Insurance Australia Limited t/as NRMA Insurance v Kim

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Kim [2025] NSWPICMP 426
CLAIMANT:	Mounghwan Kim
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Alan Doris
DATE OF DECISION:	18 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whether the claimant suffered a post-traumatic stress disorder (PTSD) and if this was a non-threshold injury; claimant injured when another car slowly drove into the passenger side door of the claimant’s car; claimant saw her GP immediately thereafter but for other reasons and to which she is proceeding at the time of the accident; claimant did not disclose accident details to her GP; claimant attended GP four days later and then referred to the accident; insurer’s medical experts suggested the claimant was malingering; the claimant is of a non-English speaking background and requiring an interpreter; in these circumstances tests undertaken and the responses may not be accurate and cannot be relied on; Held – Review Panel determined that the claimant had not suffered PTSD but had developed a persistent depressive disorder with a comorbid alcohol use disorder and that this was a non-threshold injury; MAC revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION (a) The Panel revokes the certificate of Medical Assessor Fukui dated 24 February 2024. (b) The Panel finds that the claimant has not suffered a post-traumatic stress disorder. (c) The Panel finds that the claimant has suffered a persistent depressive disorder with a comorbid alcohol use disorder and that this is a non-threshold injury.

INTRODUCTION

This is an application by the insurer for review of a certificate and reasons of Medical Assessor Fukui (the Medical Assessor) dated 24 February 2024. The Medical Assessor found that the claimant had suffered a persistent depressive disorder with anxious distress and secondary alcohol use disorder and that this was not a threshold injury.
The Medical Assessor also found that the claimant had not suffered a post-traumatic stress disorder.
The following injury was referred by the Personal Injury Commission (Commission) for further assessment:
(a) post-traumatic stress disorder.
The Medical Assessor agreed with the submission of the insurer that the claimant did not suffer post-traumatic stress disorder, for reasons consistent with the insurer’s submission.
The Medical Assessor determined that the claimant did suffer a non-threshold psychological diagnosis of ‘Persistent Depressive Disorder with anxious distress and Alcohol Use Disorder secondary to her psychiatric symptoms’. In her opinion, the claimant had developed ‘an Adjustment Disorder with mixed anxiety and depressed mood associated with panic attacks ‘on a background of chronic pain’ with escalating alcohol use’ which had deteriorated to her present condition.
The matter had originally come before Medical Assessor Samuell who issued a certificate dated 8 December 2021. He found the claimant had post-traumatic stress disorder and that this was not a minor injury, as it was then referred to.
The insurer then submitted it had additional information which could have a material affect on the outcome of the assessment of Medical Assessor Samuell. This material included:
(a)   report of Dr Vickery, psychiatrist dated 19 August 2022;
(b)   report of Mr Cipriani, clinical psychologist dated 9 November 2022;
(c)    report of Dr Rastogi, psychiatrist dated 20 November 2022, and
(d)   letter from claimant’s solicitor dated 14 December 2022 (paragraph 2.3 only) and 13 March 2023 (paragraphs 4-6 inclusive).
The insurer submitted that Medical Assessor Samuell did not have before him any expert psychiatric or psychological opinions and in particular;
(a)    Medical Assessor Samuell did not have any expert opinion or opinion from a treatment provider that the accident did not meet Criterion A for the diagnosis of post-traumatic stress disorder, which is the consensus between all three medicolegal experts (Drs Vickery and Rastogi and Mr Cipriani);
(b)    there was no evidence before Medical Assessor Samuell to the effect that the claimant was malingering which is contained within the reports of Dr Vickery and Mr Cipriani;
(c)    Medical Assessor Samuell did not have the benefit of any objective clinical psychological testing of the type conducted by Mr Cipriani and addressed in his report, and
(d)    Medical Assessor Samuell did not have access to any objective evidence of the severity of the collision by way of photographs of the vehicles which were available to Dr Vickery and Mr Cipriani.
The matter then came before Medical Assessor Fukui for assessment.

Bundles of documents

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

The accident

According to the police report, the accident occurred on 5 June 2020. The claimant’s car was stationary at the intersection of Rembrandt Street and Carlingford Road Carlingford. The insured car proceeded out of a shopping centre driveway and collided with the claimant’s stationary car. The claimant subsequently informed police that she had hit her head on the driver side window and had neck and back muscle pain.

Amendment to legislation

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.

LEGISLATIVE BACKGROUND

Jurisdiction

Threshold injury

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

“1.6 MEANING OF "THRESHOLD INJURY"

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

In summary, if a person injured in a car accident does not have a recognised psychiatric injury, then the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the Act. If a person injured in a car accident has a recognised psychiatric injury then that injury will be a non-threshold injury.

Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.10 to 5.12 of the Guidelines are headed “threshold psychological or psychiatric injury assessment” and provides:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5- TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.5   Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Insurer’s submissions

In the dispute before Medical Assessor Fukui it was asserted by the insurer that the claimant had not suffered post-traumatic stress disorder nor any non-threshold psychological condition related to the accident, contrary to the previous determination by Medical Assessor Samuell.
The insurer submits that the Medical Assessor:
(a)    failed to take into account relevant evidence;
(b)    made a material factual error;
(c)    failed to adequately engage with the substance of the insurer’s submissions and expert evidence on causation, and
(d)    failed to provide adequate reasons for his diagnosis of a psychological condition
related to the accident in the presence of contradictory evidence.

