Buj v Insurance Australia Ltd t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	BUJ v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPICMP 520
CLAIMANT:	BUJ
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Surabhi Verma
DATE OF DECISION:	17 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold psychological injury; Medical Assessor certified adjustment disorder with mixed anxiety and depressed mood caused by accident was a threshold injury; Held – persistent depressive disorder caused by the accident was not a threshold injury; certificate revoked and new certificate issued.
DETERMINATIONS MADE:	1. The Review Panel revokes Medical Assessor Chew’s certificate dated 18 June 2024 and certifies that persistent depressive disorder caused by the accident on 9 December 2021 is not a threshold injury for the purposes of the MAI Act.

STATEMENT OF REASONS

BACKGROUND

BUJ (claimant) was injured in a motor accident that occurred on

9 December 2021(accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
A dispute has arisen between the parties as to whether the claimant suffered a psychological injury as a result of the accident and if so, whether that injury is a threshold injury for the purposes of the MAI Act. The dispute 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 dispute was referred to Medical Assessor Chew for assessment. On 18 June 2024 the Medical Assessor certified that adjustment disorder with mixed anxiety and depressed mood caused by the accident is a threshold injury for the purposes of the MAI Act (Assessment).
The claimant sought a review of the Assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to this review panel.
The review panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the Assessment (Review).

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review 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) MAI Act. Although styled a "review", the Panel is determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] per Leeming JA (Beazley P and Basten JA agreeing).
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.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.

DIRECTIONS

On 7 March 2025 the Panel directed the parties to provide a joint bundle and submissions for the purposes of the Review. A joint bundle and submissions were subsequently filed.
The Panel convened on 28 May 2025 and determined that a re-examination of the claimant was required. The Panel also determined the claimant’s application to lodge additional documents dated 7 May 2025. The additional documents comprised a report of Dr Nge dated 21 March 2025 and a referral to Dr Hoang dated 30 March 2025. The Panel was satisfied the introduction of the reports is necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings and gave the claimant leave to rely on the reports.

LEGISLATIVE FRAMEWORK

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)(a).
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) states that acute stress disorder and adjustment disorder are each included as a threshold injury for the purposes of the MAI Act. 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 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. 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.”
The Guidelines state as follows with respect to causation of injury:
“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.”
While causation is not dealt with in Part 5 of the Guidelines, the principles found in Part 6 apply when a medical assessment is being made in relation to causation of threshold injuries: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J at [35].
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Further, ss 5D (general principles relating to causation) and 5E (onus of proof) of the Civil Liability Act 2002 apply.

MEDICAL ASSESSMENT UNDER REVIEW

On 18 June 2024 Medical Assessor Chew certified that adjustment disorder with mixed anxiety and depressed mood caused by the accident is a threshold injury for the purposes of the MAI Act. In his reasons, the Medical Assessor recorded that the claimant had been involved in motor vehicle accidents in 1993/94, 1998, 2010, and 2012. The claimant reported that he injured his neck and back in those accidents, but that his pain was “relatively well controlled” prior to the subject accident. He had treatment for depression and anxiety in 2020 secondary to difficulties with job loss, a broken ankle, and social difficulties. He said his mental health improved after a number of months.
A history of the subject accident was recorded. The claimant said that he attended his general practitioner (GP) the day after the accident because of neck pain and stiffness. Despite treatment the pain and stiffness had persisted. After a few days he returned to work truck driving. He was subsequently “let go” because he couldn’t load and unload pallets from trucks at the markets, and his been in and out of jobs since then. He was working as a truck driver 38 hours a week at the time of the assessment.
The claimant reported low mood, less energy, increased worry and a reduction in social and recreational activity. He was not receiving any psychological or psychiatric treatment.
In the Medical Assessor’s opinion, in the context of ongoing pain and stiffness in his neck and back secondary to the accident the claimant developed clinically significant symptoms which do not meet the threshold for a diagnosis of a mood or anxiety disorder. The Medical Assessor diagnosed adjustment disorder with mixed anxiety and depressed mood secondary to pain and stiffness that related to his accident caused physical injuries.

