Marroun v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Marroun v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 141
CLAIMANT:	Aneesa Marroun
INSURER:	Insurance Australia Ltd t/a NRMA Insurance
REVIEW PANEL
MEMBER:	Elizabeth Medland
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Gerald Chew
DATE OF DECISION:	8 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether claimant suffered a threshold injury; Medical Assessor found the claimant did not suffer from a psychological injury caused by the motor accident; long-standing pre-existing psychological symptoms and disorders; Held – the claimant has suffered an exacerbation of pre-existing posttraumatic stress disorder caused by the motor accident; a material worsening of claimant’s activities of daily living; a worsening of a pre-existing condition constitutes an injury; an exacerbation of post traumatic stress disorder is not a threshold injury; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel 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 Doron Samuell dated 17 November 2021 and issues a new certificate determining that: · Exacerbation of Posttraumatic stress disorder DSM5TR F43.10

STATEMENT OF REASONS

BACKGROUND

Ms Aneesa Marroun (the claimant) is a 38-year-old female who alleges injury as a result of a motor vehicle accident which occurred on 4 March 2019. The claimant was driving a vehicle through a roundabout when a tow truck collided with the passenger side of her vehicle as she was exiting the roundabout.
The claimant subsequently lodged an application for personal injury benefits (claim form) with the insurer of the vehicle, Insurance Australia Ltd t/a NRMA (the insurer), on or about 6 March 2019. She alleges having suffered physical and psychological injury as a result of the motor accident.
The subject issue in dispute between the parties is whether any psychological injury caused by the accident is a threshold injury within the meaning of the Motor Accident Injuries Act 2017 (MAI Act).
A threshold injury determination is important in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26/52 weeks and an entitlement to claim common law damages is opened.
Liability for statutory benefits was initially accepted by the insurer. However, by way of notice dated 16 June 2019, the insurer denied liability for ongoing statutory benefits after 26 weeks on the basis that the claimant’s injury was a minor injury (now known as a “threshold injury”) for the purposes of the MAI Act.
An internal review was requested and the insurer issued a determination that affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (the Commission) to determine the dispute.
Pursuant to Schedule 2, cl 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 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.
The dispute about whether the claimant’s accident caused psychological injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Doron Samuell (Medical Assessor). The Medical Assessor gave a certificate dated 17 November 2021 wherein he certified that the claimant had not suffered a psychological injury caused by the motor accident.

THE REVIEW

The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 4 February 2022 the President’s Delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
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 new review provisions provide[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[1] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
A Review Panel was originally convened that included a different Member and Medical Assessor. At that time directions were issued by the Panel dated 12 August 2022 requiring the parties to lodge paginated and indexed bundles of documents to be relied upon.
The then Panel convened via teleconference and determined that a re-examination of the claimant was required which was arranged for 26 October 2022. This examination did not go ahead.
Subsequently, a differently constituted Review Panel was convened and met via teleconference on 3 November 2023. It was determined that a re-examination of the claimant was required and took place on 16 January 2024 via videolink (Microsoft Teams) with Medical Assessor Baker and Medical Assessor Chew.

LEGISLATIVE FRAMEWORK

The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4. “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulations.
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 a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric 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.”

ASSESSMENT UNDER REVIEW

Medical Assessor Samuell noted the claimant had long-standing psychological difficulties, which pre-date the motor accident and let to counselling as a result of domestic violence. The claimant reportedly told the Medical Assessor that she had been diagnosed with a number of conditions, including Borderline Personality Disorder and a Bipolar Affective Disorder.
The low velocity nature of the motor accident was noted by Medical Assessor Samuell, and he concluded that the accident was not sufficiently severe to cause post-traumatic stress disorder. He considered the claimant’s symptoms at interview as better accounted for by the claimant’s pre-existing conditions of a possible borderline personality disorder and a possible bipolar affective disorder.
Medical Assessor Samuell identified no motor accident related psychological condition.

SUBMISSIONS

Claimant’s submissions dated 14 April 2021

Insofar as the submissions deal with the alleged psychological injury, the submissions summarise the material where a psychological diagnosis is made. The claimant therefore submits that the diagnosis of Depression and post-traumatic stress disorder means that she has suffered a non-minor (threshold) injury.

