Cho v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 107
•9 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Cho v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 107 |
| CLAIMANT: | In Hee Cho |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL: | Principal Member John Harris Dr Wayne Mason Dr Michael Hong |
| DATE OF DECISION: | 9 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a non-minor psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the DSM-5 criteria for major depressive disorder and alcohol use disorder was satisfied; the Panel did not consider that Ms Vuong suffered from post-traumatic stress disorder (PTSD) at any time because there was no threat of serious injury or death in the motor accident which was an element for diagnosing PTSD under DSM-5; the Panel applied the principles in Lynch v AAI Ltd that the non- minor injury could occur at any time; in this case the non-minor psychological injury occurred when assessed by the psychologist in November 2021 and by the Medical Assessors on the Review Panel; Held- findings made that the claimant suffered from major depressive disorder and alcohol use disorder which was a non-minor injury within the meaning of the Motor Accidents Injuries Act 2017. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate dated 13 May 2021 and issues a new certificate determining that: The claimant suffers from major depressive disorder and alcohol use disorder which is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017. |
BACKGROUND
Mr In Hee Cho (the claimant) suffered injury in a motor accident on 27 June 2020 when another motor vehicle rear ended Mr Cho’s vehicle
The insurer insured the owner and driver of the other motor vehicle for liability to pay to
Mr Cho any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).The present issue is whether Mr Cho’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to section 7.26 of the Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Jones who issued a Medical Assessment Certificate dated 13 May 2021. Medical Assessor Jones concluded that Mr Cho suffered from a chronic adjustment disorder with depressed mood and mixed anxiety which is a minor injury for the purposes of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Mr Cho within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2][2] Section 7.26(10) of the MAI Act.
On 4 August 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the 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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered in this determination.
STATUTORY PROVISIONS
A minor injury is defined in section 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Minor psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a minor 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 (DSM-5), Fifth Edition, 2013, 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 minor injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[8]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[9] apply. This is because Part 6 is specified as applying only to the assessment of permanent impairment.[10]
[8] See section 3B(2) of the Civil Liability Act 2002.
[9] See clauses 6.5 - 6.7 of the Guidelines.
[10] See clause 6.3 of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Jones certified that Mr Cho had a chronic adjustment disorder with depressed mood and mixed anxiety.
The Medical Assessor stated:[11]
“Mr Cho reported a narrative, and presented at assessment, as consistent with having a Chronic Adjustment Disorder with depressed mood and mixed anxiety. He has returned to a reasonable level of functioning and the disorder is of mild severity. He has intermittent good times and bad times with respect to both depressive and anxiety symptoms, and he is currently working full-time and asking to work more. He is actively taking antidepressant medication and seeing a psychologist regularly, and a psychiatrist periodically, and he appears to have improved significantly since his worst. He would appear to be on a trajectory of improvement and it would be expected that his symptoms and functioning would improve in the foreseeable future. Mr Cho would satisfy [the] criteria for an Adjustment Disorder through DSM-V. There is insufficient evidence to support a diagnosis of Post Traumatic Stress Disorder or Major Depressive Disorder, particularly given Mr Cho’s symptoms do not appear to be pervasive.”
SUBMISSIONS
Claimant’s submissions dated 5 November 2020[12]
[11] Claimant’s bundle, page 17.
[12] Claimant’s bundle, page 28.
The claimant submitted that Dr Zhenni Xu made a formal diagnosis of post-traumatic stress disorder (PTSD). Psychological treatment was provided by Mr Maharaj and the claimant was referred to Dr Hannah Choi, psychiatrist.
Claimant’s submissions dated 29 June 2021[13]
[13] Claimant’s bundle, page 9
The claimant submitted that the Medical Assessor should have considered the earlier diagnoses of PTSD, major depression and comorbid substance abuse and that if he had any of these psychological injuries at any time since the motor accident then it was a non-minor injury for the purposes of the MAI Act.
Reference was made to the opinion expressed in the report of Mr Maharaj which provided a comprehensive narrative and clinical diagnosis of major depression and comorbid substance abuse as at 13 November 2020. This was non-minor injury at a prior time which satisfied the definition.
