Li v Allianz Australia Insurance Limited
[2024] NSWPICMP 192
•2 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Li v Allianz Australia Insurance Limited [2024] NSWPICMP 192 |
| CLAIMANT: | Xuezhen Li |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 2 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant’s mother died in a motor vehicle accident; claimant called to scene; witnessed severe injuries and subsequent death; no pre-existing history and no other subsequent causes for psychological symptoms; claimant re-examined; clinical expertise of the Medical Assessors; discussion of DSM-5 for diagnosis of post-traumatic stress disorder and major depression; Panel satisfied that motor accident caused these psychological disorders; Held – Medical Assessment Certificate revoked; claimant suffered non 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 The Review Panel revokes the certificate dated 23 November 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
The mother of Ms Xuezhen Li (the claimant) died in a motor vehicle accident on 14 January 2021 (the motor accident).[1]
[1] Insurer’s bundle, p 38.
The claimant rushed to the scene of the motor accident and witnessed her mother in the motor vehicle.
Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Ms Li 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 Li’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Fukui who issued a Medical Assessment Certificate dated 23 November 2022 (the medical assessment).[3] Medical Assessor Fukui concluded that the motor accident caused a minor psychological injury.
[3] Insurer’s bundle, p 8.
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 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.
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 mental state examination recorded by the Medical Assessor was as follows:
“Ms Li was crying from the outset as we commenced the assessment and she continued to cry and was extremely emotional throughout the assessment. She was slightly unkempt and casually dressed. She was not wearing any makeup. According to the interpreter her speech was clear and coherent. She did not report any psychotic symptoms. She did not report any thoughts of self-harm or suicidal ideation. Cognition was not formally tested but there was no evidence of any significant cognitive deficits. Ms Li provided only monosyllabic answers and spent most of the assessment being very emotional and distressed.”
The Medical Assessor noted there were no inconsistencies in the presentation or history.
The diagnosis by the Medical Assessor was:
“Following the unexpected death of her mother from a motor accident in January 2021, Ms Li has been experiencing severe grief and mourning reactions which can be described as a complicated bereavement in contrast to uncomplicated bereavement which is not a psychological disorder. Uncomplicated bereavement or ‘normal bereavement’ as referred to in DSM-5 Criterion D is excluded from being considered an Adjustment Disorder as it is not a disorder. However, the development of Ms Li’s emotional and behavioural symptoms can be described as marked distress that is out of proportion to the severity or the intensity of the stressor after taking into account the external context and the cultural factors that might influence symptom severity and presentation. It is therefore my opinion that her psychological condition of complicated bereavement is consistent with an Adjustment Disorder.
Her condition is a stressor-related disorder that causes clinically significant distress and impairment in social, occupational and other important areas of functioning. She described significant impairment in her social functioning and family relationships but has resumed her occupational functioning and attends to domestic tasks.
Ms Li does not suffer from Post-traumatic Stress Disorder in that she fails to meet Criterion A for a DSM-5 diagnosis of Post-traumatic Stress Disorder. She was not directly exposed to nor witness the subject motor accident. The stressor was the death of her mother which has resulted in her grieving in a severe and complicated manner. Her clinical presentation did not satisfy the diagnostic criteria for Post-traumatic Stress Disorder.
Her presentation is not consistent with Major Depressive Disorder or an Anxiety Disorder in that while she experiences depressive and anxiety symptoms, they are symptoms of her grief reaction and there was no evidence of a pervasive depressed mood or significant anxiety which impacts on her ability to function.”
THE REVIEW
The application for referral of the medical assessment to a review panel was made 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 delegate 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.
The parties filed bundles of documents for the Panel’s consideration.
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 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 9.2 of the Guidelines commenced on 10 November 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, 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.”
We note that clause 5.11 of the Guidelines provides that the assessment for the diagnosis of psychological injury must be made under the Text Revision of the Fifth Edition to DSM-5.
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. However, 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 19 December 2022[13]
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
[13] Claimant’s bundle, p 2.
These submissions sought leave to review the medical assessment.