Claimant’s submissions dated 3 December 2021

These submissions were prepared in support of the subject application for review. It is submitted that the Medical Assessor was in error in determining that the motor accident was not a sufficient trigger for post-traumatic stress disorder. In this regard, it is noted the claimant stated that the size of the truck and the noise was such that she thought it would kill her.
It is also submitted that none of the material referred to by the Medical Assessor makes mention of any diagnosis of bipolar affective disorder or borderline personality disorder, when he attributed the claimant’s psychological presentation to such conditions. It is submitted that the Medical Assessor was in error in relying entirely on the claimant’s verbal account.
It is submitted that the Medical Assessor was in error attributing the entirety of the claimant’s presentation to her pre-existing condition, without any independent evidence of any such pre-existing condition.

Insurer’s submissions dated “April 2021”

The insurer refers to a report of Benchmark wherein the writer noted an inconsistency between the claimant’s reported lack of pre-accident psychiatric symptoms and her attendance on a psychologist the year prior to the accident.
The insurer notes that the material referred to by the claimant’s representatives in their submissions does not include a diagnosis made in accordance with “DSM criteria”.
It is submitted that the Medical Assessor’s reliance on the damage to the vehicle is erroneous, noting that damage is a separate issue to the “threat of damage”.

Insurer’s review submissions – undated

The insurer submits that the Medical Assessor had appropriate regard to the presenting symptomatology and the claimant’s recorded clinical history and made an appropriate diagnosis.
It is submitted that the claimant’s submissions fail to pay sufficient regard to the Medical Assessors’ clinical assessment in reaching a differential diagnosis.
The insurer further submits that there is no requirement for there to documentary evidence of a prior condition. It is noted the claimant herself informed the Medical Assessor that she was intending to make a Centrelink application referencing a borderline personality disorder and a bipolar affective disorder. It is further noted that the material obtained since confirms the diagnosis in any event.
The insurer further submits that apportionment of a diagnosis is not required, as opposed to symptomatology. In any event the diagnosis was found by the assessor as not having been caused by the motor accident.

