Insurance Australia Limited t/as NRMA Insurance v Kavakci

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Kavakci [2025] NSWPICMP 227
CLAIMANT:	Sati Kavakci
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Himanshu Singh
DATE OF DECISION:	2 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); review of medical assessment; threshold injury; where Medical Assessor (MA) found panic disorder caused by the accident not a threshold injury; whether proceedings should have been dismissed; scope of dispute; whether insurer denied procedural fairness; Mandoukos v Allianz Australia Insurance, and AAI Limited trading as GIO v Amos applied; Held – insurer agitated dismissal for the first time in written submissions provided for the review; Review Panel does not have power to dismiss application; insurer’s submission that because no specific diagnosis was referred for assessment the Review Panel cannot go beyond the description in the application of “psychological injury” rejected; ambit of the dispute was whether the claimant suffered a psychological injury as a result of the accident and if so whether that injury was a threshold injury for the purposes of the MAI Act; specific diagnostic criteria included in DSM-5 serve as guidelines to be informed by clinical judgement and not meant to be used in a rigid cookbook fashion; insurer afforded an opportunity to address the issues in dispute; no denial of procedural fairness; the claimant suffered both specific phobia (driving), and an adjustment disorder as a result of the accident; specific phobia (driving) is not a threshold injury; adjustment disorder is a threshold injury; Medical Assessment Certificate revoked as the Review Panel’s findings about diagnosis of injury differ from those of the MA; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Samuell dated 20 November 2023 and certifies that: (a) specific phobia (driving) caused by the accident on 21 October 2022 is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017, and (b) adjustment disorder caused by the accident on 21 October 2022 is a threshold injury for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

Sati Kavakci (claimant) was injured in a motor accident that occurred on 21 October 2022 (accident). She subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
A dispute has arisen between the parties as to whether the claimant suffered a psychological injury as a result of the accident and if so, whether that injury is a threshold injury for the purposes of the MAI Act. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The dispute was referred to Medical Assessor Samuell for assessment. On 20 November 2023 the Medical Assessor certified that panic disorder caused by the accident was not a threshold injury for the purposes of the MAI Act (Assessment).
The insurer sought a review of the Assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to a Review Panel.
The review panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the Assessment (Review).

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: rule 128.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.

DIRECTIONS

On 6 November 2024 the Panel directed the parties to provide a joint bundle and submissions for the purposes of the Review. While a bundle was provided by the insurer, it was not clear whether the bundle included all the evidence relied on by the claimant.
On 12 December 2024 the proceedings were listed for case management. The claimant’s solicitor confirmed that there were some documents on which the claimant sought to rely that were not included in the bundle lodged by the insurer. The claimant was directed to lodge those further documents together with the written submissions. The insurer was given leave to file submissions addressing the additional documents.
On 12 December 2024 the claimant filed the following additional material in accordance with the Panel’s directions:
(a)    statement of Sati Kavakci dated 15 December 2023;
(b)    statement of Ilhani Genic dated 15 December 2023, and
(c)    submissions dated 12 December 2024.
On 16 December 2024 the insurer informed the Commission that it “does not have any further submissions” in response to the additional material filed by the claimant.
In accordance with a direction made by the panel on 17 December 2024 the insurer filed a copy of its “minor injury” decision dated 7 February 2023.

LEGISLATIVE FRAMEWORK

The term “threshold injury” is defined in s 1.6 of the MAI Act and includes threshold psychological or psychiatric injury. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(a).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) states that acute stress disorder and adjustment disorder are each included as a threshold injury for the purposes of the MAI Act. For the purposes of cl 4 “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
Part 5 of the Guidelines contains the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.3 of the Guidelines commenced on 6 December 2024 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3    The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    …
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J held at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Samuell gave a certificate and reasons dated 20 November 2023 wherein he certified that panic disorder caused by the accident was not a threshold injury for the purposes of the MAI Act.
In his reasons, the Medical Assessor recorded that there were “no formal submissions” made by the claimant, and that the insurer submitted that there was no contemporaneous evidence to support the assertion that the claimant suffered a psychological condition.
The Medical Assessor recorded that the claimant was an aged pensioner at the time of the accident and was not working. While she said she had no history of psychological difficulty before the accident she later acknowledged that she saw a counsellor some 10 years before while working in aged care. The claimant also reported being involved in a motor vehicle accident six or seven years before.
The claimant reported that she was irritable and described panic attacks and bad dreams about the accident. She reported that the panic attacks last for 5 to 10 minutes. She also reported that she is forgetful. She has difficulty initiating sleep and then frequently wakes due to pain. She described her mood as being “always down”. She was under the care of a GP, pain management specialist, and psychologist.
The Medical Assessor recorded that the claimant was “extremely difficult to interview. At times she was unresponsive. There were some difficulties experienced with the interpreter. He also recorded that:
“Although she initially told me that she was being assessed alone, at times I could hear someone prompting her with her report of symptoms.”
The Medical Assessor found that the claimant has recurrent panic attacks that are of clinical significance, and that her symptoms are consistent with a panic disorder. He noted that panic disorder did not “pre-exist” the accident and was satisfied there was contemporaneous evidence that the claimant was anxious following the accident. The Medical Assessor determined that it is plausible the accident provoked a panic disorder and accepted that the panic disorder was caused by the accident.

EVIDENCE

Other than the claimant’s statement dated 15 December 2023 and the statement of Ilhani Genic, the claimant’s husband, dated 15 December 2023 the evidence relied on by the parties for the purposes of the Review are contained in the joint bundle filed in accordance with the Panel’s directions. The Panel has considered all this evidence.

