Lynch v AAI Limited t/as AAMI
[2022] NSWPICMP 6
•13 January 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6 |
| CLAIMANT: | Marina Lynch |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL: | Principal Member John Harris Dr Brian Parsonage Dr Michael Hong |
| DATE OF DECISION: | 13 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a non-minor psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the DSM-5 criteria for a Specific Phobia of Driving was satisfied; a diagnosis of an Adjustment Disorder is not made if the stress related disturbance meets the criteria for another mental disorder, which in this case it does i.e. Specific Phobia of Car Travel; for that reason, the Panel did not consider that Ms Lynch was suffering from an ‘Other Specified Trauma and Stressor Related Disorder’ because her ‘Adjustment-like Disorder’ with anxiety satisfied DSM-5 criteria for a Specific Phobia of Driving; the Panel otherwise did not make a diagnosis of adjustment disorder because Ms Lynch’s depressive symptoms satisfied DSM-5 criteria for Major Depressive Disorder at that time and therefore an Adjustment-like Disorder would not be made; secondly, Ms Lynch’s depressive disorder is now in remission; observations that the onus lay on the injured person to establish that they suffered from a non-minor injury for the purposes of an ongoing entitlement to statutory benefits and an entitlement to recover damages; Vines v Djordjevitch applied; observations that the relevant onus was established if the psychological injury (other than an adjustment disorder) was present at any time; Held- the claimant suffered from a Major Depressive Disorder in remission and suffers from a Specific Phobia of Driving; both psychological injuries were a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 and the Regulations. |
Medical Assessment – Minor injury
Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 3 May 2021 and issues a new certificate determining that:
The claimant suffered from a Major Depressive Disorder in remission.
The claimant suffers from a Specific Phobia of Driving.
The psychological injury is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
REASONS
Background
Ms Marina Lynch (the claimant) suffered injury in a motor accident on 5 June 2019 when another vehicle collided with the claimant’s vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Ms Lynch any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether the claimant’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor 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[1] and, pursuant to section 7.26 of the Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Jones who issued a Medical Assessment Certificate dated 3 May 2021. Medical Assessor Jones concluded that Ms Lynch sustained a chronic adjustment disorder with depressed mood and mixed anxiety which is a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor 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 minor injuries”[2]. An injured person otherwise cannot recover damages under the Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
The review
The application for referral of the medical assessment to a review panel was made by Ms Lynch within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 15 July 2021, the President’s delegate referred the medical assessment 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.[5]
[5] 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 clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] 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.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were subsequently advised that Ms Lynch would be examined by the Medical Assessors on the Panel in December 2021.
Statutory provisions
A minor injury is defined in section 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.
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, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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:
“Minor psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a minor 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 minor injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[10]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[11] apply. This is because Part 6 is specified as applying only to the assessment of permanent impairment.[12]
[10] See section 3B(2) of the Civil Liability Act, 2002.
[11] See clauses 6.5 - 6.7 of the Guidelines.
[12] See clause 6.3 of the Guidelines.
Assessment under review
Medical Assessor Jones certified that Ms Lynch sustained a chronic adjustment disorder with depressed mood and mixed anxiety. The current symptoms on examination were recorded as follows:
“Ms Lynch reported she is jumpy on the road and it has been a year and a half. As a passenger she closes her eyes. She feels stressed, she worries about the future and she worries about being able to have children. The pain she experiences is not there all of the time and she has to watch herself with groceries, picking up her niece and said her physical injury ‘has to be fixed.’ She said on a couple of occasions she has had to go home from work but she can type for up to a couple of hours and then be triggered and seize. She used to enjoy traffic control.
Ms Lynch reported she is jumpy if she notices a car coming and she gets a pain in her chest and stomach and it feels like anxiety. Ms Lynch reported she is not currently suicidal but was previously last year when she was out of work and felt ‘really bad.’ She also reported that she is generally getting sick more often and has had multiple bouts of tonsillitis since the accident, for example.
Ms Lynch reported her sleep had been not too bad lately, but it is poor if her neck is aggravated.”
The Medical Assessor opined that the “timing, nature and development of symptoms is consistent with the motor vehicle accident” being the cause of the psychiatric condition. That condition was perpetuated by ongoing pain and physical difficulties.