EVIDENCE

Other than the report of Dr Nge dated 21 March 2025 and a referral to Dr Hoang dated

30 March 2025 that were the subject of the claimant’s application to lodge additional documents, the evidence relied on by the parties for the purposes of the Review is contained in the joint bundle filed in accordance with the Panel’s directions. The Panel has considered all this evidence.
The application for personal injury benefits dated 23 December 2021 records that while stationary in traffic the claimant’s vehicle was struck from behind. The injuries received in the accident were described as being to his neck and back. The claimant also provided details of prior accidents and injuries. The claimant recorded that he was still experiencing pain in his lower back, right knee and left ankle from a fall in July 2019. He stated that he was “also suffering from depression”. In an annexure to the application the claimant provided details of previous accidents, injuries, treatment, and claims in 1986, 1993/94,1998, 2010, and 2012.
A certificate of capacity dated 16 December 2021 records that the claimant suffered injuries to his neck and back in the accident.
Records from Wetherill Park Medical Centre printed on 16 February 2022 include a Patient Health Summary that documents the claimant’s medications, prescriptions, and investigations. There are also test results and radiological reports. The list of prescriptions includes a prescription for Stilnox, 10 mg at night on 30 October 2019.
The first entry in the Patient Summary was made on 26 March 2019. The pre-accident entries have been considered by the Panel. An entry on 12 May 2021 refers to a “[b]ack injury post MVA Left ankle fracture [sic] and reconstruction…”. The reason for visit was “[h]ypertension [b]ack pain radiating to buttock [k]nee pain”.
The Patient Summary records that the claimant attended the practice on 10 December 2021, the day after the accident. Dr Lawal recorded as follows:
“MVA yesterday
got hit from the back on North Liverpool Road around 6.20pm
was at a round about standing still
neck, thoracic & lumbar back pain
no numbness or weakness in the limbs
no urinary of [sic] bowel symptoms”
The claimant attended the practice again on 16 December 2021 reporting “paraspinal tenderness – cervical & lumbar restricted ROM – whole spine”. That is the last entry in the Patient Summary.
The various Allied health recovery requests (AHRR) in the bundle have been considered. Those requests include reference to the claimant experiencing pain.
In a report dated 9 September 2022 Dr Bazina, neurosurgeon, recorded a history of neck and lower back pain following the accident. The doctor recorded that the claimant was “back to all pre-injury duties”.
A referral letter from Dr Srinivasan dated 8 December 2022 records that the claimant had depression due to chronic neck pain arising from the accident.
The Patient Health Summary from Vasan Medical Centre was printed on 12 May 2023. The first entry in the clinical notes is dated 30 October 2013. The claimant’s past history included depression. On 19 November 2014 there is reference to the claimant having chronic neck and back pain “due to a MVA 4 years back”. He had “physio with no relief”. A mental health care plan was created. The K10 assessment yielded a score of 45.
On 11 December 2014 it was recorded that the claimant was “still depressed”. On

