Kendirjian v AAI Limited t/as AAMI
[2025] NSWPICMP 310
•6 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Kendirjian v AAI Limited t/as AAMI [2025] NSWPICMP 310 |
CLAIMANT: | Daniel Kendirjian |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
DATE OF DECISION: | 6 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; Medical Assessor found the claimant is suffering from accident-related adjustment disorder which is a threshold injury; Held – Review Panel of the same opinion that the claimant is suffering from an adjustment disorder secondary to pain; neither party provided any medical evidence to the contrary; no issue of principle; MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 1. The Review Panel confirms the certificate dated 22 November 2023. |
·
STATEMENT OF REASONS
INTRODUCTION
On 13 October 2022, Daniel Kendirjian (the claimant) was the seat-belted driver of a Ford Falcon which was stopped at traffic lights on Centenary Drive at Ryde. As the light turned green, the claimant took his foot off the brake and was about to accelerate, when his vehicle was struck in the rear by the insured vehicle. He describes that vehicle as a “big Ute with bull bars”. The claimant alighted from his vehicle and noticed back pain. He was able to drive away from the scene. The claimant presented to his general practitioner (GP) about two days later complaining of neck and back pain. In the weeks that followed, he found that his mood was lower. He sought help from his GP who prescribed Sertraline and referred him for psychological treatment.
The insurer indemnifies the owner and/or the driver of the at fault vehicle for liability to pay the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer declined entitlement to weekly benefits and treatment expenses after 26 weeks from the accident on the basis that all of the claimant’s physical and psychological injuries relevantly are threshold injuries for the purposes of the Act. That declinature was confirmed on 10 March 2023 upon internal review.
ASSESSMENT UNDER REVIEW
There is a dispute between the parties about whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act. Psychological injury was referred by the Commission to Medical Assessor Gerald Chew for assessment.
Medical Assessor Gerald Chew certified on 22 November 2023 as follows:
The following injury caused by the motor accident:
· Adjustment Disorder
is a THRESHOLD INJURY for the purposes of the Act.
In making his diagnosis of an adjustment disorder, Medical Assessor Chew stated as follows:
“He developed psychological symptoms in response to the accident and sequelae of accident. The symptoms caused him distress. The symptoms do not meet the criteria for another mental disorder. There is no pre-existing condition. The symptoms are perpetrated by ongoing pain and dysfunction. The adjustment disorder is caused by the motor accident and resulting pain and dysfunction including inability to work.”
THE REVIEW
The claimant sought a review of Medical Assessor Chew’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that Medical Assessor Chew did not properly explain his path of reasoning as to how he came to the conclusion that the claimant is suffering from an adjustment disorder, noting:
(a) the claimant’s consumption of Sertraline (anti-depressant) for one year;
(b) the claimant’s suffering low mood;
(c) the claimant’s suffering a reduction in daily activities of living, including only being able to go out for recreational activities, from time to time, and
(d) the claimant has continued consultation with a psychologist on a monthly basis.
The claimant submits that those factors are markedly inconsistent with the claimant’s suffering merely an adjustment disorder.
Additionally, the claimant submitted that Medical Assessor Chew has not:
(e) properly ascertained the claimant’s symptoms;
(f) provided any or adequate reasons or rationale as to exclude [sic], and
(g) failed to take into account that Sertraline, in addition to the psychological treatment the claimant is undertaking, are [sic] markedly inconsistent with the diagnosis of an adjustment disorder.
The claimant’s review application was opposed by the insurer on various grounds. Briefly, they can be stated as follows:
(a) Medical Assessor Chew recorded the accident circumstances and details of the claimant’s symptoms since the accident and as at the time of his examination. Medical Assessor Chew obtained the claimant’s version as to his functioning and capacity followed by his summary of relevant documents before him;
(b) Medical Assessor Chew provided his diagnosis with detailed reasons as to why the claimant’s symptoms do not satisfy the criteria for another mental disorder. He formed his own independent opinion that the claimant’s symptoms were consistent with the diagnosis of adjustment disorder which is a threshold injury for the purposes of the Act, and
(c) the insurer submits there is no basis for the claim that Medical Assessor Chew failed to explain his path of reasoning. The insurer further submits that Medical Assessor Chew correctly based his findings on a combination of an assessment of the claimant, review of the medical evidence, consideration of the circumstances of the accident and explained his path of reasoning in support of his findings.