SUMMARY OF DOCUMENTS CONSIDERED

The Panel has considered the documents provided in the application.
The Panel has considered the document provided in the application and the documents and certificates relating to the previous application.
The Panel has considered the documents provided in the previous reply and the documents and certificates relating to the previous reply.
The Panel has considered the additional/late documents.
The claim form includes a description of various injuries/symptoms of a physical nature. In addition, the claimant details having experienced a variety of psychological symptoms including “initial shock”, anxiety attack, stress, nightmares and being afraid to drive due to “emotional stress”.
A statement of the claimant dated 30 July 2020 is noted which details a list of alleged psychological symptoms experienced as a result of the accident.
A NSW police report confirms the history of the accident and the insured vehicle being a Hino tow truck.
A NSW ambulance report confirms the claimant was transported to hospital, however, no serious injuries were noted. The claimant was noted to be calm/quiet. It was also noted the accident was low speed with minor damage to the claimant’s vehicle.
A medical referral from the claimant’s general practitioner (GP), Dr Kaur is dated 2 September 2019 and notes the history of the motor accident, the claimant losing her job with depression and anxiety.
A medical letter of Dr Kaur dated 4 December 2019 describes the claimant being a victim of domestic violence on 17 February 2018. Ongoing threats and abuse were noted from her now ex-husband. Dr Kaur noted having prescribed Valium for anxiety attacks.
A medical certificate of Dr Kaur dated 17 March 2020 states the claimant suffers from anxiety, depression and post-traumatic stress disorder due to domestic violence with her ex-husband in 2018 and the subject motor accident in March 2019. Noted the claimant was taking Avanza 30mg every day.
The clinical file of the GP also includes a medical request dated 26 August 2020 from Metlife for a total and permanent disablement claim made by the claimant. The physical complaints are noted. It is also stated by the GP that the claimant is suffering from post-traumatic stress disorder, anxiety and depression.
The clinical notes of the practice document psychological complaints dating back to at least 21 February 2006 where it was noted the claimant had depression and anxiety. A motor accident was noted occurring in March 2006 which caused pain. Borderline personality disorder was noted by the GP on 19 October 2007. It was also noted the claimant had mental health problems “for years”. Marijuana use was noted.
On 2 March 2013 the claimant was noted have been bashed by her brother that morning with various complaints of physical symptoms as a result.
An alleged sexual assault by an ex-boyfriend was noted by the GP on 20 August 2013. Examination revealed bruising on the thigh and arms. Then on 13 September 2013 stress and anxiety was noted for the previous month due to a breakdown of a relationship. She was noted to have been seeing a psychologist for counselling.
On 23 September 2013 the claimant was noted to have been an issued an “AVO” the night prior having been the victim of domestic violence with ex-boyfriend.
By 24 October 2013 the claimant was noted that she was already socialising more with friends, going to gym and beach. She had sought a deferment from her university studies and the court hearing for the apprehended violence order (AVO) had been postponed until November.
The claimant is noted to have had a number of mental health consultations at the practice. By 25 November 2013 she was said to be happy with her life at the time and was planning a trip to Bali.
In May 2017 the claimant was noted to have been suffering stress, anxiety and depression and drug abuse. She was noted to have “lost job trying for baby”.
On 3 February 2018 the claimant was noted to have attended crying. A long history of personal issues were noted including being engaged and separated, then married and divorced. Her second husband had been in prison for 15 years for alleged sexual offences and the relationship was noted to be not stable. Repeated IVF failures are noted.
On 18 July 2018 Dr Batty noted the claimant was having a lot of issues with her husband, including cheating and lying and the claimant was starting a divorce process.
After the subject motor accident the claimant attended on 4 March 2019 and a muscular injury was noted. Two days later she was noted to have an increase in anxiety and had poor sleep and a phobia to drive. On 25 March 2019 the claimant was noted to be unable to work and was very depressed and unable to cope.
The claimant attended upon Dr Batty again on 17 July 2019. The report notes symptoms of depression and anxiety with her previous activities being abandoned. A recommendation to seek treatment from a pain management, pain psychologist was made, rather than seeing a psychologist. Dr Batty considered that the issues were stemming from the claimant’s physical health.
The clinical file of Bankstown Mental Health Services is before the Panel. The file documents a long history of mental health issues involving the service. In August 2007 the claimant was noted to have been abusing illicit substances including “ICE”. Notes from September 2013 document an episode of self-harm, psychotic symptoms and drug and alcohol use.
A mental health assessment conducted on 10 October 2013 includes a history of sexual assaults from the age of 14. A history of physical and sexual abuse from partners is noted.
A discharge summary of 18 September 2014 notes the claimant has presented “many times” in the past to Bankstown Hospital Emergency Department in the context of domestic violence issues. Usual symptoms are noted as “panic attacks, poor appetite, weight loss, emotional lability, excessive showering, outbursts of anger and aggression.”
A “South Western Sydney Handover Report” of 13 September 2019 documents a call from the claimant’s mother with concerns about the claimant being irritable, verbally aggressive, aggression towards property, paranoia and suicidal ideation and illicit substance use. Chronic pain from the motor accident is noted.