The claimant noted that the Medical Assessor claimed a detailed past absence of past psychiatric history and relevant history pertaining to the claimant’s symptoms and treatment.
The claimant submitted that the medical assessor had incorrectly determined that she could not satisfy the diagnosis of post-traumatic stress disorder by failing to have regard to “DSM-5, all of the evidence, as well as the body of judicial cases regarding nervous shock claims”.
The claimant submitted that the Medical Assessor failed to apply DSM-5 in not diagnosing Major Depressive Disorder, Anxiety Disorder or Complicated Bereavement.
The claimant submitted that the Medical Assessor incorrectly found that criterion A for the diagnosis of post-traumatic stress disorder was not satisfied and noted that the claimant attended the accident scene, viewed the aftermath of the motor accident, attended the morgue and identified and had ongoing images of the deceased.
The claimant referred to the diagnosis of post-traumatic stress disorder in the Allied health recovery request dated 21 July 2021 and the medical certificate dated 12 April 2021.
The claimant referred to “a long line of judicial authority” such as Tame v NSW[14] “where claimants have not been exposed to an accident, and you have satisfied the court… that a diagnosis of PTSD was appropriate”.
[14] [2002] HCA 35.
The claimant submitted that she had been diagnosed with psychiatric tort disorders from time to time including Major Depressive Disorder, Anxiety Disorder and Complicated Bereavement. It was submitted that the Medical Assessor appeared to reject such diagnosis because there was no evidence that the condition impacted on her ability to function. However, it was submitted that “the evidence is littered with overwhelming reports of the impact of symptoms on the claimant’s function”.
Insurer’s submissions dated 20 July 2021[15]
[15] Insurer’s bundle, p 6.
The insurer submitted that the motor accident caused an adjustment disorder and referred to the “comprehensive report” of Dr So dated 20 April 2021 which diagnosed “Adjustment disorder with depressed mood (complicated bereavement) acute, moderate to severe symptoms”.
Insurer’s submissions dated 20 January 2023[16]
[16] Insurer’s bundle, p 2.
These submissions opposed leave to review the medical assessment. The insurer submitted that the claimant’s assertions were not errors but “simply a manifestation of the claimant’s disagreement with the assessor’s clinical findings”.
The insurer accepted that criterion A for the satisfaction of post-traumatic stress disorder may be satisfied upon learning that a relative or close friend was exposed to trauma. However, it submitted the claimant’s clinical presentation did not satisfy the remainder of the diagnostic criteria for post-traumatic stress disorder.
The insurer noted the opinion of the claimant’s treating psychologist who referred to post-traumatic stress responses symptoms but did not diagnose post-traumatic stress disorder. Significantly, the Medical Assessor highlighted this distinction within the summary of relevant documentation.
The insurer noted that the original Medical Assessor referred to the clinical presentation and relied on the professional judgement of the Medical Assessor.
The insurer noted that persistent complex bereavement disorder was not formally classified under DSM-5, and this was noted by the original Medical Assessor. It also noted that the medical assessor provided reasons as to why the criteria for alternative diagnoses were not met.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
There was no evidence or suggestion that the claimant had a pre-existing psychiatric condition.
Medical evidence
A certificate of capacity dated 2 February 2021 diagnosed the claimant with an adjustment disorder caused by the death of the claimant’s mother in the motor accident.[17] A subsequent certificate repeated this diagnosis.[18]
[17] Insurer’s bundle, p 15.
[18] Insurer’s bundle, p 18.
A mental health care plan dated 2 February 2021 diagnosed “Mixed anxiety and depression” and “Adjustment disorder”.[19]
[19] Insurer’s bundle p 42.
Dr Ming Lo Sze, clinical psychologist, provided a report dated 4 March 2021.[20] The psychologist provided a provisional diagnosis of “severe grief and mourning reactions” and recommended psychoeducation for coping with the various grief reactions.
[20] Claimant’s bundle, p 44.
An Allied health recovery request dated 16 March 2021 referred to “major depressive episode from bereavement with post-traumatic stress responses”.[21]
[21] Insurer’s bundle, p 46.