Accordingly, so the insurer submits, as no errors have been established, there is no basis for finding that Medical Assessor Chew’s assessment was incorrect in a material respect.
President’s delegate Sophie Jones issued a Determination of an Application for Review of a Medical Assessment on 7 February 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated briefly to be the insurer’s [sic] grounds for review that the Medical Assessor failed to explain how he arrived at the diagnosis of an adjustment disorder. No further particulars were given by the President’s delegate in explanation of her decision.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to re-assess the nature of the claimant’s psychological injury and whether it is a threshold injury for the purposes of the Act.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, 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 constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act[BG1] and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. [BG2] The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act[BG3] .
Version 9.1 of the Guidelines commenced on 1 April 2023 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:
“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 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.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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
Document
Author
Date
Page No.
Claimant’s submissions
Applicant
20/12/2023
1 - 3
Previously summarised.
Application for Personal Injury Benefits
Applicant
22/11/2023
4 – 8
Application for internal review
Applicant
21/02/2023
9 – 10
Interna Review outcome
Allianz
10/03/2024
11 – 17
NSW Police report
NSW Police
11/11/2022
18 – 23
Allied Health Recovery Request
Dr Anju Aggarwal
06/12/2022
24 – 28
Referral letter for MRI scan of cervical spine and lumbar spine
Dr Tom Lieng
27/02/2023
29
Referral letter to Future Fit
Dr Tom Lieng
06/03/2023
30 – 31
Referral letter to Mr Raymond Hudd
Dr Ton Lieng
27/03/2023
32 – 34
PIC Certificate
Assessor Gerald Chew
23/11/2023
35 – 39
CT scan of cervical spine and lumbar spine report
Medical Imaging Bankstown
18/10/2022
40 – 41
MRI scan of cervical spine and lumbar spine report
Lumus Imaging Fairfield
07/03/2023
42
Certificates of Capacity
Dr Anju Aggarwal
03/11/2022 – 12/04/2023
43 – 54
Clinical notes
Dr Tom Lieng
Various
55 – 106
Clinical notes – Future Fit
Various
107 - 195
The insurer relied upon the following material which the Review Panel has considered:
(a) insurer’s submissions – review of Assessor Chew’s certificate Previously summarised;
(b) insurer’s submissions relating to threshold injury dispute:
“Injury – psychiatric condition
5.1 The Certificates of Capacity completed by different GPs provided a diagnosis of anxiety/depression and more recently adjustment disorder.
5.2 There is no evidence that any diagnosis was made in accordance with DSM-5 TR criteria required by the Guidelines.
5.3 The insurer submits that there is insufficient medical evidence as to the claimant’s alleged psychological injuries falling outside the definition of a Threshold Injury under the Act.
The insurer disputes that any physical and psychological injury causally related to the accident falls outside the definition of a Threshold Injury for the purposes of the Act.”
The remainder of the insurer’s documents largely duplicate the claimant’s documents which do not relate to the referred psychiatric condition (adjustment disorder).
EXAMINATION REPORT
The claimant was assessed by Medical Assessors John Baker and Christopher Rikard-Bell on 13 March 2025 remotely by MS Teams. The Medical Assessors’ report is as follows:
Examination dated 13 March 2025
HISTORY
Pre-Accident Functioning
Before the accident, Mr Kendirjian was working 40 hours per week as a skilled labourer and resided with his sister. There was regular contact with his girlfriend and his children. He managed his self-care well and he related well to friends and family. His concentration was good and he was able to socialise occasionally without restrictions. He was working well and could travel without any restrictions.
