Ghobrial v QBE Insurance (Australia) Limited
[2023] NSWPICMP 168
•1 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ghobrial v QBE Insurance (Australia) Limited [2023] NSWPICMP 168 |
| CLAIMANT: | Sandy Saad Ghobrial |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Thomas Newlyn |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 1 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold (formerly minor) injury and review of assessment under section 7.26 of Medical Assessor’s assessment; psychiatric injury was minor injury; claimant involved in high speed rear end collision on motorway while about 23 weeks pregnant; Held - after the claimant was re-examined by both Assessors on the Panel, the Panel was determined that the claimant satisfied the criteria for a post-traumatic stress disorder which is a recognised psychiatric injury as per the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and not a threshold injury; original Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Samuell dated 21 December 2021. 2. Certifies that the claimant’s psychological or psychiatric injury is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Ms Sandy Ghobrial was involved in a motor accident on 23 May 2019. Ms Ghobrial was driving to work on a motorway when she slowed down and almost stopped because of traffic in front of her. She was hit from behind by another car that did not stop. The car in front of Ms Ghobrial, had a rear facing “dash cam” which captured footage of the impact.[1]
[1] Document AD4 in the Commission’s electronic file.
The claimant was pregnant at the time of the accident and says she injured her back in the accident and developed a psychiatric injury. Ms Ghobrial made a claim for statutory benefits against QBE, the third-party insurer of the vehicle that hit hers.
A medical dispute about whether the claimant’s injuries were “minor” injuries within the statutory definition arose in the claim. Ms Ghobrial referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Samuell determined that Ms Ghobrial’s psychiatric injury was a “minor injury”.
The claimant applied to the Commission seeking a review of Medical Assessor Samuel’s determination. A delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the review.
On 22 November 2022, the President convened this Panel to undertake the review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Ghobrial’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.
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 a “minor injury” is now to be known as a “threshold injury”. The previous minor injury definition (with modifications) now determines whether an injury is a threshold injury or not[2].
[2] And for accidents occurring after the commencement of the amendments, statutory benefits will not cease until 52 weeks after the accident if the claimant’s only injuries are threshold injuries.
Because the original application was lodged at a time when the previous wording applied and the medical assessment undertaken by Medical Assessor Samuell was undertaken when the previous wording applied, the Panel will refer to the term “minor injury” when recounting historical events and considering the parties’ submissions. The Panel will adopt the terminology of “threshold injury” in our assessment and reasons.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury as a threshold injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says that an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries) is a threshold injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold injuries. The Guidelines[3] provide:
“[5.10] In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11]The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR[4]), 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.”
[3] The current version of the Guidelines is version 9.1, effective January 2023.
[4] For ease of reference the Panel will refer to this as DSM-5.
By adopting DSM-5 in cl 5.11, the Guidelines appear to provide the method of determining whether an injured person’s psychiatric illness is a recognised psychiatric illness or not for the purposes of s 1.6(1) of the MAI Act and excluding unrecognised illnesses from certain benefits and compensation. The DSM-5 method would also include the means of determining whether an adjustment disorder or acute stress disorder was present (both of which are recognised psychiatric illnesses) but which would be threshold injuries in accordance with cl 4(2) of the Regulation and also exclude a person from recovering certain benefits and compensation.
The Guidelines also provide a general guide for the conduct of a medical assessment of threshold injury.
“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 ...”
Threshold injury, at any time
In the cases of David v Allianz Australia Insurance Ltd[5] a medical panel found that whether the claimant is found to have a minor or non-minor injury on the day of any re-examination by the Panel is only one part of the assessment. The panels held that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “minor injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered or in remission) at the time the Panel undertakes its assessment.
[5] 2021 NSWPICMP 227.
In Lynch v AAI Limited t/as AAMI[6] a differently constituted panel there considered the same issue in respect of a psychiatric injury and at [68]-[69] the Panel concluded that Ms Lynch suffered from a Specific Phobia of Driving which was a non-minor injury and a major depressive disorder now in remission which was also a non-minor injury.
[6] 2022 NSWPICMP 6.
After citing David, and considering cl 5.10-5.11 where the word “present” is required for a psychiatric injury, the panel said at [72]:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[7]
[7] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Samuell’s, further medical assessments and the review of medical assessments by this Panel.[8]
[8] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Samuell examined the claimant on 7 December 2021 and on 21 December 2021 issued his certificate of determination with reasons.