19 January 2015 the claimant was “still depressed [and] can not afford to see Psychiatrist”. He also reported neck and low back pain. On 12 August 2015 Dr Srinivasan recorded “Still depressed. Not sleeping, keeps thinking constantly, gets upset easily…”. The reason for visit was “[m]ental health care plan review”. The next entry in the notes was made seven years later, on 20 July 2022. That note refers to the accident, and records that the claimant reported neck and back pain following the accident. The doctor recorded “[c]urrently works as truck driver Able to continue work but feels very sore at the end of the day.” Lovan was ceased. He was prescribed Coveram 10/10, one daily, and melatonin, 2 mg, 1-2 in the evening. On 10 August 2022 the doctor wrote “[h]as persistent low back pain over L4/5…”. The entry dated 15 August 2022 states he is not able to sleep with 4 mg of melatonin and was prescribed Stilnox CR 12.5 mg one tablet at night. On 8 December 2022 the doctor recorded “[h]as neck pain that prevents him from doing things, he feels depressed due to that.” A mental health care plan was prepared on 11 January 2023, and the claimant was referred to Dr Warn. His K10 assessment score was 40. The entry dated 22 February 2023 states he has deterioration in his vision, constant pain in the neck and back, and is consulting a psychologist. He was prescribed Endep 25 mg one tablet at night.
The clinical records of James Warn have been considered by the Panel. The first entry is dated 17 June 2020, and refers to financial stress, anxiety and depression. Subsequent notes in July 2020, February and March 2023 have been considered. On 3 February 2023, the claimant presented with anxiety and depression. He was distressed, crying, miserable and had “a loss of sense of reality”. He reported financial pressures. He broke his ankle and had a slow recovery. He reported feeling useless, that he was letting everyone down and was “not going to make it”. He had trouble sleeping, and cannot move his neck, which locks up in pain. The claimant reported issues with the other driver at fault and his anger. On

12 May 2023 Mr Warn recorded “[l]ost job before Easter, could not push pallets, neck injury, argument with supervisor, now not leaving the house. Neck locks up from MVA in December…”. The claimant’s scores on the depression, anxiety and stress scale were depression 20, anxiety 16 and stress 18, which are all in the extremely severe range.
The Panel has considered the radiological reports in the bundle that relate to the claimant’s cervical and lumbar spine.
A report from Dr Giblin to the claimant’s solicitor dated 20 February 2014 refers to motor vehicle accidents in 2010 and 2012. There were also injuries in April 1993, 1994, 1996, and 1998. In the doctor’s opinion the claimant had suffered an aggravation of pre-existing conditions in his cervical and lumbar spine. He was fit for work involving bending, heavy lifting or prolonged sitting or standing. The doctor provided an assessment of whole person impairment.
In a report to AAMI dated 16 September 2013, Dr Pierides, occupational physician, addressed the effects of a motor vehicle accident in September 2013. It is recorded that the claimant had an “extensive” pre-accident history. In the doctor’s opinion the claimant aggravated symptoms in his neck and back in the accident. He had recovered from the aggravation, required no further treatment, and was fit for “all normal work without restriction if one considers only the subject accident related injuries”. In a separate report of the same date, the doctor assessed a 0% whole person impairment as a result of the accident caused injuries.
A medical certificate dated 10 October 2012 refers to neck and back pain and states the claimant is fit to resume normal duties avoiding repeated bending and heavy lifting.
Clinical notes from Valley Plaza Medical Centre have been considered. On 9 October 2012 Dr Sorani recorded the claimant was involved in a motor vehicle accident on 9 August 2012 and complained of neck and back pain. There was a past history of neck and back problems “about 4 years ago – was related to car accident”. There is reference to “ongoing back and neck pain” in a note recorded on 29 November 2012.
In a report to Dr Srinivasan dated 21 March 2025 Dr Nge, clinical psychologist, recorded a preliminary diagnosis of major depressive disorder “in the context of chronic pain and paranoia – query personality disorder”. The claimant reported that the accident had ruined his life, that he has ongoing neck and back pain and feels unwell and depressed every day. He reported that his older brother has a mental illness. The claimant appeared fatigued, his narrative of events was vague, and he had difficulty explaining past events. Referral to a psychiatrist was discussed “for assistance with his pain and mental health with medications”.

A referral from Dr Srinivasan to Dr Hoang, psychiatrist, is dated 30 March 2025. The referral is for opinion and treatment of major depression. The claimant’s past medical history is said to include anxiety, depression, obesity, hypertension and diabetes type 2.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 16 July 2024. He argues that Medical Assessor Chew did not “properly” consider the records of his treating psychologist, and that if he had the Medical Assessor would have noted that he had been diagnosed with depression as a result of the accident.
In the claimant’s submission the Medical Assessor should have concluded that as a result of the accident he was suffering from depression, a non-threshold injury.

