BUQ v QBE Insurance (Australia) Ltd
[2025] NSWPICMP 482
•3 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | BUQ v QBE Insurance (Australia) Ltd [2025] NSWPICMP 482 |
CLAIMANT: | BUQ |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Bianca Montgomery-Hribar |
MEDICAL ASSESSOR: | Dr Melissa Barrett |
MEDICAL ASSESSOR: | Dr Steven Yeates |
DATE OF DECISION: | 3 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury; Medical Assessor (MA) diagnosed adjustment disorder caused by the accident (threshold injury); claimant’s application for review under section 7.26; previous diagnoses considered; claimant examined by MA’s of Review Panel; Held – diagnosis of specific (simple) phobia caused by accident; non-threshold injury; post-traumatic stress disorder (PTSD) considered, and Review Panel satisfied criterion A not met; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | 1. The Review Panel: a. revokes the certificate of Medical Assessor Surabhi Verma dated 20 June 2024; b. determines that the claimant’s specific (simple) phobia caused by the accident is a non-threshold injury, and C. directs that, pursuant to rule 132 of the PIC Rules, its certificate and reasons be de-identified prior to publication. |
STATEMENT OF REASONS
INTRODUCTION
On 28 February 2023, BUQ (claimant) was driving along Oran Park Drive when his vehicle, owned by a friend, was hit by a car exiting an underground carpark at Oran Park Shopping Centre (accident).
BUQ made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on QBE Insurance (Australia) Limited (insurer).
A dispute has arisen between the insurer and BUQ as to whether his psychological injuries are “threshold injuries” within the meaning and for the purposes of the MAI Act.
Whether BUQ has suffered threshold injuries as a result of the accident affects his entitlement to both statutory benefits and damages: see ss 3.11, 3.28 and 4.4 of the MAI Act.
The dispute was referred to Medical Assessor Surabhi Verma. On 20 June 2024, BUQ was assessed by Medical Assessor Verma, who issued a certificate of same date. The Medical Assessor concluded that the injury caused by the motor accident, being Adjustment Disorder with mixed anxious and depressed mood, is a threshold injury for the purposes of the MAI Act
BUQ lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Verma’s assessment under s 7.26 of the MAI Act. On 26 July 2024, a delegate of the President determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, based on the diagnosis of post-traumatic stress disorder by CHL and the Medical Assessor’s assessment of threshold injury. Accordingly, the delegate referred the application to a review panel.
This review panel (the Panel) has been constituted to conduct a review of Medical Assessor Verma’s certificate dated 20 June 2024 (Review).
LEGISLATIVE FRAMEWORK
Threshold injury (formerly minor injury) provisions
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The accident occurred when the relevant term was “minor injury” which, because of the MAI Amendment Act, is now described as a “threshold injury”. Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) of the MAI Act provides that the regulations may exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury as follows:
“4 Meaning of ‘threshold injury’, section 1.6(4) of the Act
…
(2) Each of the following injuries is included as a threshold injury for the purposes of the Act—
(a) acute stress disorder,
(b) adjustment disorder.
Note— See section 1.6 (5) of the Act in relation to the making of Motor Accident Guidelines for or with respect to the assessment of whether an injury is a threshold injury.
(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013.”
Sub-section 1.6(5) provides that “[t]he Motor Accident Guidelines may may provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act”.
The Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. Version 9.3 of the Guidelines is effective from 6 December 2024 and replaced version 9.2, except for claims arising from motor accidents before 1 April 2023.[1] For such accidents, such as the current accident, certain clauses do not apply, and specific clauses from version 9 of the Guidelines continue to apply.
[1] The current version of the Guidelines, v9.3, applies to policies that come into effect immediately after midnight 14 January 2025. For policies that come into effect from 15 January 2024 to 14 January 2025, Part 1 of the Motor Accident Guidelines v9.2 continues to apply: see clause 1.2.
Part 5 of the Guidelines sets out the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act, and provides the following 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.”
Relevantly, clauses 5.10 to 5.12 regard threshold psychological or psychiatric injury assessment and provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Causation of injury
Causation is not specifically addressed in Part 5 of the Guidelines. However, it is generally accepted that it is appropriate to apply the test for causation as set out in clauses 6.5 to 6.7 in a threshold injury assessment.[2] These clauses of the Guidelines provide:
[2] Briggs v IAG Ltd (t/as NRMA Insurance) [2022] NSWSC 372 (Briggs) at [35]. See also the discussion of Stern JA (Mitchelmore and Ball JJA agreeing) in Insurance Australia Limited t/as NRMA Insurance v Le [2025] NSWCA 121.
“…
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.”
Review procedure
Pursuant to Schedule 2 cl 2(e) of the MAI Act, whether the injury caused by the accident is a threshold injury for the purposes of the Act is a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act, at first instance by a Medical Assessor,[3] and on review by a review panel.[4]
[3] Section 7.20, MAI Act.
[4] Section 7.26, MAI Act.
Section 7.26(5A) of the MAI Act provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. The function of the medical assessor is to form his or her own opinion on the medical question in dispute; it is not to choose between competing opinions, nor to assess the correctness of such opinions. As the High Court concluded, with respect to a medical panel:
“The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”.[5]
[5] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47].