Error 1 - Failure to take into account relevant evidence

The insurer submits that the Medical Assessor’s ‘Summary of relevant documentation’ is confined to the material before the Commission in relation to the insurer’s further threshold injury dispute application. This is submitted to be the insurer’s submissions in support of that application; the insurer’s late additional evidence and the claimant’s reply submissions dated 11 April 2023.
The insurer submits that it is apparent that the Medical Assessor did not have regard to any of the documents relied on by either party which were before Medical Assessor Samuell at the time of her assessment.
The insurer says that those documents lodged included:
(a)    insurer’s submission on the psychological threshold injury dispute (being the dispute the Medical Assessor was to re-determine);
(b)    clinical records of Dr Chung, general practitioner (GP);
(c)    clinical records of Ms Kwon, treating psychologist;
(d)    rehabilitation reports, and
(e)    expert report of A/Prof Shatwell, orthopaedic surgeon, dated 15 February 2021.
The insurer submits that the evidence lodged by it in reply to the original dispute was relevant to the review dispute both in relation to the timing of onset of the claimant’s psychological symptoms and the veracity of the claimant’s report of physical injury and pain in connection with the accident. The insurer submits that both of these factors were material to the Medical Assessor’s determination of this dispute.
The insurer submits that had the Medical Assessor had all of the relevant documents available to her then she would have been aware that aspects of the history provided by the claimant were incorrect. The insurer submits that, for example, the Medical Assessor
relied on the history from the claimant that:
(a)   she experienced onset of psychological symptoms ‘approximately 2 months after the subject accident characterised by anxiety and insomnia’;
(b)    the earliest evidence the claimant reported any psychological symptoms was on 20 September 2020, over three and a half months post-accident, to Dr Chung which was confined to anxiety about the accident and being scared when cars approached;
(c)    the claimant’s anxiety did not prevent her from driving, and
(d)    the claimant did not report insomnia over nine months post-accident.
The insurer submits that the Medical Assessor would have also been aware that there was reason to doubt that the claimant’s alleged physical disabilities and pain were related to the accident. In this regard, the insurer relies on A/Prof Shatwell’s report which it says goes to the minor nature of the claimant’s physical injury, which he concluded was confined to a minor soft tissue injury to her neck and right shoulder which would have resolved with or without treatment ‘within a week or so of the accident in question’. The insurer submits that A/Prof Shatwell observed numerous inconsistencies in the claimant’s presentation and noted that the claimant’s ‘investigations do not correlate with the widespread, vague, patchy non-dermatomal distribution of pins and needles and pain in the right arm which is described in terms of a severe pain being 8 out of 10 constantly and worse with activity’. A/Prof Shatwell believed the claimant did not require ongoing treatment and her minor neck injury did not impact her capacity to work or perform her activities of daily living.
The insurer submits that in the context of the Medical Assessor’s diagnosis of an alcohol use disorder related to the accident, the clinical records of Dr Chung indicate that, on

24 October 2019, eight months prior to accident, the claimant gave a history to her GP of drinking three to eight standard drinks a week and was advised to stop drinking for one month due to abnormal liver function test.

Error 2 – Factual error

The insurer says that the history implies the accident, which Medical Assessor Fukui accepted was minor, had an immediate significant psychological impact on the claimant such that she required the assistance of her husband at the scene and was unable to continue to drive the vehicle.
The insurer says that history is incorrect. The insurer submits that this is the same error made by Medical Assessor Samuell.
The insurer refers to its further threshold injury dispute submissions, where it says it is noted that it has been conceded by the claimant that her husband did not attend the accident scene and that following the accident she continued her journey, driving herself to her pre-planned GP appointment. The insurer says that there is no dispute that the claimants GP on that occasion made no clinical entry of the claimant having reported being involved in an accident less than an hour earlier.

Error 3 -Failed to adequately engage with the substance of the insurer’s submissions and expert evidence on causation, and

Error 4 -Failed to provide adequate reasons for his diagnosis of a psychological condition related to the accident in the presence of contradictory evidence.

The insurer submits that both errors arise from the Medical Assessor’s treatment of the expert evidence of Dr Vickey and Mr Cipriani.
The insurer says that Dr Vickery was of the opinion that the claimant was either suffering from a somatic symptom disorder which was not related to the accident, or she was malingering.
The insurer says that Dr Vickery described the accident as ‘particularly minor in nature and would not be expect to cause any injury or impairment’. This conclusion, the insurer submits, was based on the photographs of the damage to the claimant’s vehicle, which it says was negligible.
The insurer say that Dr Vickery’s assessment took place prior to the claimant undergoing psychometric testing. Dr Vickery said that significant weight should be afforded to such psychometric testing and said that this testing provided ‘objective, replicable and reliable scientifically valid tools’. The insurer says that Dr Vickery expressed the opinion that it was no longer a matter of live debate that the input of psychometric assessments ‘should be taken to have greater validity than a clinical interview’.
The insurer refers to the report of Mr Cipriani with results that;
(a)    the performance validity testing indicated that the claimant was ‘grossly fabricating cognitive deficits’. The claimant’s test results revealed she was deliberately underperformance on memory measures;
(b)    the symptom validity testing indicated ‘fabrication of neurological, affective, psychotic and memory complaints’, and
(c)    the insurer submits that on the basis of that assessment by Mr Cipriani, he concluded that the claimant ‘does not meet any DSM- 5-TR diagnoses apart from Malingering’. He was of the opinion his assessment ‘supports Dr Vickery’s secondary diagnosis of Malingering’.
The insurer says that Mr Cipriani observed that the findings and opinion of Medical Assessor Samuell was solely based on the claimant’s self-reporting and there was no attempt to check on symptom validity. Mr Cipriani noted that Medical Assessor Samuell’s opinion ‘should be regarded as a non-concluded opinion, particularly as he mentioned inconsistencies but did not provide details.’
The insurer submits that Dr Rastogi, on whose opinion the claimant relies, also disagrees with Medical Assessor Samuell’s diagnosis of post-traumatic stress disorder. The insurer says that Dr Rastogi, in her opinion, based on the accident as described by the claimant said:
“I do not agree that she fulfills the diagnosis of PTSD as per DSM V given the nature of trauma and accident being minor and emotional responses associated with that.”
The insurer submits that whilst Dr Rastogi did diagnose a panic disorder with an adjustment disorder, the former diagnosis being a non-minor injury, she did not have the benefit of any clinical psychological testing including Mr Cipriani’s report and relied on a description of the accident and aftermath. The insurer says that this is not consistent with the evidence in several respects, namely the inference the claimant was trapped in the vehicle due to damage to the driver’s door, and report by the claimant that her husband attended the accident scene, and she received immediate treatment from her GP.
The insurer referred to the follo wing explanation by the Medical Assessor for her diagnosis;
“My assessment was conducted more than a year after the assessments were conducted by Dr Vickery, Dr Rastogi and Mr Cipriani. It was my impression that due to her non-compliance or minimal response to treatment, her symptoms did not improve, and she subsequently stopped all treatment 2 months ago. I did not consider her to be malingering as she presented as genuinely distressed about her psychological symptoms and she expressed suicidal ideation. She has also lost her relationship with her husband and children. It is my view that she has personality vulnerabilities with poor coping strategies which has resulted in her resorting to alcohol abuse to self-medicate for her symptoms along with poor engagement with treatment. It is therefore my view that her condition is now consistent with Persistent Depressive Disorder with comorbid Alcohol Use Disorder.”

