Khoder v AAI Limited t/as GIO
[2024] NSWPICMP 177
•22 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Khoder v AAI Limited t/as GIO [2024] NSWPICMP 177 |
| CLAIMANT: | Hannah Khoder |
| INSURER: | AAI Ltd t/as GIO |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Tom Newlyn |
| MEDICAL ASSESSOR: | Samson Roberts |
| DATE OF DECISION: | 22 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 19 December 2020 as a rear seat passenger; Claimant re-examined; clinical expertise of the Medical Assessors was that the claimant suffered from an adjustment disorder; the claimant never met DSM-5-TR diagnostic criteria for the diagnosis of enuresis at any time; Held – Medical Assessment Certificate revoked; claimant suffered threshold psychological injury. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 29 September 2022 and certifies that the psychological injury caused by the motor accident is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Hannah Khoder (the claimant) was involved in three motor accidents over a short period. The accidents occurred on 19 December 2020 (twice) and on 3 January 2021.
The present proceedings relate to the second accident that occurred on 19 December 2020 (the motor accident). In the motor accident the insured vehicle tried to turn right and impacted into the passenger’s door of the claimant’s vehicle.[1] That accident occurred around 4pm whist the earlier accident that day occurred around 2pm.[2]
[1] Claimant’s bundle, p 53.
[2] Claimant’s bundle, p 52, p 58.
The claimant was also involved in a subsequent motor vehicle accident on 3 January 2021 when the insured vehicle T-boned the claimant’s vehicle at speed (the subsequent motor accident).
AAI Ltd (GIO) insured the owner and driver of the other motor vehicle for liability to pay
Ms Khoder any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.The issues presently in dispute are whether Ms Khoder’s injury is classified as a “threshold injury” within the meaning of the MAI Act caused by the motor accident.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Rickard-Bell who issued a Medical Assessment Certificate dated 29 September 2022 in respect of the motor accident (the medical assessment). Medical Assessor Rickard-Bell concluded that the motor accident caused a minor psychological injury.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[4] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
Statutory amendment
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.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as 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.
REASONS OF MEDICAL ASSESSOR
The Medical Assessor found that the motor accident caused an adjustment disorder and enuresis and opined that there were minor injuries as defined in the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made separately by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegates referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
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 review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] Section 7.26(5A) of the MAI Act.
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.[8]
[8] Section 41(2) of the PIC Act.
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.[9]
[9] Rule 128 of the PIC Rules.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[10]
“(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.”
[10] This sub-section was amended by Amendment Act, Schedule 1 [5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that an acute stress disorder and an adjustment disorder have the same meaning as DSM-5.
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 the motor accident is a threshold injury for the purposes of the Act. 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)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 diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, 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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. aHowever, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
Claimant’s submissions dated 14 July 2021[13]
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
[13] Claimant’s bundle, p 1.
The claimant alleged that she suffered shock, nightmares and abnormal speech caused by the motor accident. It was noted that Dr Chen prescribed fluvoxamine in April 2021 which had been declined by the insurer.
Claimant’s submissions dated 25 October 2022[14]
[14] Claimant’s bundle, p 4.
These submissions were filed seeking a review of the medical assessment.
The claimant submitted that the Medical Assessor concluded that the claimant sustained an adjustment disorder and enuresis caused by the motor accident. It was submitted that enuresis is a recognised psychiatric illness recognised by DSM 5 and not otherwise excluded by the MAI Act.
Insurer’s submissions dated 4 August 2021[15]
[15] Insurer’s bundle, p 3.
The insurer noted that the claimant was involved in a motor accident at 2pm on the day of the motor accident and a subsequent motor accident on 3 January 2021.
The insurer noted that the claimant was diagnosed with an adjustment disorder in an initial certificate dated 22 January 2021. An initial treatment plan from the psychologist dated
15 February 2021 referred to “adjustment disorder: anxiety”.It submitted that in light of the minor nature of the motor accident that there was insufficient evidence that the injury was “solely as a result of the subject accident”.
The insurer submitted that the fluvoxamine is an anti-depressant medication, and, in light of the diagnoses provided by the treating practitioners, should not be prescribed to the claimant. It otherwise submitted that the need for treatment was not related to the subject motor accident but to the subsequent motor accident.
Insurer’s submissions undated[16]
[16] Insurer’s bundle, p 1.
These submissions were filed opposing the application to review the medical assessment.