In respect of diagnosis, the Medical Assessor concluded:
“From a psychiatric perspective, she has experienced a cluster of symptoms most consistent with an Adjustment Disorder with depressed mood and mixed anxiety. She has anxiety related to driving, but has been able to return to that activity. She has returned to reasonable functioning in a number of areas but there is still ongoing complaint of mental health problems consistent with an Adjustment Disorder. She appears to be improving however and her long-term prognosis is positive.”
Submissions
The claimant’s submissions on minor injury noted an absence of prior symptoms and asserted that the onus was on the insurer to establish that all injuries were a minor injury because “under the MAI Act the claimant had an entitlement to a lifetime of benefits for motor vehicle accident related treatment and care needs unless the disentitling minor injury provision is established”.[13] It was also asserted that Ms Lynch suffered disc protrusions and an annular fissure at C5/6 which fell outside the definition of minor injury.
[13] Claimant’s bundle, page 87.
The claimant’s submissions on review referred to the diagnosis by Ms Gunasagaran of “other specified trauma and stressor related disorder” and referred to the psychologist’s record of symptoms which were similar to those recorded by Medical Assessor Jones.
The claimant submitted a key difference in diagnosis between the treating psychologist and the Medical Assessor was whether the stressor was the motor accident or the relevant symptoms.
The claimant submitted that a diagnosis of “other specified trauma and stressor related disorder” fell outside the definition of minor injury, and it is an available diagnosis pursuant to DSM-5 and a recognised psychiatric illness for the purposes of section 1.6 of the MAI Act.
In its internal review decision dated 23 December 2019, the insurer stated that the general practitioner and psychologist had not provided a psychological diagnosis under DSM-5.
In its submissions to the Dispute Resolution Service, the insurer submitted that psychological injury was in dispute as well as the “minor” classification.
In its review submissions, the insurer submitted that the decision of the Medical Assessor was correct based on a review of the available medical evidence, the claimant’s medical history and reliance of his own clinical expertise.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.
Ms Lynch attended the emergency department at Westmead Hospital on 8 June 2019 complaining of neck pain. Dr Sivakumar then certified Ms Lynch unfit for work.
A cervical CT scan dated 17 June 2019 reported small disc protrusions at C4/5 and C5/6. An MRI scan dated 25 July 2017 reported a left paracentral annular fissure at C5/6 which could be the case of discogenic pain.
A claim form completed by Ms Lynch dated 31 June 2019 referred to the motor accident, causing neck and shoulder pain.
A certificate of capacity dated 26 June 2019 completed by Dr Sivakumar noted neck pain and whiplash injury. The doctor issued subsequent certificates specifying intermittent unfitness for work.
On 18 July 2019 Dr Al Khawaja, neurosurgeon, noted significant limitation of neck movement and recommended an MRI scan. On review in August 2019 the doctor recommended pain management and physiotherapy. Surgery by way of disc replacement was suggested as a future possibility. Review in December 2019 again showed significant pain and discomfort.
Dr Alister Ramachandran, pain specialist, provided a report dated 4 March 2020. The doctor diagnosed probable discogenic or facet related neck pain and recommended diagnostic cervical medial blocks.
Ms Moreena Gunasagaran, psychologist, provided a report dated 16 March 2020 following several counselling sessions in 2019. The psychologist observed tearfulness, anxiety and recorded a history of poor sleep and flashbacks.
Ms Gunasagaran diagnosed a possible post-traumatic stress disorder and depressive symptoms including depressed mood, negative thinking and reported sense of worthlessness and inappropriate guilt. The psychologist said it was “not certain” whether the diagnosis of a Major Depressive Disorder under DSM-5 was met but that Ms Lynch was likely to develop this diagnosis “without further intervention”.
Ms Gunasagaran made a provisional diagnosis of other specified trauma and stressor related disorder described as “adjustment-like disorder with prolonged duration of more than 6 months, with depressed mood”. Treatment recommendations included 10 sessions over a five-month period, referral to a psychiatrist and follow up with a pain specialist for overall pain management.
RE-EXAMINATION
The Panel determined that Ms Lynch be re-examined by both Medical Assessors on 17 December 2021 given the factual issues in dispute.[14]
[14] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
The re-examination report is as follows:
“The examination was conducted by audio-visual link. The examiners were Assessor Brian Parsonage and Assessor Michael Hong. Ms Lynch was at her home at [-]. Assessor Parsonage was in his rooms in Port Macquarie and Assessor Hong was in his room in Wentworthville.
Once the audio-visual link was established there were no technical difficulties with the examination.