He was asked to assess whether a “psychological injury” was a minor injury or whether it fell outside the definition in s 1.6 of the MAI Act.
The claimant gave the following history:
(a) she was 31 years of age at the time of the assessment with two children one who was seven months old and the other a two year old;
(b) she was a part time support worker and teacher at high school although she has not returned to teaching since the birth of her second child. She said she was currently working part time with a client with severe autism;
(c) Ms Ghobrial denied any psychiatric history or relevant medical history;
(d) the accident occurred when the claimant was 23 weeks pregnant, and she was rear ended by a car she says was travelling at 80kmph. She was moving, but slowly, at about 5kmph;
(e) she saw the car approaching in her mirror and braced before impact but could not avoid the accident. The dashcam footage that the Panel has viewed suggests the claimant did try to move to her right and around the car in front to avoid the impact and that she hit the car in front at an angle. She was forced into the lane next to her which fortunately was empty;
(f) she said she was quite stressed by the accident primarily because she was pregnant, and she was taken by ambulance to Westmead Hospital where she was kept for “several days”;
(g) she said her psychological issues arose when she came out of hospital and she was distressed by the dashcam footage, and
(h) she said in time her symptoms decreased but remained constant. Her symptoms remerged during her second pregnancy, but they are now decreasing and she is trying to get better.
Her current symptoms include flashbacks every time she is driving near the motorway where this accident occurred. Medical Assessor Samuell records that the flashbacks were occurring almost nightly while she was pregnant with her first child to once a week or fortnight now. In these flashbacks she is constantly looking in her rear-view mirror seeing cars approach.
Ms Ghobrial told Medical Assessor Samuell that she was seeing a counsellor in the Blue Mountains and her general practitioner (GP) and that she saw a psychologist for four to five months through Workers Doctors and has stopped seeing Dr Kumagaya her psychiatrist because of distance.
On examination Medical Assessor Samuell says “her affect was completely normal” and “her cognitive functioning was clinically normal”.
In terms of her current functioning, Medical Assessor Samuell says that the claimant has domestic commitments, is working, has hobbies and continues to drive.
After reviewing the documentation, Medical Assessor Samuell says:
“At the time that I assessed Ms Ghobrial, her psychological symptoms were mild and not the source of impairment, nor were they disproportionate to the stressor. Her mental state findings were close to normal, and her symptoms did not reach the threshold of a mental health condition. As such, no diagnosis was made”.
As there was no “mental health condition” or psychological injury, Medical Assessor Samuell said there was no need to determine whether there was a “minor injury”.
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions in respect of the application for review are dated 27 January 2021.[9]
[9] And are document A1 in the Commission’s electronic file.
The claimant’s primary submission at [4]-[7] is that there are insufficient reasons for Medical Assessor Samuel’s finding that the claimant has not sustained a psychological injury.
The claimant also says at [9] that Medical Assessor Samuell failed to address or apply he DSM-5, took into account irrelevant considerations, failed to properly consider or refer to the evidence and failed to provide a clear path of reasoning.
The claimant complains that the assessor did not refer to the evidence and diagnosis of her treating practitioners in making his decision which “overwhelmingly supports a diagnosis of PTSD”.
Insurer’s submissions
The insurer says[10] at [6] that the medical evidence did not “overwhelmingly support” a post-traumatic stress disorder diagnosis and at [8] that it was the Medical Assessor’s examination of the claimant that was critical.
[10] The submissions are not dated but are found at page 4 of the insurer’s bundle (AD5).
The insurer refers to Medical Assessor Samuell’s finding at [17] that the claimant was calm at the scene, no psychiatric diagnosis was made in hospital nor by her usual treating doctor. He specifically noted that there was a delayed diagnosis by Dr Lim after the claimant moved to a practice called “the Workers Doctors”.
The insurer noted at [14] that it is not the role of an assessor to evaluate evidence but to independently assess the claimant and make his own decision.
The insurer says that by examining the claimant he found her symptoms did not translate to a psychiatric condition and that any consideration of DSM-5 would be redundant.
The insurer notes that while the claimant submits the assessor did not consider all of the evidence, there is no specificity as to what particular evidence was not considered.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form (Application for Personal Injury Benefits) is dated 29 January 2020. The claimant lists her injuries as “neck, right arm, right shoulder, back, right leg, right knee, left leg, nervous shock”.