The insurer submitted that the Medical Assessor provided a detailed report and considered the claimant’s presentation. It submitted that the enuresis was a symptom of the adjustment disorder and was not as recognised psychiatric illness. No error occurred in concluding that the claimant sustained a minor injury.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
Pre-accident records refer to unrelated health conditions.[17] In September 2018 there is a reference to “delayed speech”.[18] On 3 December 2020 the general practitioner (GP) referred the claimant for opinion of learning and development.[19]
[17] Claimant’s bundle, pp 90 – 93.
[18] Insurer’s bundle p 5.
[19] Claimant’s bundle, p 106.
Medical evidence
The emergency department notes on 20 December 2020 referred to a rear end collision the previous day causing “minor tenderness over her limbs”.[20] The doctor noted excessive use of the toilet during the hospital admission.
[20] Claimant’s bundle, p 130.
A certificate of capacity dated 5 January 2021 referred to the motor accident causing non-specific pain and frequently toileting.[21]
[21] Claimant’s bundle, p 114.
Another certificate of capacity dated 5 January 2021 referred to the subsequent motor accident causing non-specific pain and frequently toileting.[22]
[22] Claimant’s bundle, p 109.
A certificate of capacity dated 22 January 2021 diagnosed “adjustment disorder, issues with bladder and bowel, behavioural issues, night terror” caused by the motor accident.[23]
[23] Claimant’s bundle, p 65.
On 21 January 2021 the GP referred the claimant to Dr Van for opinion and management “of frequent urination after MVA”.[24]
[24] Claimant’s bundle, p 64.
On 15 February 2021 a discharge from the emergency department noted increased urine frequency since a motor accident in January 2021.[25]
[25] Claimant’s bundle, p 74.
On 26 February 2021 Dr Frank Chen, general paediatrician, referred the claimant to
Dr Caldwell.[26] Dr Chen noted nocturnal enuresis had resolved but that the claimant continued to experience urinary frequency with small bladder capacity. Symptoms were noted to have developed “following recent MVA”.[26] Claimant’s bundle, p 81.
In a report dated 26 February 2021, Dr Chen noted three recent motor accidents, two on
19 December 2020 and one on 3 January 2021.[27] Symptoms were frequent urinary frequency during the day with bedwetting reported in December and January which had improved over the last three weeks.[27] Claimant’s bundle, p 82.
On 16 April 2021 Dr Chen prescribed fluvoxamine.[28]
[28] Claimant’s bundle, p 84.
In a report dated 9 September 2021, Associate Professor Caldwell, paediatrician, noted the three motor accidents with subsequent urinary frequency and urgency. The doctor opined that the bladder symptoms were “psychogenic in nature” and recommended support from a paediatric clinical psychologist.[29]
[29] Claimant’s bundle, p 85.
In a report dated 29 November 2021 Dr Caldwell noted that significant improvement in urgency and frequency with side effects from medication.[30] The doctor noted treatment by
Ms Tam, psychologist which had helped with anxiety and stress and reported difficulties with nightmares which had resulted in the claimant being “a lot calmer and more relaxed”.[31][30] Claimant’s bundle, p 87.
[31] Claimant’s bundle, p 88.
On 28 February 2022 Dr Caldwell noted that urinary urgency and frequency had completely resolved.
Photographs show minor damage to the passenger side of the claimant’s vehicle.[32]
[32] Claimant’s bundle, p 29, pp 49-50.
RE-EXAMINATION
Ms Khoder was re-examined by both Medical Assessors.
The re-examination report is as follows:
“Who attended the assessment
The Claimant was 10 years old on 12 March 2024. Her mother was present during the interview except for 20 minutes while she attended an online pain management group.
The Claimant was examined using Teams videoconferencing. She was at home in Padstow.
The history was obtained from both the Claimant and her mother. Her mother had trouble focusing on the Claimant’s problems often signing about her own difficulties caused by the accident. Her mother was also focused on the difficulties of finding an Auslan interpreter for medical appointments and affording consultations with specialists when the insurer did not cover the expense.
The Auslan interpreter engaged by the Personal Injury Commission, Ms Leanne Beer, was present during the assessment.
Medical History
The Claimant and her mother did not know her height.
She weighed 46 kg
Right-handed.The Claimant had problems with middle ear infections from babyhood. After being on a waitlist for insertion of grommets for 2 years she had grommets inserted on 15 December 2020, 4 days before the 19 December 2020 Motor Vehicle Accident (MVA).