Introduction
It was explained to Ms Lynch that we were seeing her to re-examine her for the PIC in relation to any psychological injuries she had experienced as a result of the accident on 05.06.2019. We explained that we were psychiatrists, the information she gave us would be included in our report and we were not seeing her for treatment.
Identifying Data
Ms Lynch was a [-] year old woman who lived at [-] with her partner, David. She had no children. A week ago she had left her previous full-time office administration to take up a position of Facilities Operation Administrator, which involved office administration. It was a full-time position and paid better than her previous position.
Relevant Pre-Injury History
Ms Lynch was born in [-] and had an uneventful upbringing. She did a combination of security work and office administration before travelling to Australia. She met her current partner in 2018 and was working as a traffic controller for nearly a year before the accident.
She enjoyed excellent physical health. She didn’t smoke or use illicit substances. She rarely drank alcohol and then only small amounts. She had never been a heavy or a problem drinker.
She had no history of psychiatric or psychological problems or treatment before the accident.
The Accident 05.06.2019
Ms Lynch was driving to visit her sister who lived in [-]. Without warning, a car came out from her left and crashed into the left hand side of Ms Lynch’s car spinning it around.
Ms Lynch got out and thought she was okay. She consoled the other driver who was in shock and who explained that she had accidentally put her foot on the accelerator instead of the brake. At the time Ms Lynch ‘thought I was fine.’ No police or ambulance were called. She was close to her sister’s place and her sister picked her up because her car was unable to be driven and was subsequently written off.
The next day Ms Lynch went to work and noticed her neck was stiff. When she bent forward she felt she was going to vomit. She saw her doctor who referred her to hospital where she was diagnosed with whiplash. She was advised to have physiotherapy but her neck pain worsened so she saw her doctor again who ordered a CT scan which showed ‘bulging discs’. She subsequently had an MRI which showed a ‘tear in the neck’.
She was advised to stop working a month after her accident because it was aggravating her symptoms and she concentrated on physiotherapy.
Ms Lynch reported that she had ongoing pain and physical restrictions which meant she was unable to do many of her previous activities, such as looking after and lifting her nieces and nephews or doing traffic control work. She saw a neurologist who recommended surgery, but the insurance company declined to pay for it. Ms Lynch reported that she continued to experience significant pain and physical restrictions from her neck injury.
Psychological Problems
Ms Lynch reported being psychologically affected in two ways by the accident. Firstly, she became anxious about being involved in another accident and car travel in general. Secondly, she became depressed in the context of ongoing neck pain and disabling physical restrictions.
Ms Lynch, who had never been an anxious driver previously, became fearful about being hurt again in a car accident. She sometimes had dreams of being involved in a car crash. If a car came from her left she would feel anxious and develop pain in her chest. She used to go on road trips before the accident but after the accident she felt anxious and avoided travelling by car and only drove if she had to. She had markedly reduced visits to her family with whom she had been close because she didn’t like driving and she was apprehensive about using public transport because of the COVID-19 pandemic. If she did drive or if she was a passenger, she became very anxious and startled easily, especially if cars came up from her left.
She was able to remember all aspects of the accident and while she was apprehensive about the behaviour of other drivers, she hadn’t developed persistent and exaggerated negative beliefs or expectations about herself, others or the world. She tried to remain positive and apart from a period of depression in the second half of 2019 (see below) she did not exhibit a persistent negative emotional state other than anxiety associated with driving. She maintained her relationships with others although she didn’t see them as often because of her fear of driving.
She didn’t have problems with concentration and slept well apart from discomfort from her neck.
Because of her anxiety about car travel she had moved closer to the city so she wouldn’t have to use her car as much. She avoided driving in the rain completely. She avoided driving to get groceries because of anxiety and instead relied on online shopping.
In the second half of 2019 Ms Lynch became depressed because her life was ‘turned upside down.’ She had had to leave her job, she had ongoing pain in her neck that she wasn’t sure would improve. She couldn’t engage in many of her previously enjoyable activities, particularly looking after her nieces and nephews. She regarded herself as a young person who had become ‘like a granny’.
From soon after the accident until January 2020 she felt depressed almost all the time. She lost interest and enjoyment in many activities and stopped socialising. She had difficulties sleeping in addition to discomfort from her neck because she worried about the losses she had experienced and how the rest of her life could be affected. She had feelings of worthlessness and felt a burden on her partner and family. She had recurrent thoughts of suicide but did not harm herself.