Part 5 of the Personal Injury Commission Act 2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.
PROCEDURAL MATTERS
On 6 March 2025, the Panel was convened in this matter. On 7 March 2025, the Panel made directions for provision of a bundle of documents and written submissions from each of the parties for the purposes of the Review.
On 5 May 2025, the Panel met to discuss the proceedings and determined that a medical examination of BUQ was required. BUQ was advised of the arrangements. The Panel also determined that additional documents potentially relevant to the Review were required to be produced and made directions accordingly.
On 11 June 2025, BUQ attended a medical examination before Medical Assessors Barrett and Yeates. On 2 July 2025, the Panel reconvened to make its determination in the matter.
ASSESSMENT UNDER REVIEW
On 20 June 2024, Medical Assessor Verma examined BUQ and issued a certificate dated same. The threshold injury dispute to be assessed was noted by the Medical Assessor as “Psychological condition – post traumatic stress disorder; Psychological condition – exacerbation of depressive disorder; Psychological condition – new chronic pain syndrome and the exacerbation of chronic pain syndrome”. The Medical Assessor concluded that the motor accident caused an adjustment disorder with mixed anxious and depressed mood which is a threshold injury for the purposes of the MAI Act.
In addition to her medical examination, the Medical Assessor considered the documentation before her, including the letter of CHL dated 30 August 2023.
The Medical Assessor referred to the submissions of both parties, including BUQ’s submissions that the report of CHL dated 30 August 2023 clearly demonstrates that he remains depressed with ongoing trauma symptoms, and that he suffers from post-traumatic stress disorder that has arisen directly as a result of the accident. BUQ’s submissions that his ongoing depressive disorder has been exacerbated was also noted.
The Medical Assessor referred to the insurer’s submissions that it is difficult to discern between BUQ’s pre-existing chronic back pain and pre-existing psychology component of the current symptoms given the minor motor vehicle collision. The insurer submitted that it was not satisfied that the rationale provided by CHL to support the diagnosis of post-traumatic stress disorder is wholly related to the accident and was not satisfied that criterion G of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) for post-traumatic stress disorder has been met. The insurer notes that BUQ did not seek immediate medical attention for his injuries, that emergency services did not attend the scene, that he did not present to hospital, and that when he first sought medical attention from his general practitioner (GP), BXO, there was no mention of any psychological component. Accordingly the insurer submitted that it was not satisfied that criterion A of the DSM-5 was met.
In respect of the letter of CHL and CHL’s diagnosis, the Medical Assessor noted that she respectfully disagreed with this diagnosis. The Medical Assessor opined that BUQ does not have enough symptoms to meet a post-traumatic stress disorder diagnosis. While she noted the claimant has some “cross-cutting symptoms of PTSD”, he does not fulfill the diagnostic criterion A, along with other criteria like re-experiencing symptoms, intrusive symptoms, or negative alterations in cognition and mood. The Medical Assessor also noted that there has not been “significant distress or impairment in social, occupation or other important areas of functioning”.
The Medical Assessor noted that BUQ has a previous history of depression and attention deficit/hyperactivity disorder (ADHD) for which he was receiving treatment from CHL before the motor vehicle accident. The claimant reported that after the motor vehicle accident, he started experiencing fluctuation in his mood, being unable to drive, not being able to do household chores because of experiencing pain when raising his hands above his shoulders, and anxiety around driving a car.
At the time of the assessment, BUQ reported significant improvement in his mental health and reported improvement in the quality of his life. The Medical Assessor noted that there had not been any significant changes in his social, occupational or other important areas of functioning. He did report that he separated from his wife during this period; however, he commented that it was “probably a relationship of convenience.”
The Medical Assessor opined that BUQ had an Adjustment Disorder with mixed anxious and depressed mood caused by the accident. The diagnosis is based on the DSM-5 criteria of Adjustment Disorder, noting her assessment that he satisfied criterion A, B(1), C, D and E. The Medical Assessor concluded that this diagnosis is consistent with the definition of threshold injury in s 1.6 of the MAI Act and Part 1, clause 4(2) of the Regulations.
The Medical Assessor noted that she considered whether BUQ satisfied the criteria for Major Depressive Disorder and post-traumatic stress disorder.
In respect of Major Depressive Disorder, the Medical Assessor opined that most of BUQ’s symptoms were emanating from the chronic pain he experienced before the accident, which was exacerbated by the accident. BUQ denied having any persistent low mood or lack of interest in activities. BUQ also reported that he was hopeful he would get better with adequate treatment and there were no constant themes of worthlessness, hopelessness or helplessness.
In respect of post-traumatic stress disorder, the Medical Assessor noted that, at the time of the assessment, BUQ did not report any significant nightmares or flashbacks. The Medical Assessor also opined that the accident did not fulfil criterion A.
SUBMISSIONS
Claimant’s submissions
BUQ has put on two sets of written submissions, dated 28 September 2023 and 3 July 2024.
In his submissions dated 28 September 2023, BUQ sets out his description of the accident. He notes that he began feeling anxious and experiencing flashbacks and hypervigilance when in or around cars. He reported these injuries to his psychiatrist, CHL, and began receiving treatment.