Statements

The claimant gave a statement dated 15 December 2023. She states that on

22 October 2022 her husband was driving a car that “suddenly lost control and hit a pole, colliding to [sic] another parked vehicle”.
The claimant states that she was taken by ambulance to hospital, and that following the accident she has been limited in her capacity to perform daily living activities and has not been able to continue with her hobbies and sustain a relationship with her husband, children, and friends. She states that she continues to have “pain symptoms” in her lower back, neck, right and left shoulder, left knee, left elbow, and chest together with “constant panic”.
With respect to the assessment by Medical Assessor Samuell, the claimant states that:
(a)    the assessment took place by video;
(b)    she was accompanied by a Turkish interpreter and “briefly by [her] husband”;
(c)    she was “not distressed during the assessment which made [her] feel more comfortable explaining to the Assessor [her] symptoms…” and treatment;
(d)    neither her husband, nor anyone else, was prompting her in any way when she was discussing her symptoms with the Medical Assessor, and
(e)    while her husband was initially in the same room, “it was only for a couple of minutes. He then exited the room and did not return until the assessment was completed”.
The claimant states that:
“…This accident has changed the way I perceive my life. I don't have the motivation to clean or cook. In my household it is traditionally expected for me to undertake these household tasks however I mentally do not feel well. I simply can't cope with it.”
The claimant’s husband gave a statement dated 15 December 2023. He states that as a result of the accident the claimant: “…sustained significant injuries, causing her life and our family to change”. He states as follows with respect to the assessment by Medical Assessor Samuell: “I was only there to drop off the keys to her and then I left the room. I did not return to the room until the assessment finished”.

Ambulance and hospital records

An Ambulance electronic medical record dated 21 October 2022 contains the following case description:
“C/t 69yo female with chest pain post 2 car MVA. O/a pt still in passenger seat of car, in nil obvious distress. Driver states he has hit another vehicle in the carpark going less than 10km/h. Impact to vehicle is on the driver’s side, no airbags deployed, seatbelt worn, minor car damage. Pt denies any c-spine tenderness, headsrike [sic] or ALOC. Passenger door opened by bystander, pt self extricated. Pt c/o mild pain to r upper chest (in line with seatbelt – nil marks present)…chest pain relieved at rest…Pt also has minor red mark to L elbow, nil pain, good sensation, pulses present, nil deformity. Pt ambulant without assistance. NSWPF on scene. Pt tx stable enroute.”
The Ambulance report records that the claimant was taken to Bankstown Lidcombe Hospital. The records from Bankstown-Lidcombe Hospital include an Emergency Department discharge referral. The discharge referral records a diagnosis of “chest wall pain” and includes the following summary:
“…the patient’s husband driving her hit on a tree and the car twisted.
[T]he patient hit her left knee, left arm, shoulders, left head to the car
Denies any chest trauma
After the accident, the patient was panic and started having chest pain
- on left chest
- pain happening when taking a deep breath
- feeling like tightness
- this is the first time
- after taking 1000mg Panadol, the pain reduced
Feeling nausea
No vomiting
No fever
No SOB”

Application for personal injury benefits

The claimant submitted an application for personal injury benefits dated 9 November 2022 in which she described the accident in the following terms:
“I was a passenger in vehicle …
The car lost control and hit a tree and rail. It then collided with a parked car.”
The claimant recorded that she received the following injuries as a result of the accident:
“chest, left elbow, left knee, left shoulder, right shoulder, neck, low back, panic/shock”
The claimant recorded as follows in response to the question “Were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident”:
“neck, shoulders, low back.”
The claimant has ticked the box next to “No” in response to the question “have you been away from work as a result of the accident?”.

Dr Needham’s reports

There is a series of reports from Dr Needham, consultant in rehabilitation and pain medicine. The claimant was referred to the doctor by Dr Wynn on 2 February 2023. The referral records that the claimant was referred for opinion and management of chronic back pain.
Dr Needham reported to Dr Tin on 22 March 2023. The doctor recorded that the claimant had not driven since the accident. There was “some degree of pre-existing lumbar spine disorder which was exacerbated by her accident with resultant persistent lumbar pain.” An MRI was indicated.
Dr Needham reported again on 20 September 2023. The claimant continued to report lumbar pain with paraesthesia in her lower limbs. A lumbar MRI “showed potential for impingement of bilateral L5 nerve roots due to disc herniation at L4/5 level.” The claimant reported that she had resumed driving “to a limited extent.” She had been referred to a neurologist.
In a report to Dr Tin dated 1 November 2023 Dr Needham recorded that the claimant continued to report lumbar pain with paraesthesia in her lower limbs. The doctor reported that the claimant was “able to drive her motor vehicle for only very short distances although she appeared to be in very good spirits with no evidence of emotional distress.”

Dr Needham’s report of 21 February 2024 records that the claimant “continues to complain of lumbar pain with lower limb [paraesthesia] which she relates to her MVA in October 2022, although recent nerve conduction studies by neurologist Dr Dowla showed no evidence of neurological pathology”. The doctor stated that “[h]er condition remains associated with ongoing emotional disorder”. The claimant remained able to drive for short distances. Her condition “appears static”.
On 15 May 2024 Dr Needham recorded that the claimant “appeared very cheerful” and was mobilising freely. Her right sciatic pain had “largely resolved”. A steroid injection was not “now” indicated as she was no longer symptomatic.
Dr Needham reported on 3 July 2024. The claimant reported moderate lumbar pain and sciatic symptoms. She was “disinclined regarding any intervention treatment”. She had resumed driving “to a limited extent which is a positive psychologic factor”.

Medical Assessor Cameron’s certificate and reasons

Medical Assessor Cameron gave a certificate and reasons dated 26 May 2024. The Medical Assessor certified that soft tissue injuries to the claimant’s chest, left elbow, left knee, lumbar spine, and both shoulders were threshold injuries for the purposes of the MAI Act.
In his reasons, the Medical Assessor recorded that:
(a)    the claimant stopped working after a motor accident on 22 October 2017;
(b)    the claimant reported neck pain, back pain and pain in both shoulders following the 2017 accident, “which gradually recovered”;
(c)    following the subject accident she “has had ongoing problems, particularly nightmares and sleeping problems, and she could not get into a car for a long period”;
(d)    there were also “a variety of musculoskeletal problems”;
(e)    the claimant “remains fearful in a vehicle. However, she can drive short distances in a car”, and
(f)    the claimant had pain from multiple parts of her body including the left side of the face, left ear, both shoulders with difficulty reaching upwards, lower back pain, some right leg numbness. She also reported some headaches and occasional difficulty walking.
The Medical Assessor recorded that the claimant had inconsistent movement at her shoulders which she said was due to variable pain. He diagnosed multiple soft tissue injuries as a result of the accident.

