CGI v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	CGI v Allianz Australia Insurance Limited [2025] NSWPICMP 652
CLAIMANT:	CGI
INSURER:	Allianz Insurance Australia Limited
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Steven Yeates
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	28 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant has requested that his particulars be de-identified pursuant to rule 132 of the Personal Injury Commission Rules; review of certificate and reasons of Medical Assessor (MA) finding that the claimant had suffered a threshold injury following diagnosis of an adjustment disorder with anxious mood; claimant had a pre-accident psychiatric history and also criminal offences and drug addiction; following the accident the claimant was able to drive but anxious when driving past the scene of the accident and took steps to avoid this; claimant became socially isolated; claimant’s anxiety with driving activities not evident all the time but was recorded by several medical examiners and was also evident at the time of examination by the Review Panel; while the decision of Lynch v AAI Ltd was referred to and noted by the Review Panel it was evident the claimant was suffering specific situation phobia which is a non-threshold injury; Held – certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Verma dated 29 December 2023. 2. The claimant was injured in a motor vehicle accident on 13 April 2021. 3. As a result of the accident the claimant suffered a psychiatric injury of a specific situation phobia to driving. 4. A psychiatric diagnosis of a specific situation phobia to driving is a non-threshold injury.

STATEMENT OF REASONS
INTRODUCTION

This is an application by the claimant for a review of the certificate and reasons of Medical Assessor Verma (the Medical Assessor) dated 29 December 2023.
The Medical Assessor assessed the claimant as having an adjustment disorder with anxious mood and this was a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (the Act).
The claimant requested that his particulars be de-identified. The insurer was requested to inform the Panel about its attitude to this request. Noting that this certificate and reasons will be published, the Panel directs that all references to the claimant be de-identified pursuant to Rule 132 of the Personal Injury Commission Rules.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean that it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.

The accident

The accident occurred on 13 April 2021, when the claimant was driving to his office. His vehicle was stationary at traffic lights at an intersection, and he was waiting to turn right. Without warning, his car was suddenly rear-ended, and his body lunged forward with the force of the impact.
The claimant reported to the Medical Assessor that he sustained shoulder and neck injuries. He denied having any visible physical injuries. He said that the airbags were not deployed, and he got out of his car on his own. He then exchanged details with the other driver. The police and the ambulance did not attend the site. He was able to drive back to his office despite, he reported, having pain in his shoulder and neck and being in a daze. Later that day, he attended Campbelltown Hospital with a work colleague who gave him a lift. He had X-rays that apparently did not reveal any fracture and was discharged home. He reportedly had soft tissue injuries with associated pain in his left shoulder and lower back.

Amendment to legislation

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 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.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-weeks or 52-weeks limitation period.

LEGISLATIVE BACKGROUND
Jurisdiction
Threshold injury

A threshold injury is defined in s 1.6 of the Act which says;

“1.6 MEANING OF ‘THRESHOLD INJURY’

(1) For the purposes of this Act, a ‘threshold injury’ is, subject to this section, one or more of the following--
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”

Part 1, cl 4 (2) of the Regulations provides:
“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
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)”
In summary, if a person injured in a car accident does not have a recognised psychiatric injury, then the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the Act. If a person injured in a car accident has a recognised psychiatric injury then that injury will be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.10 to 5.12 of the Guidelines are headed “threshold psychological or psychiatric injury” assessment and provides;
“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.”

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“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
5.5   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.”

Claimant’s submissions for the review

The claimant submits that the Review Panel in the matter of David v Allianz Australia Insurance Ltd [2021] NSWPIC MP227, correctly identified the test for a non-threshold injury. The claimant submits that the Medical Assessor has not applied the correct test in this matter.
The claimant submits that the Medical Assessor has not asked herself whether the claimant, at any time post-accident, suffered a specific phobia. Rather, the claimant asserts that the Medical Assessor has determined that at the time of her examination, the claimant's symptoms did not satisfy the criteria for a non-threshold diagnosis.
The claimant says that Dr Rastogi, psychiatrist, had examined the claimant before examination by the Medical Assessor and she diagnosed that as at February 2022, the claimant suffered a specific phobia, which was a non-threshold injury.
The claimant submits that relying on David’s case, it is not necessary that the threshold injury continue up to and at the time of the assessment. The claimant submit that if at any point in time, he had a non-threshold injury arising from the accident, whether or not that injury resolved, that is sufficient to establish a non-threshold injury.
The claimant says that at the time of his examination by Dr Rastogi, the following symptoms were reported to her:
(a)    avoids night driving;
(b)    hates being a passenger;
(c)    easily triggered when stationary around red lights;
(d)    avoids driving, and
(e)    avoids social outings and going to the gym as it involves driving.
The claimant says that Dr Rastogi considered that, at that time of examination, the claimant's symptoms with respect to driving warranted a finding of a specific phobia.
The claimant submits that the Medical Assessor has not asked herself whether the claimant, at any time post-accident, suffered a specific phobia. Rather, she has determined that at the time of her examination, the claimant's symptoms did not satisfy the criteria for a non-threshold diagnosis.
The claimant submits that it is clear that the Medical Assessor has asked herself whether the claimant was, at the time of her assessment in November 2023, suffering a specific phobia, instead of asking herself the correct question which is whether the claimant had, at any time post- accident, suffered a specific phobia. The claimant submits that the Medical Assessor's reference to "improvement" in the claimant's condition, underscores the error in her reasoning.
The claimant submits that the Medical Assessor has erred because she has asked herself the wrong question and a jurisdictional error has arisen.