Treatment Received and Progress
It was because of her depressive symptoms and suicidal thoughts that she sought treatment and had six sessions with a psychologist. She learned some coping mechanisms and tried to get on with her life. In January 2020 she began a new job doing office administration and her symptoms of depression lessened.
She had no other psychiatric or psychological treatment. She was prescribed the antidepressant, Endep, but that was for pain management and to help her sleep and the dose she was prescribed reflected that. Ms Lynch could not continue taking Endep because it made her too groggy during the day and she did not want to take antidepressants.
Over the last two months Ms Lynch did not consider that she had felt depressed apart from occasionally having brief feelings of being down because of her neck pain. She continued to avoid socialising if it involved car travel, but she was able to enjoy the company of friends and family if they visited. Her appetite and weight were stable and the only thing affecting her sleep was neck discomfort. Her self-esteem had improved, she continued to concentrate well and she’d had no thoughts of suicide over the last two months.
No further treatment was planned but Ms Lynch was considering having further treatment because of her anxiety about driving. Her partner had encouraged her to have further treatment because he saw she was obviously distressed and it restricted her ability to do things.Other relevant injuries or conditions sustained since the accident
Nil.
Current Functioning
Ms Lynch was enjoying her new full-time job. She reported taking adequate care of herself and shared in the cooking. Her ability to socialise was restricted by her avoidance of car travel but she had generally maintained good relationships with her partner, friends and family, although she saw them less often.
She had no problems concentrating or doing her work.
Mental State Examination
Ms Lynch was a neatly groomed woman who understood the purpose of the examination and was cooperative. She appeared serious and somewhat intense with little reactivity of her mood throughout the examination. She presented as mildly to moderately anxious and slightly irritable. She gave a clear, detailed history which was consistent with her presentation and the documentation provided. She had no signs or symptoms of psychosis. She did not exhibit psychomotor agitation or retardation and there was no evidence of cognitive impairment.
Diagnosis and Causation
Ms Lynch had no pre-existing psychiatric or psychological problems. She had some Post-traumatic Stress Disorder symptoms but at the time of the accident Ms Lynch did not consider that she was seriously injured and she did not exhibit symptoms which would satisfy criterion D for the DSM-5 diagnosis of Post-traumatic Stress Disorder.
On the other hand, she had persistent symptoms of anxiety and fear of being involved in another accident which clearly related to the accident. She satisfied DSM-5 criteria for a Specific Phobia of Driving.
Criterion A is satisfied because she described a marked anxiety about driving since the accident.
Criterion B is satisfied because she has been always anxious if she is a driver or a passenger in a car since the accident.
Criterion C is satisfied because she actively avoids driving even though it restricts her ability to socialise and engage in enjoyable activities such as going to the beach. If she is unable to avoid driving, she endures it despite anxiety which is heightened by cars approaching her from the left.
Criterion D is satisfied because her anxiety is out of proportion to the actual danger posed by normal driving.
Criterion E is satisfied because her anxiety has lasted for more than six months.
Criterion F is satisfied because the assessors judged that her distress was clinically significant, and it impaired her ability to socialise.
Criterion G is satisfied because it was the opinion of the examiners that her symptoms were not better explained by the symptoms of another mental disorder.
In the second half of 2019 Ms Lynch experienced an episode of Major Depressive Disorder because during that time she experienced persistently depressed mood, markedly diminished interest in most of her activities as well as insomnia, feelings of worthlessness and recurrent thoughts of suicide. Her depressive symptoms have improved and are currently in remission.
A diagnosis of an Adjustment Disorder is not made if the stress related disturbance meets the criteria for another mental disorder, which in this case it does i.e. Specific Phobia of Car Travel. For that reason, the Panel did not consider that Ms Lynch was suffering from an ‘Other Specified Trauma and Stressor Related Disorder’ because her ‘Adjustment-like Disorder’ with anxiety satisfied DSM-5 criteria for a Specific Phobia of Driving.
The Panel noted that Ms Lynch’s previous treating psychologist had made a provisional diagnosis of an ‘Adjustment-like Disorder with prolonged duration of more than six months with depressed mood.’
The Panel did not make that diagnosis for the following reasons. Firstly, Ms Lynch’s depressive symptoms satisfied DSM-5 criteria for Major Depressive Disorder at that time and therefore an Adjustment-like Disorder would not be made. Secondly Ms Lynch’s depressive disorder is now in remission.
Conclusion
Ms Lynch is suffering from a Specific Phobia of Driving which is not a ‘minor disorder’.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned.