In a report dated 16 September 2019 following assessment, a long standing history of the claimant accessing mental health services is noted. However, a significant decline was reported in the claimant’s mental state following her divorce and the motor accident in the prior twelve months.
The claimant again presented to Bankstown Emergency Department on 30 May 2021 with complaints of a sore head, pain and bruising to her arms post an alleged assault. On review by mental health, the claimant denied the assault. Concerns were raised regarding a deterioration in the claimant’s mental health. The recorded impression was one of drug induced psychosis, now resolved. It is also noted the claimant has borderline personality disorder, and she remains at chronic risk of self-harm.
The clinical file records the claimant apparently assaulting a security guard and absconding from hospital. When she returned, she appeared highly thought disordered and due to risk of aggression and agitation she was admitted to Liverpool High Dependency Unit.
Progress notes of 18 June 2021 in the file document the claimant using heroin and cannabis mainly to manager her pain. She noted significant stressors including a sexual assault from a trusted male friend who also robber her. The claimant wanted to go to an inpatient detox and rehabilitation facility and wanted to try and stop using heroin. She was said to still enjoy things in her life and had a supportive family. No evidence of any psychotic symptoms were noted at the time.
By 13 July 2021 the claimant was noted to be on the waiting list for a detoxification facility.
The parties have obtained and provided a copy of the file of “PsychCentral”. A letter of Dr Ahmed, forensic psychologist, notes the claimant was referred to him by Victim Services due to domestic violence by her husband. The claimant has been a client since November. The letter states the claimant has been diagnosed with post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder.
The claimant is documented to regularly attend upon Dr Ahmed. A note of 29 November 2019 took a history of the various traumatic events the claimant has experienced and referenced above. The subject accident is noted and the claimant stated that the accident had exacerbated her pre-existing psychological issues.
The clinical file of Bankstown Hospital has been provided. The file is extensive and documents the various admissions and presentations noted above. A further admission is documented to have occurred on 27 July 2022 where the claimant presented to the emergency department “from police custody” for redressing of a wound on her right wrist.
Also before the Panel is a clinical file of Bankstown Medical & Dental Centre. Various ailments are documented from August 2021. The claimant is noted to have complained on 23 November 2021 of worsening depression after her divorce and the motor accident.

Qualified reports

The insurer obtained the opinion of Dr Vickery who provided a report dated 24 August 2021. The claimant did not provide a history of previous psychological issues, however a marital separation was noted that occurred prior to the accident.
Noting the accident being minor in nature, Dr Vickery diagnosed the claimant as satisfying the criteria of somatic symptom disorder with predominant persistent pain. He states: “Ms Marroun has not sustained an injury due to the motor vehicle accident. Somatic symptom disorder with predominant persistent pain is a separate injury involving multiple psychosocial and biomedical factors.”

RE-EXAMINATION

The claimant attended the assessment alone, via video-conference. The assessment was conducted with Medical Assessors Baker and Chew both attending the assessment.

History

Psychosocial history and pre-accident history

The claimant stated that she was born in Sutherland Hospital. She reported that she lived in a granny flat in the back yard of her parents’ home. She reported that there was a second granny flat that was occupied by others. She had a grandfather aged 100 years. He lived in the main house with her father aged 66 years and her mother aged 63 years. She had an elder brother aged 41 years. The claimant reported that she was not permitted to enter the family home. Her mother and father would visit her daily. She explained that this was due to her pre-existing condition that was complex and caused difficulty in her teenage years and younger adult life.