Clinical notes

The evidence includes records from Bass Hill Plaza medical practice. Those records contain patient notes, referrals, specialist reports, mental health care plans, Allied Health Services Referrals, test results, and radiological reports.
An undated GP Mental Health Care Plan dated 1 September 2023 is for a referral to a psychologist, and records that the presenting issue is “anxiety”. The following patient history is recorded:
“has difficulty going to sleep
has nightmares
is worries about her future
has some generalised anxiety
was involved in an MVA last yr and has had fears of getting into the car since the MVA”
It is recorded that the “outcome tool used” was K10. The result was 33/50.
A referral to Ms Charmaine Moubarak dated 1 September 2023 records that the claimant presented with generalised anxiety, has difficulty going to sleep, experiences nightmares, is worried about her future, and has had “fears of getting into the car since the MVA”.
The progress notes include references to the following:
1 September 2023 – “has difficulty going to sleep discussed non-pharm has nightmares is worried about her future has some generalised anxiety was involved in an MVA last yr and has had fears of getting into the car since the MVA would like to see a psychologist dass 21 – 33/50 advised can trial melatonin… low mood low effect…”
2 November 2023 – “patient is sleeping better now around 6 hrs/daily, having less caffeinated drinks as advised….”
A referral to Christine Gilto dated 13 February 2024 records that the claimant presented with anxiety, having been involved in a motor vehicle accident “last yr”. She reported “fears of getting into the car since the MVA and also has associated difficultly going to sleep; has nightmares”.
A referral to Ramsay Psychology Liverpool dated 25 June 2024 records that the claimant presented with anxiety, and “has fears of driving”. The referral records that the claimant had:
“…only recently started driving again; and avoids driving long distance. She also has associated difficulty going to sleep; has nightmares.”

Radiological reports

The Panel has considered the following radiological reports:
(a)    X-ray and ultrasound of the left shoulder dated 31 October 2022;
(b)    CT cervical and lumbar spine dated 24 February 2023, and
(c)    MRI lumbar spine dated 27 July 2023.

Allied health recovery requests

Allied health recovery requests (AHRR) dated 22 November 2022, 11 April 2023,

5 June 2023, 14 August 2023, 11 December 2023, 20 February 2024, 4 March 2024, and

3 September 2024 relate to physiotherapy treatment for the claimant’s neck, shoulder, and lower back pain. The referrals record that the claimant had previous “mild non-specific lower back pain and neck pain”.
An AHRR dated 13 September 2024 is for psychological treatment. The referral records that the “initial clinical impression” was of adjustment disorder with mixed anxiety and depressed mood “following MVA and persistent chronic pain…”. The referral also records that the claimant “has not returned to work since the MVA”. A DASS test undertaken on

11 September 2024 resulted in the following scores: Depression = 24, Anxiety = 28, and Stress = 28. Barriers to recovery included:
“depressed and unmotivated moods impacting on re-engagement in personal and social activities. Anxious and fearful moods impacting on quality of sleep, daytime energy levels, and ability to return to driving longer distances. Current mental health symptoms further impact on ability to manage chronic pain effectively…”

Certificates

The certificates of capacity/ fitness dated 3 November 2022, 6 February 2023, 3 April 2023, 27 September 2023, 12 February 2024, and 14 February 2024 have been considered.
The certificate dated 3 November 2022 refers to “whiplash + left subacromial bursitis + soft tissue injury to left elbow/knee + right shoulder pain (likely also subacromial bursitis)”.
The certificates dated 6 February 2022, 3 April 2023, 27 September 2023, and

14 February 2024 refer to the same injuries.
A certificate dated 12 February 2024 refers to a diagnosis of “MVA accident; anxiety”.

Previous claim records

The joint bundle contains material relating to the accident on 22 October 2017. A claim form dated 22 November 2017 contains the following description of the accident:
“I was a front seat passenger in vehicle…This vehicle failed to stop in time and collided into the rear of a stationary vehicle.
I was not able to record the registration of the Red vehicle before it decamped from the accident scene.
As a result of the collision I sustained injuries.”
The claim form records that the claimant suffered a closed head injury, together with injuries to her shoulders, low back, neck, and psychological injury. She attended the emergency department at Bankstown Hospital. The claim form records that the claimant was employed as an assistant nurse and had not returned to work following the accident.
A medical certificate dated 20 November 2017, completed by Dr Tin, records that the claimant was diagnosed with acute cervical and lumbar strain with a history of underlying degeneration of the cervical and lumbar spines.
An Ambulance report dated 22 October 2017 contains the following case description:
“C/T 2 car MVA O/A car sustained very minor damage to the front right corner of the vehicle PT husband stated that he was driving and the car in front of him suddenly stopped causing them to hit it at an unknown speed PT and husband are of NESD making them poor historians PT was mobile to the stretcher once on the stretcher PT stated that she had pain in her neck and in her lower back PT was placed in a collar PT was alert, responsive and perfused O/E PT was GCS 15, normocardic, hypertensive, nil CVA, Peartl, afebrile, WOD, BSC&=, denies nausea, denies SOB, denies dizziness, 7/10 pain PT denied analgesia from A/O PT was stable enroute to Bankstown Hospital.”
An AHRR dated 31 January 2018 is for a referral to a physiotherapist for neck and back pain. AHRRs dated 26 April 2018 and 10 July 2018 are for physiotherapy treatment of “right L4 & L5 root compression cervical WAD”.