She had symptoms of allergic rhinitis.
Operations: Insertion of grommets on 15 December 2020.ALLERGIES: None to medications. House dust and animal dander.
History of Education
No learning disorder or childhood attention deficit disorder diagnosed. She has had learning difficulties since kindergarten. She is in year 5 at Padstow Park Public School. The Claimant said she did not focus much on her academic subjects and preferred to concentrate on sports. She liked attending school.
Psychosocial History
Family History
Both the Claimant’s parents are deaf and hard of hearing. Her father was born in Lebanon and his parents and sisters live there. Her mother grew up in Australia and maternal grandparents live nearby. Her mother’s siblings and their children are often seen.
The Claimant has a brother born in 2016 and a sister born in 2018.
After the 19 December 2020 MVAs the Claimant’s mother was depressed and in pain. Her parents-in-law had come from Lebanon and there were problems between her and her mother-in-law. The Claimant’s mother felt her in-laws did not understand and her husband was not supportive. He did not want to look after the children despite his wife having pain problems. Mother said that she fought all the time with her husband. Eventually she took the children to a women’s refuge in Queensland for 2 months. Then they returned to New South Wales so the children could attend school. In 2023 her father moved out and now lives in Yagoona. The Claimant sees her father weekly on weekends and Mondays.Developmental History
Mother took the Claimant to Lebanon for 6 months immediately after her birth because her daughter needed leg splints. The Claimant said she was ‘born the wrong way and needed plaster splints for bowlegs’. Mother and child returned to Australia after the problem resolved.
Mother said her daughter was a wonderful baby.
Her motor milestones were within normal limits. Maternal grandmother had toilet-trained the Claimant by 8-9 months. There were speech delays resulting in speech therapy assessment at her school.
The Claimant attended a family daycare and liked going sometimes. Her mother thought her daughter could be cheeky but that was normal.
No childhood sexual or physical trauma reported.
Psychiatric History Before the Motor Accident
The Claimant’s mother said her daughter had no mental health problems before the 19 December 2020 MVA.
Pre-Accident Functioning
Her mother said that her daughter was an active child who cooked with her. She smiled a lot and liked ice-skating, netball and soccer. She enjoyed showering and could dress herself.
There were no problems with travel. She got on well with other children. She had some learning difficulties in school and was assessed because of her language difficulties. There were no problems with school.History of the Motor Accident
There were 2 MVAs on 19 December 2020 and another on 3 January 2021.
In telling the story of the 19 December 2020 MVA her mother began by giving an extended story about how the accidents of 19 December had affected the grommets inserted on 15 December 2020. The problems were pain and discharge from her ears that were not correctly treated until late 2023. Mother said the 2 accidents on 19 December 2020 were shocking. The Claimant described the first accident as occurring in a roundabout that morning when the car mother was driving was hit on the side by another car. The second accident around 4:15 PM was at traffic lights which was scary. This accident is the subject of review.History of Symptoms Following the Motor Accident
The Claimant said the seatbelt hurt her stomach and that she needed to go to the toilet a lot after that. She has continued to feel like going to the toilet and cannot wait. If she is unwell, she might wet herself in bed but mostly she gets up at night to go to the toilet. Her mother could not specifically recall when the urinary frequency began. The St George Hospital Emergency Department notes from 19 December 2020 record frequent visits to the toilet to urinate. Her mother said her daughter started yelling more and had attitudinal problems after the accident. Her mother described episodic symptoms of urinary frequency after the accident. This behaviour still occurred. Her mother said there was frequent urination when flying to and from Turkey in 2022. Mother recalled that the cabin crew wondered if her daughter had diabetes.
History of Treatment Following the Motor Accident
Dr Frank Chen prescribed Luvox in April 2021. Luvox is used in childhood to treat anxiety. The medicine was not used for long because the insurer did not agree to pay for it.
Associate Professor Patrina Caldwell prescribed the medicines Ditropan and Vesicare which are used to treat urinary urgency and frequency but are not used to treat enuresis. These medicines were discontinued because of side effects.
Two paediatricians were seen after the 19 December 2020 MVA. Dr Frank Chen wrote there was no nocturnal enuresis but there was urinary frequency. In 2022 A/Prof Caldwell at P.A.W. (Paediatricians at Westmead) wrote that the urinary urgency and frequency had resolved.