A report from the general practitioner (GP) to Dr Eddie So dated 30 March 2021 noted the claimant’s bereavement following loss of mother in the motor accident with “PTSD symptoms”.[22]
[22] Claimant’s bundle, p 23.
A further certificate dated 12 April 2021 diagnosed the claimant with “PTSD”.[23] This diagnosis was repeated in subsequent certificates.[24]
[23] Insurer’s bundle, p 21.
[24] Insurer’s bundle, pp 25-29, 33-35; claimant’s bundle, p 92.
The claim form completed by the claimant noted that she as suffering from “severe grief and depression”.[25]
[25] Insurer’s bundle, p 38.
Dr Eddie So, psychiatrist, provided a report dated 20 April 2021.[26] The psychiatrist diagnosed the claimant with an Adjustment disorder with depressed mood (complicated bereavement) acute, moderate to severe symptoms.
[26] Claimant’s bundle, p 69.
RE-EXAMINATION
Ms Li was examined by both Medical Assessors on 22 March 2024. The medical examination findings of the Medical Assessors are:
“Who attended the assessment
MS TEAMS Video assessment.
Drs Baker and Hong were in their Sydney offices.
Ms Li was at home and her husband, Mr Tony Fu was present during the assessment.
Ms Yingyi Pan was the interpreter. She interpreted from English to Cantonese. Ms Li requested all the interview be conducted in her first language, Cantonese.
History
Psychosocial history and pre-accident history
Ms Li was born in China and came to Australia in 2001. She has a younger brother. She is not aware of a family history of mental illness.
In terms of general medical history, she does not have cardiac or liver disease, or epilepsy.
She does not have drug or alcohol problems.
She does not have a forensic history.
Ms Li does not have a past psychiatric history.
History of the motor accident
On 14 January 2021, Ms Li was working. She recalled at 1.30pm, the police came to her workplace and told her that her mother was in a car accident in Hurstville. She rushed to the location of the accident. She saw her mother all covered in blood and saw that there was blood everywhere. Her mother was screaming in pain. Ms Li witnessed her mother’s broken ribs and bones. Ms Li tried to go to her mother, but the police stopped her. She said she could never forget what happened. Unfortunately, her mother passed away and she had to attend the morgue to identify her mother’s body. The image of her deceased mother’s body has never left her.
Ms Li explained that on the day of the accident, it was her brother’s birthday. Her mother had gone out to buy food for a party they had planned for him. She said she kept thinking she should have gone out shopping with her mother and the accident could have been prevented. Ms Li explained that her mother moved to Australia in 2011 and for a while, she was living with her. She then moved out to a place that her brother had purchased, only 10 minutes away. Ms Li was always very close to her mother.
Ms Li described constant imageries of her mother being under the car and being in pain. She said that she spoke to the police later, who told her that the driver was reckless on the road. The driver was reversing and reversed into her mother. Both sets of wheels went over her mother. She thinks that her mother must have been in a lot of pain from the accident. She said her mother would have been ‘better with a heart attack and would have died in less pain’.
History of symptoms and treatment following the motor accident
Ms Li described the onset of depressive symptoms shortly after the subject accident and her psychological symptoms have never substantially remitted.
Ms Li said her mother died three years and two months ago and she has been in constant pain ever since. She has nightmares about her mother every night even now, she constantly ruminates and thinks about what happened, and described having intrusive imageries of her mother covered in blood and in pain. When she sleeps, she has bad dreams about her children going missing or her husband dying, but she could not dial 000 in her dreams. She wakes up and sees her husband next to her and immediately applies ‘CPR (cardiopulmonary resuscitation) on him’. She said she would have a cold shower, even in winter, so she could wake up and know what she experienced was a dream and not real life.
Ms Li said that in the first year after the subject accident, her husband was very caring and helpful, but then he started to be upset about her behaviours. He couldn't understand why she is not ‘moving on’ and getting better. They started having arguments. Now, they are talking about divorce.
Ms Li said that her mother was looking after her father, who is blind, and she doesn't know who is going to look after her father now.
