Insurance Australia Limited t/as NRMA Insurance v Le

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Le [2025] NSWPICMP 202
CLAIMANT:	Duc Thuong Le
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Doron Samuell
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	26 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed he sustained psychological injuries in a motor accident on 7 October 2018; Medical Assessor (MA) determined that the claimant suffered a generalised anxiety disorder caused by the motor accident and was a non-minor (now non-threshold) injury for the purposes of the Act; review sought by the insurer under section 7.26; consideration and application of section 1.6 and the Motor Accident Guidelines; Held – the claimant did not suffer any recognised psychiatric disorder caused by the motor accident on 7 October 2018; the Medical Assessment Certificate dated 12 December 2022 was revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Atsumi Fukui dated 12 December 2022. 2. Certifies that the claimant did not suffer any recognised psychiatric disorder caused by the motor accident on 7 October 2018. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

On 7 October 2018, the claimant, Mr Duc Thuong Le, a 36-year-old man was a back seat (driver’s side) passenger in a motor vehicle (vehicle 1) that rear-ended and side-swiped another vehicle (vehicle 2) causing vehicle 1 to collide with a tree (the motor accident).
On 24 October 2018, Mr Le made a claim for personal injury benefits. The relevant compulsory third party insurer was Insurance Australia Limited t/as NRMA Insurance (the insurer).
Mr Le claims that he suffered psychological sequelae caused by the motor accident. He also claims that he suffered injuries to his head, face, neck, back, arms, hands legs and ankles.
Mr Le’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A dispute has arisen between Mr Le and the insurer as to whether, for the purposes of the MAI Act, the psychological injuries he alleges were caused by the motor accident were minor injuries (now known as threshold injuries).
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Atsumi Fukui for assessment.
The medical dispute was assessed by Medical Assessor Fukui, who issued a certificate dated 12 December 2022 wherein she certified that Mr Le suffered a generalised anxiety disorder caused by the motor accident and was a non-minor (now non-threshold) injury for the purposes of the MAI Act (the Medical Assessment).

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 8 March 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new

decision-maker. A ‘new decision maker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 23 November 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 11 March 2024, the Panel met and issued directions to Mr Le or, in the alternative, the insurer, to produce certain records by 24 April 2024.
On 15 May 2024, the Panel met and considered the further documentation produced by the parties and informed the parties that it considered a re-examination of Mr Le was required. Arrangements were made for Mr Le to be re-examined by Medical Assessor Doron Samuell and Medical Assessor Gerald Chew by video link (MS Teams) on 28 June 2024.

STATUTORY PROVISIONS

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries (formerly ‘minor’ injuries).
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a 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 (the Regulations) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. 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-TR), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain 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    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury and 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.”
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“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.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“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.”

Clause 6.7 of the Guidelines states:
“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.”

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a)    the insurer’s indexed and paginated initial bundle of documents lodged on the Commission’s portal on 15 December 2023 (insurer’s documents 1);
(b)    the insurer’s indexed and paginated additional bundle of documents lodged on the Commission’s portal on 23 February 2024 (insurer’s documents 2);
(c)    Mr Le’s indexed and paginated bundle of documents lodged on the Commission’s portal on 5 March 2024 (claimant’s documents);
(d) the insurer’s additional documents being the Injury Care Limited clinical records – part 1 lodged on the Commission’s portal on 30 April 2024 (Injury Care records – part 1);
(e)    the insurer’s additional documents being the Injury Care Limited clinical records – part 2 lodged on the Commission’s portal on 30 April 2024 (Injury Care records – part 2), and
(f)    the insurer’s additional documents being the Centre for Wellbeing clinical records lodged on the Commission’s portal on 30 April 2024 (Wellbeing records).