Insurer’s submissions

The insurer relies on written submissions dated 7 April 2025. Reference is made to the medical evidence, including the clinical notes from the treating psychologist and the claimant’s pre-accident medical history.
The insurer disputes the claimant sustained a non-threshold psychological/psychiatric injury as a result of the accident. In the insurer’s submission the reported clinical signs and behaviours in the Good Thinking Psychology clinical notes dated 18 May 2023 do not satisfy a psychiatric diagnosis “as outlined in the DSM-V”.
The insurer argues that the symptoms of anxiety and depression recorded in the medical evidence do not meet the assessment criteria for a recognised psychiatric illness and “therefore is considered an unverified diagnosis”.
The insurer submits that the psychological/psychiatric injury suffered by the claimant as a result of the accident is a threshold injury for the purposes of the MAI Act.

RE-EXAMINATION FINDINGS

The claimant was re-examined by Medical Assessors Friend and Verma (Medical Assessors) on 18 June 2025 . The assessment took place by MS Teams. The claimant was at his solicitor’s office. There was no one else in the room during the examination.

History

Psychosocial history and pre-accident history

The claimant was born and raised in Sydney and completed school up to the end of Year 10. He started an apprenticeship as a panel beater after finishing school but eventually left to seek a change. He then worked in delivery roles, followed by four years in security, and has been employed as a truck driver since 2000. When asked, he confirmed that his security work went smoothly with no significant incidents. Before the motor accident, he worked full-time as a truck driver, doing 38 hours a week driving semi-trailers. His tasks involved collecting trailers that had been driven from interstate, which were loaded with plants in trolleys or triple-stacked pallets. He used a manual pallet jack to unload the pallets. Each trailer usually carried 22 triple-stacked pallets. The plants came on trolleys that he had to wheel off the trailer and push to the delivery point. Initially, he had two other helpers to assist with the trolleys.
However, the company gradually reduced the number of staff handling unloading, first to one helper and eventually, after the motor accident, to just the claimant himself. The trolleys were very heavy.
The claimant married in his mid-twenties and was married for about 12 years, ending around 2006 or 2007. He has two adult sons, who currently live with him. He had a girlfriend from 2008; they never cohabited, but their relationship continued until just a few weeks before the re-examination. He mentioned they had ups and downs but no periods of separation or breakups, despite a note from Good Thinking Psychology dated 17 June 2020 stating he had lost everything and had nothing to look forward to. That note also recorded that he lost his girlfriend, which the claimant denies. Since his divorce, the claimant has been living with his father. His two sons and his brother also reside with him.

Previous medical history

The claimant was involved in a motor accident either in 1993 or 1994, as stated in the annexure to the Application for Personal Injury Benefits dated 23 December 2021. He sustained neck and back injuries. There was a second motor accident on 10 August 1996, not 10 August 1986 as stated in the annexure. He again sustained injuries to his neck and back. A third accident occurred on 28 September 1998 while he was delivering 200l drums in a utility. A strap broke on the barrel, causing it to roll into the rear window of the vehicle. He put up his left arm to protect himself. He recalls going to hospital and receiving cortisone injections but probably did not have any surgery. The claimant cannot recall having psychiatric or psychological symptoms following these work and motor accidents.
The fourth motor accident was on 25 March 2010. The annexure states he sustained injuries to his head, neck, left shoulder, chest, abdomen, back, right hip, and right leg. The claimant does not remember this accident. The fifth motor accident occurred on 9 August 2012, when he injured his lower back. His family doctor treated him, and he also saw Dr Giblin. The claimant believes this was a rear-end collision and agrees with the injuries described. He thinks it’s likely he had physiotherapy and medication but cannot recall if he had any surgery.
Subsequently, the claimant broke his left ankle in either 2019 or 2020 when walking on a sidewalk and onto grass. He went to Blacktown Hospital, where pins, rods, and metal plates were inserted. He estimates he recovered to about 90-92%, with some persistent discomfort in his ankle, especially if something rubbed against it. He was driving an automatic truck and could do so without difficulty.
At the time of the motor accident, he was experiencing ongoing lower back and neck pain, managed with medication and physiotherapy. He stated that although not perfect, he could manage the pain. When asked about the entries in the Good Thinking Psychology notes for 2020, he agreed he was probably struggling in his life. There are no entries in his general practice notes, and he did not consult Good Thinking Psychology, during the 12 months prior to the motor accident. The claimant does not recall having psychiatric or psychological symptoms in that period but felt he was coping. He was working full time, and his relationship with his girlfriend was ongoing. He remembered an appointment with a psychiatrist in 2017 or 2018 but could not recall details, and the psychiatrist has since retired.