The claimant stated she was educated at Riverwood Public School in kindergarten. She then moved to Bankstown West Public School. After completing primary school she attended Condell Park High School. She reported being bullied at school. She left school in Year 10.
The claimant reported that she was sexually abused at about 14 years of age. She reported that she told her parents. They notified the Department of Community Services. She believed the perpetrator was never charged. The claimant stated that her father then suffered from Guillain Barre Syndrome. He became paralysed in his legs. This caused great distress for her mother and the claimant. Over an extended period of time her father gradually recovered in keeping with the known natural history of this condition. Her father was able to walk and travel internationally after his recovery from this debilitating neurological disease.
The claimant reported that she commenced abusing substances when she had left school. She would smoke cannabis as her substance of choice. She presented to Bankstown mental health service when she was about 17 years of age for the first time. She had suffered from a psychotic episode. She had been admitted to psychiatric hospital as an inpatient. Her mental state improved. She was followed through the Bankstown community mental health service.
At about 19 years of age the claimant reported being sexually assaulted by a man she had known socially. She was fearful of consequences with her social group if she reported the man to the NSW police. There was no formal report to authorities. She continued to use cannabis to try and manage her anxiety, poor sleep and recurrent nightmares about the sexual assault. The claimant reported she tried to avoid thinking about the sexual assault however her consumption of cannabis increased to try and manage her outbursts of anger towards her family members.
The claimant reported that she was diagnosed with depression and borderline personality traits at Bankstown hospital in about 2007. She was recommended antidepressant medication however she did not comply with the prescription. She reported smoking cannabis most days until about 2009. The claimant reported she had never used “ICE” methamphetamine or stimulants. She explained the purpose of smoking cannabis was to reduce her agitation, anger and distressing memories about her exposure to sexual violence.
The claimant reported that she attended Newcastle University as an adult student. She commenced her first bachelor’s degree to work as a dental hygienist in 2008. She completed this degree in 2010. She commenced work as a causal dental hygienist on completing her degree in this professional role. The claimant reported that she commenced her second degree in 2016. She reported that she had failed modules during the first year of this second degree. She reported that she attended summer school to complete the degree within the normal time. The claimant never applied to the NSW Police Force and had never worked as a police officer or within the NSW Police force in other roles.
The claimant reported that she had formed an initial relationship with a partner. She reported having difficulty falling pregnant. The claimant received four unsuccessful cycles of IVF treatment before treatment ceased and the union failed.
The claimant reported that she had formed a second union. This union was described as domestically violent. In about 2018 the second union failed and the NSW police officers served an apprehended violence order on her second partner such that he would leave the granny flat where the couple lived. She reported that there were no children to this union. She applied to the NSW Department of Justice and had received victims counselling for her post-traumatic stress disorder symptoms, prior to the motor accident and subsequently. She had travelled to Bali on two occasions after separation from her second partner in an attempt to settle herself and start a new life prior to continuing her career as a dental hygienist.
The claimant reported she continued to work in her casual role working fulltime hours between various dental services. She had worked in Macquarie Street, Central Business District Sydney, Circular Quay and Bexley service centres. She enjoyed her role as a dental hygienist. She enjoyed assisting her patients. She reported her skills were valued by her co-workers and senior dentists. She was working fulltime hours prior to the motor accident.