Other evidence

The Panel has considered the internal review request dated 1 March 2023 and the internal review certificates and reasons dated 22 March 2023 and 22 November 2023, together with the reply form, the insurer’s submissions dated 28 April 2023, and the application dated

12 April 2023. The Panel has also considered the DSM-V-TR diagnostic criteria for panic disorder.

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 28 November 2023. The reference to 2023 is a typographical error; the submissions were filed in accordance with directions made by the Panel on 6 November 2024 and refer to those directions.
The insurer refers to the claimant’s involvement in an accident on 22 October 2017, and subsequent complains of neck and lower back pain, closed head injury, injuries to her shoulders, and psychological injury.
With respect to the accident that is the subject of the Review, the insurer’s submissions refer to matters recorded in the ambulance report, including that the other vehicle involved in the accident was “going less than 10km/h”, the airbags did not deploy, and that there was “minor car damage”. The insurer also refers to the discharge letter from Bankstown-Lidcombe Hospital Emergency Department. Those notes record (among other things) that “[a]fter the accident, the patient was panic and started having chest pain on the left chest, pain happening when taking a deep breath, feeling like tightness, this is the first time…”
The insurer’s submissions from [15] - [46] refer to various post-accident complaints made by the claimant that are recorded in the evidence.
In the insurer’s submission there are “a number of inconsistencies” in the evidence. The insurer observes that some of these inconsistencies “may be consistent with Assessor Samuell’s examination describing the Claimant as ‘extremely difficult to interview. At times she was unresponsive’ as well as someone being present prompting the claimant to report specific symptomology.”
The insurer “highlights” that although the claimant reported to Medical Assessor Samuell that she was being assessed alone, the Medical Assessor could hear someone prompting her with her report of symptoms.
The insurer also “highlights” that the claimant did not report recurrent panic attacks and bad dreams until she was assessed by Medical Assessor Samuell nearly a year after the accident.
The insurer points at [52] to the differing reports with respect to when the claimant returned to driving; Dr Needham reporting that she resumed driving on or about September 2023 while the physiotherapy records refer to the claimant returning to driving from November 2022.
At [53]-[54] the insurer refers to conflicting histories with respect to when the claimant stopped working, some records stating that this occurred after the accident when others refer to the claimant ceasing work following the 2017 accident.
At [55]-[63] the insurer submits that:
(a)    the claimant did not refer to a specific psychiatric diagnosis when she referred the threshold injury dispute to the Commission for assessment;
(b)    the claimant only referred “psychiatric condition” for assessment;
(c)    there was a lack of evidence supporting a psychiatric injury;
(d)    the Commission does not have the power to redefine the scope of a medical dispute as referred by the parties;
(e)    “in the absence of specific medical records, submissions, or on the application of a specific psychiatric injury alleged to have arisen from the accident, it is not the role of the Panel, to “ferret around”, “divine a case”, and discover whether the claimant suffered from any physical conditions not specifically referred for assessment”;
(f)    “in circumstances where it has not been put on notice about the specific injury alleged, nor provided medical evidence to support the same, it was procedurally unfair to select a diagnosis from the hundreds of conditions contained in the DSM-V-TR, and not provide an opportunity to respond”;
(g)    the dispute should have been “dismissed in the first place due to insufficiency of evidence of any alleged psychiatric injury”;
(h)    while s 7.26 of the MAI Act requires the Panel to conduct a new assessment “de novo”, the scope of dispute cannot be changed. Accordingly, the “Panel would be expected to determine whether a “psychiatric condition” or “psychiatric injury” are non-threshold injuries for the purposes of the Act”, and
(i)    as neither “psychiatric condition” or “psychiatric injury” are recognised conditions under the DSM-V-TR, “the only conclusion open would be that the claimant has not discharged their onus that they suffered a non-threshold psychiatric condition as referred for Assessment”.
The insurer submits that the claimant’s symptomatology is not consistent with a panic disorder as described in the DSM-V-TR. In the insurer’s submission, Medical Assessor Samuell failed to provide sufficient reasons the claimant’s “alleged” psychiatric condition satisfied the diagnostic criteria for panic disorder.
The insurer refers to the AHRR dated 13 September 2024 that records a diagnosis of adjustment disorder with mixed anxiety and depressed mood and argues that the medical records over the two years since the accident “do not evidence the claimant meets the criteria for a panic disorder noting only 1 of the criteria A is at best satisfied, and criterion B has not been satisfied”.
The insurer submits that, consistent with Criterion D, the claimant’s symptoms, if attributable to the accident, would satisfy a diagnosis of an adjustment disorder with mixed anxiety and depression as diagnosed by Amy Chau, psychologist.
With respect to causation, the insurer argues that while the accident was of a kind that could have caused a psychiatric injury, the medical records do not support a finding that it did cause a psychiatric injury.
The insurer notes other than an initial shock following the accident, “the extensive medical records do not indicate any psychiatric issues until September 2023, nearly 1 year after the …accident.”
The insurer notes the complaints of difficulty with sleep in September 2023 appear to coincide with the claimant’s “unilateral cessation of a CPAP machine” noted in Dr Needham’s report. It is also noted that upon reduction of caffeine consumption, the claimant reported to have improved quality of sleep.
The insurer again refers to inconsistencies with respect to when the claimant returned to driving and submits that the first mention of panic attacks was when the claimant was assessed by Medical Assessor Samuell, at which time she was prompted with respect to her symptoms, and that the diagnosis of adjustment disorder with mixed anxiety and depressed mood was due to chronic pain.
The insurer submits the claimant’s ongoing psychological issues “relate chiefly to the 2017 accident which resulted in the claimant’s inability to return to work and caused chronic pain.”
The insurer argues that any physical injury sustained in the accident “would and did resolve” and the ongoing complaints and limitations are those that were symptomatic and pre-date the accident. In the insurer’s submission, the ongoing psychological issues are not attributable to the effects of the physical injuries sustained in the accident as those injuries had resolved.
The insurer submits the delay in the report of any psychiatric symptomatology is inconsistent with an acute psychiatric injury, that the sleeping issues “appear to relate to caffeine intake and ceasing to use a CPAP machine”, and that the claimant has not suffered any non-threshold injuries.

