Lee v QBE Insurance (Australia) Limited
[2025] NSWPICMP 389
•3 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Lee v QBE Insurance (Australia) Limited [2025] NSWPICMP 389 |
CLAIMANT: | Zhen Wei Lee |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Ankur Gupta |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 3 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury under section 1.6(3); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) found claimant sustained an adjustment disorder with mixed anxious and depressed mood caused by the accident (threshold injury); claimant sought review; Held – claimant had sustained persistent depressive disorder caused by the accident; MAC revoked; persistent depressive disorder is a non-threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Surabhi Verma dated · persistent depressive disorder. |
STATEMENT OF REASONS
INTRODUCTION
On 1 August 2022 Mr Zhen Wei Lee (the claimant) was driving his vehicle on the M4 motorway. His vehicle was stationary waiting to exit the motorway when the insured vehicle collided with the rear of his vehicle (the accident).
Mr Lee is now years 27 of age and was 24 years of age at the date of the accident.
Mr Lee lodged an Application for personal injury benefits dated 12 August 2022 in relation to injury allegedly sustained in the accident.
QBE Insurance (Australia) Limited is the relevant insurer with liability to pay statutory benefits to Mr Lee under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Lee’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the accident were threshold injuries.
On 31 October 2022 the insurer issued a Liability Notice - Benefits after 26 Weeks declining the claim for statutory benefits on the basis the injury sustained by the claimant was a non-minor (threshold) injury for the purposes of the MAI Act.
On 1 November 2022 the claimant requested an internal review of the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 22 November 2022 affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
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” and whether treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances and relates to the injury caused by the motor accident.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Commission to Medical Assessor Verma.
The claimant has sought a review of the certificate of Medical Assessor Verma.
DOCUMENTS BEFORE THE REVIEW PANEL
On 18 February 2025 the claimant uploaded to the portal documents indexed and paginated from pages 1 to 70 (claimant’s documents).
On 7 March 2025 the insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 153 (insurer’s documents).
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 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.
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. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)adjustment disorder.”
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 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:
“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.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“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.”
ASSESSMENT UNDER REVIEW – MEDICAL ASSESSOR VERMA
In a certificate dated 19 February 2024 Medical Assessor Surabhi Verma certified the following injury was a threshold injury for the purposes of the MAI Act:
· adjustment disorder with mixed anxious and depressed mood.[2]
[2] Claimant’s documents p 62.
Medical Assessor Verma reported at the time of the accident the claimant had two jobs, a full-time position at a clothes factory and weekend work at Wollongong Temple as a kitchen hand. Since the accident he has done odd jobs and moved from Parramatta to Auburn.
Medical Assessor Verma reported at the time of the accident on 1 August 2022 the airbags did not deploy, and Mr Lee was able to extricate from the vehicle on his own. Police and ambulance did not attend the scene. He parked on the side of the road and rang his friend so that he could communicate with the driver. His friend advised him to see a doctor and said he would find a solicitor for him.
Mr Lee said he was unable to drive for three months and then resumed driving although driving worsened his anxiety.
Mr Lee denied any past mental health history. Following the accident he had difficulty sleeping, his energy levels were low. He had anxious ruminations about the accident and experienced pain in his arms and neck. He saw a psychologist for six months on a weekly basis.
At the time of the examination Medical Assessor Verma reported the claimant’s mood was “nervous”. He avoids going out with friends and continues to have dreams and flashbacks about the accident. His appetite is low, and he has lost weight. His attention and concentration is poor and he cannot concentrate if he has to drive long distances.
Medical Assessor Verma reported Mr Lee could organise his finances, talk to his lawyers, and complete the paperwork. He was not receiving any treatment. Medical Assessor Verma noted Mr Lee maintains a good level of hygiene, he can do household chores and drives where he wants to go, although he prefers to avoid long distance drives. He lives with his friends and feels supported. He goes out shopping with his friends. He works casually when he is called in.
Medical Assessor Verna recorded:
“Mr Lee also reported experiencing symptoms of low mood, difficulty driving, anxiety, hypervigilance, nightmares, flashbacks, and difficulty in his overall functioning.”
And further:
“He reported his mood to be ‘anxious and sad,’ and his affect ranged from slightly anxious to euthymic at times. His thoughts were logical, and goal directed. He currently reports ongoing “flashbacks and nightmares.”