BUQ submits that, as a result of the accident, he has sustained an exacerbation of his depressive disorder, post-traumatic stress disorder, and psychological sequalae, in addition to physical injuries.
BUQ submits that his psychiatric injury, being post-traumatic stress disorder and the exacerbation of a depressive illness, is not a threshold injury for the purposes of the MAI Act. He says that he provided the insurer with a copy of a report of CHL dated 30 August 2023 which demonstrates that he remains depressed with ongoing trauma symptoms.
Aspects of BUQ’s submissions of 28 September 2023 contain information relevant only to his physical injuries, which is not relevant to the Panel’s determination and has not been summarised.
In his submissions dated 3 July 2024, BUQ submits that Medical Assessor Verma erred in her assessment of his psychological injuries as threshold injuries, as she failed to undertake a comprehensive history of him, including his pre-existing conditions, failed to review all relevant records available at the assessment, failed to take a comprehensive description of his current symptoms, and failed to conduct a careful and thorough psychological examination.
BUQ says that he has suffered an objectively verifiable diagnosis of a psychiatric injury according to the DSM-5, being post-traumatic stress disorder and major depressive disorder.
BUQ refers to the opinion of his treating psychiatrist, CHL, who opined that he has developed post-traumatic stress disorder secondary to the accident, and that he suffers panic attacks when driving.
BUQ submits that it is evident from the history and medical evidence that his anxiety levels and/or panic attacks are directly related to exposure to trauma related stimuli, such as driving and/or being around motor vehicles as a result of the accident.
BUQ submits that, post-accident, he has been diagnosed with post-traumatic stress disorder, a new chronic pain syndrome, an exacerbation of his existing chronic pain syndrome and an exacerbation of his depressive disorder.
BUQ relies on David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 (David) and Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6 (Lynch) to support his submissions that the diagnosis of post-traumatic stress disorder on 30 August 2025 by his general practitioner is sufficient to constitute a non-threshold injury even if his symptoms have lessened or are otherwise in remission.
Insurer’s submissions
The insurer relies on two sets of written submissions, dated 18 October 2023 and 24 July 2024.
The insurer’s submissions dated 18 October 2023 regard both BUQ’s physical and psychological injuries. In respect of his psychological injuries, the insurer submits that a GP questionnaire completed by his treating general practitioner, BXO, revealed that BUQ had ADHD and depression.
The insurer also refers to the report of CHL, BUQ’s psychiatrist, who notes that he suffered a back injury when he was 21 years of age, causing lumbar pain. BUQ was diagnosed with chronic pain syndrome as a result. He has been under the care of CHL since 2017 for treatment of ADHD and depression.
In respect of the accident, the insurer submits that the accident was relatively minor. BUQ’s vehicle was not towed, airbags were not deployed, and he was able to drive away from the scene. While police attended the scene, BUQ was not treated by paramedics nor did he attend hospital on the day of the accident. BUQ first sought treatment in respect of the accident on 3 March 2023, being three days after the accident. This treatment was sought from BXO, his GP.
BUQ’s diagnoses on his certificates of fitness / certificates of capacity only included physical injuries until August 2023, when they were altered to include “anxiety, trauma related to motor vehicle accident”.
The insurer acknowledges that BUQ is suffering from some psychological symptoms, however submits that any psychological injury as a result of the accident is a threshold injury. It further submits that there is no evidence that BUQ suffers from a recognised psychiatric illness in accordance with the DSM-5.
The insurer submits that criterion A and G as per the DSM-5 for post-traumatic stress disorder have not been met as:
(a) The accident was relatively minor. A diagnosis of post-traumatic stress disorder is untenable when the circumstances of the subject accident are viewed within the prism of the diagnostic features of the disorder as provided by the DSM-5. The minor nature of the accident was such that BUQ was at no stage exposed to the threat of death or serious injury.
(b) BUQ has pre-existing depression and chronic pain syndrome, and has been receiving psychiatric treatment since 2017. There is insufficient evidence to establish that any disturbance has caused clinical distress or impairment to support a diagnosis of post-traumatic stress disorder wholly related to the accident.
(c) BUQ first sought medical attention three days after the accident. At that time, there was no mention of any psychological component.
The insurer’s submissions dated 24 July 2024 submit that Medial Assessor Verma took a comprehensive history of BUQ with respect to his pre-accident history, reviewed the material before her, and took a comprehensive description of the BUQ’s current symptoms. The insurer submits that there is no evidence to suggest that the Medical Assessor failed to conduct a careful and thorough psychological examination of BUQ.
The insurer submits that the Medical Assessor provided a clear path of reasoning as to her determination. She considered the differential diagnosis, including post-traumatic stress disorder and major depressive disorder, but was not satisfied that BUQ met the criteria. The insurer submits that the Medical Assessor:
(a) acknowledged the BUQ’s treating psychiatrist had mentioned worsening of depression, however was of the view that this was due to the chronic pain he was experiencing before the accident;
(b) noted there were no constant themes of worthlessness, hopelessness or helplessness, and
(c) was not satisfied that the accident fulfilled criterion A for post-traumatic stress disorder.