Ms Li said that if she did not ask her parents to come to Australia, her mother would still be alive. She also said that if she had not married her husband, she wouldn't have come to Australia, and consequent upon that, her mother would still be alive. She concluded her marriage had killed her mother. Whenever her husband wanted to be intimate, she started thinking about her mother’s death. They have not been intimate since the accident. She said she would rather die and be with her mother, because it is her fault. She thought that they would all be happy when her parents came to Australia, but now her mother had died a very painful death.
After the accident, Ms Li tried to control her children and didn't want them to go out or go anywhere. When they are out, she constantly texts them to find out where they are. If they don’t answer her phone call, she gets scared and asks her husband to drive around the streets looking for them. She said that because of the way she treated them, they don't like her now. Ms Li said her children were very close to her prior to the motor accident. Now they are closer to her husband.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Li has not had further car accidents or sustained other psychological injuries.
Current symptoms
Ms Li said her children, father and husband don’t want to talk to her anymore so there is no point for her to live. She said she hoped that she dies very soon so she could be with her mother.
Ms Li described pervasive depression and inability to enjoy her usual recreational activities, and nothing cheers her up. She stated even when her children had top scores at school, she did not experience joy. She is chronically tired and has sleep problems, with nightmares related to her mother. She has intrusive memories with flashbacks, and panic attacks. She was 61kg and lost weight after the subject accident, as she has no appetite. She is now 56kg. She has been irritable, and this caused marital disputes, and they are now discussing divorce. She has concentration difficulties and makes mistakes at work. She is quiet and withdrawn from everyone. She has passive suicidal ideation and constant thoughts about death. She described depressive cognitions, including uselessness and has generalized guilty thoughts, without overt delusions.
Current and proposed treatment
Ms Li has not taken antidepressants. She previously took a sleeping pill, but it made her drowsy at work, so she ceased it. She had one consultation with Dr Eddie So, psychiatrist and has had regular treatment with her psychologist, Ming Lo Sze for around 2 years, recently every 2 weeks. Initially they had in-person sessions, and now this is by phone. She stated her psychologist is the only person she could talk to about her mother, as everyone else has become averse to her talking about it. She has not consulted a traditional healer or Chinese medicine practitioner or been to a psychiatric hospital.
Clinical Examination
Mental State examination
Ms Li cried throughout the assessment and had difficulties managing her emotions. Her husband could not console her when she was in distraught. She was constricted in her affect. Intermittently she had outbursts of anguish and tearfulness. She had long uncombed hair and was somewhat dishevelled. She had downcast eyes and looked depressed. Ms Li required time to settle after each outburst of anguish and tearfulness. She spoke about her loss of hope and suicidal thoughts during this assessment.
Current functioning
Ms Li is 42 and living with her husband. They have two adult children living with them.
Ms Li has been working as an assistant in nursing for about ten years in an aged care facility and normally works 26 hours per week. She didn’t work for six or seven months as she was too distraught. She reported crying in the toilets due to her overwhelming emotions. She did not wish to work however her husband asked her to go back to work and help financially support the mortgage.
Ms Li’s husband explained there were two reasons for his wife’s need for work. Firstly, they had a mortgage. Secondly, he said that when she was not working, she was constantly agitated and arguing with everybody at home, which made him and the children very upset and so he rather she go to work – he stated if there is any problem, her employer can deal with it.
Ms Li is now working in the same place, six hours three days a week and eight hours for one day. She said that she becomes jealous when she sees elderly residents being visited or people visiting their mothers. Sometimes she would cry in the toilet at work. She said she is forgetful and made the mistake of leaving a senior resident in the toilet by mistake.
Ms Li doesn’t want to talk to anybody and prefers to stay at home most of the time. She doesn't want visitors and gets angry with people visiting. Her husband said that she became ‘hostile’ when her friends came over. Ms Li said she doesn’t want to talk to anybody because when they mention their mother, she gets very upset, and starts thinking about her mother’s death.
In the past, they enjoyed family activities. They have parties at home or at her brother's house, and they celebrate Chinese New Year, Mid-Autumn Festival and Christmas. She would host parties and prepare food at home, but since the accident, they have not hosted or attended any parties.
Previously, she recalled being outgoing; she liked shopping, hosting parties and going away on holidays with her family.