Medical Assessor Verma reported Mr Lee’s current presentation was consistent with a diagnosis of an adjustment disorder with mixed anxious and depressed mood.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Verma on 15 March 2024 within 28 days of the date on which his certificate was made available to the parties.
On 6 May 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
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.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 8 April 2025 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Photographs
A photograph of the claimant’s black Honda Civic shows a significant dent to the rear bumper bar and an indentation to the back of the boot.[4]
Treating medical evidence
[4] Insurer’s documents p 60.
Dr Lam, general practitioner
Dr Angela Lam, general practitioner (GP) issued a Certificate of capacity/certificate of fitness dated 6 August 2022 in which she recorded the following diagnosis:
“?cervical spine - ?discogenic injury ? radiculopathy
Right wrist pain/injury - ?ligamentous
Low back injury/low back pain
Right knee pain
Psych injury.”[5]
[5] Claimant’s documents p 43.
On 23 August 2022 Dr Lam reported the claimant had two jobs, working in Coles as a packer, and as a general labourer at the Nan Tien Temple in Wollongong.[6] She reported
Mr Lee had ongoing hand tremors and neck pain radiating down the right upper limb. She recorded the following history of the accident:“- Occurred on 1 August 2022
- Was the restrained driver of own car, stopped on the on-ramp of the M4 motorway, at a pedestrian crossing
- Rear ended by another vehicle
- Felt hard jolt, R hand crushed against steering wheel
- Immediately noted R wrist/little finger pain, neck pain, low back pain and right hand tremors
- Anxious+++, uncomfortable with driving.”
[6] Claimant’s documents p 40.
On 20 September 2022 Dr Lam reported an MRI scan of the cervical spine demonstrated disc bulges. Mr Lee had been doing physiotherapy, and the hand tremors had improved. He also had right knee pain. She also noted the claimant was anxious and uncomfortable with driving. He was attending a psychologist.
On 15 November 2022 Dr Lam reported the claimant was anxious and uncomfortable with driving and was unsure about returning to work because the workload was heavy.
On 20 December 2022 it was noted that he remained anxious while driving. When he did drive, he stayed on low-speed roads and did not venture into unfamiliar areas. He had been referred to a neurologist for suspected dystonia.
On 23 January 2023 it was noted there were return-to-work issues. Mr Lee did not feel able to return to Nan Tian's job because it was too far away, and he could not drive a long distance because of his mental health.
On 13 February 2023 it was noted Mr Lee had clearance to work eight hours a week on suitable duties. However, owing to contractual issues, he could only return to work at Coles after complete recovery.
On 21 February 2023 Dr Lam recorded that Mr Lee remained psychologically quite impaired, was very nervous about driving, his general mood was flat, on bad days he feels very low and is not sure what the future holds.[7]
[7] Insurer’s documents p 23.
On 14 March 2023 Dr Lam recorded that Mr Lee was anxious, uncomfortable with driving; his sleep was fluctuating and he often had bad nights with nightmares.[8] Dr Lam reported Mr Lee remained impaired and was unable to attend full duties.
[8] Insurer’s documents p 24.
Flora Truong, psychologist
In an Allied health recovery request (AHRR) No 1 dated 31 August 2022 Flora Truong psychologist recorded a diagnosis of acute stress disorder.[9]
[9] Insurer’s documents p 35.
In an Allied health recovery request dated 28 November 2022 Ms Truong recorded a diagnosis of post-traumatic stress disorder and noted Mr Lee reported the following symptoms:
“● recurrent and intrusive memories of the MVA
· worried about having another collision when driving
· flashbacks of traumatic event
· emotional distress manifested in fear when reminded of the event
· physical reactivity distress when reminded of the event - heart palpitation, breathing quickens and hand shaking
· avoidance of thoughts, feelings and conversations associated with trauma
· attempts to stay local and avoidance of driving more than 30mins due to fear
· decreased interest in activities such as riding motor bike
· view future will be cut short
· overly negative and thoughts and assumptions about oneself or the world as manifested in his thoughts that driving and riding motorbikes is dangerous. Worries what could have happened if he was riding a motor bike instead of driving a car.