Past Medical History
There is no history of serious illnesses, injuries or conditions. The current medication is Aropax 40 mg. There is no family history of psychiatric illnesses and no drug or alcohol issue.
Past Psychiatric History
There has been treatment with counsellors from age 25 “on and off.” He has received treatment with Aropax and Efexor, however, he ceased the Efexor several years before the motor vehicle accident when his overall health was stable.
Past Forensic History
There is no history of motor vehicle accidents, Workers’ Compensation claims, insurance claims or legal issues.
History of the Accident
On 13 October 2022 Mr Kendirjian was involved in a motor vehicle accident in his girlfriend’s 2003 Ford Falcon as he was taking off from a red light when there was a “big bang” as a large Trident Ute with a bull bar collided with him. He immediately felt pain in his lower back and he was able to get out of the vehicle. He exchanged details with the other driver and was able to drive home. The vehicle was not repaired and his girlfriend subsequently sold the vehicle.
History of symptoms and treatment after the accident
Following the accident, Mr Kendirjian received treatment with pain relief consisting of Panadol Osteo and Tramadol. He consulted with Dr Lieng for several months, then changed to Dr Andrews. There was psychological treatment with Raymond Hunt. The next day, Mr Kendirjian attended the hospital, however, there was a 5-hour wait, therefore he consulted with the general practitioner two days after the accident. There was treatment with physiotherapy, which helped to a small degree and he enquired as to whether a cortisone injection into his back would be more helpful. Mr Kendirjian was unable to return to work after the accident and received payments from the insurer for six months. He did not want to claim for Workers’ Compensation as he said he respected his employer and felt this would not be fair. Mr Kendirjian said, “I feel bad about work.” After some months, Mr Kendirjian was feeling quite depressed and he was prescribed Zoloft, which was initially helpful, but this ceased. He consulted Raymond Hunt, psychologist and he said, “I have seen him before.” Mr Kendirjian said the counselling was useful to a degree, however, he said the major issue was with the pain and is the primary difficulty. He said there were some issues as a child which he had discussed with the psychologist however, he said, “I don’t want to go into that here.”
Current Symptoms
Mr Kendirjian has quite severe back pain radiating down his legs and he rated the pain at 7 or 8/10 if he attempts to move; therefore, when he is at work or sitting for a long period or driving, the pain is exacerbated and is relieved a little by lying down. There is a shock sensation down his legs, and he wonders whether he has lost sensation or strength in his legs as he fell down a few stairs whilst carrying one of his children, resulting in a swollen ankle. Following the accident, Mr Kendirjian experienced neck pain and a clicking sensation; however, this has now improved and there is no longer neck discomfort. Mr Kendirjian’s sleep is poor as he cannot find a comfortable position. He constantly folds his pillow and tries to adjust to the back pain. His appetite is normal and his weight is stable and perhaps he has lost a small amount of weight. Generally, Mr Kendirjian’s mood is irritable, although he can enjoy spending time with his children and said “of course,” however he does not enjoy a great deal of other activities. He has lost the motivation to go out and he tends to sleep during the day. There are panic attacks when going to the shops and he avoids mixing with others. He does not enjoy seeing his family, preferring to be on his own. Mr Kendirjian is fearful of conflict or arguing with others.
Current Routine
Mr Kendirjian is currently residing with his partner and three children with another child expected soon. There is an older daughter who live in Ingleburn with a baby. Mr Kendirjian will go to bed at midnight and struggles to fall asleep. He will usually fall asleep on the lounge watching television then he will go to bed and come back to the lounge. He normally gets up between 6:30 and 7 am. He showers and helps the children get ready for school. Otherwise, he is collected by his employer and they will travel to work. He arrives home by 4 pm and Mr Kendirjian will spend time with his children. Currently he is working one or two days per week over the past three months with a friend assisting in a carpeting business. Mr Kendirjian stated that pain is a major problem as he cannot lift heavy items or sit for more than 20 minutes. He will help with the children and get them ready for bed in the evening while his girlfriend normally prepares the evening meal. He will then sit on the lounge and watch television. On the weekend he likes to see his older daughter, however, he has been reluctant to go out as he feels uncomfortable.