Substance use

The claimant is abstinent from tobacco, alcohol, and illegal substances. He drinks one cup of tea or coffee daily and does not consume any other caffeine.

History of the motor accident

The accident happened when the claimant was driving his car. He was approaching a roundabout with a line of vehicles ahead of him, and his vehicle was the fifth in line. He stopped, and the vehicle behind him crashed into the back of his car. He immediately felt pain in his back and neck. He was able to get out of his vehicle, needed a moment to gather his thoughts, and then exchanged details with the other driver. Afterwards, he drove home. The next day, a family member took him to see his family doctor, as recorded in the clinical notes of the Wetherill Park Medical Centre in the entry dated 10 December 2021.

History of symptoms and treatment following the motor accident

The claimant continued to experience pain in his neck and the back of his head, radiating down his back and being more severe on the left than the right. It extended to the sacrum. His neck was stiff and tight. He described himself as feeling mentally unwell, angry about having another motor accident, and like “shit”. He questioned why this had happened and felt like “some sort of idiot” because motor accidents kept occurring to him. He received treatment with medication, physiotherapy, and massages. He used heat and ice packs and took Nurofen and Voltaren. Initially, he was prescribed melatonin, and later Stilnox CR for sleep, as documented in the entry at Vasan Medical Centre dated 15 August 2022. He cannot recall being prescribed Endep, which is documented in the same general practice notes dated 22 February 2023.
He consulted Mr James Warn, psychologist, two to three times following the motor accident. There are entries in the Good Thinking Psychology notes post-accident dated 12 May 2023, 24 March 2023, and 13 February 2023. The claimant returned to work after about two to three days, able to undertake light duties initially, but the company later advised him to resume his full duties as previously described. He was unable to work full duties due to his physical injuries and resigned.
The claimant obtained another truck driving job but did not start because it involved loading trucks with watermelons using a manual pump-up jack, which he could not physically do. He began his current job probably in November 2023. This job involves collecting a trailer and driving it to various shops. He unloads the pallets of groceries using an electric pallet jack carried on the truck, which can be difficult due to pain in his back and neck. He found it physically too demanding to work full time and has been working four days a week for about 1½ years, working 8-10 hours each day on his working days.

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

The claimant has not been involved in any subsequent motor accidents or accidents of any kind, undergone any surgery or sustained any fractures.
He developed diabetes mellitus about two years ago.

Current symptoms

The claimant continues to experience pain in his neck and back, mostly down the entire left side of his back and to some extent the right side as well. It makes it very difficult to carry out any activities. He cannot mow the lawn for more than five minutes before needing one of his sons to take over and finish the task. It is a struggle to do the laundry, especially to lift the washed clothes out of the washing machine and place them in the dryer. He requires assistance to move furniture due to the pain. It is painful for him to lean forward, such as when he needs to change the air filter in his vehicle.
He develops stiffness, tightness, and cramping on the left side of his back, and his neck can lock up between 15 and 30 minutes when driving. He needs to pull over, stretch, and walk around before he can resume driving. He feels mentally depressed, down in the dumps, miserable, and disappointed in himself. Sometimes, he does not want to get out of bed. He feels that at times he does not want to be on this earth and questions the point of being here. He believes that others do not care or do not want to help him. He denied having thoughts of suicide and has not self-harmed in any way.
He has no libido, and it has also been physically difficult to have a sexual relationship with his ex-girlfriend, which he believes was a major factor in the breakup. His sleep is disturbed, with only two to five hours of rest each night. He is restless and tosses and turns because he is always in pain. He uses hot water bottles and ice packs to try to ease the pain but cannot get comfortable. The pain worsens in cold weather. His girlfriend has tried to comfort him, but he has been unable to reciprocate her affection.

