a minor injury (now known as a threshold injury) for the purposes of the MAI Act.
In his reasons, the Medical Assessor noted the claimant was distressed that she was not informed that she could have a support person. She however, declined an invitation to postpone the assessment in order to arrange the attendance of a support person. The Medical Assessor noted some difficulty assessing the claimant characterised by her initial refusal to address questions, efforts to direct the interview to irrelevant matters and a general hostile approach to participation in the assessment.
The Medical Assessor commented that the claimant presented “a markedly disorganised account of her symptomatology and the time course over which her symptoms evolved.” He found that the claimant “continued to engage in an angry hostile manner and remained largely undirectable” during the assessment.
During the examination, the claimant was reported to have presented in an overtly unusual manner. She was described as being extremely angry and hostile and was shouting throughout the assessment. The Medical Assessor noted:
“…The manner in which she presented information at interview was so markedly disorganised that certainty with respect to the time-course of events remained elusive. Attempts at clarifying matters were futile in the face of her voluble, loud, hostile and undirectable approach to the assessment. Her inability to regulate her emotions was evident throughout. No features of a psychotic nature were identified.”
Some doubts as to the claimant’s consistency of presentation were raised by the Medical Assessor, he describes some aspects of her account in regard to the accident as being of questionable plausibility. The Medical Assessor found that the documentation did not accord with the claimant’s description of her level of functioning prior to the accident.
In respect of diagnosis and reasons, the Medical Assessor noted the numerous diagnoses in the past and concluded that it is more likely than not that there existed a single overarching psychiatric diagnosis. The Medical Assessor opined that the information available to him supported a conclusion that the claimant suffers a personality disorder with borderline histrionic features. He rejected other clinicians’ diagnosis of Complex Posttraumatic Stress Disorder, noting that same is not a construct described in the DSM-5. It was noted that generally the features of such “construct” are similar to those that manifest in a Personality Disorder with borderline and histrionic features.
The Medical Assessor concluded that the motor accident did produce a psychiatric reaction, however, it is separate from the pre-existing condition.
Material before the Review Panel
As already recorded, the Panel requested, and were provided with a bundle of documents including submissions, relied on by the parties.
Submissions
The claimant is unrepresented. The application includes the following hand written submissions of the claimant:
“Diagnosis (medical assessment) of minor injury adjustment disorder with anxiety is incorrect. Diagnosis should be post traumatic stress disorder. There is major psychological injury experienced a life threatening traumatic event. Report and video evidence of damage of house and lounge room, bedroom how far the car came inside my room.”
In response to the claimant’s application the insurer has lodged written submissions dated 8 November 2022. The submissions largely focus on the insurer’s position that the medical assessment of Assessor Roberts did not include a material error.
The insurer notes the report of Ms Elizabeth Munro dated 27 June 2022 relied upon by the claimant and the criticisms contained therein regarding the medical assessment. The insurer rejects the suggestion that the Medical Assessor did not want to listen to the account of the claimant. The insurer submits this is the perception of the claimant, and it is instead evidence that the Medical Assessor attempted to seek clarification from the claimant without success.
The insurer further rejects Mr Munro’s suggestion that the diagnosis is post-traumatic stress disorder rather than adjustment disorder with anxiety. The insurer submits that the Medical Assessor formed his diagnosis after considering the examination findings, the history provided by the claimant, and the available evidence. It is submitted that the Medical Assessor provided a detailed explanation on how he came to his determination.
It is asserted by the insurer that Ms Munro failed to consider the claimant’s pre-accident psychiatric history and symptoms, and accordingly her diagnosis of post-traumatic stress disorder is incorrect.
In particular, the insurer refers to the material that was before the Medical Assessor that details the claimant’s pre-existing complex psychiatric history. The insurer notes that whilst the Medical Assessor provided a diagnosis of personality disorder with borderline and histrionic features, utilising his clinical judgment and expertise, he opined: “it is appropriate to diagnose an adjustment disorder with anxiety as a result of the subject accident.”
Application for Personal Injury Benefits dated 24 March 2021
The claimant describes the accident as follows: “a vehicle crashed into my house whilst I was sleeping and my son was in the next room. There was significant damage to the property and we have had to vacate the building.”
The claimant confirmed prior psychological injuries including post-traumatic stress disorder and borderline personality disorder.
NSW police report
The report confirms that a vehicle was travelling in Padstow NSW when it failed to slow down at a roundabout, causing it to mount the kerb and thereafter collide with the front of the claimant’s house. The report confirms that the house sustained damage to the front wall and door and caused bricks to come off.
Referral for Medical Cannabis Assessment
The claimant’s general practitioner (GP), Dr Wilson, signed the referral on 12 August 2021 noting the claimant suffering from agitation, inability to focus and emotional lability. Diagnosis is listed as “ADHD, PTSD.”