Insurer’s submissions dated 9 December 2020[14]
[14] Insurer’s bundle, page 12.
The insurer referred to the various statutory provisions concerning the meaning of minor injury.
Portions of these submissions concern the physical injuries suffered by Mr Cho in the motor accident. It is unnecessary to repeat these submissions noting that the physical injury dispute is not before this Panel and the claimant otherwise accepted that those injuries do not meet the standard of “non-minor”.
The insurer summarised the opinions expressed by the general practitioner, Mr Maharaj and Dr George. It noted that the clinical records from MyHealth Newington showed that Mr Cho has pre-existing anxiety, insomnia and sleep disruption. Further, the records show that the psychological condition was affected by working long hours and that a reduction in hours led to an improvement in sleep and less nightmares.
The insurer submitted that the claimant has an adjustment disorder which was a minor injury within the meaning of the MAI Act.
Insurer’s submissions dated 5 July 2021[15]
[15] Insurer’s bundle, page 2.
These submissions were filed in response to the review application. The insurer submitted that the Medical Assessor had completed a thorough clinical examination, considered the material evidence, and formed an opinion based on DSM-5.
The insurer submitted that the Medical Assessor is not obligated to provide reasoning based on the opinion of other treatment providers and is “only required to consider the relevant information available at the time of assessment” and determine if the claimant has any diagnosable condition under DSM-5.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed respective bundle of documents in accordance with the initial Direction. Some of the material relates to the physical injuries sustained by Mr Cho in the motor accident. It is unnecessary to summarise this material as it appears common ground that Mr Cho suffered physical injuries in the motor accident, and these were “minor injuries” within the meaning of the MAI Act and subordinate legislation.
A certificate provided by Dr Zhenni Xu, general practitioner, dated 12 October 2020 referred to symptoms of “depression/low mood/insomnia and PTSD with flashbacks and hypervigilance at times when driving”.[16]
[16] Claimant’s bundle, page 41.
The clinical notes in March 2019 prior to the motor accident referenced a need to reduce alcohol intake.[17]
[17] Insurer’s bundle, page 61.
Mr Arthie Maharaj, psychologist provided a report dated 13 November 2020.[18] He then referred to a worsening of depressive symptoms and amended his diagnosis to major depressive disorder. In a further report dated 14 December 2020,[19] Mr Maharaj noted recent symptoms including depressed mood, diminished interest and pleasure in previously enjoyed activities, insomnia, psychomotor retardation, fatigue, feelings of worthlessness and difficulties sustaining concentration. He then opined that the symptoms were consistent of a diagnosis of major depressive disorder.
[18] Claimant’s bundle, page 54.
[19] Claimant’s bundle, page 145.
Mr Maharaj provided a further report dated 9 November 2021.[20] Based on the recent examination conducted in September 2021, Mr Maharaj opined that Mr Cho met the criteria for major depressive disorder (severe) and sub-clinical alcohol use disorder.
[20] Claimant’s bundle, page 149.
A report from Dr Anita George, psychiatrist, dated 10 November 2020[21] diagnosed an adjustment disorder with moderately severe mixed anxious and depressed mood secondary to the motor accident and comorbid alcohol use disorder due to the adjustment disorder. The Zoloft dose was increased together with a strict alcohol harm minimisation.
[21] Insurer’s bundle, page 167.
RE-EXAMINATION
The Panel determined that Mr Cho be re-examined by both Medical Assessors on 3 May 2022 given the factual issues of psychological diagnosis in dispute.[22]
[22] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
The re-examination report is as follows:
“Who attended the assessment
Video assessment on 3/5/2022.
Mr Cho was at home on his own.
Assessor Mason was in his Sydney office.
Assessor Hong was in his Sydney office.
History
Psychosocial history and pre-accident history
Background:
Mr Cho was born in Korea and spent some time in Germany. He then came to Australia when he was in Year 7 with his family. He grew up with his parents and an older brother. There was no developmental trauma identified and he has not had a previous MVA.
He does not have epilepsy, cardiac or thyroid disease.