· negative affect
· feeling isolated
· difficulty experiencing positive affect
· sleep disturbance - initial and middle insomnia - wake up 1-2 times a night - achieves approximately 6-7 hours a night
· Concentration difficulties - watching TV around 30 mins
· Hypervigilance
· Exaggerated startle response.”[10]
[10] Claimant’s documents p 57.
Clinical notes of Ms Troung document consultations on 14 September 2022,
24 October 2022, 2 November 2022, 8 November 2022, 14 November 2022,
22 November 2022, 28 November 2022, 6 December 2022 14 December 2022,
20 December 2022, 6 January 2023, 11 January 2023, 18 January 2023, 25 January 2023, and 30 January 2023.Ms Troung provided a report dated 30 January 2023.[11] She diagnosed post-traumatic stress disorder following the accident and reported her goal has been to address his fears with driving and ameliorate his sleep disturbance symptoms. She reported he exhibited symptoms of post-traumatic stress disorder as reflected in his difficulties in driving from his home in Hurstville to his pre-injury workplace at Erskine Park. She noted he was keen to return to work but his capacity to drive was impacted by his anxieties. She reported she had provided cognitive behavioural therapy with a focus on trauma. She opined that he needed further psychotherapy to achieve his recovery goal related to driving.
[11] Insurer’s documents p 41.
In a discharge report dated 31 January 2023 Ms Troung stated Mr Lee had presented with symptoms of post-traumatic stress disorder and the focus of treatment had been to assist him in overcoming these symptoms and to resume normal driving.[12] She reported he had progressed with treatment and had resumed driving but required further support to increase his driving, including being able to drive from his home to his workplace.
SUBMISSIONS
[12] Insurer’s documents p 149.
Claimant’s submissions
The claimant provided submissions dated 15 March 2024.[13]
[13] Claimant’s documents p 2.
The claimant referred to the Allied Health Recovery Request No 2 dated 28 November 2022 and the symptoms reported by the claimant at that time.
The claimant relied on the matter of David v Allianz Australia Insurance Ltd[14] in support of his position that the existence of a non-threshold injury must be assessed at any time following the motor accident, not just at the time of the medical assessment.
[14] David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227.
At paragraph 18 Medical Assessor Verma gave the following reasons for her finding that the claimant did not have a major depressive disorder:
“Major Depressive Disorder. I believe that the diagnosis of Major Depressive Disorder is less likely as he does not experience the cardinal negative cognitions often associated with depression. He did report that his mood was low and depressed; however, there has not been a significant change in his overall functioning as compared to before. Mr Lee continues to work, albeit lesser number of hours as compared to before. Mr Lee attributed this to getting lesser number of shifts because of his physical disabilities rather than it being an effect of his psychological health. He has been able to engage in taking care of himself, doing household chores, going out with his friends, etc. There were no persistent themes of helplessness, hopelessness, or worthlessness, which are often associated with the diagnosis of Major Depressive Disorder.”
The claimant submits that Medical Assessor Verma only referred to the claimant’s mental state at the time of the medical assessment and not to symptoms which had been present since the accident but had improved over time.
Insurer’s submissions
The insurer provided submissions dated 8 April 2024 in response to the application for review.[15] The insurer submits there was no error in the diagnosis of Medical Assessor Verma. It is also submitted Medical Assessor Verma attributed the change in work capacity to physical rather than psychiatric injury and the claimant has failed to demonstrate why the clinical judgement of the Medical Assessor was erroneous.
[15] Insurer’s documents p 2.
The insurer provided submissions dated 22 January 2024 in respect of the threshold injury dispute.[16]
[16] Insurer’s documents p 11.
The insurer refers to the diagnosis of psychologist Ms Truong in the AHRR dated
28 November 2022 and highlights that Criterion A of the diagnostic criteria for post-traumatic stress disorder under the DSM-5-TR requires “exposure to actual or threatened death, serious injury, or sexual violence”. The insurer submits the accident was a relatively minor rear-end collision with the claimant having sustained only soft tissue physical injuries.The insurer submits photographs of the rear of the claimant’s vehicle confirm minor damage consistent with a slow speed collision. The insurer noted neither the police nor the Ambulance Service attended the accident, and the claimant did not consult Dr Lam until five days following the accident.