The insurer submits the following;
(a)   The Medical Assessor failed to state what weight, if any, she gave to
Dr Vickery’s opinion, that the claimant did not have any psychological impairment related to the minor accident and was either malingering or suffering from an unrelated somatic symptom disorder. Medical Assessor Fukui did not address somatic symptom disorder as a possible alternative diagnosis at all, nor did she engage with Dr Vickery’s detailed reasoning as to why she concluded that claimant did not suffer a depressive disorder.
(b)   The Medical Assessor failed to state what weight, if any, she gave to the evidence of Mr Cipriani that, as of 9 November 2022, there was unambiguous evidence that the claimant was malingering in relation to her cognitive and psychological symptoms.
(c)    If the Medical Assessor accepted the validity and reliability of Mr Cipriani’s test data, on what basis she concluded the claimant’s current presentation (which she accepted was genuine), was causally related to the accident.
(d)   If the Medical Assessor did not accept the validity and reliability of
Mr Cipriani’s test data, then on what basis?

Claimant’s submissions

The claimant referred to the certificate of Medical Assessor Samuell dated
8 December 2021 concluding that the claimant had post-traumatic stress disorder caused by the accident, and that this was not a minor injury.
The claimant submits that despite authority cited by the insurer, the case of Lynch v AAI Limited t/as AAMI[2022] NSWPICMP 6 - says that if a diagnosis of a non -minor psychiatric injury has been validly made by a treating doctor at any time since the injury then it is a non -minor injury. The Panel does not agree with this argument and will provide its reasons later.
The claimant referred to a medical referral to a psychologist, Ms Kwon, by the claimant’s GP, Dr Lee dated 22 December 2020. In the referral, Dr Lee observed that the claimant suffered from “pains and psychological symptoms affecting her daily functioning and work … [including] anxiety and/or phobia in travelling [and] mood changes.” The claimant submitted that Dr Lee suspected she was suffering from “major depression or possibility of PTSD” and had referred the claimant to a psychologist to investigate. From this, the claimant submits that this is a diagnosable psychiatric illness and thus, a non-minor injury in accordance with the legislative definition of the Act.
The claimant submits that subsequent evidence, which was procured later namely, reports of Dr Vickery, Mr Cipriani and Dr Rastogi, were almost a year later and are not relevant to the issue of threshold injury which was determined by Medical Assessor Samuell in his certificate of 8 December 2021.
Regarding the extent of the collision, the claimant submits that whether an accident is traumatic in nature to a claimant is subjective and the insurer cannot deem any motor vehicle accident to be ‘minor’ in the mind of the claimant.
The claimant submits that panic disorder (DSM-5 300.01) which the claimant has been diagnosed with in the report of Dr Rastogi, can meet criteria in DSM 5 as a recognised psychiatric illness, and is distinct from adjustment disorder, or just having panic attacks. The claimant says that a panic disorder can be a long-term debilitating mental illness and should not be deemed minor in nature.