MATERIAL BEFORE THE REVIEW PANEL
On 12 March 2025, BUQ provided a bundle of documents consisting of the material relied on by him for the purposes of the Review.
On 9 April 2025, the insurer provided a bundle of documents consisting of the material the insurer sought to rely upon for the purposes of the Review which had not already been provided in the claimant’s bundle.
On 29 May 2025, BUQ lodged an additional bundle of documents pursuant to the Panel’s direction.
The submissions in respect of the application before the delegate were considered by the Panel, along with all bundles of documents.
In conducting this Review, the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd (t/as NRMA Insurance) [2022] NSWSC 107, where he recognised that there is no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access. His Honour continued:
“The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
Accordingly, and in endeavouring to carry out its statutory function and promote the objects of the legislation under which it operates and guiding principles, the Panel has not referenced or summarised all records relating to BUQ’s symptoms or injuries: see ss 3 and 42 of the PIC Act. If some of those medical records or reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account.
Claim documents
BUQ’s application for personal injury benefits dated 14 March 2023 has been considered. This lists his injuries as “I have a very sore neck shoulder RNS and I have a click in my left jaw when eating and lower back pain”.
Police report
The NSW police report under cover letter 30 March 2023 has been considered.
This lists the incident type to be a “Major Traffic Crash”, “Non injury / Non Fatal Crash”.
The insured driver’s vehicle pre-crash speed is listed as 20kmph and the report notes the vehicle was not towed.
Insurance accident report form
The insurance accident report form completed by the insured driver has been considered. This lists the damage as “a minor dent in the right (driver side) rear door”.
GP Questionnaire Regarding Treatment and RTW
The GP Questionnaire was completed by BUQ’s treating GP, BXO. No psychological injuries are listed under “current symptoms” or “diagnosis”. ADHD and depression are listed under “pre-existing conditions”. “Expected treatment” notes “physiotherapy, analgesia, rest”
Clinical records of Octa Medical
The clinical notes of Octa Medical printed on 11 April 2023 have been considered.
BUQ is recorded to have attended a consultation with BXO, GP, on 3 March 2023. It is recorded that BUQ was in a car accident on 28 February 2023 around 7:20pm. It is noted that BUQ was driving at 50kmph and wearing his seatbelt when a car hit him from the passenger side. The car drove off. Airbags did not deploy. BUQ’s physical injuries reported from the accident were recorded. No psychological injuries were recorded.
Consultations with BXO on 7 March 2023 and 10 March 2023 do not record any psychological injuries regarding the accident or otherwise.
On 4 April 2023, BUQ attended a consultation with BXO and is recorded to have reported using Valium 2/day 5mg for pain. It is recorded:
“Spoke to his psychiatrist over the phone who gave him additional Valium. She also suggested he could take some quetiapine he has discussed strategy to manage both pain + sleep – for panadeine forte for pain – Valium or quetiapine for sleep – cease restavit as not helping that much”. A referral to CHL, psychiatrist, was provided.
On 11 April 2023, BUQ attended a consultation with BXO, who noted:
“Psychiatrist review. Has seen CHL who felt that the recent CTP incident has exacerbated his depression. Has increased dose of his antidepressant (will chase name). Has also suggested he can [sic] Seroquel for sleep + Valium as needed. Next review in 2/52. Was worried about his weight loss”.
CHL
Letter dated 30 August 2023
CHL, consultant psychiatrist, wrote a letter dated 30 August 2023 to BUQ’s solicitor. CHL notes that BUQ has been her patient since 2017 and she has treated him for ADHD and depressive illness.
CHL refers to the accident and notes that BUQ has a new chronic pain syndrome, an exacerbation of a chronic pain syndrome and that his depressive illness has worsened. This has led to an increase in his antidepressant, Amitriptyline, to 150mg and an addition of Quetiapine 25mg to assist with insomnia and agitation and diazepam 5mg to help with his jaw injury.
CHL opines that BUQ has developed a post-traumatic stress disorder secondary to the accident. She notes he has not experienced this before and “suffers considerably”. CHL also notes BUQ has panic attacks when driving. A 30 minute journey is reported to take BUQ two hours as he has to pull over until the panic attack subsides.
CHL opines that BUQ’s life has diminished as a result of the accident and that he is “basically housebound”. She opines that the accident has caused:
(a) a new chronic pain syndrome;
(b) an exacerbation of an old chronic pain syndrome;
(c) an exacerbation of his depressive disorder, and
(d) the development of post-traumatic stress disorder.
Clinical records of CHL
The Panel has considered the clinical records of CHL. The Panel notes that these are handwritten and at times difficult to decipher given the quality of the scan.
The notes prior to the accident refer to BUQ’s mood being volatile due to mobility issues and pain related to his back, as well as sleep issues. They also refer to significant problems with his former partner and issues with seeing his son.
The notes record that he was diagnosed with ADHD as a child, depressive illness in 2012, and chronic pain syndrome in 2019 arising from an injury that occurred in 1997. A letter dated 22 January 2014 from BZM notes that BUQ suffers from ADHD and has also suffered from significant depression diagnosable as Major Depressive Disorder, Recurrent Subtype.