Onus of proof
The claimant submitted that the onus of proof was on the insurer to establish that the injury was minor because it was a disentitling provision.
The matter has been briefly raised by the claimant and was not the subject of a response by the insurer. The Panel will address the submission noting the absence of proper submission.
The seminal discussion on where an onus lay was discussed by the High Court in Vines v Djordjevitch[15]. The relevant passage in set out in full. The Court stated:
“It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. ‘There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not’ - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94, at p 99 (106 ER 35, at p 37) . The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter”.
[15] [1955] HCA 19 at [8] (Vines).
The principles of statutory construction are well settled[16]. As the plurality stated in Military Rehabilitation CommissionvMay[17], the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority[18] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[19].
[16] See also Kirby v Health Care Complaints Commission [2021] NSWCA 139 at [55] per Gleeson JA, White JA and Emmett AJA agreeing.
[17] [2016] HCA 19 at [10].
[18] [1998] HCA 28 at [69]-[71].
[19] [2009] HCA 41 (Alcan).
In Grain Growers Limited v Chief Commissioner of State Revenue (NSW)[20] Beazley P stated[21] that “the starting point and end point is with the text of the provision”. Her Honour cited the comments of the High Court in Alcan when the plurality stated:[22]
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Footnotes omitted)
See also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].”[20] [2016] NSWCA 359
[21] at [108], Bathurst CJ and Leeming JA agreeing.
[22] at [47].
As previously mentioned, the issue of whether an injury is classified as non-minor affects both the entitlement to pursue damages and provide an entitlement to statutory benefits beyond the 26-week period. It is incorrect, as the claimant submitted, to suggest that the diagnosis of minor injury is a disentitling provision as that submission ignores that the finding is also a pre-condition to recovering damages. The claimant only focused on an ongoing to statutory benefits.
Part 4 of the MAI Act applies to the award of damages. Section 4.4 provides:
“No damages may be awarded to an injured person if the person’s only injuries resulting for the motor accident were minor injuries”.
Read alone, section 4.11 places the onus on the injured person as “no damages” may be award “if” the person’s only injuries “were minor injuries”. The word “if” in section 4.4 operates as the conjunction whereby there is a prohibition against obtaining damages if the only injuries were minor injuries.
To adopt the words in Vines, it is “sufficiently clear that” the requirement in section 4.4 “must be found to exist before anybody obtains a right … under the provision”.
Schedule 2 of the MAI defines “medical assessment matters” and includes “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”. That provision suggests that there is only one assessment of minor injury for all purposes in the MAI Act.
It does not fit within the scheme of the MAI Act that the minor injury be determined for the purposes of the cessation of statutory benefits and determined separately for the purposes of satisfying the pre-condition to an award of damages. Read contextually in accordance with established principles of statutory construction, the injured person is required to establish that the injuries are non-minor for all purposes of the MAI Act.
Later in these reasons we discuss the temporal notion of when a minor injury must occur. Our conclusion that a non-minor injury can occur at any point in time, and is a non-minor injury for all purposes, would render issues of onus on the insurer extremely problematic because it would be required to establish a negative over an indefinite period.
The High Court in Vines referred to the distinction between a proviso and an exception that “now depends not so much upon form as upon substantial considerations”. Viewed as matters of substance, it is arguable that the requirement to establish that an injury was non-minor is a pre-condition to an entitlement to statutory compensation beyond the 26-week period. That conclusion is inconsistent with some member decisions which determined that the onus of proof in establishing the issue of wholly or predominantly at fault lay on the insurer. [23]
[23]See for example ACF v Insurance Australia Ltd [2021] NSWPIC 290.
However, section 3.44 of the MAI Act provides that findings of fault and/or contributory negligence in connection with a claim for statutory benefits is not binding in connection with a claim for damages for the same motor accident. Unless the Regulations provide otherwise, the section does not apply in connection with a determination on minor injury. Accordingly, section 3.44 suggests contextually that the issue of determination of minor injury applies for all purposes under the MAI Act.
There are restrictions construing a statute in accordance with subordinate legislation.[24] However, section 1.6(5) of the MAI Act provides that the Guidelines “may make provisions for or with respect to the assessment of whether any injury is a minor injury”. To the extent that the Guidelines may assistance on interpretation[25], they support the notion that the injured person must establish that at least one injury is non-minor. By way of example, clauses 5.11 and 5.12 state that the nature of the psychiatric illness be established in accordance with DSM-5.