The Claimant was referred for psychological treatment to Miss Joanne Sorrentino, Registered Psychologist and Ms Melissa Tam, Clinical Psychologist. Mother said there were problems seeing the psychologists because of the pandemic and the lack of Auslan interpreters. Her mother could not recall how long the treatment lasted but said that it was calming for her daughter.
Mother said that after many visits to specialists and waiting for 2 years, new grommets were inserted at Sydney Children’s Hospital in late 2023. The ear problem has now resolved. Her daughter also had an adenoidectomy.Details of Any Relevant Injuries or Conditions Sustained Since the 19 December 2020 MVA
Her mother described the MVA of 3 January 2021 as occurring while she was turning right and another car collided on the right-hand side causing her car to spin. The Claimant was in the back of the car on the right-hand side. Police and ambulance came. Her mother said her daughter was shocked and frightened. Mother could not say if there was a change in urinary frequency after the January 2021 MVA.
Current Symptoms
Her mother said her daughter continued to have problems with urinary urgency and frequency. She did not focus at school. Mother she believed her daughter was angry and depressed. She would not help around the house.
Current and Proposed Treatment
The Claimant receives general practitioner care from Dr Maya Azzi.
She sees a paediatrician at P.A.W.
Montelukast is prescribed for allergic rhinitis and Maltofer is taken as an iron supplement.
The Claimant does not receive psychiatric or psychological care.
The Claimant’s mother hoped for a resolution of the urinary frequency problem but worried that she would be unable to find an answer and that there would be difficulties in the provision of Auslan interpreting.Mental State Examination
The Claimant was presented with her hair brushed. She wore a T-shirt and shorts.
She was very active during the assessment interview moving in her seat and sometimes leaving the interview. She left the interview on one occasion to collect books to show the Assessors what she read.
No tics or vocalisations were reported.
No hostile acts towards peers and property were reported.
Her impulse control appeared poor. She was not accident-prone.
She was cooperative with the Assessors throughout the interview. While her mother was attending an online pain management group, she continued her interaction with the Assessors.
There was a positive interaction between mother and child with occasional disagreements over remembered incidents.
She had good eye contact and was cheerful throughout.
She spoke at an appropriate rate and her answers were goal-directed.
Her affect was euthymic.
No phobias or obsessions were reported.
No dissociative behaviour was observed or reported.
No perceptual anomalies were reported.
Her sensorium was clear.
Attention deficit-like concentration behaviours were noted.
Piagetian developmental level appropriate for age. (Concrete operations [7-11])
Her scholastic skills are at her chronological age.
Current Functioning
The Claimant lives with her mother and siblings in a Department of Housing house in Padstow. Her father lives alone in Yagoona.
The family cat recently had 5 kittens. The Claimant said she had mosquito pets that bit her while she was sleeping.
The Claimant described her daily routine was waking at 8:20 AM, getting ready for school and walking to school at 8:50 AM. Her mother usually packed lunch but now she was fasting for Ramadan. Either her mother or father picked her and her siblings up after school. Sometimes all 3 went to after-school care in Punchbowl. Sometimes the after-school care provider picked them up and sometimes either parent drove them. The Claimant planned to play soccer with the Hornets, but practice had not started. She planned to play netball at school. She was due to hand in homework on Thursdays and said she answered the question she knew but found homework stressful. She usually went to bed at 9:30 PM.
The Claimant and her siblings spent Saturdays with their father. The Claimant said, ‘We have fun and visit uncles and aunties’.
On Sundays her mother takes the children to their grandmother’s house.
The Claimant said she showered when she was sweaty and hot but didn’t like showers. If it was very hot, she might have more than one shower a day.
Although fasting for Ramadan the Claimant said she loves eating and is looking forward to Eid. When it wasn’t Ramadan she had breakfast, her school lunch, an afternoon snack and dinner. She said her favourite food was “leaves covered with rice”.
The Claimant said her chores were folding clothes and cleaning the toilet. However, she said she preferred to relax and watch her mother do chores.
Actively involved in her school social network. The Claimant said she was in year 5 and got along with others at school.
She had no difficulty in forming and sustaining relationships. She said she had many friends, was invited to parties and went to them. In 2024 she had slept over at her cousin’s home.
The Claimant’s intrafamilial relationships are somewhat stressed. Her mother saw her as angry and depressed. She was oppositional about chores. There was sibling rivalry fights. Mother described her daughter as forcing her brother to pick up things after her. The Claimant said that she sometimes fought with her brother and sister.
The Claimant said she liked playing Fortnite but not playing in the park because she might not be in the mood to play.