Medical evidence

The Medical Assessor’s certificate is dated 24 February 2024. She concluded that the claimant was involved in a minor motor vehicle accident and was initially preoccupied about her pain symptoms and presented with a chronic pain syndrome. The claimant noticed the onset of psychological symptoms approximately two months after the subject motor accident characterised by anxiety and insomnia.
The Medical Assessor stated that the claimant did not suffer from post-traumatic stress disorder as her symptoms did not meet the DSM-5 criteria for post-traumatic stress disorder. She also said that the nature of the subject accident did not meet Criterion A for post-traumatic stress disorder, and she did not report any intrusive symptoms characteristic of Criterion B.
However, the Medical Assessor said that the claimant appeared to have developed symptoms consistent with adjustment disorder with mixed anxiety and depressed mood associated with panic attacks, on a background of chronic pain with escalating alcohol use. Her mental state had gradually deteriorated and progressed to persistent depressive disorder with anxious distress. The Medical Assessor said that the claimant also met the diagnosis of alcohol use disorder which was secondary to her psychiatric symptoms.
Regarding the reports of Dr Vickery, Dr Rastogi and Mr Cipriani, the Medical Assessor reported;
(a)    Dr Vickery said that the claimant’s condition did not meet the DSM-5 criteria for post-traumatic stress disorder. The claimant suffers from somatic symptom disorder with chronic predominant persistent pain. Dr Vickery also said that the claimant may be malingering due to the particularly minor nature of the motor vehicle accident;
(b)    Mr Cipriani noted that the claimant was pain-focused and grossly exaggerating pain, cognitive, depressive/anxiety symptoms and post-traumatic stress disorder symptoms. He made a diagnosis of malingering and enacting the sick role, and
(c)    Dr Rastogi said that the claimant did not suffer from post-traumatic stress disorder and made a diagnosis of adjustment disorder and panic disorder with post-traumatic features. She assessed a whole person impairment of 15%.
The Medical Assessor said that the claimant did not have a diagnosable psychiatric disorder prior to the subject motor accident. She may have been prone to experiencing anxiety symptoms but there was no evidence that she suffered from a specific anxiety disorder. She developed psychological symptoms following the accident which had gradually worsened over the last three years. The timing of the onset of her symptoms and the characteristic nature of her symptoms indicated that her psychological injury was causally related to the subject motor accident.
The Medical Assessor concluded that the claimant’s mental state had worsened in the three years since the accident, and she presented with persistent depressive disorder with anxious distress and secondary alcohol use disorder. The Medical Assessor said that the claimant’s medical condition was not a threshold injury.
The insurer relied on a report of Associate Professor Shatwell, regarding the claimant’s physical injuries. The claimant informed A/Prof Shatwell that airbags were not activated with the accident. From the history, A/Prof Shatwell said that it should be noted that this was a low-speed collision between a car which was standing still and a car making a turn from a side road at low speed. Neither car was badly damaged. Both cars were driveable following the accident.
The vehicle which hit the claimant’s car continued without stopping but the claimant caught up with it as there was congestion ahead. She exchanged details with the driver of the vehicle which hit her. She reported that she drove herself home and rested overnight and said that she saw her usual GP the following day.
A/Prof Shatwell did not consider that there was anything more than a minor soft tissue physical injury resulting from the collision.
A/Prof Shatwell said that the claimant’s investigations did not correlate with the widespread, vague, patchy non- dermatomal distribution of pins and needles and pain in the right arm which was described in terms of a severe pain being 8 out of 10 constantly and worse with activity. He did not consider that the symptoms reported were related to the accident.
A/Prof Shatwell said that the claimant had sustained a minor soft tissue injury as judged by the contemporaneous notes made by her GP, Dr Chung. There were no objective signs of injury at the time of his examination on 9 June 2020. A/Prof Shatwell said that there were also no objective signs of disuse on his examination.
The claimant saw Dr Chung, her GP, on 9 June 2020, four days after the accident to consult about her accident related injuries. He recorded that the right-hand front of her car was hit whilst she was stationary. The car was not written off. The claimant informed A/Prof Shatwell that the car was fixed in a couple of weeks and that she went back to driving it.
Dr Chung, recorded that the claimant had sustained no loss of consciousness but complained of dizziness and mild nausea since the accident. She had some aching in the right side of her neck and chest and in the right arm. She had intermittent mild right arm numbness in the arm generally.
Around September 2020, Dr Chung noted that the claimant was driving at that stage. He suggested referral to a psychologist for management of anxiety with respect to return to work and management of pain.
A further consultation with Dr Chung occurred on 6 October 2020. The notes state that the claimant’s pain was 50% better compared to her initial pain.
Psychological treatment notes of 15 March 2022, record that the claimant reported “frequent panic attacks”. She was taking diazepam for panic while driving to local shops. She was not working or performing domestic tasks. She reported irritability, depressed mood with thoughts of death, insomnia, fear of having a panic attack, loss of interest, breathlessness, chest tightness, palpitations, and her mind going blank. She was introduced to Mindfulness practice.
On 5 April 22, the claimant reported that she had contracted COVID-19. She had not practiced her breathing techniques. She was advised to take an antidepressant. She asked, “Am I going to die like this?”
On 3 May 2022, the claimant reported that she had started Effexor, an antidepressant. She was avoiding activities and movement. She was educated about the “workability of avoidance” and asked to provide a written account of the accident as exposure therapy.
On 14 June 2022, the claimant was introduced to EMDR, imaginal exposure therapy. She reported reluctance to leave home because of panic attacks.