Insurer’s submissions

The insurer says that it is apparent that the Medical Assessor’s disagreement with the diagnosis of Dr Rastogi was based upon the same facts and history. The insurer says that

Dr Rastogi did not refer to the diagnostic criteria contained within DSM 5 for Specific Phobia. The insurer submits that in circumstances where a Medical Assessor disagrees with a medico-legal opinion, based upon the same facts, that does not constitute error on the part of the Medical Assessor.
The insurer says that based upon the statements and history provided by the claimant, the Medical Assessor specifically disagreed with the diagnosis of Dr Rastogi on the basis of the following:
(a)    the claimant was able to drive to see his children and for his appointments. At page 2 of her report, Dr Rastogi reported the claimant maintained contact with his children;
(b)    the claimant was able to drive for work. Dr Rastogi reported that at the time of the accident he worked as a real estate agent. Whilst he left that job after the accident, he immediately obtained the same position and role with another real estate agency. She was also told that he worked 40 hours per week and worked on weekends;
(c)    the claimant denied any near misses or accidents when he drove. No history was obtained by Dr Rastogi of any near misses or accidents. Dr Assem reported the claimant was able to drive to work, to visit friends, and to appointments, and
(d)    whilst the Medical Assessor referred to the claimant having coping strategies, it is apparent that the claimant had continued to drive on a regular basis.
The insurer submits that it is apparent that the Medical Assessor’s disagreement with the diagnosis of Dr Rastogi was based upon the same facts and history. The insurer noted that within her report, Dr Rastogi did not refer to the diagnostic criteria contained within DSM 5 for Specific Phobia. The insurer submits that in circumstances where a Medical Assessor disagrees with a medico-legal opinion, based upon the same facts, that would not constitute error on the part of a Medical Assessor.

Submissions for original threshold injury application

The insurer referred to the clinical records of the psychologist contained within the (general practitioner) GP records, noting;
(a) at the consultation on 27 October 2021 it was recorded: ‘Exposure – driving OK’, and
(b) at the last attendance on 7 December 2021:
‘PT reports to be doing well – physically and financial. Stated derived great benefit from psychological therapy.’
The insurer submits that it is not apparent why the claimant would have provided different information to his psychologist and Dr Rastogi who saw him for medico-legal purposes.

Medical evidence

Records produced by Workers Doctors reveal the following:
(a)    An initial telehealth consultation occurred with Dr Lim, the claimant’s GP, on        22 April 2021. His initial diagnosis included an aggravation of pre-existing anxiety. It appears Dr Lim prepared a post-traumatic stress disorder checklist for DSM-5 on 22 April 2021.
(b)    A further telehealth consultation occurred the next day, 23 April 2021.
(c)    The claimant was next seen on 24 May 2021 when he again recorded there had been an aggravation of pre-existing anxiety.
(d)    On 25 May 2021, the claimant was seen by a psychologist at the Workers Doctors practice who expressed the view the claimant had post-traumatic stress disorder. He completed a post-traumatic stress disorder checklist for DSM-5.
(e)    On 3 June 2021, the claimant again saw the psychologist via telehealth at which stage there were ongoing problems of anxiety in a car, and it was reported he was unable to be a passenger.
(f)    On 4 June 2021 the claimant saw Dr Khan. From his report, it would appear that Dr Khan was not told of any anxiety problems of the claimant whilst driving or as a passenger.
(g)    The claimant was next seen by the psychologist on 17 June 2021. The notes recorded the claimant was able to ‘handle driving – but nervous’.
(h)    When further reviewed by the psychologist on 22 July 2021, his examination recorded:
(i)‘Mood: positive
(ii)Affect: congruent
(iii)Insight: good’
(i)     On 23 August 2021 the psychologist recorded the same findings on examination and noted:
(i)‘Business going really well. Treatment/review – rationale
(ii)PT doing very well. Sleep good. Mood good. Anxiety managed.
(iii)Rumination – challenge to thoughts and acceptance.’
The Medical Assessor provided her certificate on 29 December 2023.
The claimant reported that he had difficulty driving, although he was not reported as being unable to drive. He later reported he had started driving.
Regarding an assessment by Dr Rastogi, the Medical Assessor said,
“I have noted IME by Dr Richa Rastogi dated 9 February 2022. Dr Rastogi concluded that his presentation was consistent with Specific Phobia Disorder.
[CGI] presents with Specific Phobia Disorder with avoidance behaviours and generating anxiety and irrational fears. This has mildly restricted him to do things and he is more cautious and overwhelming. The avoidance of driving specifically with replaying the incident and fear of having another incident has resulted in toward distress tolerance.
I respectfully disagree with the diagnosis of Specific Phobia Disorder. At the time of my assessment, [CGI] did report subjective anxiety in driving, however, he has been able to drive to see his children for his appointment and for work. He denied having any near misses or accidents when he drove. He has also started using coping strategies like listening to music and said that he has been now able to drive. I have noted that Dr Rastogi calculated the whole person impairment as 7%.”
The Medical Assessor provided the following diagnosis;
“I believe that his current presentation is consistent with the diagnosis of Adjustment Disorder with anxious mood. The diagnosis is based on the presence of DSM-5 criteria of Adjustment Disorder, which I have highlighted in bold.
A.      The development of emotional or behavioural symptoms in response to an identifiable stressor occurring within 3 months of the onset of the stressor.
B.      These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
1. Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
2. Significant impairment in social, occupational, or other important areas of functioning.
C.      The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.
D.      The symptoms do not represent normal bereavement.
E.     Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.
I have considered other differentials.
1. Major Depressive Disorder
I do not believe that [CGI]’ presentation is consistent with the diagnosis of Major Depressive Disorder as he does not have the cardinal negative cognition associated with depression. He is future-focused and wants to work on his mental and physical health and has been able to be employed without any difficulties. There were no themes of helplessness, hopelessness or worthlessness which are associated with the diagnosis of Major Depressive Disorder.
2. Post-Traumatic Stress Disorder
I do not believe that [CGI] was exposed to actual or threatened death, serious injury or sexual violence during the motor vehicle accident. Now, he has enough intrusive avoidance or negative alterations in cognition and mood or mild alteration in arousal and reactivity to be diagnosed with Post-Traumatic Stress Disorder.”