Claimant’s submissions

The claimant relies on written submissions dated 12 December 2024. The submissions recount the circumstances in which the accident occurred and the claimant’s subsequent treatment. The claimant refers to the discharge letter from Bankstown Hospital that records she was “panic”, and notes that she completed a K10 form on 1 September 2023 which recorded that she was feeling nervous “all of the time”. She also refers to the referral to a psychologist on the same date.
The claimant’s submissions refer to the symptoms reported to Medical Assessor Samuell, and the Medical Assessor’s findings with respect to a diagnosis of panic disorder and causation of that condition.
The submissions record that the claimant is currently taking anti-depressant medication including Effexor, Amitriptyline and Citalopram.
In the claimant’s submission the insurer has not established how any of the alleged inconsistencies it refers to are material in terms of diagnosing and assessing her psychiatric injury for the purposes of the dispute.
In terms of the scope of the dispute, the claimant argues:
(a)    it is not unusual for psychiatric assessments to omit a specific diagnosis;
(b)    even if the referral was to specify a specific disorder, the Medical Assessor, or the Panel, is not limited to that diagnosis;
(c)    the critical issue is the determination of whether she has sustained a threshold or non-threshold injury;
(d)    the Panel is not required to run the parties through their thought processes (AAI Limited trading as GIO v Amos [2024] NSWSCA 65 (Amos) at [63] and [67]) as to what diagnoses they are considering;
(e)    the insurer has had “every opportunity” to provide submissions on the issue of whether she has sustained a threshold or non-threshold injury. It does not need to necessarily rebut a specific diagnosis;
(f)    Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 “should not be interpreted so narrowly that a precise diagnosis must be referred for assessment”, and
(g)    the dispute referred for assessment included reference to a “psychiatric injury”.
The claimant’s submissions at [41]-[48] address causation. She argues that the accident need only have contributed to her injury in more than a negligible way for causation to be established. She also submits that the absence of contemporaneous evidence should not be determinative of causation, and that “a delay in reporting symptoms should not be held against” her.
In the claimant’s submission she is suffering from a “recognised psychiatric illness that is not an adjustment disorder, and accordingly her illness is not a threshold injury”.

RE-EXAMINATION REPORT

The claimant was re-examined by Medical Assessors Singh and Hong (Medical Assessors) on 18 March 2025. The assessment took place by MS Teams. An interpreter was present throughout the assessment. The report prepared by the Medical Assessors following their re-examination of the claimant follows.

Psychosocial history and pre-accident history

The claimant was born in Turkey and came to Australia in 1972. She has been married for more than 40 years. There was no developmental trauma identified. In terms of employment history, she reported she worked in sewing or as a seamstress for about 30 years and worked in aged care for about 20 years. In terms of general medical history, she had sleep apnoea and does not use her CPAP machine anymore, and said her doctor told her she no longer needed it. She does not have drug or alcohol problems. In the family history, her eldest son has a mental health condition.

Past psychiatric history

The Medical Assessors began by discussing with the claimant the treatment records that include reference to a prior psychiatric history. Her response was she was working and happy and did not have any mental health issues. On further enquiry regarding her claim form from a previous accident, she said she had a car accident on 22 October 2017, her husband was the driver and they hit another car. She had physiotherapy and then recovered. She said after that she could not work and was home alone, and felt lonely, her husband went out to socialize by himself, and she developed depression. A neighbour passed away and she inherited the cat and that helped her mood.

Between the 2017 accident and the subject accident the claimant recalled she saw a psychologist for 7-8 sessions and felt she was back to normal. She took psychotropic medications for a while, predominately for sleep. She said she could drive everywhere, including to her friends and daughter in Mount Druitt, before the subject accident.
The claimant stated that before the accident she returned to volunteer work in nursing homes and ceased it due to the COVID-19 pandemic, as she was not vaccinated. The Medical Assessors raised with her that history was different to the earlier history she gave that she was volunteering immediately before the subject accident and felt depressed and that she could not do so after the accident. Eventually, she confirmed her last volunteering role was around 1-2 years before the subject accident, and not immediately before that accident.
The claimant had worked in aged care for around 20 years. Her last paid work was before the 2017 accident, and due to injuries from that accident, she said she could not obtain medical clearance to return to work in a paid capacity.

History of the motor accident

The claimant reported that she was involved in an accident on 21 October 2022. She said her husband was driving and he lost control of the car. She was the only passenger, and recalled they went to the Bass Hill shopping centre and were in the car park. The brakes did not work, and the car hit a trolley and another car. Some children were in front of them, so they steered to the right. The claimant was in shock and recalled she hit her ear from the collision and felt light-headed. There was no loss of consciousness. Her door would not open, so someone came with tools to open it. The ambulance came and she attended Bankstown Hospital for the whole day.
The claimant said her memory has not been good since the accident, and she writes everything down as memory aids. She said she feels like her brain is blocked, and has pain too, and so she stops and waits ½ hour before she can do things sometimes. She took some analgesic tablets for 7-8 months and developed gastric side effects and kidney issues (she later said this was Panadeine forte). She was diagnosed with an ulcer and now takes Panadol only. She had physiotherapy and massage therapy and is now having hydrotherapy.
Physically, the claimant reported from the accident the main pain is in her neck, shoulders, and lower back. She also reported having pain in her legs and numb hands and feet sometimes. Sometimes she said she cannot balance herself and needs to hold onto things or sit down. She has not fallen. She walks close to furniture, so she does not fall.