On 12 July 2022, the claimant noted that she was relying on medication to control her symptoms, rather than psychological strategies.
On 6 September 2022, the claimant reported that she was housebound. She was walking twice a week. She reported lethargy and low motivation to change. She was asked to practice Mindfulness consistently.
Dr Vickery provided a report of 19 August 2022. He reported that he had viewed photos of the damage to the car. He said that the damage consisted of some scratches on the lower part of the driver’s door and would not satisfy the DSM5 Criteria A for a diagnosis of post-traumatic stress disorder.
He said that the claimant’s psychopathology satisfied the diagnostic criteria of somatic symptom disorder with chronic predominant persistent pain (DSM5). He said there were prominent somatic symptoms associated with incapacitating pain perception in the context of health concerns which gave rise to emotional distress and functional impairment and significant disruption to daily life or she was malingering due to the particularly minor nature of the accident.
Dr Vickery said that in his opinion the claimant should be assessed “utilising the MMPI-2-rf, PAI and M-FAST” to reliably validate any diagnosis of post-traumatic stress disorder and with clarifying any other related or non-related psychopathology.
Dr Vickery said that the accident was particularly minor in nature and would not be expected to cause any injury. He said that it was the claimant’s reported pain perception that was resulting in incapacity. However, he said that the onset of somatic symptom disorder with chronic predominant persistent pain was a separate psychiatric condition and not directly due to the accident.
Dr Vickery assessed 0% WPI due to the accident.
Medical Assessor Samuell diagnosed post-traumatic stress disorder based on the claimant’s self-report of anxiety and depressive symptoms. He did not comment on possible effects on mood or anxiety due to hypothyroidism. He provided a diagnosis of post-traumatic stress disorder however this did not appear to meet DSM-5 Criterion A requiring exposure to serious injury. The Medical Assessor concluded that the claimant had suffered a non-minor (threshold) injury.
Mr Cipriani, clinical psychologist, provided a report for the insurer dated 9 November 2022.
Mr Cipriani said a review of documents revealed that the claimant had pre-existing claustrophobia which he attributed to being locked up by her parents as a child and needle phobia, both of which were associated with avoidance of MRI scanning and injections following the subject accident. He said that it was likely that the claimant also had generalised anxiety prior to the accident.
Mr Cipriani said that the examination revealed that the claimant was pain focussed and grossly exaggerating pain, cognitive, depressive/anxiety symptoms and post-traumatic stress disorder symptoms.
Symptom validity testing (SIMS) indicated fabrication of neurological, affective, psychotic and memory complaints. Mr Cipriani said that his examination supported Dr Vickery’s secondary diagnosis of malingering. Mr Cipriani said that the claimant did not meet any DSM-5-TR diagnoses apart from malingering.
Report of Dr Dias, occupational physician, dated 28 July 2022 stated she suffers from nonspecific cervical spine pain, stiffness and discomfort with associated right C7 radicular symptoms secondary to an acute musculoligamentous strain associated distributions at C3/C4 and C4/C5. She also suffers from chronic right shoulder pain secondary to acute rotator cuff tendon strain.
Dr Rastogi provided a report of 20 November 2022 for the claimant.
A different history of the accident was provided to Dr Rastogi. The claimant informed her and she reported;
“On 5th June 2020, Ms Kim was the sole driver of her car with her seat belts on stationery at an intersection near Carlingford Shopping Centre when the vehicle at fault to her right hit the driver’s side of her vehicle. The air bags were not deployed. She was in shock and remained in the car for short time. She could not open the driver’s door as it was dented and felt trapped in the car. She could not remember how she extricated from her car and then called her husband. She reported pain immediately in her hands. She waited for her husband and she went to see her GP immediately. She reported stiffness in her neck and shoulder radiating to arms and hands. She was referred for MRI of neck and shoulder and commenced physiotherapy and pain medication. She struggled with sitting, standing and lifting duties”.
The claimant reported that she had symptoms of panic disorder as per DSMV characterised by:
(a)    Recurrent unexpected panic attacks with intense fear or intense discomfort that reaches a peak within minutes.
At least one of the attacks has been followed by one month (or more) of one or both of the following:
(i)persistent concern or worry about additional panic attacks or their consequences (e.g., losing control, having a heart attack, “going crazy”), and
(ii)a significant maladaptive change in behaviour related to the attacks for example, behaviours designed to avoid having panic attacks, such as avoidance of accident site.
(b)    The disturbance is not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., hyperthyroidism, cardiopulmonary disorders).
(c)    The disturbance is not better explained by another mental disorder.
Dr Rastogi did not agree with Dr Vickery’s diagnostic opinion of somatic symptom disorder. The doctor said this was because the claimant provided a history of recurrent panic attacks, fear and avoidance behaviours, depressed mood, triggered at accident site and autonomic arousal and vigilance meeting criteria for panic disorder. Dr Rastogi said that the claimant did not have pain but her impairments were from panic disorder and consequential disabilities.
Dr Rastogi assessed WPI at 15%.
Through her solicitors, writing to the insurer’s solicitors on 13 March 2023, the claimant provided the following information about her immediate post-accident medical attention;
“…following the accident, our client attended a previously scheduled medical appointment with Dr Daniel Oh due to bowel issues. We are instructed that our client informed Dr Oh of the accident and he informed her that he was unable to assist with CTP accidents and advised her to wait a couple days and come back to Dr Joseph Chung if she was still experiencing pain. On 9 June 2020 our client was seen by Dr Chung regarding the accident and reported the accident to the Police on the same day. She subsequently commenced physiotherapy treatment and was later referred for imaging.”
The claimant was examined by Medical Assessor Friend and Medical Assessor Doris on