History of the motor accident

The claimant reported that she was driving to work on the 4 March 2019. She was close to her home. She had driven her car up to the roundabout. She said she was travelling under the local street speed limit at about 40kmph. She reported that a Hino tow truck was also approaching the roundabout on her left side. The claimant stated she was about halfway through the roundabout when she saw the tuck.
The claimant stated that her first thought was, “Oh crap! It’s a truck!”. When asked to explain what she meant by this exclamation the claimant stated she believed she would be seriously injured in the motor accident. The front offside corner of the tow truck crashed into the passenger side doors of the car that the claimant was driving. There were no other people in her car. She was not knocked unconscious. She drove her car out of the roundabout and parked close to where the motor accident occurred.
The NSW Ambulance Service was notified. She was transferred to Bankstown Hospital emergency room for assessment. At the scene of the motor accident the claimant reported that she had lateral neck pain and left arm pain.
Whilst in the emergency room the claimant was approached by the NSW police. She provided them with a statement about the motor accident. She reported that the police requested that she have alcohol and drug tests performed on her blood. The claimant stated she suffered angry outbursts as she felt as if the police were wanting to say she was at fault. The claimant stated she knew she was not at fault for the motor accident.

History of symptoms and treatment following the motor accident

The claimant reported that she was discharged from hospital and developed deterioration in her post-traumatic stress disorder symptoms. She reported she had difficulty tolerating loud noises. She was hypervigilant and would startle with loud noises. She reported that she suffered from panic attacks. Her sleep became poor. She reported she commenced re-experiencing the motor accident as well as other trauma she had suffered before the motor accident.
The claimant isolated herself and stopped attending her local gym where she would complete weight training and circuit training about three times most weeks. The claimant reported that she began to engage in reckless behaviour. She stated she had been caught “shop-lifting” by security staff. She attended her local court. She took responsibility and paid a $600 fine for this offence. The claimant reported she suffered from angry verbal arguments with her mother. Her mother applied for an apprehended violence order restraining the claimant from entering the family home. Her mother would provide the claimant with food and her father would check on her wellbeing most days.
The claimant reported she developed chronic pain in her neck and shoulders. She reported that she found no relief from the use of Endone or other analgesics. She reported that she commenced smoking heroin in an attempt to control her pain. She recommenced her smoking of cannabis to reduce her anxiety, induce sleep and stop her intrusive distressing memories about the motor accident.
The claimant’s mental state relapsed. She was admitted to psychiatric hospital during 2020. She reported that she remained in Liverpool Hospital for about 10 days. She did not return to hospital after this brief admission. She had suffered from a drug induced psychosis that resolved with treatment and absence from her drug of choice, cannabis.
The claimant stated that as part of her attempt to stabilise her emotions, she “took the scarf” for the first time in her life (meaning that she began to wear a head scarf on a daily basis) and began to recover from her illicit substance use again. This act was to demonstrate her ongoing commitment to her family and herself to maximise her recovery.
The claimant reported that she then attended Dr Needham at Revesby. He became her NSW Government registered prescriber of Suboxone and commenced treating her dependence on heroin and cannabis. The claimant had attended Bankstown Hospital and took her Suboxone daily from this clinic. She reported that her maximum dose of Suboxone was 14mg daily. She was weaned off this medication and had ceased her use of heroin and cannabis for over 12 months at the time of this assessment.
The claimant reported that she had utilised the victims support counsellor provided by the Department of Justice in relation to the domestic violence she had experienced prior to the motor accident in 2019. The claimant last spoke to her psychologist Ms Amena Ahmed in about February 2023.
The claimant had travelled on her father’s request internationally to meet her new husband via arrangement in Saudi Arabia. She married under Shia law and is waiting on her husband’s arrival in Australia to formalise the marriage under Australian law.
The claimant had been treated for her physical injuries and was assessed by the physical injury assessors prior to this assessment. She did not report using ongoing physical treatments and her discomfort had not stopped her travel overseas as requested by her father.

Details of any relevant injuries or conditions sustained since the motor accident

Nil.

Current and proposed treatment

The claimant had ceased treatment prior to this assessment. She preferred to isolate herself from her community and family in her own granny flat at the time of this assessment. She last spoke to her psychologist in about February 2023. She had been heroin and cannabis free for over 12 months. She did not have any psychiatric or psychological treatment planned with her GP at the time of this assessment.

Clinical examination

Mental state examination

The claimant was seated alone in her granny flat. She was assessed by videoconference. She wore a scarf. The folding of the scarf was correct with detailed pinning at appropriate sites. The claimant’s clothing and scarf were clean.
The claimant was anxious and irritable during the initial part of the assessment. Rapport was difficult to establish and required active maintenance throughout the assessment to enable to claimant to speak about her experiences of a personal traumatic nature. She spoke slowly and deliberately.
When asked about her illicit substance use, she was initially angry and stated, “I have no need when I’m able to settle myself with my husband. He is the best psychologist I have ever had.”
The claimant reported a sullen mood whilst waiting for her husband’s arrival in Australia.
The claimant spoke about texting him many times each day. They have a video conference once each week.
The claimant was orientated in time, place and person. She complained of difficulty concentrating for long periods and was unable to cook from a recipe for herself. She did little in her granny flat and read only short text messages from her husband.
The claimant was labile in her affect and had an angry outburst during the assessment. She was not suffering from any self-harm ideas or plans. Her judgment was normal and her insight was normal. She did not report any psychotic symptoms or delusions.

Current functioning

The claimant’s current functioning was as follows:

Selfcare and personal hygiene

The claimant relied on her mother to cook food for her most days. She reported that she could do small light cleaning in her granny flat as she was the only person living in this space. She did maintain her own laundry and clothing. She did not contribute to the garden, lawn or daily activities inside the parental home from which she was excluded.

Recreation and social activities

The claimant reported her main interactive activity she engaged in was texting and messaging her husband.
She did not watch television programs. She did watch TikTok short videos.

Travel

The claimant reported she was able to travel overseas to unfamiliar locations as she had prior to the motor accident.

Social

The claimant reported a complex social relationship with her mother. She reported that she was closer to her father. The apprehended violence order to protect her mother, father and grandfather was still active at the time of this assessment. The claimant had been able to form a new relationship with her husband. She remained hopeful and was expecting his arrival in Australia in the foreseeable future.

Concentration, persistence and pace

The claimant reported she could not read or speak Arabic. She said she did not read the English version of the Koran as her concentration was poor. She could write and read text messages she shared between herself and her husband in English. She could watch TikTok short videos. She could not cook from a recipe.