History of symptoms and treatment following the motor accident

Psychologically, the claimant said since the accident she has been very bad, like her life ended, as she wants to do things but cannot. She said she used to volunteer and visit aged care clients, a few days a week, but they are too far away for her to drive, and she could not get there.
The claimant stated that she used to work and wants to return to work but has been too scared to drive, and when she tried to drive, she was too anxious to continue. She tried driving a few times after the accident and felt like her brain stopped. She became lost and did not know how to get home, and on one occasion, she pulled over and called her husband.
She could not drive for six months after the accident and recalled she then saw a psychologist, and with treatment, she started driving again. She has been driving in the past few months, but only for 5-10 minutes, e.g. to her GP.
The claimant stated that she used to go to the Salvation Army and volunteer, and she would talk to elderly people, and put nail polish on them. She said because she could not do this, she feels lonely and helpless, and she thought she would recover, but the pain did not go away, and after that, she had depression and began treatment and saw a Turkish-speaking counsellor.
On specific enquiry regarding the onset of her depressive symptoms, the claimant stated that her depressive symptoms did not start right away, but her symptoms became a problem six months after the accident, as her pain was not improving.
She said all her friends live too far away and she could not drive to see them after the accident.
She could not be sure when she first saw her GP in relation to her mental health and said it was a few months after the accident. She had a referral and saw a psychologist, but the psychologist then took maternity leave. There was another psychologist in Revesby, and now she sees someone in Liverpool.

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

The claimant has not had further car accidents or sustained other psychological injuries.

Current symptoms

The claimant has anxieties related to her pain and things she cannot do. She generally sleeps four hours, and watches TV on waking, even during the night. She has pain lying in bed and has arm numbness. She said her husband gave her a heat pack for pain.
In the past 2-3 years, the claimant said her weight has been stable, but then said she was 86kg 3-4 years ago, and recently, at her GP she was 80kg.
In terms of causes of anxiety, apart from driving and worries about things she cannot do, and feeling lonely, she also said she has headaches, which also cause anxiety. When busy, she said she is not anxious.
The Medical Assessors asked her to describe her symptoms at the peak of her anxieties, and she said she wants to forget her anxiety, so she plays with her cat, feeds the bird, and waters the plants. On specific enquiry regarding anxious cognitions and her worst worries, she said she never thinks about it and does not have specific anxious cognition. After an episode of severe anxiety, she does not worry about further anxiety, and only worries about pain, whether pain would get worse and how she would manage pain.
The claimant has concerns about her memory loss and had spoken to her GP regarding Alzheimer's dementia. She said she is calm and does not get angry. Her concentration and memory declined over time. She said she cries a lot. She said she is sad most of the time and described non-specific depressive symptoms. The claimant does not have suicidal ideation.

Current and proposed treatment

The claimant takes Panadol as needed for pain. She took antidepressants but could not recall the names. Her records noted Venlafaxine and Citalopram, and she said she ceased them after a brief trial. There are no proposed treatments.

Clinical examination

Mental state examination

The claimant was assessed by video. She was in her son’s office on her own, and there was a receptionist outside. She was neatly attired and generally talkative, at times discursive. She gave long answers generally. She moved around when pain increased. The Medical Assessors redirected the claimant at times, when she spoke beyond the topic. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her effect range and smiled and laughed appropriately. She spoke spontaneously and was not thought disordered.

Current functioning

The claimant reported she has been on an aged pension for five years now. The claimant has animals and looks after her plants. She exercises and said she does not want to use medications. She goes to hydrotherapy. She goes to social functions and weddings, and went to the club, and usually has one glass of wine at functions. She said she only went to two functions in 2024, involving some friends. She does housework and goes shopping with her husband.
Once a week, the claimant's son vacuums her home. She cannot do it as it causes her headaches. She washes the dishes. She can chop vegetables but would need to take breaks. She cooks dinner at night.
The claimant said she does not see her long-term friends, as they are too far, and she cannot drive long distances due to her anxiety. One friend is close, and she sees that friend regularly. She has another friend who works on weekdays, and they catch up on weekends, and usually has coffee at her home. The claimant was friendly with a neighbour, who subsequently passed away. She has not worked in any capacity, either paid or unpaid volunteer work, following the accident.

Comments on consistency

The claimant has difficulties with her memory. The Medical Assessors noted it has been several years since the 2017 accident and a couple of years since the subject accident. Having considered her general health, mental health history and the available information, the Medical Assessors concluded there was no significant inconsistency.

Diagnosis

After the 2017 accident the claimant developed depression and anxiety symptoms and consulted a psychologist or counsellor. She subsequently recovered with no evidence of ongoing psychopathology or driving difficulties. The claimant could not return to paid work and was volunteering a couple of days a week. She drove long distances to visit her long-term friends. Her psychological/psychiatric treatment ceased after a while.
After the subject accident the claimant developed depression and anxiety symptoms, predominantly due to her pain and this is consistent with an adjustment disorder. In addition, she also developed driving anxiety immediately after the accident, which persisted for about six months. With psychological treatment, her driving anxiety improved. However, she remained phobic and could not drive long distances even now and could not see her long-term friends. The Medical Assessors concluded she developed a driving phobia, which has partially improved. She also has anxiety and depression from the accident, consistent with an adjustment disorder.
The claimant fulfils the DSM-5-TR diagnostic criteria for a specific phobia (driving). She has a marked fear related to driving and this always provokes immediate fear or anxiety. She could not drive after the accident, and when she tried, she could not continue and had to pull over and called her husband. The Medical Assessors noted her anxiety is out of proportion to the situation. Her anxious-avoidance has persisted since the accident, and lasted longer than six months. With treatment it has improved but not resolved. This caused clinically significant distress and impairment as she could not see her long-term friends, and relied on her husband driving, even to the local shops initially. Her phobic behaviour is not better explained by the symptoms of another mental disorder, specifically, her anxiety is not better explained by panic disorder, agoraphobia, obsessive-compulsive disorder, post-traumatic stress disorder, separation anxiety disorder, or social anxiety disorder.
She does not have a panic disorder as DSM-5TR criterion B was not fulfilled, specifically she has not had anxious cognitions or maladaptive behaviour caused by panic attacks. Her maladaptive behaviours are caused by her driving phobia and adjustment disorder.