22 May 2025. Their report follows.
Re-examination
Circumstances of Assessment Interview
The claimant was examined by Assessor Alan Doris and Assessor Paul Friend via telehealth on 22 May 2025. The claimant joined the telehealth interview from her home in Dundas Valley, Sydney. Korean interpreter Nina Kang (CPN6SC41L) assisted the interview.
Current General Circumstances
The claimant lives with her husband and their two daughters who are aged 19 and 12 years. The claimant has not returned to any form of work since the motor accident. The claimant’s family of origin remain in Korea though her husband’s family are in Sydney. Her father is a minister of religion. The claimant maintains contact with her parents and brother by online messaging. She last visited Korea two years ago when she flew to Korea with her husband and children.
Psychosocial history
The claimant was born and brought up in Korea. She grew up with her parents and one brother. She denied any knowledge of mental health problems in first- or second-degree relatives. She believes that her childhood experiences were “normal” and she denied any significant trauma or major losses that continue to affect her adult life. The claimant recalled making friends easily at school where she did well academically. She developed an interest in music particularly the piano which she commenced playing at age 8 years. She denied any serious health problems during her childhood or adolescence.
After finishing school, the claimant worked as a piano teacher for a while and then in retail. She married at age 23 or 24 years. In 2006, the claimant came to Australia for the first time with her husband. They subsequently returned to Korea though came back to Sydney in 2015 with their daughters as they believed it would be a good to place to bring them up. The claimant worked in her husband’s small information technology business managing orders, doing general office work and sometimes delivery of items.
Before the motor accident the claimant had a friendship group with mothers of her daughters’ friends. She was involved in Church activities regularly including weekly services and Bible study group. She socialised with her husband’s family.
Previous General Medical History
The claimant has been diagnosed with hypothyroidism during pregnancy. She said there were two periods lasting a few months during which she took medication for this disorder, though not for several years. She has routine checks of her thyroid function every six months and believes these have found her thyroid function to be consistently normal in recent years. According to the provided documents, the claimant consulted her GP, Dr Daniel Oh, about her thyroid on 17 October 2019 with symptoms of fatigue. At follow-up, blood tests showed mild elevation of gamma glutamyltransferase (GGT). The claimant was noted to be drinking 1-2 standard drinks 3-4 times each week. Re-testing after abstinence from alcohol over one month was advised, and these showed normalisation of liver function. Liver function abnormality was attributed to mild fatty liver disease detected on ultrasound scan.
Blood tests taken on 9 June 2020 found mildly elevated thyroid stimulating hormone. Dr Chung’s record of the consultation on 19 June 2020 notes that thyroid hormones (T3 and T4) are normal and the claimant has no symptoms consistent with hypothyroidism. A diagnosis of subclinical hypothyroidism is made. There is no indication for treatment and a repeat check is planned for six months.
On 26 March 2020 the claimant consulted her GP Dr Daniel Oh because of epigastric pain. Stress due to the coronavirus situation was noted. A diagnosis of gastritis was made and a proton pump inhibitor medication commenced. At review by telephone on 30 March 2020 the claimant’s epigastric pain had extended to her upper back and a referral was made to gastroenterologist Dr Stephen Oh. Review by GP, Dr Lee, on 11 May 2020 records no improvement despite the medication and gastroenterology opinion is advised. On 5 June 2020 the claimant is reviewed by Dr Daniel Oh due to persisting epigastric pain and a diagnosis of gastro-oesophageal reflux disease confirmed. Gastroscopy carried out by Dr Stephen Oh on 8 July 2020 is reported as normal.
Past Psychiatric History
The claimant denied consulting with a health professional about a mental health concern before the motor accident.
The claimant confirmed that she did not have a fear of confined spaces (claustrophobia) until after the motor accident.
She denied that she was scared of needles prior to the motor accident, as is stated in the report of Dino Cipriani dated 9 November 2022. She declined to have a spinal injection after the motor accident, because she was scared of being paralysed.
Substance Use History
The claimant does not smoke. She denied every using cannabis or other illicit substances.
The claimant said that before the motor accident she would drink one or two standard drinks each weekend in a socialised fashion. The claimant confirmed this when challenged by the information in the notes of Dr Oh of 24 October 2019 which indicate she is drinking one or two standard drinks on three of four occasions per week. There is no convincing evidence of an alcohol use disorder before the motor accident.
The claimant said that in the weeks following the motor accident she was experiencing pain and psychological symptoms. Treatment provided was not adequately alleviating these symptoms. She increased her consumption of alcohol, and this increased consumption has persisted.
The claimant said that she now drinks alcohol every day. This amounts to at least one bottle of wine each day. Her pattern of consumption varies from day to day, and she said that she starts drinking “when I feel bad”. She described loss of control over her consumption and at times will drink more than she intended. She said, “sometimes I can’t remember what I did” consistent with alcohol-related blackouts of memory. The claimant sometimes experiences typical physical withdrawal symptoms such as shaking and described craving for alcohol. She is aware that her use of alcohol has led to difficulties in the relationship between herself, her husband, and her daughters, though she continues to drink.
History of the Motor Accident
The claimant explained that is has been a long time since the motor accident and so her memory of the event was not good. She recalled driving her car out Carlingford Court shopping centre into a three-lane street. She said that another car ran into the driver’s side of her car. She moved her car over to the side of the road. She recalled feeling “very shocked and overwhelmed”. The claimant said it was the first time she had ever been in an accident and was unsure what to do. She said that she then phoned her husband who drove to the scene of the accident. She said that she had to go to a pre-arranged appointment at her doctor’s surgery and so her husband drove her in her car to that appointment.
There are differing accounts of the accident in the clinical records and the NSW Police report. The motor accident was reported to NSW Police by the claimant on 9 June 2020 and classified as meeting minor traffic crash criteria. That report states that on 5 June 2020 the claimant was driving her car and was stationary at a red light. Another car emerged from a shopping centre driveway and collided with the driver side door of the claimant’s car. Details were exchanged with the other driver. The claimant reported to the Police that she had hit her head on the driver window and had neck and back muscle pain.
History of Symptoms and Treatment Following the Motor Accident
The claimant attended the surgery of Dr Joseph Chung on 9 June 2020. According to the records, she complained of dizziness, mild nausea, and aching in her torso, neck and right arm with intermittent numbness. It is noted that there was no loss of consciousness at the time of the accident. Dr Chung gives a diagnosis of mild concussion and muscle strain. There is referral to physiotherapy and prescription of an anti-emetic.
The claimant said that she remained “shocked” in the weeks following the accident. She was generally anxious and frequently experienced somatic symptoms such as a racing heart. She had problems with persistent pain despite treatment with analgesics and physiotherapy. The claimant did not return to work and described becoming lonely at home. She said she did not return to work as she had persistent pain, felt “mentally weak”, had excessive anxiety and could not adequately focus her attention. Her consumption of alcohol increased. She noticed that the relationship with her husband and daughters became strained and emotionally distant. The claimant described her mood becoming persistently low.
At a meeting with the claimant and a rehabilitation consultant on 22 September 2020, Dr Chung notes ongoing right arm and neck pain. Though the claimant is driving her own car she has anxiety when driving and another car approaches her. Referral to a psychologist is suggested by Dr Chung and declined at that time by the claimant. The claimant subsequently accepted referral though was unable to recall when she started having regular psychological treatment.
The claimant said that approximately one year after the motor accident she developed suicidal ideas. She said that she had attempted to end her life on more than one occasion, though did not want to talk about these incidents. Due to concerns for her welfare her elder daughter stopped going to school to be able to support the claimant at home.
Assessment by Orthopaedic specialist Associate Professor Michael Shatwell on 15 February 2021 concluded there was probably a minor soft tissue injury to the neck and right shoulder caused by the accident. Symptoms from any soft tissue injuries would be expected to settle in two or three weeks from the time of the accident. The symptoms complained of by the claimant at assessment were not consistent with this. Associate Professor Shatwell does not believe that there was any indication for treatment for physical effects of the motor accident.
Subsequent Injuries or Conditions since the Motor Accident
There have been no subsequent injuries or conditions.
Current Symptoms
The claimant said that her mental health now was “very bad”. She continues to have suicidal thoughts. Her mood is persistently low. She does not derive pleasure from previously pleasurable activities such as playing the piano, exercise or time with family and friends. She described persistent low energy and motivation. She estimated that she sleeps two or three hours per night in an erratic pattern. She eats snack foods when she drinks alcohol and does not eat regular meals with her family. The relationship with her children and husband continues strained. She no longer meets with friends or extended family. Though she attends a church service each week, she has little interaction with other members of the congregation. The claimant described a difficulty in focussing her attention and has some problems with her memory.