Adaptation

The claimant had not had any work rehabilitation. She spent her time alone in her granny flat texting her husband. She had been able to enter sustained absence from her cannabis and heroin use. Her capacity to interact with her extended family was markedly restricted.

Comments of consistency

The claimant’s presentation was consistent with the clinical records forwarded from the treatment services who had attended the claimant. The claimant was asked why she had not provided some aspects of her history to other assessors. The claimant reported she felt shame. She reported that her shame was preventing her talking about the childhood sexual abuse, sexual assault and domestic violence as well as her use of illicit substances, and criminal history of shop lifting.

Current symptoms

The claimant’s current symptoms of post-traumatic stress disorder exacerbated by the motor accident are listed in bold.
Posttraumatic Stress Disorder DSM5TR code F43.10.
A.      Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1. Directly experiencing the traumatic event(s).
As evidenced by the claimant being exposed to childhood sexual abuse, and subsequently a sexual assault as a 19-year-old woman and then domestic violence perpetrated against her prior to the motor accident and having the immediate thought that she would be severely injured again due to a truck crashing into her at the time of the motor accident.
2. Witnessing, in person, the event(s) as it occurred to others.
3. Learning that the traumatic event(s) occurred to a close family member or close friend. in cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
B.      Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
As evidenced by the claimant’s report of intrusive distressing memories of the motor accident and early incident of trauma in her life since the motor accident.
2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
3. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring.
4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C.      Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
As evidenced by the claimant reporting wishing to avoid thinking about the motor accident and consequences since the motor accident with loss of her career as a dental hygienist.
2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
As evidenced by the claimant avoiding the roundabout and using her alternate route from the family home.
D.      Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., "I am bad," "No one can be trusted," "The world is completely dangerous," "My whole nervous system is permanently ruined").
As evidenced by the claimant ruminating and becoming angry when talking about the NSW police, whom she believed wanted to blame her for the accident and that others cannot be trusted.
3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
As evidenced by her angry outbursts and arguments with her mother that had resulted in an active apprehended violence order being taken by her mother to restrain the claimant from entering the parental home. The claimant reported she was still restrained from entering the parental home at the time of this assessment.
5. Markedly diminished interest or participation in significant activities.
6. Feelings of detachment or estrangement from others.
7. Persistent inability to experience positive emotions (e.g. inability to experience happiness, satisfaction, or loving feelings).
E.      Marked alterations in arousal and reactivity associated with the traumatic beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Irritable behaviour and angry outbursts (with little or no expressed as verbal or physical aggression toward people or objects.
As evidenced by angry verbal arguments and the ongoing apprehended violence order between the claimant and her mother.
2. Reckless or self-destructive behaviour.
As evidenced shop-lifting and the prolonged local court case with a fine of $600, as well as substance use to try and reduce her posttraumatic stress disorder symptoms.
3. Hypervigilance.
4. Exaggerated startle response.
As evidenced by avoidance of places where she might experience loud unexpected noise causing her to have an exacerbated startle response and panic attack.
5. Problems with concentration.
As evidence by her reduced capacity to cook her own meals and reliance on her mother to bring her food most days.
6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
As evidenced by her frequent waking in the middle of the night to message her Sharia law husband in Saudi Arabia.
F.      Duration of the disturbance (Criteria B, D, and E) is more than 1 month.
The claimant continued to experience this disturbance and manages her psychological injury by spending most of her day alone in her own granny flat in the back yard of the family home.
G.     The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The claimant had not been able to return to her prior role as a dental hygienist that she had been successful at with working full time hours prior to the motor accident.
H.      The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
The claimant’s use of heroin and cannabis had been treated and ceased for over 12 months prior to this assessment whilst the claimant remained symptomatic from her psychological injury at the time of the assessment.