With the diagnosis of an adjustment disorder with anxious mood, the Medical Assessor confirmed that this was a threshold injury.
The claimant was also examined by Medical Assessor Fukui who provided her certificate on 3 August 2024 for whole person impairment (WPI). She diagnosed the claimant as having generalised anxiety disorder with specific phobia of driving. She assessed WPI at 7%.
The claimant informed Medical Assessor Fukui that at the time of the impact with the accident, he thought he was going to die because it was a significant impact. Neither police nor ambulance attended the accident. Subsequently, the claimant drove his car to his work.
Regarding driving following the accident, the claimant reported that he started being anxious immediately following the accident. He was anxious about driving but drives if necessary. He has to plan the drive the day before he is due to drive which impacts on his sleep. The claimant said that he continued to experience anxiety related to driving and preferred to avoid driving. He said he was anxious as a passenger in a car.
Medical Assessor Fukui said that the claimant experienced significant anxiety symptoms in relation to driving associated with avoidance of driving unless necessary. She concluded that he suffered from generalised anxiety disorder and driving phobia.
Medical Assessor Fukui provided a psychiatric impairment rating scale (PIRS) as follows;

Psychiatric diagnoses	1.Generalised Anxiety Disorder	2.Specific Phobia of Driving
Treatment	Pristiq 100mg

Category	Class		Reason for Decision
1. Self-Care and Personal Hygiene	1		[CGI] presented as well-groomed and reported that his self-care is intact. Whilst he continues to eat meals he cooks less and reported that his house is a mess. He has not been able to vacuum for 3 months because of pain in his arm and also does not want to do it.
2. Social and Recreational Activities	2		He has not been able to engage in his recreational activities which involve physical activity due to his pain symptoms but has resumed going to the gym. He avoids going to events and socialising because of his avoidance of driving. He also does not want to be on the road at night.
3. Travel	2		He has anxiety about driving and will only drive if necessary. He is also anxious as a passenger in a car. He does not have a problem with other modes of transport, and he attended the health assessment by train.
4. Social Functioning	2		He lost relationship with his girlfriend because of his anxiety symptoms despite moving to Kiama in order to be closer to her. He socialises less as he does not want to drive to go out. His relationship with his children remains intact.
5. Concentration, Persistence and Pace	2		He reported difficulty with concentration and focus due to his constant anxiety.
6. Adaptation	3		He has not been able to sustain work as a real estate agent which requires him to drive and to have face to face contact with clients. He has just commenced contractor work for a company which has allow him to work from home.
List classes in ascending order: 1, 2, 2, 2, 2, 3
Median Class Value:		2
Aggregate Score:		12
% Whole Person Impairment:		6%

There was a 1% addition for treatment affect, giving a total WPI of 7%.
Medical Assessor Home reviewed the claimant for his physical disabilities. He concluded the claimant had a WPI of 10% for an injury to his cervical spine and his left shoulder.
Clinical notes from Numed Kiama Medical Centre commence from 27 February 2023 and show only one recording on 9 April 2024 with respect to any psychiatric disability as follows;
“Recorded on: 09/04/2024
Presenting complaint:
came for MHCP
ongoing stress and anxiety
has separation anxiety, going for broke up with his partner has decrease concentration
lack of focusing
low attention for details
mental health treatment plan”
The claimant first saw a GP on 22 April 2021, after the accident. This was Dr Lim who subsequently provided what appears to be a report but it is not addressed or directed to anyone, dated 16 June 2021.
Dr Lim said that the claimant had an aggravation of pre-existing anxiety and post-traumatic stress disorder but did not say how he reached this diagnosis. It was noted that the claimant had a pre-existing injury of a depressive anxiety disorder in 2017.
Dr Dixon, an orthopaedic surgeon, provided a medico-legal report for the claimant dated       1 March 2022. He concluded the claimant’s diagnoses were:
(a)    whiplash injury to his neck with post traumatic stiffness with radicular complaint with intermittent paraesthesia in his left arm with foraminal stenosis;
(b)    post-traumatic stiffness of the left shoulder with trapezial muscle and deltoid pain, and
(c)    post-traumatic stress disorder requiring Pristiq and he was taking Melatonin for night sedation.
He assessed a total WPI for physical disabilities at 13%.
Dr Rastogi provided a report for the claimant on 9 February 2022.
Regarding the claimant’s driving, she reported;
“He was driving a hire car for months through a private hire company and was pushed to pay $4000 that he was unable to pay and the car was taken away. He had to find another hired car through another hire company and it cost him $600 per week.
He reported difficulty with driving and was anxious and nervous being in the car. He reported his anxiety was heightened, and he was frazzled and overwhelmed easily. He reported autonomic hyperactivity and profuse sweating whilst driving. He would get triggered when his car was stationary and at red light and was constantly checking and scanning traffic. He was struggling to perform his duties causing exacerbation of his anxiety and fear-based responses. He became anxious driving and did not enjoy driving.
…
His driving is restricted and avoids driving at night-time and going to city. He avoids social outings and even going to gym as it involves driving.”
Dr Rastogi reported that there was previous history of depression/situation adjustment disorder /anxiety disorder in July 2020 associated with a criminal matter and served with a two year good behaviour bond which finished in September 2022. In that time the claimant was maintained on Pristiq and saw a psychologist for few sessions. He weaned off Pristiq in September 2020 and said that he made good a recovery.
It was noted that there was a previous history of cocaine abuse over a few years and using it on a daily basis. The claimant reported that he is now abstinent from recreational drugs since 4 September 2019. He denied any history of alcohol abuse and dependence.
Dr Rastogi gave a diagnosis of specific phobia disorder. She said that the claimant presented with specific phobia disorder with avoidance behaviours and generating anxiety and irrational fears. He was mildly restricted to do things, and he was said to be more cautious and overwhelmed. The avoidance of driving specifically with replaying the incident and fear of having another accident had resulted in poor distress tolerance. He was said to be more edgy and easily overwhelmed.
Dr Rastogi assessed WPI of 7%. There was no deduction for a pre-existing condition.
Dr Khong is the claimant’s treating surgeon. He provided a report to the claimant’s GP of