The claimant said that she spends almost all her time at home, usually in her room. She often lies on her bed inactive or doing things such as watching You Tube videos on her phone. She can drive and will go to shops to buy alcohol and food.
The claimant continues to have some pain which is located on the right side of her neck.
Current and Proposed Treatment
The claimant was meeting with psychologist Ji Hye (Rose)l Kwon regularly for approximately two years, but not in the past year. She said this was mainly due to financial difficulties.
The claimant continues under the care of her GP, Dr Oh. She is prescribed venlafaxine 75mg daily and melatonin 2mg to assist sleep. She occasionally takes diazepam 2mg to reduce anxiety.
Mental State Examination
The claimant appeared a little unkempt at interview. She appeared tense and at times emotionally distressed, such as when asking about her “bad thoughts”. She communicated effectively through the interpreter, and she provided adequate information. Her affect was reduced in range though there was some appropriate variability depending on the material under discussion. Her mood was objectively and subjectively low with increased anxiety. The claimant alluded to ongoing and chronic suicidal thoughts though did not want to discuss these. Her thought form appeared normal. There was no evidence of abnormal beliefs in the form of delusions or abnormal perceptions. The claimant’s thought content revealed a generally self-critical and negative set consistent with a depressive illness. The claimant was fully alert and orientated at interview. She attended adequately for the purpose of the interview. She mentioned that her memory was poor and objectively there were differences in the claimant’s recollection of some material compared to documents.
Current Functioning
The claimant lives with her husband and two daughters. Her elder daughter discontinued her schooling early to provide support to the claimant. She said that she spends almost all her time at home, usually in her room. She often lies on her bed inactive or doing things such as watching You Tube videos on her phone. She can drive and will go to shops to buy alcohol and food. She does not eat meals with her family and usually eats snack food when drinking alcohol. There are persistent strains in the relationship with her husband and daughters, and she has withdrawn from other relationships. She attends Church once per week though otherwise does not participate in any social situation.
Consistency of Presentation
There are significant differences in the description of the motor accident recounted at interview by the claimant, in the Police report, and the description in Associate Professor Shadwell’s report. The claimant stated at interview that her husband attended the accident site, though this has been refuted, including by the claimant’s lawyers by letter on 13 March 2023. The claimant stated at interview that her memory was poor. This and the length of time since the event may account for some of the inconsistencies in history. Communication difficulties, including use of different interpreters, increases the risk of inconsistencies of history.
Diagnosis and Reasons
Following the DSM-5TR system, the claimant has a current diagnosis of persistent depressive disorder with anxious distress, late onset, with persistent major depressive episode. Current severity is severe. The claimant has a comorbid alcohol use disorder.
Persistent Depressive Disorder - Diagnostic Criteria F34.1
A: Depressed mood for most of the day, for more days than not, as indicated by either subjective account or observation by others, for at least 2 years.
The claimant describes her mood as depressed most or all the time and this has been the case for at least two years.
B: Presence, while depressed, of two (or more) of the following:
1.   Poor appetite or overeating.
The claimant has a reduced appetite for food. She eats snacks during the day.
2.   Insomnia or hypersomnia.
The claimant estimated that she sleeps 2-3 hours a day, and in an erratic pattern.
3.   Low energy or fatigue.
The claimant describes persistent low energy and low motivation.
4.   Low self-esteem.
The claimant displayed self-critical thoughts at interview and low self-esteem.
5.   Poor concentration or difficulty making decisions.
The claimant describes persistent poor mental focus.
6.   Feelings of hopelessness.
The claimant describes chronic “bad thoughts” alluding to suicidality and hopelessness.
C: During the 2-year period (1 year for children or adolescents) of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
There has not been a period of more than 2 months during the last 2 years during which the claimant has been free of these symptoms.
D: Criteria for a major depressive disorder may be continuously present for 2 years.
Criteria for a major depressive disorder have been continuously present for 2 years.
E: There has never been a manic episode or a hypomanic episode.
There is no evidence of a manic or hypomanic episode at any time.
F: The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
There is no evidence of a schizophrenia spectrum disorder.
G: The symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., hypothyroidism).
Though the claimant has had subclinical hypothyroidism diagnosed in the past, and in 2020 had a mildly raised thyroid stimulating hormone level (TSH) with normal other thyroid hormones (T3 & T4), there is no convincing evidence of clinical hypothyroidism which would explain her symptoms. She reports continuing with six-month blood checks which she reports have been normal in recent years.
H: The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The claimant has significant distress and impairment in several important areas of her life.
Alcohol Use Disorder - Diagnostic Criteria
A: A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:
1.   Alcohol is often taken in larger amounts or over a longer period than was intended.
The claimant describes a characteristic loss of control over the quantity she drinks and often drinks more than intended.
2.   There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
3.   A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
4.   Craving, or a strong desire or urge to use alcohol.
The claimant describes craving for alcohol.
5.   Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home.
The claimant describes neglecting family duties due to her use of alcohol and this creates difficulties in the relationship between her and her immediate family.
6.   Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
The claimant continues to drink alcohol to excess despite her awareness of the adverse effects of this on relationships.
7.   Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
8.   Recurrent alcohol use in situations in which it is physically hazardous.
9.   Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
10.Tolerance, as defined by either of the following:
(a) A need for markedly increased amounts of alcohol to achieve intoxication or desired effect.
(b) A markedly diminished effect with continued use of the same amount of alcohol.
11.Withdrawal, as manifested by either of the following:
(a) The characteristic withdrawal syndrome for alcohol (refer to Criteria A and B of the criteria set for alcohol withdrawal).
(b) Alcohol (or a closely related substance, such as a benzodiazepine) is taken to relieve or avoid withdrawal symptoms.
The claimant’s immediate reaction to the motor accident was one of “shock” with typical acute anxiety symptoms. The accident was minor and does not reach the necessary threshold for a diagnosis of post traumatic stress disorder. The claimant does not display the
central re-experiencing phenomena of this disorder.
The claimant has some persistent pain in her neck, although this has generally improved over the time since the motor accident. Ms Kim did not report this or any other physical symptom during the examination, until specifically asked about physical symptoms.
She was not preoccupied with this or any other physical symptom. She did not have disproportionate and persistent thoughts about the seriousness of her somatic symptoms; a persistently high level of anxiety about health or symptoms or spend and excessive amount of time and energy devoted to these symptoms or health concerns. There is no convincing evidence that she has a somatic symptom disorder, notwithstanding this condition being diagnosed by Dr Graham Vickery in the report dated 19 August 2022.
The claimant confirmed that she did not have a fear of confined spaces (claustrophobia) until after the motor accident. This symptom is best considered part of her persistent depressive disorder with anxious distress rather than as a separate disorder.
Ms Kim did not have a fear of injections or blood tests either before or after the motor accident. She has had multiple blood tests to monitor the status of her thyroid gland before and after the motor accident. She currently has blood tests every six months to monitor the thyroid gland. She declined to have an injection in her neck following the motor accident because she was scared of being paralysed which is a common concern for people having spinal injections, especially into the cervical spine.
There is no evidence to support the diagnoses of pre-existing claustrophobia ad needle phobia as stated in paragraph 16.8.1 of the report of Dino Cipriani dated 9 November 2022
Mr Cipriani’s assessment, including neuropsychological testing, indicated that the claimant was exaggerating her somatic, cognitive and emotional symptoms. He reported symptom validity tests indicated fabrication of complaints and believes this was supportive of a diagnosis of malingering. In the DSM-5TR system, malingering is not a mental disorder or diagnosis. The claimant requires the assistance of an interpreter, including when carrying out neuropsychological tests if these are conducted in English as it appears they were. Linguistic and cultural factors are likely to significantly undermine the validity of neuropsychological testing in this situation. The absence of valid neuropsychological testing does not preclude the claimant from suffering from the diagnosed conditions.
Causation and reasons
The claimant has no history of mental disorder before the motor accident. She describes an immediate psychological reaction at the time of the accident with “shock”. She developed a constellation of anxiety and mood symptoms over the following weeks consistent with an adjustment disorder with mixed anxiety and depressed mood. The claimant found prescribed treatment unhelpful for her psychological and physical symptoms, particularly pain, and significantly increased her use of alcohol attempting to gain symptomatic relief. In the context of reduced function and isolation at home the claimant’s psychological symptoms progressed to a major depressive disorder with anxious distress. As this has persisted it is now a persistent depressive disorder. Her use of alcohol continued at a high level and in a problematic fashion and became a comorbid alcohol use disorder.
The Panel adopts the examination report of Medical Assessor Friend and Medical Assessor Doris.