ASSESSMENT UNDER REVIEW

Medical Assessor Atsumi Fukui examined Mr Le on 7 September 2022 and issued a certificate under s 7.23(1) of the MAI Act dated 12 December 2022.[2]
[2] Insurer’s documents at pages 12-18.
Medical Assessor Fukui was asked to assess the minor injury (now threshold injury) dispute in respect of Mr Le’s psychiatric condition.
Medical Assessor Fukui took Mr Le’s psychosocial and pre-accident history that was, in the main, consistent with the evidence. Mr Le denied any significant medical or psychiatric history. There was no known family psychiatric history. Prior to the motor accident he consumed alcohol only occasionally. He rarely drinks now. He is an ex-smoker. He used recreational drugs including cannabis in the past but denied any recent substance use.
In respect of the history of the motor accident, Medical Assessor Fukui recorded the following:
“Mr Le stated that he does not remember anything about the accident. He woke up in hospital wearing a neck brace. He stated that he was a passenger in a vehicle according to the police report and recalled seeing flashing lights, vivid dreams and a person in the car who ran away. He stated that he could not remember what had happened.
The documents note that Mr Le was a passenger in a motor vehicle accident in a car which was travelling at a speed of 100kph when it collided with a tree.”[3]
[3] Insurer’s documents at page 14 at [9].
Medical Assessor Fukui took the following detailed history of symptoms and treatment following the motor accident:
“According to documents, Mr Le was brought to St Vincent’s Hospital by ambulance with a fluctuating level of consciousness with agitation. He was noted to have seizure-like activity. His injuries included haematoma to the face, behind his left ear and seat belt abrasion. He was admitted to the intensive care unit and was commenced on antiepileptic medication. Urinary drug screen was positive for benzodiazepines, cocaine and amphetamines. The neurologist’s opinion was that Mr Le had suffered a seizure in the context of drug use and head trauma and that he is unlikely to have a seizure disorder. He was discharged from hospital on 12 October 2018 five days after the accident.
Mr Le stated that over the last two years he has become anxious all the time. His sleep has been disrupted with an erratic pattern. He experiences panic attacks and feels scared up to 10 to 15 times a day with a feeling that something bad is going to happen. He worries about having a car accident or being hit by a car. He also worries that someone is going to hit him or break into his home. His panic attacks are characterised by palpitations, tachycardia and shortness of breath. He experiences anxiety with strangers and avoids going out. Public transport makes him anxious, so he drives everywhere. He has become socially avoidant and has less social contacts. He felt better during the COVID-19 lockdown. He avoids crowds and he hates shopping centres and restaurants. He only enjoys going fishing alone. He is able to drive his car. His appetite is variable. He has suffered some weight loss but has forced himself to eat and he is regaining his weight. He has noticed a decline in his concentration and has deferred doing his master's degree. He stated that his work is manageable in small segments. He has felt depressed at times and feels as if he is being punished. He denied any thoughts of self-harm or suicidal ideation.
He has not sought help about his symptoms because he does not want to speak to anyone. He stated that he spoke to his general practitioner once or twice but did not find it helpful. He did see a psychologist during 2020 prior to the COVID-19 lockdown for several sessions. However, he stated that he could not remember why he was seeing a psychologist. He has not been prescribed any medications.
In terms of physical symptoms, he stated that his whole body feels sore, that he has pain in his leg and back and that his joints and muscles ache all over. He stated that he cannot sit for long or cannot lie down for long. He stated that his doctor said that there were no obvious injuries, and he has not had any treatment and takes occasional Panadol. He is unable to exercise because he finds it too painful.
He lost his memory for about two months and has suffered from poor memory since the accident. He recalled that he could not walk properly, and he could not think properly following the accident. He stated that he had to learn to walk. He was unsure how long he was in hospital for and guessed that he may have been hospitalised for one to two weeks. He stated, ‘I don’t remember’. ‘I remember I couldn’t walk’. He also was unable to remember what injuries he had suffered if any. He thought that he attended physiotherapy.
He was unable to work for one or two years and was unemployed. He stated that it was all ‘a blank.’”[4]
[4] Insurer’s documents at pages 14-15 at [10].
In respect of current symptoms, Medical Assessor Fukui noted that Mr Le continued to experience the significant anxiety symptoms described above. It was also noted that Mr Le was not receiving any psychological or psychiatric treatment.

On mental state examination, Medical Assessor Fukui observed the following:
“Mr Le presented as neatly casually dressed and well groomed. He was anxious and visibly tense. He was a vague historian due to his impaired memory. There was no evidence of pervasive depressed mood. His affect was restricted with occasional reactivity. There was no formal thought disorder. There was no evidence of psychotic symptoms. He denied thoughts of self-harm or suicidal ideation. Brief cognitive testing was performed. Although the date was 7 September 2022, he thought the date was 5 September 2022. He named the correct season. He was asked to recall three items and was only able to recall two out of three items. He made five errors while attempting serial 7’s. Mr Le stated, ‘I think my entire life has changed.’”[5]
[5] Insurer’s documents 1 at pages 15-16 at [14].
In respect of Mr Le’s current functioning, Medical Assessor Fukui noted:
“Mr Le reported difficulty sitting or lying down for too long due to musculoskeletal pain he experiences all over his body. Due to his anxiety, he has become socially withdrawn and he rarely goes out. He stated that he has nothing to do and sits at home. He no longer engages in sports due to physical pain. His concentration is very poor, and he is unable to read more than one or two pages at a time and is unable to retain information. He finds following movies difficult as he is easily distracted. He was able to obtain work in 2021 for an information technology organisation and has worked full time for the last two years.”[6]
[6] Insurer’s documents 1 at page 16 at [15].
Medical Assessor Fukui opined that there were no inconsistencies reported in Mr Le’s history.
In referring to the relevant documentation made available to him, Medical Assessor Fukui observed that there were no documents of psychiatric relevance other than a certificate by Mr Le’s general practitioner, Dr Khan, noting that Mr Le suffered from anxiety and Dr Khan’s referral note to a psychologist.
Medical Assessor Fukui opined that Mr Le’s reported symptoms were characteristic of a generalised anxiety disorder and that he met the DSM-5 criteria for the same. He further opined that the timing of the onset of his anxiety symptoms and the nature of his symptoms were consistent with his psychiatric disorder being causally related to the motor accident.
Medical Assessor Fukui concluded that the generalised anxiety disorder was not a minor injury.

REVIEW OF THE EVIDENCE

Application for personal injury benefits

On 24 October 2018, Mr Le completed an application for personal injury benefits in respect of the motor accident.[7]
[7] Claimant’s documents at pages 1-6.
The application form set out the basic particulars of the motor accident and Mr Le described the motor accident in the following terms:
“I was a back seat passenger in … (vehicle 1) travelling along York Street in Sydney in the third lane (closest to the kerb) of three lanes. All of a sudden the vehicle I was travelling in rear ended a motor vehicle (vehicle 2) which was travelling in the middle lane. The impact caused vehicle 2 to lose control, swerve and hit into vehicle 1 and hit into a tree.”[8]
[8] Claimant’s documents at page 3.
In the application form, Mr Le recorded that he sustained injuries to his head, face, neck, back, arms, hands, legs and ankles as well as “psychological sequelae”.[9]
[9] Claimant’s documents at page 3.
Mr Le denied suffering any illness or injury affecting the same or similar parts of his body at the time of the motor accident.