In 2022, it was reported that the chronic pain syndrome exacerbated BUQ’s Major Depressive Disorder. He was prescribed Amitriptyline 50mg 2 x daily.
The notes after the accident refer to BUQ experiencing flashbacks of the accident, post-traumatic stress disorder, and being very anxious when driving. They also note that BUQ limits his driving and is anxious as a passenger. CHL notes that BUQ often has to stop on the drive to see her, has significant agoraphobia driving and often has to pull over when driving due to his anxiety levels. If his breathing exercises don’t adequately calm him he may need to take half of a 5mg Diazepam.
CHL’s notes refer to an alleged incident on 28 February 2024, when BUQ was driving locally and a car pulled out in front of him. He had to swerve to avoid this car. The car then drove off. BUQ had a panic attack and pulled his vehicle over while it passed. The incident occurred near his former partner’s cousin’s home. The cousin accused BUQ of stalking him, and BUQ was subsequently charged with “stalking and intimidation”. The notes report that he had to attend court on 5 January 2025.
An MLC Life Insurance Doctor’s report dated 20 December 2024 prepared by CHL notes BUQ’s diagnosis as 1) ADHD – diagnosed age 10 …; 2) Major Depressive Disorder – diagnosed by me in 2017 (MDD); 3) Post Traumatic Stress Disorder – diagnosed by me in 2023 (PTSD). Both are noted to be as per DSM-5. It is noted that BUQ has acute psychological symptoms as well as physical symptoms which prevent him from working.
An email from BUQ to CHL sent on 26 March 2025 with subject “Letter” contains, in the body of the email, a note stating “Doctors [sic] Letterhead” and below it:
“This letter is to confirm that I have treated BUQ for the past 8 years and confirm that since BUQ[‘]s accident on 23rd February 2023 BUQ has been unable to work[. H]e also suffers from the following medical conditions: a) ADHD – diagnosed at age 10; b) Major Depressive Disorder; c) Post Traumatic Stress”.
The notes of 3 April 2025 refer to “PTSD”. A letter of the same date states that BUQ is a long-time patient of CHL and continues:
“… [BUQ’s] condition was stable until Feb 2023 when he was the victim of a hit-and-run accident (he was not at fault) which caused deterioration in his mental health and the development of substantial physical injuries and post-traumatic stress disorder. The latter remains severe e.g. sometimes he can’t even drive from Penrith to see me due to flashbacks”.
In addition to references to the accident, the notes post-accident refer to issues with BUQ’s former partner and his custody issues with his children.
Activities of Daily Living Assessment by WorkFocus
The Home and Activities of Daily Living Assessment Report dated 17 April 2023 has been considered.
It is noted that BUQ reported that he suffered from chronic back pain and depression before the accident, and that he was seeing a psychiatrist for his depression pre-injury.
Under “chronology of the injury and treatment to date”, it is relevantly noted that “BUQ reported that he felt his depression symptoms increase[d] post-accident and was already receiving treatment from a psychiatrist prior to the MVA”.
No psychological symptoms were reported under “Current Reported Symptoms”.
It was noted under “Medication” that is “claim related”: “Valium dosage increased following the MVA, Panadeine Forte, Seroquel”. Under “non-claim related”, “Valium” is listed.
In terms of restrictions, it is reported that his sleep and driving ability has been restricted due to increased pain symptoms following the accident. There is no mention of any psychological impairments in the assessed functional capacity.
Allied Health Recovery Requests
The Panel notes that the Allied Health Recovery Requests regard physiotherapy for BUQ’s physical injuries. These have been considered by the Panel.
Certificate of Capacity / Certificate of Fitness
The Certificates of Capacity / Certificates of Fitness dated 3 March 2023, 10 March 2023, 4 April 2023 and 11 April 2023 have been considered. These refer to BUQ’s physical injuries under “diagnosis” and in the description of how the injury is related to the motor vehicle accident.
The Certificate of Capacity / Certificate of Fitness dated 21 April 2023 only includes BUQ’s physical injuries under “diagnosis” but also includes under treatment “psychiatrist review for exacerbation of depressive symptoms & to continue medications as prescribed”. CHL is listed as a referring provider.
The Certificates of Capacity / Certificates of Fitness dated 19 May 2023 and 20 June 2023 refer to “psychiatrist review” and “psychologist review for PTSD like symptoms” under treatment, and list CHL and “psychologist” as referring providers. Under “factors affecting recovery” both “psychologist review” and “psychiatrist review” are listed.
The Certificate of Capacity / Certificate of Fitness dated 26 July 2023 refers to “psychiatrist review next week” under treatment and lists CHL as a referring provider.
The Certificate of Capacity / Certificate of Fitness dated 18 August 2023 includes “Anxiety, Trauma related to Motor vehicle accident” under “diagnosis”.
THE MEDICAL EXAMINATION
On 11 June 2025, BUQ attended a medical examination before Medical Assessors Barrett and Yeates. BUQ was assessed via videoconferencing. He was located at his home and was assessed unaccompanied.