Past psychiatric history:
When Mr Cho was 20 years old, his family returned to Korea and he had to adjust to living on his own in Australia. He suffered transient depression and anxiety symptoms and consulted a psychologist (he thought the name was Mina) for a few sessions. He did not take any psychiatric medication and recalled that he recovered fully.
He was not a heavy alcohol drinker and may have four or five beers in a session with his friends on a Friday night. He is not a gambler. There were no pre-MVA alcohol or substance use disorders identified.
Pre-MVA functioning:
Mr Cho was unimpaired in his self-care and presented himself well for his clients at the bank.
Driving was a part of his daily life.
He had a large social network and enjoyed social gatherings regularly. He had no difficulties with strangers or general social interactions.
He had no problem with his concentration and memory and completed a university degree.
In terms of employment history, he worked more than full-time hours at Westpac at the time of the subject accident.
History of the motor accident
On 27 July 2020, Mr Cho was driving on his own. He could not recall the road and recalled he was near the Rockwood Cemetery and there was a traffic pile up so he slowed down and stopped, when he was rear-ended. The other car was travelling 40 to 50 kph and there were only two cars involved. He recalled he could see the car in the rear mirror and was thinking to himself that “he is going to hit me”. His chest struck the steering wheel during the collision. His airbag was not deployed. His car has been repaired.
The other driver came out but did not ask how he was. Mr Cho recalled becoming angry and “had a go” and was screaming at the other driver. The police and ambulance came and he did not need to go to the hospital.
He reported that he suffered neck pain and this has improved with physiotherapy and he has been told he had whiplash. He still has intermittent neck pain and is having physiotherapy every two weeks now. He has not had surgical treatment.
History of symptoms and treatment following the motor accident
Mr Cho described the onset of anxiety immediately after the subject accident. He suffered driving anxiety after the accident and this has improved over time, and he stated he can drive everywhere now, but he has been having road-rage. He finds it difficult to tolerate people tailgating him since the subject MVA, and said he constantly checks the rear-view mirror. A few times he exited his car and wanted to start a fight with the driver for tailgating, and said the other driver would just drive off.
There was no depression initially. His employer would not allow him to go back to do overtime work because he was on medication, and he said he started losing money and explained that most of his income came from overtime and bonuses, and this upset him. About three to four months after the accident, he started suffering severe depression and at the same time his alcohol intake increased significantly and he was drinking daily.
In December 2021, Mr Cho reduced his alcohol consumption and was only drinking one or two beers a day, but during 2022 his alcohol intake increased again. In the last four weeks, he estimated drinking eight standard drinks a day. He said that if he did not drink, he would become very angry about things he knows he should not, and would become very edgy. He described difficulty trying to cut back his alcohol consumption, and that he needs to drink more and more to obtain the same effect. He described having had some treatment related to his alcohol with a psychiatrist and psychologist. He does not abuse other substances.
He has been told by his GP he has liver impairment from alcohol. He also had haemorrhoid for a while which he thought was related to alcohol overuse.
Mr Cho's depressive symptoms have never fully resolved after the accident. At the nadir of his depression, there were a few weeks where he felt depressed every day, all day, he had no motivation and could not get out of bed. He had no energy to do anything and could not enjoy anything. When he took an antidepressant, his energy level, depressed mood and enjoyment was better, but now as he is off antidepressant medication, depression increased and he is depressed every day.
He described being upset, and explained that he is 30 years old, he had a good career and worked hard to build up his client base, but now he has lost everything, that these were taken away from him and it is not his fault. He reported that he used up his savings and he is thinking about going back to Korea.
Details of any relevant injuries or conditions sustained since the motor accident
In terms of other major life events, Mr Cho reported that a few days ago he had driven to the shops and had parked. He purchased take-away food and was walking back to his car and there was a van trying to park and collided with his car. He was not injured and he was not in the car, but he felt upset because this is yet another problem he has to deal with.
Current symptoms
Mr Cho gained weight after the subject accident and does not know how much he has gained as he does not weigh himself. He reported having sleep problems with nightmares 2-3 times per week. Recently, his dreams are about taking revenge on people.