Current and proposed treatment

The claimant currently takes duloxetine, Stilnox, Coveram for hypertension, Metformin for diabetes mellitus, melatonin for sleep and Nurofen and Voltaren for pain.
He uses heat packs, ice packs and hot water bottles usually at night to try to reduce the pain when sleeping.
He is not undergoing any physiotherapy, hydrotherapy or any other physical treatments and none is proposed.

Clinical examination

Mental state examination

The claimant was examined by video teleconference. He was alert, oriented, and understood the purpose of the examination but struggled to provide a detailed account of his symptoms, particularly his psychiatric or psychological symptoms.
He had difficulty recalling his pre-accident history, especially regarding any psychiatric or psychological issues. It seemed to be a memory issue, especially since his previous accidents were more than ten years ago. The Medical Assessors considered that it was reasonable that the claimant could not recall the details of these events. He provided a clearer account of breaking his ankle in 2019 or 2020.
The claimant continues to experience pain and tightness in his neck, as well as pain in his back extending down to his sacrum, which is more pronounced on the left side than on the right. These symptoms limit his daily activities, interfere with his sleep, and affect his ability to drive.
Since the accident, the claimant reports feeling very depressed, down in the dumps, not wanting to get out of bed, and feeling miserable and disappointed in himself. He expresses feelings of not seeing the point of being on earth or being alive. He is not suicidal and has not attempted self-harm.
He also reports a loss of libido and feels that others do not care about him. Although his girlfriend provides comfort, he finds it difficult to reciprocate. He has sleep disturbances, mainly due to pain, but did not mention any changes in weight, whether losing or gaining.

Current functioning

The claimant can get out of bed in the morning and dress. It is painful when he has to bend forward to put on his underwear, shoes, and socks. It is more difficult when the pain is more extensive. He only showers every few days, whereas previously he showered daily. These limitations are due to stiffness and soreness throughout his body. He needs to take medication immediately after getting out of bed. He reports that it “takes ages to get going” because of the pain and stiffness. He sometimes finds it mentally difficult to get out of bed. He experiences a lot of “bone cracking” when he first gets out of bed and feels like he is “ninety years old.” He has a cup of coffee or tea and a few biscuits but has never eaten breakfast. He prepares his lunch most days. His sons or his brother cook the evening meal, and they have always done so. He has never cooked much himself. The four people in the household mutually decide what groceries are needed; one of his sons places the online order for delivery to the home. This was the arrangement before the motor accident. He can do light household maintenance, like changing light bulbs or switches, but cannot make a table, mow the lawn, and struggles with laundry due to the physical pain.
He goes walking in the morning to get his blood flowing but needs to sit down after 10-15 minutes because of the pain in his lower back. He experiences pain in his lower back and neck when sitting. It takes about 45 minutes to walk around the park due to the pain and the need to rest, which he estimates would take 15-20 minutes if he were fit and well. He has tried going to the cinema but finds it hard to sit through a film due to the pain. He will go to a restaurant if invited, and he reports that is okay. He mostly stays at home because he doesn’t feel as good or as confident as others. He reports that he cannot tolerate certain people, but he cannot describe the feeling further. The claimant used to play soccer with friends and go to the gym but stopped well before the motor accident. His ability to drive is limited due to the pain in his neck and back, as previously described. His relationship ended a few weeks before the examination. They had never lived together, but he said that before the accident, they would contact each other three times a week, go out for meals, or to get a drink. He did activities with friends, including attending barbecues and social outings, before the accident. He reports that most of his friends have “vanished,” but occasionally someone visits him at home to chat and watch television. The claimant states that he “forgets things” but cannot specify what he forgets since the motor accident. He uses Google Maps to navigate while driving in the truck or his own vehicle. Before the accident, he didn’t use Google Maps and could find his way around easily. He still works driving a truck four days a week, delivering groceries using an electric pallet jack.
He can do this job because he has an electric pallet jack to unload the trailer and isn’t required to load it. He needs to briefly interact with the shop owners or employees during deliveries and place the pallets as requested. The claimant states that before the accident, he struggled somewhat with his personal care due to pain in his lower back and neck. He ate meals the same way. He did laundry and mowed the lawn, though sometimes limited by pain. It was generally easier to do his personal care tasks.