NSW Police report

In evidence, there was a police report in respect of the motor accident provided to the insurer under cover of a letter from NSW Police dated 28 November 2018.[10]
[10] Insurer’s documents 1 at pages 253-259.
The police report set out the basic particulars of the motor accident and reported that Mr Le was a seat-belted right rear seat passenger of vehicle 1 at the time of the accident. The airbags were reported as having been deployed. Mr Le was reported as having been injured.
The police report described the crash summary details as follows:
“About 3:20am on Sunday, 7 October 2018 VEH 2 was travelling southbound in lane 4 of 5 on York St, Sydney, When VEH 2 was passing the intersection of York St and. Jamison St, VEH 1 which was also travelling southbound on York St, behind VEH 2, collided with the rear of VEH 2 and then mounted the western sidewalk of York St and collided with a tree approximately 10 metres south of Jamison St. As a result of the collision, the vehicles received the above listed damaged [sic]. It is currently unclear how the front of VEH 2 was damaged. DRIVER 1 and another passenger fled from the-scene, running westbound on Jamison St. One passenger remained in the vehicle. The collision was witnessed by WIT 1 and WIT 2. WIT 1, who was concerned for the welfare of the passenger, broke the front passenger side window of VEH 1 which the passenger climbed out of. Both vehicles were then towed from the scene.”[11]
[11] Insurer’s documents 1 at page 258.

Transcript of interview with Constable Thomas Giblin

In evidence, there is a transcript of an interview between Ms Penelope Berman, an investigator engaged by the insurer, and Constable Thomas Giblin on 29 November 2018.[12]
[12] Insurer’s documents 1 at pages 260-277.
The subject of the interview was the motor accident. Constable Giblin had attended the accident scene on 7 October 2018 about five minutes after receiving a call-out. Also in attendance with Constable Giblin was Constable Gregory Bennie.
Constable Giblin described his understanding of the motor accident based on his enquiries made at the accident scene in similar terms to those expressed in the police report referred to above.
Constable Giblin stated that witnesses assisted Mr Le out of the rear driver’s side passenger seat of vehicle 2. He described Mr Le as “somewhat non-compliant and aggressive.”[13] Mr Le was repeatedly beating his head on the ground despite police attempts to stop this behaviour. Mr Le had to be restrained by police.
[13] Insurer’s documents 1 at page 262 at A28.
Constable Giblin stated that he had viewed CCTV footage of the motor accident and observed that the collisions between both vehicles and the collision with the tree were “quite forceful”.[14]
[14] Insurer’s documents 1 at page 265 at A51.
Constable Giblin read out his police notebook statement of one of the witnesses to the motor accident, Mr Michael Hughes, to the investigator. That statement was recorded in the transcript. Mr Hughes stated that he had consumed about 10 alcoholic drinks during the night. It appeared that Mr Hughes was the witness who smashed a window of vehicle 1 to allow Mr Le to crawl out of the vehicle after he heard the latter banging on the window and observed him trying to get out of the vehicle. He stated that he observed Mr Le holding his shoulder in pain, behaving in an erratic manner and mumbling random sentences. He also observed Mr Le walking in circles in the middle of the roadway and being aggressive and yelling. Mr Hughes then went to check on the welfare of the driver of vehicle 2. When he turned his attention back to vehicle 1, he observed Mr Le in the driver’s seat of vehicle 1, playing with the gear stick and “possibly”[15] trying to drive the vehicle away. He observed Mr Le get out of vehicle 1, run to the middle of the road and walk in circles yelling. He described Mr Le’s manner as aggressive. Mr Le approached him and said, “No one knows my full story”[16] and claimed that he could not find his brother or girlfriend. Mr Hughes expressed the opinion that Mr Le may have been intoxicated.
[15] Insurer’s documents 1 at page 267 at A71.
[16] Insurer’s documents 1 at page 267 at A71.
Constable Giblin stated that he requested Mr Le to get off the roadway and go onto the footpath. Mr Le refused. So, he attempted to lead Mr Le to the footpath and he refused to do so. Mr Le started to kick, thrash and push away. The two constables restrained Mr Le on the ground, at which point, he started beating his head on the ground forcefully and repeatedly. A bystander held Mr Le’s head to the ground but Mr Le continued beating his head on the ground.
Constable Giblin stated that, based on his experience, he believed that Mr Le was drug and alcohol affected. Mr Le showed signs of erratic behaviour and aggression. His eyes were rolling back into his head and he was frothing at the mouth. He showed signs of a possible overdose.

Treating medical records and reports

In evidence, was NSW Ambulance’s electronic medical record dated 7 October 2018 relating to Mr Le.[17] The medical record provided the following case description:
“C/T 29 YOM HIGH SPEED MVA POLICE STATE BASED ON DAMAGE POSSIBLY TRAVELING 1OO+KM/HR. O/A 3X POLICE OFFICERS HOLDING PT PRONE TO GROUND. PT HIGHLY AGITATED, UNCOOPERATIVE, FOAMING AT MOUTH? DRUG EFFECTED? ETOH. PT? EITHER DRIVER OR BACK SEAT PASSENGER OF VEHICLE AIRBAGS DEPLOYED AND SIGNIFICANT DAMAGE TO VEHICLE. DIFFICULTY WITH INITIAL ASSESSMENT DUE TO PT POSITONING AND AGITATION. PT GIVEN 10MG DROPERIDOL WITH GOOD EFFECT. INITIAL OBS - GCS 12 E4V3M5, TACHYCARDIC, TACHYPNOEIC, HYPOTENSIVE, FEBRILE. POST DROPERIDOL PT GCS 3. H2T - HAEMATOMA AND BLEEDING TO R) FOREHEAD, SEATBELT TRAUMA/BRUISING, BATTLE SIGNS PRESENT, EPISTAXIS. PEARL 3MM, CHEST SOUNDS CLEAR L=R, ABDOMEN SOFT