Causation

The claimant had a previous psychological injury consistent with an adjustment disorder as a result of the 2017 accident. She recovered with treatment. She developed new anxiety and depressive symptoms as a result of the subject accident consistent with an adjustment disorder and developed a driving phobia. There are no other stressors or contributing factors identified. The Medical Assessors concluded the accident is the cause of the adjustment disorder and driving phobia.

DETERMINATION

The insurer’s submission that the proceedings should have been dismissed

The insurer submits that, “consistent with clause [15] Procedural Direction PIC6”, the medical dispute should have been dismissed “in the first place” due to insufficiency of evidence of any alleged psychiatric injury.
The time for that submission to have been made was when the insurer lodged its reply to the application initially filed by the claimant, and before Medical Assessor Samuell assessed the medical dispute. No such submission is to be found in the written submissions filed by the insurer with its reply to that application.[1] There is no evidence before the Panel that the insurer agitated this issue at any time prior to filing the written submissions it relies on in the Review dated 28 November 2024.
[1] Submissions dated 28 April 2023.
Medical Assessor Samuell’s assessment has been referred to the Panel for review in accordance with s 7.26 of the MAI Act. To the extent that the insurer’s submission is an application for the Panel to dismiss the application for review in accordance with s 54 of the PIC Act, the Panel does not have the power to do so: rule 107(3).
For the foregoing reasons the Panel has proceeded to undertake the Review in accordance with s 7.26 of the MAI Act.

What is the scope of the dispute before the Panel?

On 12 April 2023 the claimant filed in the Commission an application for assessment of a “minor injury” dispute (application). Following amendments to the MAI Act, that dispute is now a “threshold injury” dispute. In the language of the statute, it is a dispute about whether the psychological injury caused by the accident is a threshold injury for the purposes of the MAI Act.
In addition to the physical injuries referred to in the application “injury 6” is described as follows:
“Bodily region of injury
Psychiatric condition
Injury description
Psychological injury”
The application was lodged after an internal reviewer determined that there “is insufficient evidence for [the claimant’s] psychological condition to meet a diagnosis for a recognised psychiatric illness as outlined in the DSM-V” and that her “psychological condition falls within the definition of a minor injury in accordance with Section 1.6(3) of the Act.”
In its submissions dated 28 April 2023, filed with its reply to the application, the insurer disputed that the claimant sustained a non-threshold psychological/psychiatric injury “because of the subject accident”. The insurer argued that there is no contemporaneous evidence to support the allegation that the claimant sustained “any sort of psychological condition or that such a diagnosis would meet the criteria of a recognised psychiatric illness as outlined in the DSM-V.” The insurer submitted that there was no psychological/psychiatric injury sustained in the accident, and that if there was any such injury sustained, “it would only be considered a threshold injury for the purposes of the Act.” The submissions also address the claimant’s physical injuries, which, the insurer argued, are also threshold injuries. The insurer raised no objection to the medical dispute being assessed. Nor did it argue there had been a denial of procedural fairness.
In the submissions relied on for the purposes of the Review, the insurer argues that while s 7.26 of the Act requires the Review Panel to conduct a new assessment de novo the scope of the dispute cannot be changed.
In the insurer’s submission, neither “psychiatric condition” nor “psychiatric injury” are recognised conditions under the DSM-V-TR. As a result, the insurer argues, the only conclusion open would be that the claimant has not discharged the onus of proving that she suffered a non-threshold psychiatric condition.
In Mandoukos v Allianz Australia Insurance [2024] NSWCA 71 (Mandoukos) Stern JA relevantly held (Leeming and Kirk JJA agreeing) that:
(a)    a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of “medical dispute” in s 7.17, that dispute must relate to the subject matter of a medical assessment matter [at 73];
(b)    the medical dispute “about a medical assessment matter” will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made [at 78], and
(c)    the medical dispute referred for assessment under s 7.20, or referred again for assessment under s 7.24 of the Act, is the actual medical dispute between the claimant and the insurer about the relevant medical assessment matter [at 94].
On the evidence before the Panel, the ambit of the dispute between the parties is whether the claimant suffered a psychological injury as a result of the accident and if so whether that injury was a threshold injury for the purposes of the MAI Act. That is the scope of the dispute the Panel had to determine. In doing so, the Panel was required to consider whether or not any psychological injury caused by the accident is a recognised psychiatric illness: s 1.6(1)(b). The assessment of whether a psychiatric illness is present had to be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association: Guidelines cl 5.11.
The Panel rejects the insurer’s submission that because no specific psychiatric diagnosis was referred for assessment, the Panel cannot go beyond the description in the application of “psychological injury”. There is no requirement that a psychological injury referred for medical assessment be described in the application by reference to a particular psychological diagnosis.
Further, even had the application included reference to a specific psychological diagnosis, the Panel would not have been limited to considering whether the claimant suffered a psychological injury solely by reference to that diagnosis. It would have been open to the Panel to make its own diagnosis of the injury, having considered all the evidence, including that obtained from the claimant at the re-examination. This is because, as stated in the preface to the DSM-5-TR, mental disorders do not always fit completely within the boundaries of a single disorder.[2] Diagnostic criteria in the DSM-5-TR are offered as guidelines for making diagnoses, and their use should be informed by clinical judgement[3]. In so far as the exercise of clinical judgement is concerned, the Guidelines say this:
“…It is important that DSM-5 not be applied mechanically by individuals without clinical training. The specific diagnostic criteria included in DSM-5 are meant to serve as guidelines to be informed by clinical judgement and are not meant to be used in a rigid cookbook fashion. For example, the exercise of clinical judgement may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe…”[4]
[2] DSM-5-TR page xxii.
[3] DSM-5-TR page 21.
[4] DSM-5-TR page 23.
By the time the dispute came before the Panel, the ambit of the dispute between the parties, in so far as a psychological diagnosis was concerned, included the following:
(a) the diagnosis of panic disorder made by Medical Assessor Samuell;
(b) reference to “anxiety “and “generalised anxiety” in the records from Bass Hill Plaza medial practice, and
(c) the “initial clinical impression” recorded in an AHRR for psychological treatment dated 13 September 2024 of adjustment disorder with mixed anxiety and depressed mood.
Thus, the ambit or scope of the dispute before the Panel included not only the reference to “psychological injury” contained in the application; it also included references in the evidence to panic disorder, anxiety, generalised anxiety, and adjustment disorder with mixed anxiety and depressed mood. Each of these conditions is a recognised psychiatric illness found in the DSM-5-TR. As stated earlier, it was ultimately for the Panel to make its own diagnosis of any accident caused psychological injury.