Comments of consistency

The claimant was generally consistent throughout the examination. He struggled to provide a clear account of his previous history, especially regarding psychiatric and psychological symptoms. His account mostly matched the documents provided, but he described many more symptoms than what was recorded in Medical Assessor Chew’s reasons. He stated that there was no separation from his girlfriend, despite an entry in the Good Thinking Psychology notes for 17 June 2020.

Diagnosis and reasons

The Medical Assessors considered all the information before them including the supplied documents and the account provided by the claimant.
The Medical Assessors determined the claimant satisfied the DSM5-TR criterion for a persistent depressive disorder.
He has been depressed for over two years since the motor accident. He experiences low self-esteem, poor concentration, and feelings of hopelessness. He has never been free of these symptoms for more than two months at a time. He has not described symptoms consistent with major depressive disorder at any stage. The symptoms are not better explained by a psychotic disorder. They are also not directly related to the physiological effects of a substance, as he is abstinent from alcohol and illegal drugs. These symptoms cause significant distress and impair daily, social, and occupational functioning.

Causation and reasons

The claimant had previous psychiatric and psychological symptoms as described in the clinical notes from Good Thinking Psychology and Vasan Medical Centre. In his claim form the claimant recorded that at the time of the accident he was experiencing pain in his back, right knee and left ankle and “also suffering from depression”.
When he was re-examined by the Medical Assessors he did not describe being depressed at the time of the accident. He was working full time and was in a long-standing relationship.
There were no entries related to psychiatric or psychological symptoms in the 12 months prior to the accident in the clinical records from Wetherill Park Medical Centre, Vasan Medical Centre, or Good Thinking Psychology.
Depression is a symptom not a diagnosis. If the claimant was feeling depressed at the time of the accident, there were no associated symptoms, functional impairment, or distress referred to in the clinical records. To reach criterion for a psychiatric diagnosis requires a set of symptoms not just the feeling of being depressed. It also requires functional impairment or distress. The Medical Members of the Panel are not satisfied that the claimant was suffering from a psychological condition at the time the accident occurred.
The claimant has not experienced any subsequent motor accidents or other types of accidents. He developed diabetes mellitus following the motor accident. He has not undergone any surgery since then.
The claimant’s psychological symptoms have developed and have persisted because of the ongoing pain and limitation of daily functioning he experiences as a result of physical injuries sustained in the accident.
The Medical Assessors are satisfied that the accident could have caused a persistent depressive disorder and that the diagnosed persistent depressive disorder arises from the physical injuries sustained in the accident.
The Medical Assessors considered Medical Assessor Chew’s diagnosis of adjustment disorder with mixed anxiety and depressed mood. The Medical Assessors did not diagnose this condition as they were satisfied the claimant met the criterion for persistent depressive disorder. This diagnosis requires more depressive symptoms than are required for a diagnosis of adjustment disorder with mixed anxiety and depressed mood.

The claimant described more depressive symptoms than are recorded in Medical Assessor Chew’s reasons, including that he had been depressed since the accident, does not want to get out of bed, feels hopeless and questions why he is on this earth, is disappointed in himself, has a loss of libido, forgets things, and uses Google Maps to navigate when driving the truck which he did not need to use prior to the accident.