THE MEDICAL EXAMINATION
Mr Lee was assessed by Medical Assessor Gupta and Medical Assessor Canaris by videoconference through MS Teams on 20 May 2025. He was assisted by a Cantonese interpreter.
Psychosocial history
Mr Lee was born in Malaysia and was raised by his biological parents. He has an older sibling and a younger one. He denies any history of trauma or suffering from any form of abuse or trauma. He denies any history of mental illness in his family.
Mr Lee is currently single and does not have any children. He lives in shared accommodation along with five flatmates.
Mr Lee was working two jobs. He used to work for Coles, cutting meat, and his other job was at a restaurant in Wollongong, Nan Tian Temple, where he worked as a kitchen hand. He used to work 40 hours per week for Coles and 16 hours per week at the restaurant.
He denies any history of mental illness predating the claimed injury. He denies any history of major physical illnesses or motor vehicle accidents as well.
He denies any alcohol and substance misuse.
History of the incident
Mr Lee says on 1 August 2022 he was on his way to work at Coles and had stopped at a red light on Paramatta Road when his car was hit from behind. He was driving a 2011 Honda Civic, and a friend was with him in the front passenger seat. He says that a small Toyota car hit him suddenly, without warning. He pulled over on the side of the road, and the other driver also came out to discuss "what happened." Mr Lee says there was no bleeding, but he had "twisted" his right arm and the right leg. His friend was "fine”, and he was unsure about the other driver. His airbags did not deploy, and he did not suffer any head injury. No emergency service attended the accident.
Mr Lee managed to drive from the site of the accident but went home instead of to work. He has not worked at Coles since. He says he first sought help the following day for his physical injuries. He had a lot of pain in his arm, which prompted him to see his doctor. He was unaware of the diagnosis of his physical injuries, which have been treated conservatively only. He said that his leg is fine, but he still has some pain in the arm. He does not have any pain at present, but there is "no strength" in the arm. He does not experience pain in any other part of the body either.
He said that his emotional symptoms started two to three weeks after the accident, and they have remained “about the same” since.
Symptomatology and treatment
Mr Lee said he is “so so" in his mental state. He said he does not feel happy, but he does not feel sad either. He feels anxious sometimes but not all the time. He said that he feels anxious at night, mostly when he dwells on his financial status.
He said his sleep is "not good". He wakes up feeling anxious, but he can eventually get back to sleep. He does not remember his dreams, but this occurs most nights. He also has difficulty falling asleep.
Mr Lee described his appetite as "so so". He eats when he feels hungry. His weight has been stable.
Mr Lee got his car repaired and then sold it. He said he has bought another car, which he shares with a flatmate who paid for it, although it was bought under his name. He sold the car because he does not drive often. He drives once a week when necessary to undertake chores such as going to his local Woolworths, which is two minutes away. Mr Lee said he can only manage to drive for 15 minutes because he feels scared and needs someone with him. He can get to new places if required. He describes hypervigilance while driving. He startles with sudden loud noises. He has not been back to the site of the accident and said he is fearful of doing so. He said he dislikes driving to places with many cars.
Mr Lee said he experiences "flashbacks" but, on further questioning, stated that he thinks about it. He does not seem to experience true flashbacks. He says he feels tired all the time. He has become a "a little bit" irritable but has not had any fights.
Mr Lee said he is "just surviving" and is unsure about his future. He denies any suicidal ideation. He is not on any medication at present. He has not been prescribed any psychotropic medication for this injury. He stopped seeing his psychologist around one and a half years ago. He saw a psychologist for more than six months and says that it was "sort of" helpful. His therapy was stopped because the insurance company stopped paying for it.
Mental state examination
Mr Lee presented as a casually dressed man who was helpful in his manner and was easy to build rapport with.
He maintained good eye contact and did not display any psychomotor abnormality or psychic anxiety. He did not appear distressed while describing the incident. His mood appeared low, but his affect was reactive. His speech was normal in rate, rhythm, tone and volume.
His thought content revealed that he remains fearful of driving but is not avoidant. He was not suffering from any perceptual abnormalities. He was able to focus for the entire duration of the assessment. He appeared to be well-orientated to time, place and person. His insight and judgement were intact.