25 August 2021. He reported that the claimant had an MRI scan which demonstrated some left C6/7 foraminal stenosis with C7 compression which may have been the cause of his pain following the accident on 13 April 2021.
Dr Khan, psychiatrist, provided a treating report of 4 June 2021. He reported that as a result of the accident, the claimant experienced gradual deterioration in his mental state characterised by nightmares and flashbacks about the accident, unwanted memories, anxiety, panic, irritability, hypervigilance; reduced 'motivation, social withdrawal, avoidance of accident-related reminders, sleep disturbance with poor sleep maintenance, impaired attention, impaired concentration and impaired memory. There was no reference to a driving phobia and no explanation of what were the accident-related reminders to which the claimant referred.
Dr Khan diagnosed the following;
(a) post-traumatic stress disorder, and
(b) background of cluster B personality traits, alcohol use disorder (remission), stimulant use disorder (remission) and gambling disorder (remission).
A further report of 30 July 2021 noted that the diagnosis of post-traumatic stress disorder six weeks earlier was in partial remission.
Within the claimant’s index to his bundle of documents, there is reference to the clinical notes and file of Workers Doctors from page 134. The notes are otherwise un-identifiable.
The following has been taken from the unidentified clinical notes:
(a)   There is a record of 27 October 2021 which refers to the claimant having had anxiety all his life.
(b)   A note of 28 July 2021 refers to the claimant driving and only referring to difficulty caused by left-sided neck pain, not anxiety.
(c)    A diagnosis on 9 August 2021 was given of post-traumatic stress disorder remission. The claimant was noted to be doing very well.
(d)   A report of 4 August 2021 said the claimant was slightly more confident when driving but still anxious as a passenger.
(e)   A note of 20 July 2021 referred to the claimant getting left-sided neck pain when driving but nothing else. It was said that he was bothered most when sitting in a car and driving due to the left-sided neck pain.
(f)    On 21 July 2021 it was reported the claimant had anxiety for a long time but thought that his medication was positive and anxiety at traffic lights was recorded.
(g)   A record of 17 June 2021 reported “anger and frustration, confidence knocked, blame on accident, frustration that accident derailed life, temper shortened, overreacts to situations”.
(h)    On 9 June 2021 the claimant complained of ongoing anxiety associated with motor vehicles, being in car.
(i)    On 4 June 2021 the claimant was said to have post-traumatic stress disorder.
(j)    On 3 June 2021 the following was recorded;
“Anxiety in a car discussed and normalised, further regular exposure to driving emphasised, Self judgement, negative automatic thoughts, critical inner voice was discussed and thought challenging explained and practiced together in a session. Pt appeared to be a high achiever with some perfectionistic tendencies, which potentially make it hard for him to accept his current signs of anxiety (sweaty palms, being nervous during the work meeting, stress in a car). Perfectionism was discussed, anxiety symptoms and other vulnerabilities were normalised.”
(k)    A record of 25 May 2021 reported;
“Symptoms - patient experience low mood, anxious distress, impaired memory ndoc(?) concentration, depressive cognitions, flashbacks, intrusive and unwanted (?)memories pertaining to MVA.”
(l)    A report of 24 May 2021 referred to an aggravation of pre-existing anxiety.
(m)     On 23 April 2021 it was recorded that the claimant experienced flashbacks and nightmares of the accident. He reported feeling very anxious when getting into the car or when at a red light. He has had difficulty sleeping since the accident.   It was noted that by way of pre-existing injuries, the claimant had depressive anxiety disorder in 2017.
(n)    A report and history of 22 April 2021 concluded, from a psychiatric point of view, that the claimant had an aggravation of pre-existing anxiety.