NON-TENDER, PELVIS INTACT, LONG BONES INTACT. EN ROUTE TO SVH PT PROCEDED TO HAVE SEIZURE LIKE ACTIVITY. RX IVC, PELVIC SPLINTING, 10MG DROPERIDOL, 1MG MIDAZOLAM, 5OOML HARTMANNS. TX TO SVH FOR FURTHER MANAGEMENT.”
[17] Insurer’s documents 1 at pages 117-122.
Mr Le was conveyed by ambulance to St Vincent’s Hospital in Darlinghurst.
In evidence, were the St Vincent’s Hospital clinical records pertaining to Mr Le.[18]
[18] Insurer’s documents 1 at pages 123-218.
Mr Le was attended to by a triage nurse in St Vincent’s Hospital emergency department at 4.17am on 7 October 2018.[19] Ambulance paramedic observations at the accident scene were noted. Mr Le was intubated for airway protection. Reduced air entry on the right side was noted. Other observations included tachycardia; dilated but not distended neck veins; a Glasgow coma score of 3; pupils 3mm bilaterally; right eye deviation in the context of probable seizure activity; superficial facial abrasions; and seatbelt sign over the abdomen. CT scans of the cervical spine, chest, abdomen and pelvis demonstrated no evidence of acute intracranial, thoracic or abdominal pathology or acute fractures. There was no evidence a skull base fracture. There were bubbly secretions within the nasal cavity, nasopharynx and oropharynx. There was no evidence of enhancing lesion within the nasal cavity and no evidence of vascular abnormality.
[19] Insurer’s documents 1 at page 129.
Later on 7 October 2018, Mr Le was admitted under the acute surgical team and monitored in the intensive care unit (ICU), where he was started on Keppra for the seizure activity observed at the accident scene. Mr Le tested positive for benzodiazepines, cocaine and amphetamines.
On examination on 8 October 2018, it was noted that Mr Le had tenderness in the right elbow, the mid-line cervical spine and over the C4/5.
On 9 October 2018, Mr Le was reviewed by the neurosurgery team. After reviewing the cervical spine CT scan, the team cleared Mr Le of injury and recommended removal of the cervical collar. Mr Le was also reviewed by the ICU team who authorised the removal of the indwelling urinary catheter (IDC) and arterial line (ART). Keppra was ceased. Mr Le was extubated, discharged from ICU and admitted to the ward.
On 10 October 2018, Mr Le was examined and no new injuries were found. He was diagnosed with a urinary tract infection (UTI) and commenced on oral antibiotics (Augmentin Duo Forte). He underwent a neurological consultation to review the cause of seizure activity and it was concluded that he sustained a seizure in the context of drug use and head trauma. Mr Le underwent an MRI scan of the brain that revealed no abnormalities. He was scheduled for a review by Dr Stephen Tisch, consultant neurologist, in the hospital’s neurology clinic on 16 November 2018.
On 11 October 2018, Mr Le underwent an electroencephalogram (EEG).
On 12 October 2018, Mr Le was reviewed and deemed fit for discharge. On discharge, he was issued with a medical certificate and advised not to drive for six months; not to operate heavy machinery until his review with Dr Tisch; and to complete the five day course of Augmentin Duo Forte.
The discharge summary noted that throughout his admission, Mr Le was reviewed by the allied health team including a physiotherapist, a social worker, a dietician and an occupational therapist.[20]
[20] Insurer’s documents 1 at page 209.
On 18 October 2018, Mr Le consulted Dr Yasmin Khan, general practitioner, of Injury Care.[21] Dr Khan issued Mr Le with a certificate of capacity[22] describing the injuries sustained in the motor accident as a closed head injury with post-traumatic amnesia for the event; seizures and a whiplash injury. There was no diagnosis of a psychological/psychiatric injury caused by the motor accident. However, the certificate stated that a referral to a psychologist had been initiated. In addition to the physical complaints recorded in the certificate, other complaints included transient memory loss, nightmares and flashbacks. There was a referral letter from Dr Khan to C Moubarak, psychologist, dated 18 October 2018 that recorded Mr Le’s current issues as being a closed head injury with post-traumatic amnesia, flashbacks, nightmares and poor coping.[23] There were no reports from Mr/Ms Moubarak in evidence.
[21] Injury Care records – part 1 at page 4.
[22] Claimant’s documents at pages 7-11.
[23] Claimant’s documents at page 12.
On 25 October 2018, Mr Le consulted Dr Khan.[24] The reason for contact in the clinical records was recorded as right shoulder pain. Dr Khan prescribed 500mg/30mg Panadeine Forte tablets. Dr Khan issued Mr Le with a certificate of capacity in similar terms to the initial certificate. There were referral letters from Dr Khan to Dr Anil Nair, neurosurgeon, and Dr Jonathan Herald, orthopaedic surgeon, dated 25 October 2018.[25] There were no reports from Dr Herald in evidence.
[24] Injury Care records – part 1 at page 5.
[25] Claimant’s documents at pages 36-37.
The Panel notes that little information can be obtained from the progress notes of Dr Khan produced by Injury Care and therefore, they are of minimal probative value. There is generally no record of any history, no details regarding the reason for each consultation and only the odd mention of the complaints and symptoms made by Mr Le. For the most part, the progress notes merely record the time and date of the consultation and sometimes, the medication prescribed. An exception is an entry in the progress notes on 21 March 2023 by Dr Mandlenkosi Sibanda, general practitioner, who, amongst other things relating to Mr Le’s physical injuries, recorded ongoing occasional flashbacks and nightmares related to the motor accident.[26] It appeared that Dr Sibanda took over Mr Le’s care from Dr Khan.
[26] Injury Care records – part 1 at page 52.
On 16 November 2018, Dr Tisch prepared a report for Dr Khan.[27] Dr Tisch provided the following history of the motor accident and Mr Le’s hospital treatment thereafter:
“On 7 October 2018, Duc Thuong was in a serious motor vehicle accident. The car was travelling at 100 km per hour and collided with a tree. Duc Thuong states that he was a rear seat passenger although whether he was the driver or the passenger is not mentioned in the ambulance report. The ambulance report does state that when they arrived Duc Thuong was already being held prone to the ground by three police officers and was in a highly agitated, uncooperative state with foaming at the mouth. There was apparently some possible generalised seizure activity at the scene and he was treated with droperidol and became very drowsy afterwards with his level of consciousness going from GCS 12 to 3 en route. He was brought to St Vincent's Emergency Department where, owing to a low level of consciousness, he was intubated for airway protection. He was managed in Intensive Care and early in the intensive care phase, again some generalised convulsive activity was observed, which was interpreted as a probable seizure. He was admitted under the Trauma Team and fortunately, extensive imaging showed no evidence of craniospinal injury, fractures or organ injury. He did sustain significant abrasions to his face and chest and soft tissue injuries particularly to his right shoulder and lower back. CT brain showed no structural parenchymal lesion and there was no arterial injury in the CT angiography head and neck. Subsequent brain MRI was also normal.
Duc Thuong was treated with IV Keppra as a precaution in light of suspected seizure activity. This was continued for the first 72 hours and then discontinued. No further seizure activity was observed. Duc Thuong was extubated on 9 October 2018, and transferred to the ward where neurology input was sought. I met him at that time. Duc Thuong has no recollection of the accident and his first clear recollection is waking up in Intensive Care around 9 October 2018. Indeed, he has features of retrograde amnesia in that he cannot recall any events clearly in the weeks leading up the accident either.”[28]
[27] Insurer’s documents 1 at pages 219-221.
[28] Insurer’s documents 1 at pages 219-220.
In his report, Dr Tisch noted that Mr Le was discharged from St Vincent’s Hospital on 12 October 2018 and had been followed-up by a psychologist and continued to consult a physiotherapist. Current main problems were continued poor memory and concentration; intermittent global headache; fatigue; soreness and restricted right arm and shoulder movement; and low back pain.
Dr Tisch reported that his neurological examination of Mr Le on 16 November 2018 was normal. Mr Le’s EEG demonstrated minor non-specific slow-wave abnormalities moreover the left hemisphere with no epileptiform activity. A urinary drug screen on 7 October 2018 was positive for benzodiazepines, amphetamines and cocaine.
Dr Tisch concluded as follows:
“Duc Thuong suffered probable seizures in the setting of a motor vehicle accident where he likely sustained some degree of closed head injury with traumatic brain injury and amnesia but also was under the effects of stimulant drugs including cocaine and amphetamines detected in his urine. As such, the seizures were provoked by several factors and there is no clear evidence of him having unprovoked seizures or an underlying epilepsy syndrome. It is still not entirely clear whether he was a driver or a passenger in the accident. This information may be obtainable from the police report which was not part of his medical record. Applying the standard RMS guidelines to his case, he must refrain from driving for a minimum of six months following first seizure and if he remains seizure-free during this period, he would be fit to resume driving. He is also advised to notify the RMS of his seizures and the attendant medical advice and I am providing him a copy of this letter to assist in that conversation.
Duc Thuong's ongoing reported impairments in memory, concentration and headaches are consistent with a postconcussion syndrome and he will require continued supervision and support, ideally through outpatient traumatic brain injury service and I am therefore referring Duc Thuong to Dr Stuart Browne, Consultant Rehabilitation Physician. This letter serves as a formal referral. It is extremely important the Duc Thuong refrain from recreational drug use in the future including in particular cocaine and amphetamines as this may have had a contributory role both to his seizures and the accident.”[29]
[29] Insurer’s documents 1 at page 220.
Dr Tisch did not make any arrangements to follow-up Mr Le.
On 20 February 2019, Mr Le consulted Dr Anil Nair, spinal surgeon, who reported back to Dr Khan.[30] Mr Le complained of suboccipital headaches, subaxial cervical pain, pain in the right upper extremity and pain in the lower back caused by the motor accident. Dr Nair referred Mr Le for an MRI scan of his cervical spine and sought insurer approval for a lumbar spine MRI scan. Dr Nair opined that Mr Le had a cervical disc protrusion with mechanical and radicular symptoms. There were no further reports by Dr Nair in evidence.
[30] Insurer's documents 1 at pages 222-223.