Report of Psychologist, Nezhihe Ali (PsychCentral) dated 25 November 2021
Mr Ali reported to the insurer that the claimant was initially referred by her GP via referral dated 4 August 2021. The report confirms the claimant having suffered significant trauma in the previous 12 months. It is confirmed the claimant has a history of “severe mental health disorders, including informal diagnoses of PTSD, ADHD, BPD and anxiety.”
It is reported that the claimant attended five sessions, however, she had made a verbal request to cease all services with the practice and therefore Mr Ali was writing to provide a formal notice of case closure. It was recommended that the claimant be referred to an independent consultant before further recommendations be made given the complexities of her presentation.
Reports, referrals and clinical file of GP, Dr Wilson
Dr Wilson reported to the insurer on 2 December 2021 that the claimant was injured in the motor accident just prior to an appointment with him on 6 January 2021. He states his opinion that the claimant suffered from adjustment disorder with mixed anxiety and depressed mood as a result of the accident, with a background of post-traumatic stress disorder and ADHD. The report requests approval to change psychologists from PsychCentral.
Referral of Dr Wilson to Dr McPhail dated 22 October 2015
In a referral to Dr McPhail dated 22 October 2015, Dr Wilson notes a long and complex psychiatric history of the claimant. Including diagnoses listed as: “bipolar affective disorder, BPD, PTSD and ADD.” It is noted the claimant attended upon Dr Nathan Fleisch for some years, however ceased seeing him after not getting much improvement. Multiple past medications were noted, however, stated that the claimant finds the only thing that settles her enough to function is cannabis.
Referral of Dr Wilson to Dr Patrick Toohey dated 11 April 2019
The referral requests assistance regarding the claimant’s complex psychiatric issues. Severe emotional dysregulation was noted.
Dr Wilson states that he has occasionally thought that the claimant’s most likely diagnosis is Borderline Personality Disorder. Dr Wilson notes a traumatic childhood, having been sexually abused and grew up in a household of domestic violence.
It would appear that following receipt of the referral Dr Toohey suggested the claimant return to Dr Fleisch. In this regard, Dr Wilson writes again to Dr Toohey on 22 May 2019, stating that the claimant felt highly medicated under the care of Dr Fleisch without diagnosis, and was keen to get a second opinion.
Dr Wilson writes a similar referral to Dr Chris Blackwell dated 26 June 2019.
Dr Wilson eventually referred the claimant back to Dr Fleisch in a referral dated 8 January 2020 (resent on 29 May 2020). The referral is similar to those summarised above, and includes Dr Wilson’s opinion that the likely diagnosis is borderline personality disorder and post-traumatic stress disorder.
The claimant was referred to psychologist, Elizabeth Munro via referral of Dr Wilson dated 8 January 2021. He notes the claimant has struggled with multiple medication changes, and had “…recently had an incredibly distressing time with the move to a new house, which was then made unliveable when a car crashed through the front wall of it.”
A further referral was made to Dr Roy Sugarman of Psych Central on 18 May 2021. The referral notes the claimant having suffered significant trauma in the previous 12 months, with a description of the motor accident provided, on the background of severe mental health disorders, described as “still primarily undiagnosed.”
The content of the referral was essentially repeated in a further referral to Nezihe Ali of Psych Central dated 4 August 2021.
The clinical notes of Dr Wilson reveal the claimant first attended at the practice on 24 September 2015. A number of physical complaints were mentioned in addition to mental health issues. The Panel has considered the entirety of the clinical file carefully. Rather than repeat the entirety of the clinical entries, some relevant entries are summarised below.
The claimant was noted to be using cannabis.
Regular attendances are made upon Dr Wilson, for various ailments and ongoing psychologist issues. For instance on 6 March 2019 it was noted the claimant’s mental health had destabilised after an issue with her son’s school. Dr Wilson is noted to have phoned Mental Health Hotline the next day to make a referral to community mental health given the acute and unstable nature of the claimant’s presentation.
An entry of 13 March 2019 details that the claimant was discharged from the Royal Prince Alfred Hospital psychiatric ward after a four night admission under scheduling. It would appear from the notes on this date that there was concern with the claimant’s behaviour towards front desk staff.
On 22 May 2019 it was noted the claimant was still very angry and was “recounting the admission in March continuously.” And on 30 May 2019 the claimant was noted to be smoking cannabis heavily.
A note of 19 June 2019 confirms the claimant attended upon Dr Toohey, but did not receive a diagnosis and was told she did not need medication and the doctor did not arrange to see her again.