Medical examination

The claimant was examined by Medical Assessor Yeates and Medical Assessor Baker on    2 July 2025. Their report follows:
“The claimant requested that the Reasons be de-identified. The claimant was assessed by Medical Assessors Baker and Yeates. The claimant attended via MS Teams and was assessed alone. He said he was 45 years of age. The claimant was living alone in rented accommodation in Kiama, NSW. The claimant said he was working his own recruitment business from his rented unit. He said he was working about three to four hours most days. He said his income was above the minimum required by Centrelink Job search for him to receive any financial support.
The claimant was born in Canterbury, England, UK. He said his parents were aged in their 70’s and that he did not have regular communication with them. He said he had one brother and two sisters. He reported that he had infrequent contact with his brother via messenger. He did not have regular contact with his sisters.
The claimant reported that he had been sexually abused as a teenager by a neighbour. He reported that he had a poor memory of his childhood. He said he tried not to think about his childhood as he would become confused in his thinking and distressed. The claimant reported that whilst held in remand in relation to criminal charges related to the supply of cocaine at John Morony Correctional Complex during 2019, his childhood sexual abuse re-surfaced. He said he was held in remand because his bail was refused. He said he was assessed by a forensic psychologist who wrote a report to the criminal court. The claimant said that he pled guilty to his charges, and his sentence was served in the community. He said since the criminal court case his relationship with his family of origin was very poor.
The claimant reported he had attended many schools as a child. He said whilst attending ‘Queens School’ he would attend the school counsellor. He said he completed Year 12 of school whilst living in the UK.
On leaving school the claimant commenced his career working in ‘pubs’ as a bar tender. He then found employment working in the motor vehicle claims division of a large insurer. He reported that he received in house training whilst working for the insurer.
The claimant immigrated to Australia in 2010. He remains on a permanent resident’s visa and was not an Australian citizen. He said he was about 21 years of age when he entered Australia alone on a working holiday. Whist working, he would work as a salesman selling business telephone systems. He moved from this role to work as a recruitment officer for salespeople. He said he organised himself in his first small business working in salespeople recruitment.
The claimant then changed his business to work as a telecommunications service provider in his own company. The telecommunications company was not successful. In about 2017 he reported that he began to become cocaine dependant. In 2019 he was arrested for selling cocaine. Whilst in remand the claimant went through an unmedically supervised withdrawal from cocaine. He said on his release from remand he had never returned to using cocaine. He estimated his daily use of cocaine was about 1 gram at its peak before his arrest.
After the criminal court case had finished the claimant moved to work in real estate during 2020. He was working in sales and said he was successful in his role selling real estate. He said he was working in real estate when the motor accident happened on 13 April 2021.
The claimant reported that he had been in a 15-year relationship with the mother of his two children before his arrest in 2019. He said that the relationship ceased due to his cocaine related charges. He said he would drive to visit his children every second week end as was part of the Family Court orders. He said his divorce had settled prior to this re-examination.
The claimant said that he was anxious and depressed in his mood because of his criminal matter during 2020. He reported his condition to his general practitioner and was prescribed the antidepressant Pristiq (desvenlafaxine). The claimant reported sexual dysfunction due to the use of the antidepressant. Sexual dysfunction in males is a frequently reported side-effect from the use of these medications. The claimant decided to stop using the antidepressant and was not using psychiatric medication at the time of this assessment.
The claimant said that he did drink alcohol. He said that in December 2024, he had been drinking with strangers ‘randoms’ at a bar within walking distance of his rented unit in Kiama. He said that he had forgotten his keys and decided to climb to his first-floor balcony to enter his unit. Whilst climbing he fell and sustained an undisplaced, stable fracture of his pelvic ring. The fracture was diagnosed at his local general hospital. He did not need surgery for this fracture and the injury whilst painful resolved with conservative management. The claimant said that he had in his 20’s fractured his right knee’s patella which required surgical treatment. The injury healed without impairment.
The claimant said as a youth he had used ecstasy and cannabis. He said he now drank alcohol and smoked cigarettes. He said he decided to stop vaping and had tried to cut down his tobacco use to one cigarette daily from 10 cigarettes when he was stopping vaping. He said he had never attended narcotics anonymous or alcoholics anonymous. He said that after the motor accident he had tried to form a relationship with a new partner however the relationship was ‘On and Off’ with no contact for an extended period before this re-examination.
The claimant had discussed whether he should have an assessment for Attention Deficit Hyperactivity Disorder however he had not followed through the investigation prior to this re-examination.
The claimant said he had traffic infringements of speeding and using a mobile phone whilst driving. He said this was his first motor accident on 13 April 2021. He said he was working at his real estate job for about one and half year before the motor accident.
History of motor accident.
The claimant said that he was driving a hire car at the time that the motor accident happened on 13 April 2021. He was working as a real estate salesman at the time of the motor accident. He said that he was returning to the office when the accident happened. He said he had his seatbelt on.
The claimant said that he was stationary at the traffic stop lights. He was waiting to turn right. He said he was hit hard in the rear of his car by another car. He said that he was shocked to having been hit ‘that hard’. He reported that he saw a ‘massive black car’ behind him, and he went into a daze. The car’s airbags did not deploy.