On 20 May 2019, Ms Sonia Judd, rehabilitation consultant, of Workplace Rehabilitation Management prepared an initial needs assessment report at the request of the insurer.[31] Whilst Ms Judd focused on Mr Le’s physical injuries related to the motor accident, she did recommend that Mr Le continue with psychological treatment for adjustment to pain, anxiety and change of employment. Ms Judd noted that, on 13 March 2019, Mr Le had significant anxiety, including startle response with loud noises, particularly, car sounds but that his anxiety had reduced by the time of the case conference with Dr Khan on 14 May 2019. By the latter date, there was also significant improvement reported in his memory and concentration.
[31] Insurer's documents 1 at pages 239-248.
On 21 March 2023, Dr Sibanda issued an outward referral and approval request to the insurer to approve a referral to a psychologist.[32] In the request, Dr Sibanda noted Mr Le’s current complaints as forgetfulness; nervousness when surrounded by a lot of people; dizziness; occasional flashbacks; and nightmares.
[32] Insurer’s documents 2 at pages 58-59.
On 23 June 2023, the insurer confirmed that it had approved Dr Sibanda’s referral for an initial session with a clinical psychologist.[33]
[33] Insurer’s documents 2 at page 60-61.
On 22 July 2023, Ms Shayma Almoty, psychologist, of Greenacre Centre for Wellbeing completed an allied health recovery request (AHRR).[34] Ms Almoty noted that Mr Le complained of psychological symptoms that included startle response; appetite disturbance with extreme fluctuations in weight (55kg to 75kg); anhedonia; sleep disturbance/insomnia; reduced focus and concentration; poor memory; mood disturbance; reduced tolerance levels; nightmares; and social withdrawal. Ms Almoty opined that Mr Le appeared to be suffering from post-traumatic stress disorder with mixed anxiety and depression in accordance with DSM-5 (2013). Ms Almoty recommended eight psychological treatment sessions and a case conference based on the following rationale:
“Mr Le has been dealing with his injuries and CTP claim for a prolonged period of time without treatment. Mr Le suffers from amnesia from the MVA and is unable to recall details and events surrounding the MVA and an approximate period of 2 to 3 months prior. This can be very distressing for Mr Le at times. He also experienced nightmares and sleep disturbance. Mr Le is highly motivated towards managing the psychological symptoms and distress that he has been facing over the years. Mr Le advised that he thought he could bottle up or ignore his symptoms and that they would go away on their own, however he has found that he is unable to cope on his own and is finding it difficult to express himself to his partner or friends.
Mr Le would benefit from structured psychological intervention to address his symptoms and assist him with thought and mood management strategies, as well as management of his anxiety, rumination and panic attacks.”[35]
[34] Insurer’s documents 2 at pages 46-50.
[35] Insurer’s documents 2 at page 49.
There were no further AHRRs or reports from Ms Almoty in evidence. There was no evidence that Mr Le consulted a psychiatrist or psychologist between the date of the motor accident (7 October 2018) and the date of Ms Almoty’s AHRR (22 July 2023).
In evidence, there are the clincal records of the Centre for Wellbeing relating to Mr Le. Amongst insurer and other approval related documents, there were the handwritten consultation notes, presumably made by Ms Almoty.
The notes in the entry in the Wellbeing records dated 18 July 2023, amongst other things, referred to Mr Le waking up in hospital in 2018 in terrible pain after a motor accident. Trauma was triggered by noise and crowds and caused him anxiety. He had chronic pain.[36]
[36] Wellbeing records at page 12.
The notes in the entry in the Wellbeing records dated 16 August 2023, amongst other things, referred to Mr Le suffering from generalised fear and a racing heart. Physiotherapy provided him with some temporary relief for 30 minutes to several hours. Mr Le’s feelings were recorded as hopelessness, helplessness, frustration, anger, sadness and worry.[37]
[37] Wellbeing records at pages 10-11.
The notes in the entry in the Wellbeing records dated 3 October 2023 simply read:
“-   traumatic experiences
-    triggers
-    multiple exposures.”[38]
[38] Wellbeing records at page 9.
The notes in the entry in the Wellbeing records dated 24 October 2023 simply read:
“-   Trauma focused strategies
-    Fear avoidance
-    Exposure therapy.”[39]
[39] Wellbeing records at page 8.
On 1 November 2023, icare approved a further six sessions of psychological treatment.[40]
[40] Wellbeing records at pages 18-19.
The notes in the entry in the Wellbeing records dated 14 November 2023 read:
“-   Mental health – more stable
-     flashbacks & memories
-     Feels strange – anxiety attacks – implementing strategies – difficult all the time
-     Psychoeducations [sic] re trauma/anxiety – neural pathways – neuroplasticity”[41]
[41] Wellbeing records at page 7.
There were no further consultation entries in the Wellbeing records.