He reported recently having pervasively depressed mood and having no motivation.
He has reduced enjoyment and disengaged from most recreational activities.
He reported having poor concentration and ongoing difficulties with his memory.
He described having marked fatigue and even simple acts such as getting out of bed becomes a great effort.
He has suicidal thoughts and he has never attempted suicide. He punches the wall and pulls his hair when distressed.
He is irritable and starts arguments, sometimes with strangers. He slapped another resident in his apartment complex recently, as “he was looking at me” in a certain way in the lift. He told his psychologist about the incident and the police was not involved.
He feels anxious and experiences excessive sweating from anxiety.
He avoids social situations due to his anxieties.
Mr Cho denied ever having experienced symptoms of florid psychosis. He described auditory phenomena, likely from effects of excessive alcohol consumption. He said he hears noises and has a baseball bat at home as he worries about intruders.
Current and proposed treatment
Mr Cho took Sertraline after the accident and said he threw his antidepressant medication away in November 2021, after he became angry with his psychiatrist. He consulted Dr Anita George and had around 10 sessions and ceased in November 2021, as he felt she was not charging him properly after insurance approval ceased.
He has been consulting Arthie Maharaj until she closed her practice and he is currently consulting Sally Blair. They are psychologists.
His file indicated he took Diazepam, Circadin and Restavit previously.
He has not taken psychotropic medications during 2022 and is about to restart an antidepressant medication, which he obtained from his GP.
Clinical Examination
Mental State examination
Mr Cho had a tired appearance and explained he slept at 3am and did not wake up until after midday today. He cried during the assessment, and said he has not seen anyone for quite a while, and being reminded of this was upsetting. Mr Cho engaged well with the assessment process. He exhibited difficulties regulating his emotions and was depressed. He was consistently restricted in his affect range and reactivity. He was often slow to respond to questions. He spoke spontaneously and was not thought disordered. He had difficulties recalling specific dates.
Current functioning
Mr Cho is a 30-year-old man living on his own with his dog.
He spends a lot of time in bed. He walks the dog for about 20 minutes a day. He showers every second day and does his laundry. He does not change to clean clothes every day. He has been avoiding talking to his parents and stated they do not know the reality of his situation.
He avoids going to the shops and said that he has not had a haircut for two months and has to push himself to attend to self-care. He orders Uber Eats a lot.
Before the accident, Mr Cho would go to the gym three to four times a week. He has not been to the gym for long time.
He used to socialise with 10 to 15 friends on a Friday night, but he stopped going and explained he does not want to interact with people after the subject accident.
He is still playing computer game and would play Dota.
At the time of the accident, he was dating and the relationship ended in September 2020. He said he could not be bothered to spend time with her or to do anything. He has not had a partner since.
Employment history:
After high school, Mr Cho completed a bachelor commerce degree from Sydney University and has always worked in finance.
Mr Cho had worked at Westpac doing full-time credit work for around 4 years. He described being hard working and built up a portfolio of clients. After the subject accident, he did not take time off work and reduced his hours to 3 days per week so he could have treatment. His performance declined in the context of his depressive symptoms and excessive alcohol consumption. His employer did not allow him to do overtime work and his income suffered. He recalled having hangover at work and reported he did not drink during his work hours. He quit in January 2022 and was working 38 hours per week at that time.
Comments of consistency
There was no inconsistency identified.
Determinations
Causation and reasons
Mr Cho has suffered depression and anxiety briefly when he was 20 years old and made a full recovery and remained psychologically well for almost ten years before the subject accident happened. There was no previous substance use disorder. Aside from the subject accident, there has been no other contributing factors. He had a minor accident a few days ago and he was not injured, and this did not contribute to the development of his psychological injury. The Panel concluded his current psychological injuries are all caused by the subject MVA.
Diagnosis and reasons
After the accident, Mr Cho developed immediate anxieties and after about three to four months he started experiencing progressive depressive symptoms and commenced a pattern of alcohol overuse. There has been some fluctuation in his anxiety and depressive symptoms and substance use, but there has been no complete remission at any point after the subject accident.