The claimant said he then noticed immediate pain in his left shoulder. The claimant said he was right-hand dominant and that his left shoulder continues to restrict his movement. He demonstrated that his left arm was only able to go ‘10 degrees above his shoulder height’ without causing pain or restricting his movement further. He reported that he also had neck and back pain because of the force of the ‘hit’ from the ‘massive black car’.
The claimant reported that neither police nor ambulance attended the accident.
After exiting his car unaided, the claimant exchanged details. He settled himself and he drove the car back to the real estate office. He said he had about four thousand dollars damage to the hire car which he had not paid insurance on prior to the motor accident.
The claimant reported that a co-worker drove him to Campbelltown Hospital emergency room for assessment and treatment.
The claimant said he had no fractures detected and he had soft tissue injuries because of the motor accident.
History of symptoms and treatment following the motor accident.
The claimant attended his general practitioner a few days after the motor accident. He noticed that he had ‘pins and needles’ in his hands whist driving. He said he also noticed that he would have severe anxiety and fear symptoms when in a car whether as a passenger or driving. His hands would become very sweaty and he began to notice he would become more fearful of driving. He reported his attendance at work as a real estate salesman ceased as he was unable to drive to service his clients. He said he was unable to drive to his children’s home on the days he was permitted to visit. He noticed he was more fearful of other cars and trucks coming close to his car if he was driving.
The claimant reported that he was referred to a psychologist and psychiatrist. He said he had ceased these treatments before this re-examination. He said he changed t? a different real estate agency, but this was unsuccessful.
The claimant then decided to move to Kiama, and he rented a first floor flat. He recommenced working from his unit. He would work between three to four hours per day, on the telephone or online in the role of a real estate recruitment business. He said he helped find real estate industry workers suitable real estate agencies to work.
The claimant said that prior to this examination he had not driven to his children’s home for three months. He said that this was due to his fear of driving, preventing him from driving 60 minutes to visit.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant reported that he had sustained a fall from his first-floor balcony whilst trying to gain access to his rented unit in Kiama in December 2024. He fractured his pelvis. His pelvic ring was stable and the fracture healed with conservative management.
Current Symptoms
The claimant described sufficient symptoms to define a DSM-5-TR F 40.248 Specific Situation Phobia to driving according to current criteria as follows:
A.    Marked fear or anxiety about the specific situation of driving
The claimant reports marked fear and anxiety specifically related to driving a car, or as a passenger in a car. The claimant reports that driving from his home long distances in traffic caused severe anxiety that stopped him visiting his children.
B.    The phobic object or situation almost always provokes immediate fear or anxiety.
The claimant reported that exposure to driving or even the anticipation of having to drive causes him to become too fearful and anxious, causing anxiety symptoms that include, a daze (acute confusion when thinking about driving), tremor of his hands, pins and needles in his hands and sweating of his hands. His anxiety response has resulted in him avoiding driving and restricting his travel as much as possible.
C. The phobic situation of driving is actively avoided and only endured with intense fear or anxiety when the claimant has no other means of resolving his needs.
The claimant actively avoids driving or situations involving driving. He has stopped driving to visit his children because of his distress experienced whilst having to travel a long distance from his rented unit.
The claimant does not have symptoms consistent with any other psychiatric condition caused by the motor accident, including adjustment disorder or major depressive disorder as defined by DSM-5-TR criteria. The claimant does not meet DSM-5-TR criteria C. for adjustment disorder as the claimant does meet does met criteria for DSM-5-TR F 40.248 Specific Situation Phobia to driving.
The claimant does not meet DSM-5-TR criteria for major depressive disorder because the claimant does not report depressed mood or loss of interest in wanting to visit his children and wanting to be successful in his small business.
Current Treatment
At the time of this examination the claimant had ceased his use of Pristiq because he had side effects from this medication which he could not tolerate. The claimant had also ceased his psychological treatment about 2022. He had spoken with a psychiatrist on two occasions since the motor accident, to discuss his medication options and associated side-effects. He was not receiving any treatment at the time of this assessment of his psychological injury due to the motor accident.
Mental State examination
The claimant presented as an anxious, disorganised and dishevelled man. He was attended vis MS Teams. He spoke at a rapid rate. He was tearful and frustrated throughout the assessment. He complained about poor concentration and poor recall. He would frequently raise his voice and said, “I can’t believe I forgot that!” in relation to specific details recorded by other assessors that the claimant had not stated after both open and detailed questioning. He appeared agitated and anxious. He complained about tremor of his hands. He demonstrated a tremor affecting both hands when his arms were outstretched.
The claimant said he would actively avoid thinking about driving and the motor accident as he would become too agitated and his energy would become low. He said at times he would ruminate about his losses since the motor accident; however, he was still motivated to run his small business. He reported his concentration was restricted and he was not able to persist with complex tasks as he had prior to the motor accident. He had restricted his work to about 3 to 4 hours daily conducted online or by telephone cold calling.
The claimant was insightful into his condition. His judgment was normal. He did not describe any delusional ideas or psychotic symptoms. He provided a consistent, coherent history with that provided by Dr Rastogi and Assessor Fukui. The claimant did not report social thoughts or plans. The examination at this assessment as for about 90 minutes duration.
Diagnosis
The claimant described the minimum sufficient symptoms to define a DSM-5-TR F 40.248 Specific Situation Phobia to driving compliant with current criteria as follows:
A.    Marked fear or anxiety about the specific situation of driving
The claimant reports marked fear and anxiety specifically related to driving a car, or as a passenger in a car. The claimant reports that driving from his home long distances in traffic caused severe anxiety that stopped him visiting his children.
B.     The phobic object or situation almost always provokes immediate fear or anxiety.
The claimant reported that exposure to driving or even the anticipation of having to drive causes him to become too fearful and anxious, causing anxiety symptoms that include, a daze (acute confusion when thinking about driving), tremor of his hands, pins and needles in his hands and sweating of his hands. His anxiety response has resulted in him avoiding driving and restricting his travel as much as possible.
C.     The phobic situation of driving is actively avoided and only endured with intense fear or anxiety when the claimant has no other means of resolving his needs.
The claimant actively avoids driving or situations involving driving. He has stopped driving to visit his children because of his distress experienced whilst having to travel a long distance from his rented unit.
D.      The fear or anxiety is out of proportion to the actual danger posed by the specific situation of driving and to the sociocultural context of the claimant’s prior capacity to drive without phobic anxiety before the motor accident on 13 April 2021.
The claimant had insight that his response to thinking about driving and his fear for driving was excessive and out of proportion to his prior capacity to drive before the motor accident.
E.      The fear, anxiety, or avoidance is persistent, typically lasting for 6 months or more.
The onset of the claimant’s specific situational phobia to driving was at the time of the motor accident on 13 April 2021. The claimant remained impaired by this psychological injury at the time of this examination on 2 July 2025.
F.     The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The claimant’s specific phobic fear of driving has caused significant impact in the claimant’s daily life as he has not been able to work as a real estate salesman or attend his children for visits as part of his court order plans.
G.     The disturbance is not better explained by the symptoms of another mental disorder, including fear, anxiety, and avoidance of situations associated with panic-like symptoms or other incapacitating symptoms (as in agoraphobia); objects or situations related to obsessions (as in obsessive-compulsive disorder); reminders of traumatic events (as in post-traumatic stress disorder); separation anxiety; or social situations (as in social anxiety disorder).
The claimant does not have symptoms consistent with any other psychiatric condition caused by the motor accident.
Current Functioning
Self-care and Personal Hygiene
The claimant was able to maintain his independent living in a rented unit alone. His nutrition was less than prior to the motor accident. He was dishevelled and unkempt at the time of the examination. He showered less and would purchase his groceries online to be delivered to reduce his need to drive. He had a mild impairment in this table of functioning.
Social and recreational activities
The claimant was able to socialise with his local community. He would attend local clubs where he could walk and avoid driving drive.
The claimant had no identified friends since living in Kiama. He had a mild impairment in this table of functioning.
Travel
The claimant reported a phobic fear of driving long distances and he could not drive for extended periods due to increasing anxiety symptoms whilst driving. He had not been able to drive to meet the needs of his role as a real estate salesman, due to his severe anxiety whilst inside a car. He had a mild impairment in this table of functioning.
Social functioning
The claimant reported that his relationship with his children had become more strained since the motor accident. The claimant would become too anxious whilst driving the long distance between his rented unit to his children’s home such that he could visit in compliance with Family Court orders. He had periods of functioning that had enabled him to cope with the driving whilst experiencing severe anxiety during the trip. The claimant had insight into his phobic fear and anxiety whilst driving or planning to drive however he had not attended his children from about three months prior to this examination. He had a mild impairment in this table of functioning.
Concentration persistence and pace
The claimant had ongoing anxiety most days and was often low in energy and unable to persist with complex tasks. He could concentrate with small breaks to resettle himself during the 90-minute examination. He could not persist for periods longer than about 20 minutes before needing brief breaks to settle himself whilst thinking about the phobic fear of driving. The claimant’s intrusive distressing anxious thoughts would slow his pace of task completion and required him to check for errors whilst attempting to persist with his reading, data entry or talking to clients. He had a mild impairment in this table of functioning.
Adaptation
The claimant had not been able to work in his prior role before the motor accident. He was not able to change his location of work and continue in a similar role. The claimant could work about 15 to 20 hours per week and more than 20 hours per fortnight. The role he worked was less emotionally distressing and was less demanding than his prior role prior to the motor accident. He had a moderated impairment in this table of functioning.
Causation and reasons
The claimant was independent in his lifestyle and capacity to work prior to the motor accident. He had made significant adaptational changes with becoming abstinent from cocaine. He was able to travel and visit his children and comply with the Family Court orders to visit his children at the prescribed time without impairment.
The claimant was involved in a motor accident on 13 April 2021. He sustained a psychological injury that was best defined as DSM-5-TR F 40.248 Specific Situation Phobia to driving. This condition is a clinically common clinical presentation after a person has been in a motor accident. Both Medical assessors agree that the motor accident on 13 April 2021 could cause this psychological injury, DSM-5-TR F 40.248 Specific Situation Phobia to driving.
Both Medical Assessors agree that the motor accident on 13 April 2021 did cause the psychological injury defined as DSM-5-TR F 40.248 Specific Situation Phobia to driving.
Summary of injuries referred by the parties
The following injury was caused by the motor accident: DSM-5-TR F 40.248 Specific Situation Phobia to driving.
Threshold injury
For the purposes of the Act, DSM-5-TR F 40.248 Specific Situation Phobia to driving is not a threshold injury.”