[24] Mine Subsidence Board v Wamboo Coal Pty Ltd [2007] NSWCA 137 at [41] per Tobias JA, Hodgson and Santow JJA agreeing.
[25] See French CJ in Plaintiff M47-2012 v Director-General of Security [2012] HCA 46 at [56].
Various other clauses in the Guidelines establish how a condition is satisfied. A common example is the requirement to show two objective signs in establishing radiculopathy.[26]
[26] Clause 5.8 of the Guidelines.
Those provisions suggest that the nature of the injury is established in accordance with the criteria provided by AMA 4 and/or the Guidelines, rather than the insurer establishing that the condition does not exist.
It is otherwise difficult to ascertain any clear purpose in the legislation on the issue of whether all the injuries are minor. That finding will preclude both an entitlement to ongoing statutory benefits and prohibit the recovery of damages. The objectives contained in section 1.3 of the MAI Act include providing early assistance and aiding recovery to return to work and ensuing the sustainability and affordability of the scheme. The claimant’s reference to an entitlement to lifelong statutory benefits as supporting her interpretation, is only one matter in the objectives of the MAI Act that support her interpretation. Other objectives of the scheme suggest an alternative approach to that urged by the claimant.
For these Reasons, we proceed on the basis that the onus lays on the claimant to establish that an injury is non-minor within the meaning of the MAI Act.
Findings
The Panel adopts the examination findings and conclusions of the Medical Assessors based on the thorough examination and specific findings pertaining to the definition of minor injury. We add the following further reasons.
The Panel is satisfied that Ms Lynch was healthy prior to the motor accident with no relevant neck and psychological issues. Since the motor accident Ms Lynch has suffered from constant neck pain evidenced by the complaints recorded by the medical specialists.
Ms Lynch has provided consistent complaints of psychological symptoms to her treating psychologist, the original Medical Assessor, and the Medical Assessors on the Panel. We consider Ms Lynch a reliable and accurate historian.
We accept that the psychiatric injury was caused by the motor accident. There was no history of pre-existing condition and no other factors identified as causative of psychiatric injury. The nature of the motor accident, the effect it has on Ms Lynch and the timing of the onset of symptoms are all consistent with the motor accident causing the psychiatric injury.
The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen.[27] The reasons of the Medical Assessors show that we have adopted that approach in reaching our own conclusion as to diagnosis. In any event, the Medical Assessors on the Panel have explained why their expert opinion differs from other opinions.
[27] [2021] NSWCA 287 at [40], [41], [45].
For these additional reasons, the Panel concludes that Ms Lynch suffers from a psychological injury described as Specific Phobia of Driving within the meaning of DSM-5 which is a non-minor injury within the meaning of the MAI Act.
Further, Ms Lynch suffered from a major depressive disorder which is now in remission within the meaning of DSM-5. The reasons of the Medical Assessors explain why this diagnosis applied to Ms Lynch in 2020. This is an alternative reason why the psychological injury is a non-minor injury.
The timing of when radiculopathy can occur was considered in the context of non-minor injury in David v Allianz Australia Insurance Ltd[28]. The Panel, for the reasons expressed therein, concluded that radiculopathy was satisfied if it was present at any time. We adopt those reasons insofar as they are relevant to the issue of when the psychiatric diagnosis is made.
[28] [2021] NSWPICMP 227 at [84]-[104] (David).
The only difference in determining the relevant time for the diagnosis of psychiatric injury is that clauses 5.10 and 5.11 direct attention to the condition being “present”. However, clause 5.11 states that the diagnosis must be made under DSM-5. DSM-5 provides for a diagnosis of a major depressive disorder which can be described as either in partial remission or full remission depending on the circumstances of the improvement in the condition.[29] That diagnosis, made pursuant to DSM-5, describes a past condition which satisfied a diagnosable psychiatric condition. Further, for the reasons discussed in David, the diagnosis does not have to be made by a Medical Assessor and can be made by a treating doctor (clause 5.5).
[29] DSM-5, p 188.
That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.
This interpretation is otherwise consistent with the past tense used in sections 3.11, 3.28 and 4.4 which refer to the only injuries resulting from the motor accident “were” minor injuries.
For these further reasons, Ms Lynch suffered from a Major Depressive Disorder in remission which is also a non-minor injury.
Conclusion
The Panel concludes that the psychological injury is a non-minor injury for the purposes of the MAI Act. The replacement certificate is contained at the commencement of the Reasons.
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