The Claimant said she had recently gone to a movie with her father. She commented that ‘Marvel movies are cool’.
The Claimant said ‘I like swimming at Revesby’. She said that one parent or another would take all 3 siblings to the swimming pool.
No travel restrictions reported from mental health symptoms. The Claimant said that she found being in a car was fun. She recalled that her mother and a friend had driven her mother and her siblings to Queensland when her parents were separating and then returned to Padstow with mother’s friend driving. When her mother went to the Queensland shelter with her children they had flown there and returned by air after 2 months. The Claimant reported flying to Turkey in 2022 “to have fun”.
Her mother said that her daughter did not focus on schoolwork or homework. She was a lazy reader who preferred to look at her phone. The Claimant said that she watched YouTube on her phone, and they did not have Netflix because they did not have a television. She said she didn’t have problems reading and went to get books to show the Assessors. She held up The Guinea Pig Rescue and Peter the Pig. Her mother said she didn’t believe that her daughter read the books because she didn’t see her reading.
The Claimant avoids finishing her homework.
Scholastic performance and attendance has not changed since the 19 December 2020 MVA.
Mother described her family religious affiliation as ‘regular’ Muslims.
Comment on consistency
The history obtained was reliable and consistent. The Medical Assessors reviewed the documentation referred by the Personal Injury Commission and found no inconsistencies in the reports provided compared with the history and examination obtained from the Claimant and her mother on 12 March 2024.
DETERMINATIONS
DSM-5-TR Psychiatric Diagnosis and Reasons
| F43.28 Adjustment Disorder with Anxiety in Remission V43.6 Car passenger injured in a collision with a car. | |
| Criteria: | |
| DSM-5-TR Diagnostic Criteria for Enuresis were not met for criteria 1, 2 and 4. 1. Repeated voiding of urine into bed or clothes, whether involuntary or intentional. · The Claimant did not have repeated voiding into bed or clothes but instead had frequent urges to urinate that resulted in her going to the bathroom to void. At night she woke to go to the bathroom to void. With voiding urgency occasional wetting occurs. Both her consulting paediatricians did not diagnose enuresis and they never treated her for enuresis. 2. The behaviour is clinically significant as manifested by either a frequency of at least twice a week for at least 3 consecutive months or the presence of impairment in social functioning. · There was no consistent voiding into bed or clothes but frequent voiding in the toilet. There was no evident impairment in social functioning. 3. Chronological age is at least 5 years. 4. The behaviour is not attributable to the physiological effects of a substance or another medical condition. · Her treating paediatricians both diagnosed urinary urgency and frequency and searched for a medical condition. Their opinion was that anxiety can lead to urinary urgency and frequency. The anxiety symptoms resolved in 2022 based on the provided history and documents so the reports of persistent urgency and frequency are a behavioural outcome of the 19 December 2020 MVA but are not that of a diagnosed clinical psychiatric disorder. | |
Causation
| The Claimant had no psychiatric history before the MVA and developed anxiety and urinary urgency and frequency shortly after the 19 December 2020 MVA. Anxiety had resolved in 2022 with no significant interference in social functioning attributable to the MVA. She is socially active and has Now her DSM-5-TR diagnosis is of an Adjustment Disorder with Anxiety in Remission. Her urinary symptoms that began after the MVA are not a diagnosed clinical psychiatric disorder.” |
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
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[33] and Insurance Australia Ltd v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[35] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[35] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[36] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[36] at [44]-[62].
The Panel adopts the extensive joint examination report of the Medical Assessors and adds the following further reasons.
We accept that the motor accident caused an adjustment disorder with anxiety that is now in remission.
The Review Panel’s findings concerning the threshold injury are different from those stated in the certificate issued by Medical Assessor Rikard-Bell. While agreeing with Medical Assessor Rikard-Bell that the claimant met DSM-5-TR diagnostic criteria for the diagnosis of an adjustment disorder, we do not agree that the claimant met DSM-5-TR diagnostic criteria for the diagnosis of enuresis at any time. Accordingly, the Review Panel has determined that this certificate is to be revoked and a new threshold injury certificate is issued.
Based on the findings of the Medical Assessors the claimant has been assessed as having an adjustment disorder with anxiety. This is an adjustment disorder as defined in DSM-5.[37]
[37] DSM-5 at pp 286-287.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Rickard-Bell is revoked. The new certificate is attached at the commencement of these Reasons.
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