Current functioning
Mr Lee said he keeps in touch with his parents and siblings and considers himself close to them. He was in a relationship when he was injured but is now single since breaking up with his partner six months after the injury. His partner used to live in Wollongong, and he struggled with the travel. He used to live with his girlfriend on weekends, and they worked together at a restaurant. He has had arguments with a flatmate as well. Mr Lee said he does not socialise with his flatmates. He used to play badminton and karaoke with his friend but has not done it since the accident. This is because he does not want to go to crowded places and because of his lack of finance. He can go to shopping centres.
Mr Lee lives in shared accommodation. He cooks on three to four days per week. He manages his laundry. He showers daily and keeps his teeth clean. He was living in Paramatta at the time of the injury but has moved to live near Auburn since the accident. He enjoys watching TikTok videos and movies. He said he can focus on an entire film and follow the plot. He is unsure about his memory. He manages his finances independently and pays his rent in a timely manner.
Mr Lee said he works at a nearby café, doing "odd jobs." He walks to the café as it is only five to six minutes away. He said he works around 20 hours per week on average. He resigned from his full-time position at Coles after the accident because of a physical inability to do that job. He resigned from his restaurant job because it was “too far off" and because of physical limitations related to the accident. He is unable to work more because of a lack of energy and "strength" in his arm.
Comments on consistency
The medical assessors did not note any inconsistency in Mr Lee’s presentation.
DIAGNOSIS
Mr Lee’s presentation is consistent with a diagnosis of persistent depressive disorder (PDD) as per DSM-5 criteria. Criterion A is met, as he describes a chronically low mood, stating he is “so so" in his mental state, without periods of happiness, for a duration exceeding two years. Criterion B is met, with at least two additional symptoms present: poor appetite (he eats when hungry and describes it as "so so"), insomnia (difficulty falling asleep and waking during the night with anxiety), low energy ("feels tired all the time"), poor concentration (describes hypervigilance and avoidance when driving), and feelings of hopelessness ("just surviving" and unsure about the future). Criterion C is met, as symptoms have been persistent without a break for longer than two months. Criterion D is met, with no evidence of a major depressive episode during this period. Criterion E is met, as there is no history suggestive of mania or hypomania. Criterion F is met, as another psychiatric condition does not better explain the presentation. Criterion G is met, with no indication that symptoms are due to substances or a general medical condition. Criterion H is met, as there is clear evidence of functional impairment, including reduced engagement with therapy, difficulty driving, and ongoing psychological distress. The presence of anxiety symptoms fulfills the anxious distress specifier.
CAUSATION
The question of causation in respect of threshold injury was addressed in Briggs v IAG Limited trading as NRMA Insurance[17] where Wright J stated at [35]:
[17] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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.”
Accordingly, the Panel considers it appropriate to apply the test of causation as defined in Briggs.[18] The Panel is satisfied involvement in a motor accident and its sequalae could have caused the psychiatric impairment.
[18] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
Mr Lee did not have any history of mental illness when he suffered the injury in the accident. The accident occurred on 1 August 2022. On 6 August 2022 Dr Lam, GP reported a psychological injury and on 23 August 2022 she reported the claimant was anxious and uncomfortable with driving. On 21 February 2023 Dr Lam reported Mr Lee was very nervous about driving, his general mood was flat, on bad days he felt very low, and he was unsure about his future. On 14 March 2023 Dr Lam reported Mr Lee was anxious, uncomfortable with driving and his sleep fluctuated. Mr Lee consulted Flora Truong psychologist between 31 August 2022 and 31 January 2023. She particularised the claimant’s sleep disturbance and fear of driving, providing a diagnosis of post-traumatic stress disorder.
Mr Lee has not sustained any subsequent trauma either. The Panel is satisfied the accident did cause the psychiatric impairment having regard to the available evidence.
The Panel finds the claimant’s persistent depressive disorder was caused by the accident.
THRESHOLD INJURY
Then Panel notes that the diagnosis of persistent depressive disorder is a recognised psychiatric illness which is not excluded by the MAI regulation to be a threshold injury.
Accordingly, the Panel finds the persistent depressive disorder caused by the accident is a non-threshold injury.
PANEL CONCLUSION
The Review Panel revokes the certificate of Medical Assessor Surabhi Verma dated
19 February 2024 and determines that the following injury caused by the accident is a non-threshold injury:· persistent depressive disorder.
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