The first certificate of capacity dated 4 June 2019 was completed by Dr Abdulabas of Penrith.[11] She diagnosed low back pain and noted the claimant was 21 (not 23) weeks pregnant. She certified the claimant unfit for work. Three further certificates issued by this doctor refer only to physical injuries and physical therapies.
[11] Page 10 of the claimant’s bundle.
On 17 January 2020, Dr Eric Lim of Workers Doctors diagnosed in another certificate of capacity a “lumbar spine radiculopathy (ODI: 60%); PTSD (PCL-5:60)”. He recommended treatment including modified activities, pain management and simple analgesics as well as referrals to a physiotherapist, psychologist and spinal surgeon. Two further similar certificates were issued.
The insurer wrote to the claimant on 27 August 2019[12] advising that liability for ongoing benefits was denied on the basis she had a minor injury. This decision was made while the claimant was still seeing Dr Abdulabas but before she had attended upon Dr Lim.
[12] Page 26 of the insurer’s bundle.
Treating medical records and reports
In Dr Abdulabas’ records printed on 16 March 2020[13] is a record of the claimant’s attendance on 28 May 2019. Of relevance to the issues in dispute in this case is:
(a) the claimant was a new patient with no past mental health issues. She was seen with her mother and was 21 weeks pregnant;
(b) the entry reads, “her dad who is dr rang me earlier telling me the history. Her dad is her regular GP, sees midwife, private, [liaises[] with Nepean as well, she is planning on home birth”.
(c) she reported no neck pain, but muscular tension and the lower back was said to be the “main issue”. She had been getting radiation to both legs and her back pain was constant, stopping her from working and affecting her sleep, and
(d) “avoiding driving as well due to the psychological trauma”.
[13] Page 31 of the claimant’s bundle.
On 4 June 2019 there was a further attendance after two physiotherapy attendances and her pain was worse. On 18 June 2019 she was still having physiotherapy but she had more range of motion, more pain free time and rest was helping.
On 8 July 2019 Ms Ghobrial reported she was still having physiotherapy but was getting pain in her left calf with some tingling and wanted to be excused from a practical part of her university degree.
There are a few further attendances noting the claimant’s return to work, continued treatment including chiropractic treatment and on 13 September she was “stressing as birth can happen at any time.”
The last attendance at this practice appears to be on 11 December 2019 when the claimant reported her baby was born eight weeks earlier and she now wanted to get an MRI “as yesterday she was trying to pick up her baby [and] she felt sharp lower back pain and [right] sciatica”.
The ambulance report[14] noted the claimant self-extricated from the vehicle which had “moderate deformity”. The claimant said she had no complications from the pregnancy, had no pelvic bleeding but had not felt any foetal movements since the accident.
[14] Page 77 of the claimant’s bundle.
The discharge summary from Westmead Hospital[15] noted the claimant was monitored in hospital overnight “during which her pain resolved” and she was advised to attend her usual GP. The hospital notes do not add a great deal to the Panel’s understanding of her psychiatric illness however there is a history of having a “slipped L5 disc 5 years ago with associated sciatica”.
[15] Page 35 of the claimant’s bundle.
At page 126 of the claimant’s bundle is a “post-traumatic Stress Disorder Checklist for DSM-5” which has a series of 20 questions and allows for a score of 0-4 for each question. The claimant’s total score was said to be 60 and the form notes “A total PCL-5 score of 33 or over from a theoretical maximum of 80 signifies the likely presence of PTSD.”
Dr Kumagaya a psychiatrist practises at the same address as Dr Lim “the Workers Doctors” and has seen the claimant. He has provided a report to Dr Lim dated 30 January 2020 which includes the following history:
(a) several days after the accident, the claimant developed post-traumatic stress disorder symptoms, and
(b) the symptoms included intrusion (distressing memories, nightmares psychological distress), avoidance symptoms (avoidance of external reminders of the accident), negative alterations in cognition and mood and hyper arousal symptoms.
On examination he noted “her thought content consisted primarily of post-traumatic stress disorder stressors and ongoing depressive and anxious cognitions”.
He did not recommend medication at the time but ongoing psychological therapy ever one to two weeks and a follow-up appointment, three weeks later.
A further report dated 20 February 2020 was in much the same terms although he noted the claimant “had engaged in behavioural activation and positive activity planning exercises with good effect and was finding that she was able to engage to an increasing degree in pre- morbid endeavours”. He recommended psychological therapy and follow up with him in four to six weeks.