On 12 August 2020 it is noted the claimant telephoned the doctor and was a psychiatrist’s office. She was apparently angry and agitated due to the psychiatrist running 45 minutes late. The next day it is noted the claimant attended upon Dr Fleisch. It is noted that the claimant got along with Dr Fleisch, who showed interest and asked in depth questions. A medication regime of lamotrigine was noted, with a possibility of the introduction of Ritalin.
By 3 September 2020 it was noted Dr Fleisch had started the claimant on further medication of Dothiepin, continuing Lamictal and Valium. Lamotrigine was ceased by 1 October 2020.
On 15 October 2020 it is noted the claimant was started on Dexamphetamine and Ritalin was ceased. The claimant was also noted to be upset about a comment of Dr Fleisch of her “being difficult.”
The claimant consulted Dr Wilson on 4 November 2020 and it was noted that she “feels dead, feels like has lost personality…” Dr Wilson phoned Dr Fleisch and the notes reveal that Dr Fleisch opined the claimant had a severe personality disorder, was very tumultuous and highly reactive and histrionic at times. The claimant was also noted to be very sensitive to any medication.
The claimant consulted Dr Wilson on 6 January 2021 after the subject motor accident. The consultation largely centred on the claimant’s housing concerns. Dr Wilson evidently phoned the Department of Housing and the claimant is noted to have been shouting obscenities towards the department staff on the phone.
On 25 February 2021 the claimant was noted to be in need of a psychiatrist referral, and was taking a lot of Valium. The claimant expressed distress regarding her housing situation.
On 23 March 2021, Dr Wilson notes he received a phone call from psychologist, Elizabeth Munro, who had felt that the claimant had stood over her and pointed a finger at her. Ms Munro felt threatened. The claimant is said to have not liked this and had “cut ties” with Ms Munro. The claimant also expressed anger regarding her son’s schooling.
A note of 23 April 2021 notes the claimant to have continuing difficulties with housing and she had “lost it” with the Department of Housing the day prior and the claimant knew that she cannot go anywhere without “going psycho”. The claimant’s son was said to be going well at a new school but the claimant was not able to function and had missed parent teacher interviews and “is completely at a holt”. Again, the claimant was noted to be taking a lot of Valium.
The clinical file notes on 6 May 2021 that Dr Wilson sent an email to Vinnies expressing concern about the claimant and her son’s mental health and that the issues were beyond his capacity to assist. He noted the claimant had suffered an extremely difficult 12 months.
On 8 September 2021, it was noted the claimant had considered administration of CBD oil to have been good. She, however, was noted to have had a few episodes of waking with anxiety and vomiting.
Report of clinical psychologist, Elizabeth Munro dated 27 June 2022
The report follows the medical assessment the subject of the review. The report largely focuses on Ms Munro’s perceived issues with the report of Medical Assessor Roberts.
Ms Munro disputes the diagnosis of adjustment disorder and contends that the diagnosis is correctly post-traumatic stress disorder, and provides a critique of various parts of the reasons of Assessor Roberts, to support her opinion of a misdiagnosis.
In respect of current diagnosis, Ms Munro listed a number of symptoms experienced by the claimant including (but not limited to), flashbacks, distressing dreams, intrusive memories, sleep disturbance and hypervigilance.
Ms Munro notes that she has known the claimant since February 2017, and had treated the claimant in the months prior to the accident. She states it is clear to her that the claimant suffers post-traumatic stress disorder as a direct result of the motor accident.
RE-EXAMINATION
BSR attended the assessment via audio-visual link from the Commission suites, Oxford St, Sydney. She was examined by Medical Assessor Gerald Chew and Medical Assessor Alexey Sidorov who were both in their Sydney rooms. The assessment took approximately one hour.
Psychosocial history and pre-accident history
BSR is a 42-year-old woman who lives in Padstow with her 13 year old son who is currently in year 8, high school. She is in receipt of the Disability Support Pension from Centrelink. She has received this pension for over a decade.
She described a long and complex past psychiatric history. She reported that she was the victim of childhood sexual abuse. She reported that she struggled after the birth of her son. Her husband left while she was pregnant, and she reported spending time in a refuge after the birth.
She had treatment by Dr Nathan Fleisch, psychiatrist. She reported that he prescribed her multiple different medications, and she stopped them all after about 18 months. She reported that she was unclear exactly what medications she had been prescribed and she was also unclear what her diagnosis was.
She admitted to one psychiatric admission. She couldn’t recall the exact date but recalled that it was when her child was in primary school year 3 or 4. She said that she went to pick him up and he wasn’t there. This made her very distressed. The school was concerned and called the police. She then attended her local doctor. They called the mental health line. Later that day the crisis team from RPA came to her house and took her to hospital on the Thursday night. She was in hospital for five days.