Medical Assessment Certificates

Senior Medical Assessor Ian Cameron – 28 August 2022

On 16 August 2022, Mr Le was assessed by Senior Medical Assessor Ian Cameron in respect of a minor injury dispute (now threshold injury dispute) for the physical injuries alleged to have been caused by the motor accident.
On 28 August 2022, Senior Medical Assessor Cameron issued a certificate in respect of the minor injury dispute.[42]
[42] Claimant’s documents at pages 311-316.
Senior Medical Assessor Cameron determined that Mr Le had suffered soft tissue injuries to his cervical spine, right shoulder, abdomen and lumbar spine caused by the motor accident, which were minor injuries for the purposes of the MAI Act.
Senior Medical Assessor Cameron also determined that Mr Le had suffered a mild traumatic brain injury caused by the motor accident, which was not a minor injury for the purposes of the MAI Act.

Review Panel assessment – 24 August 2023

The insurer sought a review of Senior Medical Assessor Cameron’s medical assessment referred to above.
On 24 August 2023, the Medical Review Panel consisting of Medical Assessors Gibson and Wan and Member McTegg issued a certificate affirming the certificate of Senior Medical Assessor Cameron dated 28 August 2022.[43]

SUBMISSIONS

[43] Claimant’s documents at pages 324-361.

Insurer’s submissions

The insurer provided written submissions in respect of the Medical Assessment dated 25 August 2022.[44] It also provided written submissions in respect of the Review dated 15 December 2022.[45] A brief outline of the submissions is provided below.
[44] Insurer’s documents at pages 23-30.
[45] Insurer’s documents at pages 2-11.
Dr Kahn recorded that Mr Le demonstrated various psychological symptoms, including anxiety, flashbacks, nightmares, memory loss and concentration issues. However, Mr Le’s treatment providers did not diagnose him with any recognised psychiatric illness.
On the evidence, Mr Le does not have a recognisable psychiatric illness. In the alternative, any psychological injury suffered by Mr Le caused by the motor accident is a minor injury (threshold injury).
On the balance of probabilities, any psychiatric condition that developed after the motor accident is secondary to the cognitive changes caused by the traumatic brain injury (unrelated to the accident), particularly when there is no memory of the motor accident for a period of about two months.