Diagnosis and reasons

The Panel is of the opinion that the best diagnosis that provided a complete understanding of the claimant’s psychological injury sustained in the motor accident was an exacerbation of her posttraumatic stress disorder.
The claimant provided a complex history of posttraumatic stress disorder which had waxed and waned throughout her teenage years until her initial treatment with the victims support psychologist prior to the motor accident.
The claimant’s presentation to hospital at various times with her diagnoses as suffering from drug induced psychosis had been treated by Dr Needham and his withdrawal of the claimant from both heroin and cannabis, prior to this assessment. The claimant had remained in a sustained remission of both heroin and cannabis for over twelve months prior to this assessment. This report is likely to be correct as she had travelled internationally in 2023 to meet, marry and honeymoon with her new husband in Saudi Arabia prior to returning to Australia.
The Panel accepts that the motor accident exacerbated the claimant’s pre-existing post-traumatic stress disorder. The claimant was working fulltime hours, had completed two bachelor’s degrees and was independent in her daily functioning prior to the motor accident.
After the motor accident, the claimant had suffered from a marked exacerbation of her post-traumatic stress disorder symptoms and use of illicit substances. She was readmitted to Liverpool Hospital. The claimant’s stabilisation of this psychological injury caused by the motor accident began after her discharge from Liverpool Hospital. She had entered a sustained remission from her illicit substance use.
Whilst the claimant had made some improvements in her level of functioning she had not returned to her pre-accident level of function at the time of this assessment.

Causation and reasons

Her post-traumatic stress disorder was not caused by the motor accident. It predates the accident and had developed in the context of childhood sexual abuse, subsequent sexual assault and domestic violence.
The exacerbation of her post-traumatic stress disorder was caused by the motor accident.
The claimant had worked for many years to improve herself. She had completed two bachelor’s degrees. She had worked as a dental hygienist full time. She had become independent in her living and separated from her domestically violent partner. The trauma experienced by the claimant of child sexual abuse, subsequent sexual assault and domestic violence are all known to cause post-traumatic stress disorder. The history of illicit substance use is common in patients attempting to manage their post-traumatic stress disorder symptoms. Whilst the claimant was not completely symptom free from her post-traumatic stress disorder prior to the motor accident, her high level of sustained functioning had been achieved after many years of the claimant working on her self-improvement and independence.
The experience of seeing the truck advancing with the claimant’s initial thoughts that she would be severely injured again did, on the balance of probabilities cause an exacerbation of posttraumatic stress disorder as other episodes of trauma had prior to the motor accident in the claimant’s pre-existing history.
The Panel’s finding was that this motor accident did cause the exacerbation of the claimant’s post-traumatic stress disorder with marked loss of activity of daily functioning. The psychological injury caused by the motor accident had not recovered prior to the assessment by the Panel.
The Panel accepts the frightening nature of the subject motor accident. The Panel notes the evidence and history demonstrates a material worsening of the claimant’s activity of daily functioning due to the subject motor accident. The subject motor accident did exacerbate the claimant’s post-traumatic stress disorder.
The definition of injury is set out in s 1.4 of the MAI Act. It includes “psychological or psychiatric injury.”
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.[2]
[2] Briggs v IAG Ltd [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines provides:
“Causation means that a physical, chemical or biological 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 judgment.
Accordingly, the Panel accepts that the worsening of a pre-existing condition constitutes an injury for the purposes of the MAI Act.
Clause 6.7 of the Guidelines provides:
“There 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.”
For the reasons expressed above, the Panel finds that the worsening of the post-traumatic stress disorder constitutes an injury for the purposes of the MAI Act.
With reference to Part 1, cl 4 of the Regulation, such injury is not an acute stress disorder and not an adjustment disorder. Accordingly, the exacerbation caused by the motor accident of the post-traumatic stress disorder is a non-threshold injury for the purposes of the MAI Act.

FINDINGS

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[3] and Insurance Australia Ltd v Marsh.[4]
[3] [2021] NSWCA 287 at [40], [41] and [45].
[4] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination and specific findings pertaining to diagnosis.
The Panel finds that the claimant suffers an exacerbation of post-traumatic stress disorder as a result of the accident and that this condition is not a threshold injury for the purposes of the MAI Act.

CONCLUSION

The following injuries WERE caused by the motor accident:
· Exacerbation of Posttraumatic stress disorder DSM5TR F43.10
The following injury is not a threshold injury:
· Exacerbation of Posttraumatic stress disorder DSM5TR F43.10.

[2024] NSWPICMP 141

8 March 2024