She said that she reengaged with Dr Fleisch. She admitted that she had overdosed on medication a few months prior to the accident but said that this wasn’t a suicide attempt.
She has not worked since the birth of her son. She previously worked in the fast food industry.
She was born in Lebanon. Her family is Christian, but she became a Muslim 13 years ago. She migrated with her family to Australia age 5 to escape the conflict in Lebanon. She is an Australian citizen.
She reports that she has a poor relationship with her parents and three sisters because of family childhood sexual abuse. She reported that she was repeatedly abused by her maternal grandfather from very young until the age of 9 or 10. She reported that he had allegedly abused other children in the family. She grew up in Dubbo until the age of 15. She found school difficult with family difficulties and being teased for being a “wog”. She completed year 12 and achieved HSC. She then worked in fast food, becoming area manager until leaving the workforce around 13 years ago.
History of the motor accident
BSR reported that she was asleep in bed when she heard a loud engine noise then bricks crashing around her as well as ceiling and wall and other debris. She said that she was in shock, fear and panic. The police attended the scene.
History of symptoms and treatment following the motor accident
Her current treatment consists of medicinal cannabis which she has obtained since 31 September 2021. She also has attended a psychologist on and off for the last five years limited by Medicare funding.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
She reported poor sleep, inability to leave her house with ease. She was unable to clarify if she suffered from nightmares, the frequency or content. She said that she had a poor appetite, severe anxiety and poor concentration. She said that her mood was generally low but could fluctuate rapidly.
Mental state examination
She appeared her stated age and had adequate grooming. She was visibly anxious and upset at times. She was difficult to interrupt at times and gave hyperbolic answers at times. For example, she said that she thought and re-experienced the accident “every second of every day”. When clarified, she agreed that this was not the case, and she meant that it impacted her every second of every day. There was no evidence of pervasively depressed mood, mania or psychosis. She appeared to have a reasonable level of insight and judgement.
Current functioning
While she claimed on one hand that she couldn’t function at all, she also said that she looked after her child adequately. She provided meals for her child. She transported her child to school. She attends the shops to buy essential items. She reported an ongoing good relationship with her child. She reported limited interaction with friends or family. She said that she continued to clean her house adequately. She was able to drive to Oxford Street for the interview.
Comments of consistency
There were multiple inconsistencies in her reported symptoms and level of functioning, which she was unable to explain satisfactorily during the assessment. She tended to give a hyperbolic account.
The fluctuating nature of her reporting is consistent with the primary psychiatric diagnosis of Borderline Personality Disorder.
Diagnosis
Based on the account presented by BSR, her presentation and review of provided documentation, her primary psychiatric diagnosis is Borderline Personality Disorder. This diagnosis has been made with reference to DSM-5.
She presents with a pervasive pattern of instability of interpersonal relationships, self-image, identity disturbance, affective instability due to a marked reactivity of mood and inappropriate, intense anger.
Her symptoms have worsened since the motor accident with an increase in affective instability, in particular, and a resulting deterioration of function.
Causation and reasons
Her Borderline Personality Disorder was not caused by the motor accident. It predates the accident and had developed in the context of genetic vulnerabilities and childhood sexual abuse.
The exacerbation of her Borderline Personality Disorder since the motor accident was caused by the motor accident, in particular by the stress of the partial destruction of her home and the aftermath of the accident.
The definition of injury is set out in s 1.4 of the MAI Act. It includes “psychological or psychiatric injury.”
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.[2]
[2] Briggs v IAG Ltd [2022] NSWSC 372.
Clause 6.6 of the Guidelines provides:
“Causation means that a physical, chemical or biological 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 judgment.
Accordingly, the Panel accepts that the worsening of a pre-existing condition constitutes an injury for the purposes of the MAI Act.
Clause 6.7 of the Guidelines provides:
“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.”
The worsening, caused by the motor accident, of the claimant’s Borderline Personality Disorder is more than negligible. The Panel accepts the frightening nature of the subject motor accident, and notes the evidence and history demonstrate a material worsening of the claimant’s condition thereafter.
For the reasons expressed above, the Panel finds that the worsening of the Borderline Personality Disorder constitutes an injury for the purposes of the MAI Act.
With reference to Part 1, cl 4 of the Regulation, such injury is not an acute stress disorder and not an adjustment disorder. Accordingly, the exacerbation caused by the motor accident of the Borderline Personality Disorder is a non-threshold injury for the purposes of the MAI Act.
Findings
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[3] and Insurance Australia Ltd v Marsh.[4]
[3] [2021] NSWCA 287 at [40], [41] and [45].
[4] [2022] NSWCA 31 at [11], [21] and [64].
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 claimant suffers an exacerbation of Borderline Personality Disorder as a result of the accident and that this condition is not a threshold injury for the purposes of the MAI Act.
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