Causation and reasons

The claimant submits that despite authority cited by the insurer, the case of Lynch v AAI Limited t/as AAMI[2022] NSWPICMP 6 - says that if a diagnosis of a non -minor psychiatric injury has been validly made by a treating doctor at any time since the injury then it is a non -minor injury.
The Panel is satisfied that with the nature of the accident which does not appear to have involved serious impact or damage, the claimant does not reach the threshold for a diagnosis of post-traumatic stress disorder. The Panel agrees with the assessment of the Medical Assessor that the claimant did not suffer from post-traumatic stress disorder as her symptoms did not meet the DSM-5 criteria for post-traumatic stress disorder.
Even if the argument was correct that Medical Assessor Samuell diagnosed post-traumatic stress disorder which is a non-threshold injury and that this Panel is bound by that decision, this cannot hold because at original decision, in the opinion of the Panel is incorrect.
The Panel refers to a decision of Lonergan J in Wood v Insurance Australia Group Limited Trading as NRMA Insurance [2025] NSWSC 320. The Panel is not bound by an earlier decision of another Medical Assessor. The Panel has formed its own conclusions and provided its reasons for this.
In Woods case, Lonergan J said;
“5.     Part 3.4 of the MAC Act makes provision for medical assessment and provide the scheme for the resolution of disagreements between claimants and insurers.
6.     Section 58 of the MAC Act sets out the disagreements to which Part 3.4 applies:
58 Application
(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as ‘medical assessment matters’)--
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident,
(c) (Repealed)
(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e) (Repealed)
(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by the Commission.
7.     As can be seen from the text of s 58, the question of causation is an intrinsic part of the medical assessment matter described in s 58(1)(b) as well the matter in s 58(1)(d). This is an important observation in the context of complaint made by
Mr Wood arising from the separate referrals of medical assessment matters that were made. The first referral was in early 2020 to Dr Frank Machart asking him to address questions under s 58(1)(a) and (b) regarding the spinal surgery performed in April 2018. The second referral was to Dr Christopher Harrington, asking him to assess the question of whole person impairment under s 58(1)(d).
8.     The question of causation to be decided under s 58(1)(b) (and, separately, s 58(1)(d)) are matters for the medical assessor and, upon review, the review panel: Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 (‘Mills’) at [61]-[63] (Giles JA, with whom Tobias JA & Handley AJA agreed); AAI Ltd t/as AAMI v Chan[2021] NSWCA 19 at [6] (Leeming JA, with whom Gleeson JA agreed).
9.     The significance of an assessment under s 58(1)(d) is that s 131 of the MAC Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident exceeds 10%.
10.   Disagreements, or “medical disputes”, may be referred to the Motor Accident Authority (and, under later legislation, to the President of the PIC) by a party, court or claims assessor: s 60(1). The Motor Accident Authority or PIC will then refer the dispute to one or more medical assessor(s): s 60(2). The medical assessor undertakes an assessment and gives a certificate as to the matters referred: ss 61(1). That certificate is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned: s 61(2), although a court may reject a certificate in certain limited circumstances s 61(4). (Emphasis added). The certificate must set out the reasons for any finding by the medical assessor as to any matter certified in the certificate: s 61(9).
11.   For obvious reasons, a medical assessment does not bind a later assessor or review panel and so is not, and cannot be, “conclusive evidence” that binds other medical assessors. Each assessor (and review panel) must provide their own fresh assessment, which in the case of a review panel, will either confirm the earlier certificate or revoke the certificate and issue a new one: s 63(4). As stated by Adamson J in Lithgow v Insurance Australia Ltd trading as NRMA Insurance[2017] NSWSC 1104 (‘Lithgow’) at [44]:
…’[44] As can be seen from the provisions extracted above, following the assessment by an assessor of a medical dispute, the assessor is to ‘give a certificate as to the matters referred for assessment’ (s 61(1)). The certificate as to a ‘medical assessment matter’ is conclusive evidence in any court proceedings or in any assessment by a claims assessor (s 61(2)). It does not, however, bind other medical assessors, although it would generally be taken into account. Accordingly, when Dr Ryan assessed the medical dispute that had been referred to him, he was not obliged to accept Dr Kenna’s findings of causation but was obliged to make his own assessment, based on the material before him, which included Dr Kenna’s certificate and reasons.”
The Panel is not bound by any previous decision of a Medical Assessor concerning this claimant and the subject accident.
The insurer submitted that based on the conclusion of Mr Cipriani, as of 9 November 2022, there was unambiguous evidence that the claimant was malingering in relation to her cognitive and psychological symptoms. The Panel does not agree with this and has considered this within its examination report.
The claimant is of a non-English speaking background and requires an interpreter. This is the case when carrying out neuropsychological tests. On this basis, linguistic and cultural factors can possibly significantly undermine the validity of such neuropsychological testing where English is not a first language of a patient, and an interpreter is required to translate. The insurer submitted, amongst other things, that the Medical Assessor failed to state what weight she gave to the opinion of Dr Vickery. That opinion was that the claimant did not have any psychological impairment and was either malingering or suffering from an unrelated somatic symptom disorder. The Panel does not consider that the claimant was suffering from an alternative somatic symptom disorder because she did not report this or any other physical symptom during her examination, until specifically asked about physical symptoms.
It was the observation of Medical Assessor Doris and Medical Assessor Friend that the claimant was not preoccupied with this or any other physical symptom. She did not have disproportionate and persistent thoughts about the seriousness of her somatic symptoms; a persistently high level of anxiety about health or symptoms or spend and excessive amount of time and energy devoted to these symptoms or health concerns. The Medical Assessors were of the finding that there was no convincing evidence that the claimant had a somatic symptom disorder, notwithstanding this condition being diagnosed by Dr Vickery in the report dated 19 August 2022.The Panel does not accept the insurer’s submission that the claimant had a diagnosis of somatic symptom disorder.
As noted within the examination report, the Panel is satisfied that the claimant did not have a history of mental disorder prior to the accident on 5 June 2020. Following the accident, the claimant developed anxiety and mood symptoms increased her use of alcohol and her psychological symptoms progressed to a persistent depressive disorder.
The clinical records of Dr Chung indicate that, in October 2019, eight months prior to accident, the claimant gave a history to her GP of drinking three to eight standard drinks a week and was advised to stop drinking for one month due to abnormal liver function test. The claimant now says that she drinks the equivalent of one bottle of wine a day. That is a considerable increase on her level of consumption in 2019 and for which the claimant was able to stop, at that time. The Panel is satisfied that the claimant’s increased level of consumption of alcohol is a result of a more than negligible contribution of the accident in June 2020.
The Panel is mindful that there have been several inconsistencies concerning the circumstances of the accident and the claimant’s description of her post accident actions and activities. Nevertheless, whilst the accident appears to have been minor in nature, it is, on the balance of probabilities, possible that the claimant would progress to experience a psychiatric disorder. The Panel is satisfied that the accident has had a more than negligible contribution to the claimant offering a persistent depressive disorder the comorbid alcohol use disorder consequent upon the accident. She did not suffer this before the accident in there is no other cause for this of which the Panel is aware.
The Medical Assessor determined that the claimant did suffer a non-threshold psychological diagnosis of persistent depressive disorder with anxious distress and alcohol use disorder secondary to her psychiatric symptoms. The Panel differs slightly in his conclusion that the claimant has suffered a persistent depressive disorder with a comorbid alcohol use disorder. Consequently, the panel is satisfied that the claimant has suffered a non-threshold injury.

Conclusion

As a result of the accident on 5 June 2020, the claimant has developed a persistent depressive disorder with a comorbid alcohol use disorder. This is a non-threshold injury.
The claimant has not suffered post-traumatic stress disorder.

Determination

The Panel revokes the certificate of Medical Assessor Fukui of 24 February 2024.
The Panel finds that the claimant has not suffered a post-traumatic stress disorder.
The Panel finds that the claimant has suffered a persistent depressive disorder with a comorbid alcohol use disorder and that this is a non-threshold injury.

[2025] NSWPICMP 426

18 June 2025