Introduction
BUQ is a 55-year-old man, who lives alone in a rented home in Penrith. He has been single since his relationship broke-up in October 2023. He has four children, three adult children from his first relationship who live in Queensland, and a 12-year-old son who is in Sydney, but with whom he has had no contact, at the mother’s determination, since January 2024. He has been in receipt of a Disability Support Pension (DSP) for a back injury for about ten years.
Personal history
BUQ was born in Sydney and reports normal birth and developmental milestones. He was the youngest of two siblings, with a sister who is ten years older. He described his father as using harsh physical punishment, but not to the extent of abuse and denied other childhood trauma.
BUQ spent most of primary school in the Hills area of Sydney, then moved in year 6 to St Clare Primary School, before commencing at St Mary’s High School, then Randwick Boys High School for about six months to a year and then Kingswood High school for years 11 and 12. He was an average student but was noticed by his parents to “drift off” when reading. Apparently, he was taken for assessment but no diagnosis was made at that time.
He was involved in competitive swimming, reaching State and National levels of competition. BUQ was awarded a scholarship to the UNSW swim academy at about 15 years old, resulting in him moving to Randwick Boys High School and boarding in a “swim house” with other students for 6 to 12 months before the onset of sudden back pain. He had a break for six weeks, but recurrent pain on return to swimming, causing the end of his swimming career. However, he reported good adaptation to this loss, moving to Kingsgrove High School and becoming involved in cross-country running, where he reached the State level. He achieved an above average Higher School Certificate (HSC) result.
After high school, BUQ began working for his father and attending TAFE in motor mechanics but disliked it. He then worked briefly in a maintenance role for strata properties. He worked as a manager of his father’s bakery for about six years, before moving to work as a tyre fitter at his father’s motor mechanic business, for ten years, full time. It was in this role that he injured his back in the early 2000’s.
BUQ’s first marriage spanned from 1991 to 2008, from which he has three adult children and one grandchild. He is amicable with his ex-wife and describes a positive and close relationship with his children, who all live in Brisbane. He had a second, de-facto relationship from 2010 to October 2023, from which he has a 12-year-old son.
BUQ denied any forensic history or history of previous compulsory third party (CTP) claims. He is a non-smoker, who denied the use of alcohol or other drugs. He denied any known family psychiatric history, including of ADHD.
BUQ sustained an injury to his back at work in the early 2000’s, on the background of a pars defect. He consulted a neurosurgeon and an orthopaedic surgeon, and was treated with a steroid injection without benefit. He suffers chronic back pain, which has gotten worse over the years. Prior to the subject accident, he could perform chores, but with pain, and had last worked at a battery company in 2022, despite the DSP, for 6 to 12 months, initially full time but had to reduce to part time hours due to his pain. He has found Neurofen to be most effective, but its use had been limited by the development of chronic gastritis, managed on Nexium. He used paracetamol daily to manage his pain, with the addition of prn panadiene forte, but not daily. His blood sugar levels are “borderline”.
BUQ first saw a psychiatrist in his 40’s, after noticing symptomatic similarities with a friend who had been diagnosed with ADHD. He saw BZM and was diagnosed with ADHD. He trialled methylphenidate (Ritalin) but had side effects of headaches, and changed to dexamphetamine, which he continued.
BUQ experienced low mood in 2014, on the background of the birth of his son in 2012, his suspicions about his partner’s fidelity in 2013 and a testicular condition causing pain and impacting his sexual functioning. After consultation with a urologist resulted in the suggestion of testicular removal, he “crashed” and made a serious suicide attempt in 2014 by carbon monoxide poisoning. The attempt was averted by a stranger calling police, and he was taken to Nepean Hospital, where he had a three to four week psychiatric admission. He was commenced on an antidepressant, which he took for up to a year. He continued to see BZM and reported full remission, “life went back to normal”.
Later, his second partner complained that BUQ was “not attentive to her”, and he was referred to CHL in 2018, whom he saw every few months, and she treated him with dexamphetamine 30mg daily.
Before the subject accident, he was living with his former partner and their son. He was independent in completing chores and self-care. He drove his son to and from school, and to after-school sports and tutoring. He enjoyed leatherwork as a hobby, practising 10 to 15 hours a week. He maintained a close relationship with his adult children in Queensland, visiting them on average every three months. He acknowledged that his relationship with his partner was “up and down”. He had no difficulties driving and usually made the interstate trip to visit his adult children on his own. He was not engaged in paid work and was receiving the DSP.
History of the motor accident
The subject accident occurred on 2 February 2023. BUQ was driving a 2008 model Holden Commodore ute, wearing a seatbelt, on his way to collect a ladder for a friend, when a car turned out of a carpark without giving way. He attempted to avoid a collision by swerving towards the other side of the road, but the car hit his passenger side. The airbags did not deploy.
Immediately after the accident, BUQ reported, “I couldn’t move. I was in shock”. The at-fault driver failed to stop, “No care in the world”. He called the police, and passers-by rendered assistance. Neither ambulance nor fire brigade were required. He drove the ute home, a journey of about 30 minutes, after which it was repaired.
History of symptoms following the accident.
Physical symptoms
BUQ reported injures to his right shoulder, neck, left jaw and worsening of his pre-existing back pain.