The final report from Dr Kumagaya[16] noted “ongoing flashbacks when inside a motor vehicle, in addition to hyper arousal symptoms”. While he suggests she was “open” to psychological therapy it is not clear whether at this time she had had any counselling. He again recommended psychological therapy and sought a review in four weeks. No further reports are provided.
[16] Found at page 37 of the insurer’s bundle.
There is an allied health recovery request form completed by Carl Nielsen of the Workers Doctors practice requesting permission from the insurer for eight counselling sessions.
RE-EXAMINATION FINDINGS
Ms Ghobrial was interviewed utilising the MS-Teams platform by Medical Assessors Newlyn and Chew. The quality of communication was sufficient to undertake the assessment.
Psychosocial history and pre-accident history
Ms Ghobrial is a 32-year-old woman who lives in Blaxland with her husband of five years and two children aged one and three. She is three months pregnant.
The claimant was born in Saudi Arabia and migrated to Australia with her parents. She has one younger brother. There is no family history of mental illness. She reported that they migrated because it was difficult for them as a Christian family living in an Islamic country. Her father is a GP and they spent time in Wagga Wagga as part of the rural scheme for overseas trained doctors. She completed year 12 at school then studied teaching while starting work in the disability sector.
Ms Ghobrial reported she is currently working for a disability organisation two days a week. She looks after her children full time on the other three days.
Ms Ghobrial’s husband is currently working full time as a teacher.
She denied any pre-accident psychiatric or general medical history and she denied the use of alcohol or recreational drugs.
History of the motor vehicle accident
Ms Ghobrial reported that at the time of the accident 23 May 2019 she was 23 weeks pregnant with her first child.
She was driving her black Toyota hatchback unaccompanied on the M5 approaching the Cumberland Highway exit. She had slowed down to around 5kmph because of traffic. She said that she was rear-ended by a car travelling around 85 kmph. She said that she had seen the car coming towards her in the rear-view mirror. She was unable to avoid the impact. Police and ambulance attended the scene. She claimed that her car was “written off” and it was only a few months old. She was taken to Westmead Hospital. She said that there were mixed messages from medical staff about whether X-rays were necessary at the time given the pregnancy, so she did not have them and left hospital two days later. She was told that she had experienced “whiplash” and had immediate low back pain radiating down her leg.
She reported that at the time of the accident she was “shaken and shattered” emotionally. She said that she “feared the worst” at the time that is “losing my baby and not being able to walk again”.
Symptoms and treatment following the motor vehicle accident
Ms Ghobrial reported pain immediately, particularly in her lower back. When she went home she claimed she could not walk for approximately six weeks and was “couch ridden” and that it was the “worst six weeks of my life”. She said that there was extreme low back pain which shot down her leg.
She claimed that within days of the accident at home she was experiencing poor sleep and nightmares relating to the accident.
She reported that she was unable to drive until her first child was around three to four months old. She reported that she avoided driving because it reminded her of the accident. When she began driving, she was extremely hypervigilant in the car. She experienced frequent flashbacks to the accident while in the car triggered for example by seeing a car coming towards her in the rear-view mirror. She felt generally negative and low in mood with irritability and subjective concentration difficulties.
She reported that she changed medical practices for treatment as the new practice had mental health services attached and she had realised that she was struggling with her symptoms.
She was treated by psychiatrist Dr Kumagaya who diagnosed post-tTraumatic stress disorder. She said that she was offered psychotropic medication but declined because of her pregnancy.
Current symptoms and treatment
Ms Ghobrial reported a persistent negative emotional state with poor energy, she was not herself, not bubbly and feeling detached from others – more cynical in her outlook. She described increased irritability and “constant arguing” with her husband. She reported ongoing sleep disturbance with nightmares approximately three nights a week.
She reports ongoing low back pain.
She reports difficulty driving with frequent “flashbacks” having to check for safety constantly and recalling the accident.
She reported that she was more easily distracted and had poorer concentration than before the accident.
With respect to mental health treatment, Ms Ghobrial is seeing a counsellor once every few months. She said that she would like to avoid psychotropic medication because of her pregnancy.
With respect to physical health treatment, she reports ongoing physiotherapy once every two weeks.