DETERMINATION

The Panel has evaluated the evidence that the claimant reported, and was treated for, depression prior to the accident. That evidence includes the Vasan Medical Centre records that refer to the claimant being depressed in 2014 and 2015. A note dated 12 August 2015 records that the claimant was “[s]till depressed. Not sleeping, keeps thinking constantly, gets upset easily…”. The reason for visit was “[m]ental health care plan review”.
There is also the statement in the claim form dated 23 December 2021 that at the time of the accident the claimant was suffering from depression.
On this background the Panel considers it significant that there are no entries in the general practice notes that refer to psychological symptoms in the 12 months prior to the accident, and there is no record of the claimant consulting Good Thinking Psychology during that period.
Medical Assessor Chew took a history that the claimant had treatment for depression and anxiety in 2020 secondary to difficulties with job loss, a broken ankle, and social difficulties. He said his mental health improved after a number of months.
The claimant told the medical members of the Panel when they re-examined him that he did not recall having psychiatric or psychological symptoms in the 12 months prior to the accident and that he felt he was coping. The Panel notes that in this period he was working full time, and his relationship with his girlfriend was ongoing.
The Panel gives weight to the absence of reference to psychological symptoms in the clinical notes in the 12 months before the accident and the opinion of its medical members that:
(a)    depression is a symptom not a diagnosis;
(b)    if he was feeling depressed at the time of the accident, there is no evidence of associated symptoms, functional impairment, or distress in the treatment records before the Panel;
(c)    to satisfy the criteria for a psychiatric diagnosis requires a set of symptoms not just the feeling of being depressed, and
(d)    the claimant was not suffering from a psychological condition at the time the accident occurred.
The Panel finds that the claimant was not suffering from a pre-existing psychological condition at the time of the accident.
The Panel is satisfied the claimant injured his neck and back in previous accidents and that at the time of the subject accident he was experiencing symptoms in his low back and neck.
The contemporaneous evidence from treatment providers, that include entries in the clinical notes from Wetherill Park Medical Centre dated 10 December 2021 and 16 December 2021, record that following the accident the claimant experienced back and neck pain. An MRI report dated 12 August 2022 records “Clinical indication: 7 months post MVA. Ongoing neck and back pain.” The claimant was referred by his GP to Dr Bazina, neurosurgeon. In her report of 9 September 2022, the doctor recorded that the claimant presented “10 months following motor vehicle accident December last year” and that he reported “diffuse” neck and low back pain.
The claimant reported to the medical members of the Panel when he was re-examined that he has continued to experience neck and back pain since the accident with ongoing functional limitations. The Panel gives weight to this evidence, together with the treating records, and is satisfied the claimant suffered neck and back injuries as a result of the accident and that his neck and back symptoms, including pain, were made worse by the accident.
The Panel agrees with and adopts the reasons given by its medical members in their re-examination findings that the claimant satisfies the DSM5-TR criterion for a persistent depressive disorder.
The Panel finds that the claimant’s psychological symptoms associated with the persistent depressive disorder have developed and have persisted because of the ongoing pain and limitation of daily functioning he experiences as a result of the accident caused neck and back injuries.
The Panel gives weight to the opinion of its medical members that the accident could have caused a persistent depressive disorder and that the persistent depressive disorder arises from the injuries sustained in the accident. The Panel is satisfied that the accident was a necessary condition of the occurrence of the persistent depressive disorder. The Panel finds that the persistent depressive disorder was caused by the accident.
Persistent depressive disorder is not a threshold injury. Accordingly, the Panel finds that persistent depressive disorder caused by the accident is not a threshold injury for the purposes of the MAI Act.
The Panel revokes Medical Assessor Chew’s certificate dated 18 June 2024 and certifies that persistent depressive disorder caused by the accident on 9 December 2021 is not a threshold injury for the purposes of the MAI Act.

DE-IDENTIFICATION OF THE DECISION

These reasons contain sensitive personal information. Having weighed the matters referred to in rule 132(4) of the Personal Injury Commission Rules, including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied that its decision should be de-identified before it is published.
The Panel directs that, pursuant to rule 132 of the Rules, the decision be de-identified prior to publication.

[2025] NSWPICMP 520

17 July 2025