The jaw problems resolved and his back pain returned to baseline after a few days. He had a few sessions of physiotherapy, but the insurer declined funding and he could not afford to continue.
Currently, he continues to experience pain in his neck and numbness of his lateral three fingers. He finds is difficult to perform heavy tasks, such as using the whipper snipper or vacuum and prefers for others to help with those tasks. His use of analgesics has increased post-accident, now needing some Panadiene Forte daily.
Psychiatric symptoms
BUQ reported that on the way home from the accident scene he was tearful, pulled over and called his friend, requesting the friend come to assist. However, the friend was unable to, and BUQ continued on his journey. He completely avoided driving for about three months.
BUQ’s main psychiatric symptom since the accident is persisting anxiety when driving. When he gets into a car, he worries he could have another accident. He experiences somatic symptoms of anxiety, palpitations, tremulousness, tightness of the chest, shortness of breath and perspiration when he first sits in the car or if a car pulls out on him whilst driving. He does not fear the meaning of these somatic symptoms and attributes them to anxiety. He responds by pulling over and stopping the car, fearing the somatic symptoms could negative impact upon his capacity to safely drive. In the 30 minute drive to his psychiatrist’s office, he needs to stop on average one to three times, and at least once.
He prefers not to drive if possible. He continues to completely avoid long-distance driving, including interstate.
He tried to continue to drive his son to school, about five kilometres, but was more anxious if his son was in the car and “panicked”. He persisted for a few months but then told his partner, who apparently responded, “If you can’t drive, don’t bother”. He has not driven his son to school since 2023.
BUQ is anxious as a passenger in the car, but less so than when he is driving. His fears have not generalised to other means of transport, such as plane travel. He reported occasional nightmares about the accident, “out of the blue”, “here and there”, sometimes a few times a week and sometimes not for weeks. He usually sleeps well, other than if woken with pain. His appetite is normal and weight is stable. He denied any change in his concentration. He denied anhedonia. He reported some suicidal thoughts previously, triggered by conflict with his partner when she would call him, “useless”, but denied recent thoughts.
After the accident, the frequency of sessions with his treating psychiatrist, CHL, increased to once every two to three weeks “because of anxiety”. She prescribed prn Diazepam to use when anxious. He could not recall the dose at assessment, but uses ½ tablet, on average five to six tablets a week, for both pain-related insomnia as well as anxiety when driving.
BUQ saw a psychologist for a single session but did not continue as the insurer did not fund treatment.
Details of any relevant injuries or conditions suffered after the motor accident
He did not report any subsequent injuries.
Mental state examination
BUQ was assessed via videoconferencing.
He presented as a casually dressed man, of average grooming, who interacted sincerely and openly. His speech was normal.
BUQ became almost tearful at times during the assessment when talking about his losses, appropriate to the content. However, his affect was reactive and at other points he could smile warmly. He described his mood as euthymic, but anxious regarding driving.
BUQ reported, “I get anxiety to drive now” and that his “anxiety got really bad”. He has fears of having another accident and meta-anxiety, fearing the somatic symptoms of anxiety will impact his capacity to drive safely and increase his risk of another accident. He was able to identify positives in his life, especially his relationships with his children, and was not hopeless.
BUQ did not report any delusions, abnormal perceptions and was not thought disordered. He was able to maintain focus for the duration of the assessment, but was mildly overinclusive, requiring redirection. He denied current risk issues.
BUQ has good insight into his condition.
Current functioning
BUQ lives alone and performs his own cooking and laundry. Friends assist him with the heavy tasks of cleaning, mowing and vacuuming due to his pain. He showers on average every two days, restricted by costs. He goes for a walk most days. He tries to do leatherwork but is restricted by his pain and numbness in the right hand.
He continues to drive when necessary, in BUQ’s words “as least as possible,” but sometimes cancels face-to-face appointments with his psychiatrist to avoid driving. On other occasions, he will drive to see CHL but needs to pull over or turn back due to anxiety. He prefers to avoid driving and to travel instead as a passenger with a friend. On average, he will drive once or twice a week, only in the local area. He last travelled to Queensland to see his adult children in December 2023, by plane.
His relationship broke up in October 2023, because his partner told him he “couldn’t do anything for her anymore”. He had continued contact with their son up until January 2024, but reports that his ex-partner considered him unreliable in contact, and then prevented him from having contact with their son, changing their son’s phone number. These issues are the subject of current family law proceedings.
BUQ maintains a close relationship with his adult children, often talking with them daily by phone. He has a good relationship with his parents, who have supported him financially. He has maintained friends in the local area, who continue to provide practical support.
BUQ manages his own finances.
Comments on consistency
BUQ presented as an open and straightforward historian. His pre-accident history was consistent with the records.
His account of developing anxiety when driving after the accident is consistent with the treating psychiatrist’s contemporaneous records.
PANEL’S DETERMINATION
Diagnosis
A medical review panel is a new assessment of all matters with which the medical assessment is concerned. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6]
[6] Insurance Australia Group Ltd t/as NRMA Insurance v Keen (2021) 399 ALR 765; [2021] NSWCA 287; Insurance Australia Ltd v Marsh (2022) 99 MVR 1; [2022] NSWCA 31.