Mr Le’s submissions

Mr Le’s lawyers provided undated written submissions in respect of the Medical Assessment.[46] There were no written submissions in respect of the Review in the claimant’s documents.
[46] Document A1 in the Commission’s portal.
In Dr Khan’s initial certificate of capacity dated 18 October 2018, Mr Le was diagnosed to have a “closed head injury with post traumatic amnesia for the event”. As a result, Mr Le suffers from constant flashbacks/nightmares and is coping poorly. This was documented in the initial referral to consult a psychologist from Dr Khan dated 18 October 2018.
In Dr Khan’s certificates of capacity dated 19 February 2019 and 11 June 2019, it is noted that the psychological review discussed that Mr Le suffers anxiety and feels uncomfortable with traffic sounds, speeding and loud cars. Mr Le also continues to note memory and concentration issues, dizziness, vertigo and blurry vision.
These clinical signs in conjunction with the abovementioned diagnosis appear to be consistent with Mr Le’s injuries sustained in the motor accident for the purposes of the MAI Act.

THE RE-EXAMINATION

Preamble

The Panel re-examination and assessment of Mr Le was undertaken via audio-visual link (MS Teams). Medical Assessor Samuell and Medical Assessor Chew undertook the

re-examination and assessment jointly.

Background

Mr Le is a 36-year-old full-time cyber security worker with Avant Insurance. He is working without restriction. He has been employed there for three years. He has not had negative feedback about his performance. He subjectively reports that he is less efficient than he would have expected to have been.
Mr Le reports no history of psychological difficulty pre-dating the motor accident. There is no relevant family psychiatric history.
Mr Le has no relevant medical history pre-dating the motor accident. There is no family medical history.
Mr Le commenced the consumption of alcohol at the age of 18 years and said that he drinks once or twice per month at special events, such as dinners, birthday parties and work events. When he does drink, he will drink no more than one or two serves. Alcohol has never been a problem for him. He said that he stopped smoking a couple of years before the Panel assessed him. When asked about illicit substances, he could not tell the Panel when he first consumed them. He said that he last consumed illicit substances in 2015 when he took cannabis. He said that, at most, he was taking “a joint here and there”. He said that he had never taken any other illicit substances or pills that were not prescribed for him. The Panel reflected back an apparent inconsistency with the medical records from his St Vincent’s Hospital admission in which it was noted that there were a number of substances present. He strongly refuted substance misuse.
The Panel asked Mr Le about any history of offending behaviour. He said that he could not recall when he was first in trouble with the law and advised the Panel that he had driving offences and had lost his licence for around three months. He was unable to provide further specifics. He said there were no previous personal injury claims.
Mr Le lives with his wife and three children. His three children were from his first marriage and his children are aged 11 years, 8 years and 6 years. He has been with his current wife for five years, having married her three years ago. They were unable to have a honeymoon as it was during the pandemic. He said they celebrated their wedding on a holiday in Japan in 2022 and noted that he had been in Vietnam a couple of months before the assessment for a period of two weeks.
Mr Le has full custody of his children after he said that his former partner decided to leave him. He said that the marriage, which was de facto, ended due to his then-wife’s gambling problem. He said that he had no access to his children until his former partner abandoned them just under two years before the assessment. He said that it is a struggle to care for the children “in every way you can think of”. He said it is challenging for him to work, pay bills and support the family. His children are happy and healthy, and he enjoys a good relationship with both them and his wife.
Financially, Mr Le said that it had been “up and down” and he expressed the good fortune to have family support. His wife was working until around six weeks ago when she lost her job as a beautician. She was present at the Westfield Shopping Centre in Bondi Junction and was traumatised in a violent incident.

Current functioning

Mr Le said that he does not have much time to engage in hobbies. He said that he used to enjoy going to the gym, fishing and swimming. He said that he enjoyed outdoor activities. He said that he could not recall when he last did those.
When he is not working, Mr Le said that he will “hang out with the kids”. He said that he attends to some house chores. He said that he avoids social activities as he gets some anxiety. He told the Panel that he was afraid of being in crowds or in places where he cannot see what is going on or is able to be in control. He said that he does not do much. He said that he attempted to pick up hobbies, however, had problems with his concentration and focus. He said that, if he is lucky, he can concentrate for five minutes. The Panel reflected back to him that he had been engaging in the interview for a lengthy period, well in excess of five minutes, and was working on a full-time basis in a technical role with no negative feedback and that appeared to be inconsistent with his self-report of poor concentration. He did not accept there was a contradiction. He said that, while the Panel interviewed him, his mind had been wandering off.
Mr Le is able to drive a car unaccompanied without restriction. He said that he can cook but does not do so often. He can shop, but, again, does so infrequently. He said that if he does go to the shops, he will get what he needs and then get out. He said that he does not like staying around people for long. He showers and toilets himself. He showers daily.

Current symptoms

The Panel asked about Mr Le’s current symptoms. It is his belief that he has social anxiety that is connected to the motor accident. He said that he has fear and anxiety in a car. He said that he will often think that something bad will happen and his heart will race and he will feel nervous and tremulous. He said that he first had that experience four or five years before the assessment. He told the Panel that he felt stressed about everything and that telephone calls made him nervous. He said that he did not enjoy anything anymore, although when the Panel asked about his holidays, he acknowledged that he did enjoy them, however, he said that the enjoyment was brief and easily ruined. He denied any suicidal ideation.