The Panel has diagnosed Major depressive disorder and Alcohol use disorder. Both conditions are currently severe.
In terms of DSM-5 criteria for developed Major Depressive Disorder:
Criterion A: Mr Cho has at least 5 depressive symptoms during a 2-week period, causing a change in his normal functioning. Mr Cho reported the following depressive symptoms:
· Pervasively depressed mood
· Almost complete anhedonia
· Sleep impairment
· Marked loss of energy
· Significant cognitive problems
· Recurrent suicidal ideation.
Criterion B: His symptoms cause him clinically significant distress.
Criterion C: His symptoms are not due to the physiological effects of a medication or substance, and are not part of a general medical condition.
Criterion D: His symptoms are not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder or schizophrenia/psychosis spectrum disorder, acute stress disorder symptoms or adjustment disorder.
Criterion E: Mr Cho denied ever having a manic or hypomanic episode.
In reference to DSM-5 diagnostic criteria for substance use disorder (alcohol),
Mr Cho confirmed:· Taking the substance in larger amounts or for longer than intended or recommended.
· Wanting to cut down or stop but not managing to.
· Spending a lot of time getting, using, or recovering from the use of substance.
· Not managing to function, to do what Mr Cho should at work because of substance use.
· Needing more of the substance to get the effect he wanted from the substance.
· Continuing to use, even when Mr Cho knows there has been a physical complication (liver impairment), cognitive and occupational problem that have been caused by substance use.
Mr Cho does not have Post-traumatic stress disorder. He did not experience fear or horror, or the type of psychological reaction seen in PTSD, and the subject MVA was not experienced as a threat of serious injury or death.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[23] and Insurance Australia Ltd v Marsh.[24]
[23] [2021] NSWCA 287 at [40], [41] and [45].
[24] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on the thorough examination and specific findings pertaining to diagnosis. We observe that this examination report complies with the requirements of the Guidelines set out earlier herein, and particularly clause 5.6. The Panel adds the following further reasons.
We accept the insurer’s submission that there is a history of excessive alcohol consumption in March 2019 which is prior to the motor accident. However, that history is not inconsistent with the history obtained by the Medical Assessors of clear functioning prior to the motor accident.
We accept that the psychological injury was caused by the motor accident. Our conclusion is based on the contemporality of symptoms following the motor accident, the claimant’s history to various medical practitioners and the clinical examination by the Medical Assessors on the Panel. That conclusion is not inconsistent with the insurer’s submission that working long hours also contributed to symptoms of anxiety and poor sleep.
The Panel is not satisfied that Mr Cho has or ever had PTSD. That is because the subject motor accident was not a threat of serious injury or death. That essential element is not satisfied for the purposes of diagnosing PTSD under DSM-5.
The Panel has diagnosed Mr Cho with major depressive disorder and alcohol use disorder which is a diagnosable psychiatric injury under DSM-5. As we stated, the diagnosis was made by both Psychiatrists on the Panel having reviewed the material filed in the matter and examined Mr Cho. That psychiatric diagnosis is not an acute stress disorder, or an adjustment disorder as defined by DSM-5.
The Panel observes that the present diagnosis is consistent with that provided by the treating psychologist, Mr Maharaj. We agree with that opinion.
The Panel otherwise adopts the reasoning articulated in Lynch v AAI Ltd[25] in relation to the issue of the timing when a non-minor injury may occur.
[25] [2022] NSWPICMP 6 (Lynch) at [69] – [74].
Based on the Panel’s conclusion on the present psychiatric diagnosis, we accept the claimant’s submission that Mr Cho was suffering from major depressive disorder (severe) and sub-clinical alcohol use disorder when examined by Mr Maharaj in November 2021. That provides a further basis for concluding that Mr Cho was suffering from a non-minor injury as defined in the MAI Act at that time.
Conclusion
The Panel concludes that Mr Cho sustained a psychological injury caused by the motor accident which is a non-minor injury for the purposes of the MAI Act.
The replacement certificate is contained at the commencement of the Reasons.
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