Comments of consistency
There was no inconsistency identified.
Diagnosis and reasons
Ms Li had no prior psychiatric problems. She was told by the police, that her mother had an accident and was struck by a car, and she attended the location of the accident and saw her mother with gruesome injuries and in pain. Her mother passed away and she had to identify her mother’s body in the morgue.
Ms Li developed persistent depression and anxiety symptoms, with re-experiencing symptoms consistent with Post-traumatic stress disorder and Major depressive disorder.
In reference to the DSM-5 TR criteria for Post Traumatic Stress Disorder:
Criterion A: Ms Li had witnessed in person, the aftermath of the subject accident when she went to the location of the accident, and she saw her mother with serious injuries and subsequently passed away.
Criterion B: She persistently re-experiences the traumatic events as:
·Intrusive distressing memories of her mother and the circumstances of the accident.
·Distressing dreams of the subject MVA.
·Marked physiological reaction when exposed to trigger that symbolizes or resembles the subject MVA.
Criterion C: She persistently avoids the traumatic memory and triggers of her trauma memory. She said she does not reverse in her car when driving now, as it would trigger thoughts of her mom’s death and she worries she would run over someone and kill someone.
Criterion D: She reported negative cognition with low moods and:
·persistent and exaggerated negative beliefs or expectations about herself and her role in her mother's death,
·persistent distorted cognitions about the cause or consequences of the subject MVA causing blame to herself and to her husband,
·persistent negative emotional state
·markedly diminished interest and participation in her usual recreational activities
·feelings of detachment or estrangement from others,
·persistent inability to experience positive emotions, including positive events related to her children.
Criterion E: She has persisting symptoms of hyper-arousal, with irritability, problems with concentration and sleep disturbance.
Criterion F: Her re-experiencing symptoms, avoidant behaviour and arousal symptoms have lasted more than 1 month.
Criterion G: Her symptoms have caused significant functional impairment at work and with her family relationship.
Criterion H: Her trauma symptoms are not attributable to physiological effects of substance, medication, alcohol disorder, acute stress disorder symptoms or adjustment disorder.
In terms of Major depressive disorder, she has had more than 5 of the listed symptoms for at least 2 weeks, and there are no other better explanations for her depressive symptoms. Ms Li has pervasively depressed mood and anhedonia, and significant weight loss. She described ongoing sleep impairment. There are observable psychomotor changes that are not just a subjective experience. She reported concentration problems. She described a loss of energy. She reported suicidal ideation. She confirmed features of worthlessness and inappropriate guilt. Her symptoms cause her clinically significant distress. Her symptoms are not due to the physiological effects of a medication or substance and are not part of a general medical condition. Her symptoms are not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, a psychosis spectrum disorder, acute stress disorder symptoms or adjustment disorder. She has never experienced manic or hypomanic symptoms.
Causation and reasons
Ms Li has no past psychiatric history and described immediate anxiety and depressive symptoms since the accident, and there are no other life stressors identified as contributing to her psychological injury. The Panel concluded the subject MVA is the only cause of her psychological injury.“
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[27] and Insurance Australia Ltd v Marsh.[28]
[27] [2021] NSWCA 287 at [40], [41] and [45].
[28] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[29] 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.
[29] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[30] 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.
[30] at [44]-[62].
The Panel adopts the detailed reasons of the joint examination report of the Medical Assessors. It is unnecessary to add any further reason in this matter save that the Panel has relied on the clinical expertise of the Medical Assessors, the absence of prior symptoms and other causes and the distressful nature of the motor accident in reaching the conclusion that the motor accident caused post traumatic stress disorder and major depressive disorders.
We have explained why the Panel has accepted different psychiatric diagnosis from diagnosis made by other doctors including the original Medical Assessor. Essentially our conclusion has been reached based on the clinical expertise of the Medical Assessors, a review of the documentation and is otherwise consistent with the traumatic motor vehicle accident which caused the death of the claimant’s mother.
These psychological conditions are not a threshold psychological or psychiatric injury.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Fukui is revoked. The new certificate is attached at the commencement of these Reasons.
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