The Panel met on 16 July 2025 to discuss the Medical Assessors findings on examination. The Legal Member of this Panel did not participate in the medical examination but prior to the Panel meeting on 16 July 2025, the legal Member had the benefit of reading and considering the Medical Assessors examination report. On 16 July 2025 the Panel discussed the examination findings and the issues going to causation and threshold injury. It is from this teleconference of the Panel that the Panel has agreed and reached its final conclusion and determination.
The Panel adopts the report of Medical Assessor Yeates and Senior Medical Assessor Baker.

Causation/reasons

How the Panel is to approach the issue of causation is dealt with in various paragraphs of the Permanent Impairment Guidelines.
Paragraphs 1.6 to 1.7 of the Permanent Impairment Guidelines under the heading “Causation of injury” deal with this issue and provide;
“1.6 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 judgment.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In the context of determining questions of causation in relation to motor accidents in accordance with the principles that would be applied by a court (or an assessor) in considering such issues, the reference in paragraph 1.5 of the Permanent Impairment Guidelines to “common law principles” is to be understood as referring to the legal principles that courts or assessors are required to apply in determining causation. This includes not only common law principles, in the strict sense, but also such principles as modified or explained by statutory provisions, such as s 5D of the Civil Liability Act 2002 (NSW) (CL Act), where applicable. This approach is consistent with Windeyer J’s observation in Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68 that:
“for the present purposes [of that case concerning the law of homicide], it is misleading to speak glibly of the common law in order to compare and contrast it with a statute. In any consideration of common-law rules it is necessary to take one's stand at some point of time. It is necessary too to be clear whether what is being spoken of as the common law at that point of time comprehends all statutory modifications of it then in force or only its pristine form”.
The approach is also consistent with the remarks of Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [27] where it was held that:
“the question to be assessed [under the previous Motor Accidents Medical Guidelines which were relevantly in substantially the same terms as the 2018 Guidelines] is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D. (See s.3B(2)).”
Section 5D of the CL Act relevantly provides:
“(1) A determination that negligence caused particular harm comprises the following elements-
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
…
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
This review is an assessment de novo of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were threshold or non-threshold as defined under the Act.
The insurer had said in its submissions that based upon the statements and history provided by the claimant, the Medical Assessor specifically disagreed with the diagnosis of Dr Rastogi on the basis of the following:
(a)    The claimant was able to drive to see his children and for his appointments. At page 2 of her report, Dr Rastogi reported the claimant maintained contact with his children.
(b)    The claimant was able to drive for work, Dr Rastogi reported that at the time of the accident he worked as a real estate agent. Whilst he left that job after the accident, he immediately obtained the same position and role with another real estate agency. She was also told that he worked 40 hours per week and worked on weekends.
(c)    The claimant denied any near misses or accidents when he drove. No history was obtained by Dr Rastogi of any near misses or accidents.
(d)    Dr Assem reported the claimant was able to drive to work, to visit friends, and to appointments.
Whilst the Medical Assessor referred to the claimant having coping strategies, it is apparent that the claimant had continued to drive on a regular basis.
However, the Panel is satisfied that the accident has caused a specific situation phobia to driving because following the accident, the claimant reported to Dr Rastogi, amongst other things, that he had difficulty with driving and was anxious and nervous being in the car. He reported his anxiety was heightened, and he was frazzled and overwhelmed easily. He reported autonomic hyperactivity and profuse sweating whilst driving. He would get triggered when his car was stationary and at red light and was constantly checking and scanning traffic. He was struggling to perform his duties causing exacerbation of his anxiety and fear-based responses. He became anxious driving and did not enjoy driving. He also said that his driving was restricted, and he avoided driving at night-time and going to city. He avoided social outings and even going to gym as it involved driving.
It is apparent from the reasons of the Medical Assessor that at the time of her examination of the claimant, he did not demonstrate to her a driving phobia. However, the Panel is satisfied that at other points in time, the claimant has suffered this phobia and at the time of examination by the Panel, the claimant clearly demonstrated a specific situation phobia to driving.
The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh [2021] NSWCA 287.
The Panel refers to the decision of Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023. It might be argued that the scope of the medical dispute referred to the Commission for determination is not defined by law but by the parties’ submissions. This is a hearing de novo and those very issues raised before the Medical Assessor and for determination by the Panel now include consideration of a differential diagnosis of specific phobia.
The Panel has not “gone looking” for alternative diagnosis when the specific diagnosis of an adjustment disorder with anxious mood had been referred to it. The Panel must examine the claimant and perform its assessment on the basis of its discussions with the claimant on the day of assessment. A psychiatric symptom might evolve overtime and disappear overtime for that matter. In this case, the Panel was not satisfied that the claimant had a diagnosis of an adjustment disorder with anxious mood but was satisfied on the basis of the history provided by the claimant, that he was suffering a psychiatric disability of a specific situation phobia to driving.
The claimant was driving before the accident as part of his occupation, without apparent limits or any other restriction. Following the accident though, clinical records of the claimant’s GP show;
(a)    on 23 April 2021 it was recorded that the claimant experienced flashbacks and nightmares of the accident. He reported feeling very anxious when getting into the car or when at a red light;
(b)    on 3 June 2021 it was recorded that the claimant complained of “Anxiety in a car discussed and normalised, further regular exposure to driving emphasised”;
(c)    on 9 June 2021 the claimant complained of ongoing anxiety associated with motor vehicles, being in car;
(d)    on 21 July 2021 the claimant complained of anxiety at traffic lights, and
(e)    a report of 4 August 2021 said the claimant was slightly more confident when driving but still anxious as a passenger.
The claimant informed the Medical Assessors that he actively avoids driving or situations involving driving. He has stopped driving to visit his children because of his distress experienced whilst having to travel a long distance from his rented unit. The claimant said he would actively avoid thinking about driving and the motor accident as he would become too agitated and his energy would become low.
The claimant’s fear, anxiety, or avoidance is persistent, having lasted for six months or more. The onset of the claimant’s specific situational phobia to driving was at the time of the motor accident on 13 April 2021. The claimant remained impaired by this psychological injury at the time of this examination on 2 July 2025.
Dr Rastogi noted in her report that the claimant was avoiding night driving, hated being a passenger and was easily triggered when stationery and around red lights. He said that he was more nervous with driving and easily overwhelmed.
The claimant’s driving anxieties were not reported by him all the time, but they were evident at times and when the claimant was seen by Dr Rastogi and by the Panel Medical Assessors. Additionally, Medical Assessor Fukui noted in her assessment that the claimant had anxiety about driving and would only drive if necessary. She diagnosed, at the time of her assessment, a generalised anxiety disorder as well as a specific phobia of driving.
The Panel adopts the reasoning in Lynch v AAI Ltd[2022] NSWPICMP 6that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the Act. The claimant has argued in support of this principle and the Panel does not disagree, however, a driving phobia was demonstrated at the time of examination by the Panel Medical Assessors, in any event.
The Panel also adopts the reasoning in Lynch that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the Act. The Panel is satisfied, following examination of the claimant, that this onus has been satisfied.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s injuries as referred to it by the Commission, whether the claimant’s condition arises because of contribution by the accident, and whether the accident materially contributed to that condition.
On the balance of probabilities, can it be said that the claimant suffered a recognisable psychiatric injury? For the reasons discussed above in the report of the Medical Assessors, the Panel does find that this can be answered in the affirmative.
Would the impairment have occurred, if not for the accident? The Panel is satisfied that the accident and impact has had a more than negligible effect on the claimant’s psychiatric condition suffered by the claimant. This is because up to and at the time of the accident his driving activities were not restricted and caused him no distress. Prior to the accident the claimant was driving without restriction and anxiety. Following the accident though, his driving was curtailed due to his anxieties arising from this such that he was not able to drive all the time and was not able to drive to see his children, for example.
Within the clinical notes of Dr Lim, there is an entry recording a pre-existing injury of depression-anxiety disorder in 2017. This seems to have occurred around the time when the claimant had been on remand, arising out of drug usage. There is no other information to indicate that this might have had any affect, following the accident on 13 April 2021.

Conclusion

The Panel is satisfied that consequent upon the motor accident which occurred on 13 April 2021, the claimant developed a psychiatric disability of a specific situation phobia to driving.
This is a non-threshold injury.

De-identification

The claimant has requested that the published reasons be de-identified.
The parties were informed by direction of this request. The insurer was directed to inform the Panel on or before 8 August 2025 if it had any objection to the de-identification of the claimant. No objection was received.
These reasons contain sensitive personal information involving certain activities of the claimant which could be harmful to him if they were revealed to the broader public. The Panel considers that it is likely that publication of the reasons in its entirety could cause the claimant further trauma and/or possible difficulties with employment.
Having considered 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 this decision should be de-identified before it is published.
Pursuant to rule 132 of the Rules, this decision is to be de-identified prior to publication to include, at least, a pseudonym for the claimant.

Determination

The Panel revokes the certificate of Medical Assessor Verma dated 29 December 2023.
The claimant was injured in a motor vehicle accident on 13 April 2021.
As a result of the accident the claimant suffered a psychiatric injury of a specific situation phobia to driving.
A psychiatric diagnosis of a specific situation phobia to driving is a non-threshold injury.

[2025] NSWPICMP 652

28 August 2025