Current Work
Mr Kendirjian is assisting a friend in his friend’s carpet cleaning business for one or two days per week over the past 3 months. Each work day in the morning Mr Kendirjian is collected by his employer at about 7 am and they will travel to work. As the assistant he will perform light duties as he is not able to lift heavy objects due the restrictions from chronic pain. He arrives home by 4 pm and Mr Kendirjian will spend time with his children. Currently he is working one or two days per week over the past three months with a friend assisting in a carpeting business.
CLINICAL EXAMINATION
Mental State Examination
Mr Kendirjian presented as a pleasant man of solid build with slightly greying hair wearing a black t-shirt who was well-groomed and well presented. He was initially quite defensive but relaxed as the interview progressed and engaged well with the interview process. His speech was normal in tone and volume. There was no abnormality of perception. Mr Kendirjian’s affect was a little anxious and irritable but overall was reactive. His cognitive function appeared normal and his thoughts were logical. I asked Mr Kendirjian about his wishes and he said he just wished the pain would go away. He stated that if he had not been injured and if he were not in pain, he would still be working full-time as a skilled labourer and the pain overall was rated at 6 or 7/10.
DETERMINATIONS
Diagnosis and Reasons
Before the accident, Mr Kendirjian was working full-time and there was no psychological treatment received or treatment with antidepressant medication. He was functioning well and there were no mental health concerns or conditions requiring intervention. Therefore, the Panel are of the view there was no active psychological condition before the motor vehicle accident. Following the motor vehicle accident, Mr Kendirjian noted some back pain at the site of the accident. He presented to the hospital the following day and two days after the accident, he consulted with the general practitioner. Mr Kendirjian has suffered significant ongoing lower back pain and he clearly identified lower back pain as the major issue. He asked if treatment could be recommended for the pain and whether cortisone would remove the pain. Mr Kendirjian stated that if it were not for the pain, he would be able to work in his pre-injury role as a skilled labourer and it is clear that pain is the driving factor for his emotional distress. The panel formed the view Mr Kendirjian has developed an adjustment disorder secondary to pain following the motor vehicle accident. Although he has been advised there is no surgical or direct medical intervention for the pain, Mr Kendirjian is hopeful that a cure can be found. The criteria according to DSM-5 are outlined below:
A.An identifiable stressor (the motor vehicle accident causing lower back pain)
B.Significant symptoms with marked distress about the pain, exhaustion, tiredness, avoidance of socialising, interrupted sleep, weight change, thoughts questioning the value of life, significant impact on ability to work although there have been attempts, preoccupation with pain preventing sleeping, walking & carrying out tasks, avoidant of activities, risk averse, lacks trust in others, feels quite threatened particularly in social situations, fearful of further severe back pain radiating down the legs
C.Not another mental disorder or exacerbation of pre-existing mental disorder
D.Not normal bereavement and not prolonged grief disorder
E.Symptoms should resolve once the main stressor is terminated
Causation
The psychological injury is causally related to the subject motor vehicle accident.
Threshold injury
Section 1.6(1) of the Act states that:
“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.”
Section 1.6(3) of the Act states:
“A Threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Part 1 clause 4 (2) of the Regulation states:
“2.Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of the Act
(a) acute stress disorder
(b) adjustment disorder
3.In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)”
The psychological injury is a ‘threshold’ injury for the purposes of the Act.
The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, the injury satisfies the definition of a threshold injury under the Act and the Regulation.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the examination findings and reasons of the Medical Assessors.
[4] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] Neither party provided any medical evidence to the contrary. The findings and opinions of Medical Assessor Baker and Medical Assessor Rikard-Bell coincide with those of Medical Assessor Chew in all material respects.
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
CONCLUSION
For the above reasons, the Review Panel confirms the certificate dated
22 November 2023.
[BG1]Referred to Act above
[BG2]Referred to Act above
[BG3]Referred to Act above
0