The Panel also notes that BUQ bears the onus of establishing that any injury is not a threshold injury for the purposes of the MAI Act.[7]
[7] Lynch v AAI Limited t/as AAMI [2002] NSWPICMP 6.
Based on the clinical judgment of the Medical Assessors, the Panel finds that BUQ fulfils the DSM-5 diagnostic criteria for a Specific (Simple) Phobia, car travel. He has marked anxiety about car travel (criterion A), which provokes fear of another accident (criterion B), and somatic symptoms of anxiety, which is disproportionate and causes him to respond by avoidance of unnecessary driving, long distance driving or driving with his son as a passenger, or when driving short or familiar trips, to experience distress such that he needs to pull over or turn around (criterion C), causing impairment in his capacity to drive and contributing to his former partner’s dissatisfaction with him (criterion F). His fear of driving is disproportionate to the risk posed and the probability of a risk of accident, and is not socio-culturally appropriate (criterion D). Although total avoidance of driving lasted only three months, his avoidance of regular driving, long-distance driving or driving with his son as a passenger continues, fulfilling duration criteria (criterion E). His symptoms are not caused or better explained by another disorder (criterion G).
The Panel considered BUQ’s submission that he suffers from post-traumatic stress disorder and the previous diagnosis of CHL. The Panel, using the clinical judgment of the Medical Assessors, determined that BUQ does not suffer from post-traumatic stress disorder. The accident itself, although understandably frightening, does not fulfill DSM-5 criterion A for post-traumatic stress disorder, noting that criterion requires a traumatic event of a severity where the individual fears, or is at risk or, serious injury or death.
The commentary within DSM-5-TR about Criterion A says:
“The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war … threatened or actual physical assault … threatened or actual sexual violence …, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents [emphasis added].”
Noting the circumstances of the accident, including that ambulance and fire brigade did not attend the scene, and that BUQ was able to drive home and did not seek urgent medical attention, the Panel finds that the accident does not fulfill criterion A.
As the Panel finds criterion A was not satisfied, a diagnosis of post-traumatic stress disorder under DSM-5 cannot be made now or at any time since the accident. The Panel therefore respectfully disagrees with the previous diagnosis of post-traumatic stress disorder by CHL and is not satisfied that BUQ has or ever had post-traumatic stress disorder. Accordingly, the Panel finds that the diagnosis of CHL would not be sufficient to constitute a non-threshold injury based on the reasoning in Lynch.
Further, although BUQ has some nightmares, these are infrequent. Further, nightmares are not pathognomonic for post-traumatic stress disorder and can occur in many psychiatric conditions, as well as normal states, including stress states.
BUQ has had an emotional reaction to his new onset of pain and physical restrictions. The effect of this was more significant as it occurred on the background of back pain and disability, as well as the impact of his driving restrictions on his capacity to drive his son to school and contributing impact upon his relationship with his ex-partner. However, the Panel did not identify that his emotional reaction to these serious losses was excessive or disproportionate and he did not report significant physiological symptoms of depression, nor are such symptoms recorded by the treating psychiatrist, CHL.
Causation
As noted above, the Panel considers it is appropriate to apply the test of causation as defined in Briggs in respect of a threshold injury determination.
In Raiana v CIC Allianz Insurance Ltd, Campbell J noted:[8]
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] [2021] NSWSC 13 at [65].
The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining the issues of negligence and causation.[9] It is therefore necessary for the Panel to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[10] As observed by Spigelman CJ (Davies AJA agreeing) in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.” [11]
[9] Sections 5D and 5E of the CL Act.
[10] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].
[11] Cited with approval by White JA (Macfarlan and Payne JJA agreeing) in Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [138].
The Panel finds that a car accident could cause the development of a specific phobia of driving, even if the accident would not fulfil DSM-5 criterion A for post-traumatic stress disorder.
BUQ had no past history of specific phobia of car travel, regularly driving interstate on his own, and there are no other plausible triggers for the specific phobia in the period before the onset of his symptoms, which are closely temporally related to the accident, beginning immediately afterwards and persisting.
The Panel is satisfied that the accident could have caused specific (simple) phobia and that, but for the accident, BUQ would not have this diagnosis.
The Panel is satisfied that the following injuries were caused by the motor accident:
(a) specific (simple) phobia of driving.
CONCLUSION
A specific (simple) phobia is a recognised psychiatric illness in the DSM-5 and is not defined as a threshold injury by the MAI Act or Guidelines. Therefore, BUQ’s psychological injury sustained in the accident is a non-threshold injury.
The Panel revokes the certificate of Medical Assessor Surabhi Verma dated 20 June 2024 and certifies that the specific (simple) phobia caused by the accident is a non-threshold injury.
DE-IDENTIFICATION OF THE CERTIFICATE AND REASONS
These reasons contain sensitive personal and health information. It also refers to BUQ’s involvement in other legal proceedings. Having weighed the matters referred to in rule 132(4) of the PIC Rules, including the safety, health and wellbeing of the claimant; the insurer’s consent to the de-identification; and the Panel’s view that 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 PIC Rules, its certificate and reasons be de-identified prior to publication.
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