MENTAL STATE EXAMINATION
Ms Ghobrial was a female with an appearance consistent with her ethnic origin. She was wearing tidy clothing and was well presented. She was polite, cooperative and attentive and displayed no abnormal movements or psychomotor activity.
Ms Ghobrial’s speech was of normal rate, rhythm, volume and prosody and there was no evidence of formal thought disorder or delusional thought processes. She did not report thoughts of self-harm or thoughts of harm to others. Her mood was down and anxious. Her affect was reactive, congruent and appropriate and she was somewhat restricted in her emotions.
Ms Ghobrial presented as a genuine historian. She denied any perceptual abnormalities consistent with psychosis. Her cognition, insight and judgment appeared intact in the context of the interview. Rapport was good and she spoke openly and freely.
Determination
Ms Ghobrial reported a narrative and presented at assessment as consistent with having post-traumatic stress disorder.
DSM-5 sets out a number of criteria all of which must be present for a diagnosis of post-traumatic stress disorder. The table below sets out those criteria and the Panel’s summary findings and comments as to how each of the criteria are met by Ms Ghobrial.
Criterion
Reference to Ms Ghobrial
A – stressor (one required) – exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violent by:
Ms Ghobrial was directly involved in the motor accident where she feared serious injury to herself and more importantly to her, losing her baby.
B – intrusion symptoms (one or more required) – the traumatic event is persistently re-experienced by
· Recurrent, involuntary and intrusive distressing memories of the event;
· Recurrent distressing dreams;
· Dissociative reactions (e.g. flashbacks);
· Intense or prolonged psychological distress at exposure to reminders of the event;
· Marked physiological reactions to reminders of the event.
Ms Ghobrial has experienced intrusion symptoms including regular nightmares and flashbacks several times a week while in her car.
C – avoidance of trauma related stimuli by:
· Trauma related thoughts or feelings
· Trauma related external reminders
Ms Ghobrial avoided driving for some time after the accident and in particular in the area where the accident occurred.
D – negative thoughts or feelings that began or worsened after trauma in the following ways:
· inability to recall key features of the trauma
· overly negative thoughts and assumptions
· exaggerated blame of self or others for causing the trauma
· negative affect
· decreased interest in activities
· feeling isolated
· difficulty experiencing positive affect
She has negative thoughts and her mood was down and anxious.
E - alternations in arousal and reactivity such as:
· irritability or aggression
· risky or destructive behaviour
· hypervigilance
· heightened startle reaction
· difficulty concentrating
· difficulty sleeping
Ms Ghobrial reported irritability with her husband and regular arguments. She also reported hypervigilance when driving.
F – duration – greater than one month
It is now close to four years after the accident and symptoms are continuing.
G – functional significance – symptoms create clinically significant distress or functional impairment
She has had reported significant feelings of distress and cannot do what she used to do before the accident.
H – exclusion – symptoms are not due to medication, substance use or other illness.
While the claimant reports a number of continuing and troublesome physical injuries, the Panel has been careful to consider only her psychological symptoms in undertaking this assessment.
Ms Ghobrial’s account is that symptoms appeared very soon, immediately or at least within days of the accident. The Panel notes the entry in Dr Abdulabas’ record on 28 May 2019 that at that time (five days after the accident) there was a report that the claimant was avoiding driving due to “psychological trauma”.
The insurer suggested there had been an apparent delay in diagnosis and treatment. There does not appear to have been a delay in diagnosis and in any event, this is not diagnostically relevant. It is the medical members of the Panel’s clinical judgment that post-traumatic stress disorder symptoms can have a delayed onset and still meet diagnostic criteria.
In Ms Ghobrial’s case her full symptom complex has developed after the accident, but she did not seek treatment for it until more than six months after the accident. This too is not unusual in the clinical judgment of the medical members of the Panel and particularly when the claimant was pregnant for much of that time and then dealing with a new baby.
CONCLUSION
The Medical Members of the Panel have diagnosed the claimant as experiencing a post-traumatic stress disorder. This is a psychiatric illness recognised by DSM-5.
Post-traumatic stress disorder is not a threshold injury within the meaning of s 1.6 of the MAI Act. Ms Ghobrial’s injury falls outside the statutory definition thereby enabling her to access ongoing statutory benefits under Part 3 of the MAI Act and to recover damages under Part 4 of the MAI Act.
As the Panel has come to a different view to Medical Assessor Samuell, it follows that his certificate of 21 December 2021 must be revoked.
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