The motor accident

Mr Le said that he had no direct recollection of the motor accident. He had little recollection about the year following the motor accident. He believes that he was working in logistics at the time of the accident, although could not directly recall it.
Mr Le’s first memory after the motor accident was waking up from a dream and seeing a doctor who asked him what had happened. He said that he is not remembering events on a continuous basis and had difficulty recalling events that pre-dated the subject accident by years.
The Panel asked about the police interview that he undertook after the motor accident and Mr Le said that he had a patchy recollection of that and recalled agreeing that he was in his brother’s car, which he said, “apparently I was using it for work”. He said that he did not recall the birth of his children after the motor accident.
Mr Le specifically said that it was “wrong” that he had been taking drugs as he is “not the kind of person to use drugs”. He said that he had no idea who was in the car with him at the time of the motor accident and said that no one told him.
Mr Le said that following the motor accident, he was employed with BSA where he remained for one and a half years. He did not provide a clear explanation as to why his employment at BSA had failed.
Mr Le said that he had ongoing problems with his back, neck and head and said that, since stopping physiotherapy treatment, his symptoms were worse. He said that his experience of pain impacts his anxiety.
The Panel asked Mr Le about the onset of mental health difficulties following the motor accident. He advised the Panel that he had problems with memory, speech, focus and sleep from around 2018 or 2019. He said that he gets anxiety when he tries to sleep. He said that, in the past, he was a person who could readily talk in front of crowds and now lacks confidence and has word-finding difficulties. He said that he feels “dumbed down”.
The Panel reflected back an apparent inconsistency concerning Mr Le’s memory, which appeared to be inconsistent and unusually dense for important autobiographical details and apparently, inconsistent with his work history. He responded that the doctors “don’t know”. He added, “they just reject what I’m saying.” He disagreed without conceptualisation of his role being technical in nature.
The Panel asked Mr Le about his treatment following the motor accident, from a psychological perspective. He said that he saw a psychologist in Greenacre. He said that he attended a couple of times in 2023 and a couple of times in 2024. He said that he could not recall having had any other psychological treatment. He could not recall the therapist’s name or what she was treating.

Personal history

Mr Le was born in Hong Kong and grew up in Australia from the age of two years. His father worked in construction and his mother worked in a restaurant. Both parents are retired. He said that they live together in Cabramatta. He said that his relationship with them is “good”, although he does not see them often. He said that he tries to visit them, at least, once per week or speak on the telephone.
Mr Le has a younger brother and a younger sister. When asked about adverse early life events or difficulties, he said that he saw “a lot of bad things happen in Cabramatta”. He completed a Bachelor of Computer Science at the University of Technology, Sydney. He attempted to do a Masters degree through that university, but said that he failed in the first semester due to memory issues.
Mr Le said that he commenced an internship while he was doing his undergraduate degree and said that his employment has been “on and off”. He said that he has worked at Datacom and BSA in IT roles. He could not recall when he was unemployed. He said that he had an issue of work performance at BSA that post-dated the motor accident.

Mental state examination

Mr Le presented as a pleasant and cooperative man of Vietnamese appearance who appeared his stated years. His level of self-care and grooming appeared to be normal. His psychomotor functioning was normal.
Mr Le’s speech was normal in form. His narrative contained many assertions of memory deficiency for relevant autobiographical details. Throughout his speech, he continually emphasised his disability. When confronted about inconsistencies, he became angry and at one stage said, “you guys are treating me as if I’m a bad person and trying to lie.” Many of his symptoms seemed implausible at a clinical level.
Mr Le’s affect was bright and reactive and observed within a normal range. He became aggressive when challenged. He did not appear to be depressed, anxious or distressed.
Mr Le’s cognitive functioning was clinically normal. He demonstrated a good working memory to the Panel and a high level of concentration, in contrast with his assertions.
There is no evidence of psychosis.

DIAGNOSIS, CAUSATION AND REASONS

Mr Le is a 36-year-old full-time employee of Avant Insurance who is working without restriction. At the time of the assessment, he was not being treated by a psychiatrist or a psychologist and not taking any psychotropic medication. His mental state findings were largely normal, apart from complaints of memory disturbances that the Panel considered to be clinically implausible.
Mr Le did not describe a plausible pattern of symptoms, emotions or behaviour post-dating the motor accident that was suggestive of a psychiatric disorder.
The Panel noted that Mr Le had engaged in substance use until 2015, according to his own admission. The Panel placed weight on the contemporaneous medical evidence that indicated that Mr Le had used a number of illicit substances and unprescribed medication prior to the motor accident. His denials about substance use were not accepted by the Panel.

The Panel noted Mr Le’s level of functioning post-dating the motor accident that included a marriage, children and employment, the most recent of which has been for three years without negative feedback. Mr Le’s level of function was viewed by the Panel as being inconsistent with a mental health condition attributable to the motor accident. The Panel also noted that there have been a number of contemporaneous psychosocial stressors that were likely to have been impactful on Mr Le.
The Panel was not satisfied that the motor accident caused Mr Le to have suffered a recognised psychiatric injury. Consequently, the question of whether or not there is a threshold injury does not arise.

FINDINGS

The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[47] and Insurance Australia Ltd v Marsh.[48]
[47] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[48] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Samuell and Medical Assessor Chew based on their examination and specific findings pertaining to diagnosis, causation and assessment as to whether the injuries were threshold injuries.
The Panel determines that Mr Le did not suffer any recognised psychiatric disorder caused by the motor accident on 7 October 2018. Consequently, the question of whether or not there is a threshold injury does not arise.
Accordingly, the certificate issued by Medical Assessor Fukui dated 12 December 2022 is rovoked.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

[2025] NSWPICMP 202

26 March 2025