Has the insurer been denied procedural fairness?

The insurer argues that in circumstances where it has “not been put on notice about the specific injury alleged, nor provided medical evidence to support the same, it was procedurally unfair to select a diagnosis from the hundreds of conditions contained in the DSM-V-TR and not provide an opportunity to respond.”

Procedural fairness depends, in part, on context. In the context of an assessment undertaken by a review panel, the requirements of procedural fairness are different from those in a contested hearing: AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [53]. In a medical assessment conducted by a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [55].
In these proceedings, the critical issues were whether the claimant suffered a psychological injury as a result of the accident and if so whether that injury was a threshold injury for the purposes of the MAI Act. That the claimant alleges she suffered a psychological injury as a result of the accident has been clear from the time she lodged her application for personal injury benefits in November 2022. That document lists as an injury received as result of the accident “panic/shock”.
The insurer’s “minor injury” decision was communicated to the claimant by letter dated

7 February 2023. The claimant’s request for an internal review of that decision, sent by her solicitor by email dated 1 March 2023, refers to her continuing to suffer from “ongoing psychological sequelae”.
The internal reviewer’s reasons dated 22 March 2023 refer to the definition of a “minor psychological and/or psychiatric injury”, and record that:
“15 Based on the information available I consider there is insufficient evidence for your psychological condition to meet a diagnosis for a recognised psychiatric illness as outlined in the DSM-V.
16 Consequently, your psychological condition falls within the definition of a minor injury in accordance with Section 1.6(3) of the Act.”
The medical dispute referred to Medical Assessor Samuell for assessment related to the psychological injury referred to in the application filed by the claimant.
The insurer’s submissions lodged with its reply to that application addressed the psychological injury. Therein the insurer argued that there was no psychological/psychiatric injury sustained in the accident, and that if there was any such injury sustained, “it would only be considered a threshold injury for the purposes of the Act.”
The insurer has also had an opportunity to provide submissions, and has provided submissions, for the purposes of the Review. Further, in the review being conducted by the Panel the parties were not limited to the evidence that was before the Medical Assessor. It was open to the insurer to seek to rely on further evidence, including medico-legal evidence.
Procedural fairness did not require that the insurer be “put on notice” of a specific psychological diagnosis. It knew that a psychological injury was alleged and has been afforded an opportunity to addresses that issue. The Panel is satisfied the insurer has been afforded procedural fairness in the Review.

Did the accident cause a psychological injury and, if so, is that injury a threshold injury?

The Panel has taken into consideration the claimant’s pre-accident mental health history, including treatment, and is satisfied that she suffered a psychological injury consistent with an adjustment disorder as a result of the 2017 accident. The Panel is satisfied that she recovered from that condition with treatment.
The Emergency Department discharge referral from Bankstown Hospital records the claimant reported that after the subject accident she was “panic” and experienced chest pain.
The claim form lodged by the claimant dated 9 November 2022, three weeks after the accident, records that as a result of the accident she suffered injury in the nature of “panic/shock”.
The claimant reported, and the Panel accepts, that following the accident she developed depression and anxiety symptoms, predominantly due to her pain, together with driving anxiety. The Panel accepts that since the accident she has experienced panic attacks and has bad dreams about the accident. Although her driving anxiety improved with treatment the Panel finds that the claimant has remained phobic and could not drive long distances.
The Panel finds that the claimant suffers from anxiety and depression caused by the accident, consistent with an adjustment disorder. This condition has developed in response to the pain experienced by the claimant as a result of physical injuries caused by the accident, including injury to her low back.
The Panel agrees with and adopts the reasons given by its medical members in support of their finding that the claimant meets the DSM-5-TR diagnostic criteria for a specific phobia (driving). The Panel finds that the claimant suffers from specific phobia (driving).
The Panel finds that the accident was a necessary condition of the occurrence of the specific phobia (driving), and that but for the accident, the claimant would not have developed this condition. She did not experience driving phobia prior to the accident and has experienced symptoms following the accident. No other cause of the condition has been identified.
Specific phobia (driving) is not a threshold injury. Accordingly, the Panel finds that specific phobia (driving) caused by the accident is not a threshold injury for the purposes of the MAI Act.
The Panel is also satisfied, for the reasons given by its medical members in their re-examination report, that the claimant developed an adjustment disorder as a result of the accident. This injury is a threshold injury for the purposes of the MAI Act: Motor Accident Injuries Regulation 2017 regulation 4.2(b).
The Panel has found the claimant suffered both specific phobia (driving) and an adjustment disorder as a result of the accident. These findings differ from those made by Medical Assessor Samuell. Accordingly, the Panel revokes the Medical Assessor’s certificate and certifies that:
(a) specific phobia (driving) caused by the accident is not a threshold injury, and
(b) adjustment disorder caused by the accident is a threshold injury.

[2025] NSWPICMP 227

2 April 2025