Minna v AAI Ltd t/as GIO
[2025] NSWPICMP 457
•26 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Minna v AAI Ltd t/as GIO [2025] NSWPICMP 457 |
CLAIMANT: | Minna |
INSURER: | AAI Ltd t/as GIO |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Dr Michael Hong |
MEDICAL ASSESSOR: | Dr Matthew Jones |
DATE OF DECISION: | 26 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of treatment and care; causation; exacerbation of persistent depressive disorder; threshold injury; prior back injury; multiple medical issues; proposed surgical procedures; lengthy history of psychological and psychiatric difficulties; no ongoing psychiatric or psychological treatment; long history of depressive and anxious symptoms; chronic adjustment disorder related to long-standing pain and various psychosocial stressors; symptoms not consistent with a more pervasive mood disorder or anxiety disorder; no recognised psychiatric illness; exacerbation of depressive disorder; eight sessions of psychological therapy did arise because of the aggravation of symptoms; Held – therapy entirely appropriate for the symptoms which developed; psychological therapy considered reasonable and necessary; MAC revoked. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Samson Roberts dated 27 November 2023. 2. The following injury caused by the motor accident: · exacerbation of persistent depressive disorder is a threshold injury for the purposes of the Act. 3. The following treatment and care relates to the injury caused by the motor accident: · Medical Assessor Samson Roberts also certified that the psychological treatment (including counselling) relates to the injury caused by the motor accident is reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Mary Minna (the claimant) is a 55-year-old woman who was injured in a motor vehicle accident on 24 August 2020. She was a passenger in a motor vehicle which was struck in the rear by the insured’s driver. Following the accident the claimant lodged an Application for Personal Injury Benefits and thereafter sought a concession from the insurer that she had sustained non-threshold injuries. Following a review the insurer declined to make this concession and consequently the claimant lodged an Application for Assessment of Threshold Injury.
The claimant was examined by Medical Assessor Jonathan Herald on 20 October 2022 in respect to the soft tissue injuries to her cervical spine, lumbar spine and both shoulders. In a certificate dated 16 December 2022 Medical Assessor Jonathan Herald determined that the claimant sustained a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (the Act).
Following this, the claimant lodged an Application for an Assessment of Treatment and Care in respect to what was described as psychiatric condition – chronic psychiatric condition. The claimant was examined by Medical Assessor Samson Roberts on 28 September 2023 who, in a certificate dated 27 November 2023 determined that she had sustained a non-threshold injury being exacerbation of persistent depressive disorder.
The insurer sought a review of this determination and, in a certificate dated 8 February 2024, the President’s delegate Stephanie Wigan, determined that she was satisfied that there is a reasonable cause to suspect that the medical assessment of Medical Assessor Samson Roberts was incorrect in a material way. Consequently, the matter was referred to this Medical Review Panel.
On 11 February 2025 directions were issued to the parties in respect to the provision of all material which was before Medical Assessor Samson Roberts. This material has now been uploaded to the portal.
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 the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The Medical Assessors examined Ms Minna via audio-visual link through the MS Teams platform, organised by the Commission. Present for the assessment were Ms Mary Minna, Dr Michael Hong and Dr Matthew Jones. Ms Minna was in her home and Drs Hong and Jones were in their respective rooms.
INTRODUCTION
Ms Minna is a 56-year-old woman who lives in rental accommodation in Oran Park in Western Sydney. She has lived there for two or three years. She lives there with her son, George, aged 31, who previously worked, however was injured at work and is currently waiting for surgery. Ms Minna reports he is in a lot of pain.
Ms Minna has two other children; a daughter who was married with children and lives in Merrylands, and a son who is younger, married and lives in Middleton Grange.
Ms Minna has two grandchildren, aged 10 and 8, who are well. Ms Minna does not get to see her grandchildren as there are some family problems. She reported that her daughter has divorced and now is with another man, and Ms Minna does not get on with him.
Ms Minna was married to the father of her three children until 1990. She declared that she had “not really” had a partner since then.
Ms Minna is not currently working and receives Centrelink benefits in the form of the Disability Support Pension, which she has received since 1997 or 1998. She said that the Disability Support Pension is provided because of back problems she had involving two intervertebral discs. The Medical Assessors asked Ms Minna if she had worked since receiving the Disability Support Pension and she responded that she had, in childcare, something she has done on occasion, casually. She said she has not performed much childcare work, however. The last time Ms Minna did childcare work was two or three years before the assessment for a few hours in a childcare centre.
The Medical Assessors asked if she would be able to work in childcare now and she said that she is unable to, because “it’s hard.” She has problems with her back, shoulder and neck and ongoing pain.
HISTORY OF THE MOTOR ACCIDENT
Ms Minna confirmed the date of accident was 24 August 2020. She reported she was in the car with her daughter and there was to be a meeting at the school about her grandchildren. They were in a school zone, her daughter tried to park the vehicle, and another car hit them from behind. Ms Minna reported she felt the impact in her back and neck, and she also felt a sensation of shock. She remembers being scared and that the accident happened very suddenly.
Ms Minna’s daughter spoke to the other driver. Ms Minna’s daughter’s car was damaged and scratched, her daughter tried to obtain the other driver’s details, and the other driver was abusive and told her daughter that the accident was her fault. The other driver said that he was going to get his licence from the car, however he did not want to give over his details, and he drove away from the scene. Ms Minna took a photograph of the vehicle.
Ms Minna’s daughter called the ambulance and police. She said two ambulances arrived, one for her daughter and one for her, and they were taken to Auburn Hospital. She was taken first as she was in a lot of pain and her heart rate was increased.
Ms Minna reported that she was discharged from Auburn Hospital on the night of the accident. The accident occurred around 2.30pm.
Ms Minna reported that later, police came to her daughter’s home to take a statement and ultimately the police went to talk to the other driver. The accident was described as “a hit and run.” Ms Minna reported ultimately the car was repaired and not written off.
HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT
Ms Minna underwent X-rays and an MRI scan. These showed no fractured bones. She reported she had felt a lot of pain since then. Ms Minna underwent physiotherapy and also was taking painkillers. She reiterated that she still has a lot of pain. She has an ache from her neck to her head and there are times when she is unable to move her neck or her back.
Ms Minna estimated she saw a physiotherapist for about ten sessions and then this treatment ceased.
Ms Minna reported that she developed a lot of unrelated health problems after the accident (which occurred approximately five years ago). She said she had problems with her heart after her heart rate increased. She was asked to see a cardiologist during COVID. She ultimately had a pacemaker inserted surgically. She said that her cardiologist has informed her that she needs more surgery (some form of ablation) and she is on a waiting list for this.
Ms Minna also reported she developed a blot clot in her leg in 2021, and she still takes a blood thinner for this.
Ms Minna also reported that since the accident she has had problems with constipation. Two weeks before the Review Panel assessment she saw a specialist who wanted her to have some surgery. She reported that four years ago, in 2021, she had some surgery on haemorrhoids and these are coming back. She denied any other significant medical or surgical problems since the motor vehicle accident and declared she was “too young for all of this.”
CURRENT TREATMENT
Ms Minna takes medications to slow her heartrate. She also takes blood thinners. She sometimes takes painkillers, including Voltaren, for her neck and back. She reported that her cardiologist had asked her to lose weight to assist in managing her heart, and she has been receiving an injection for weight loss since September 2024. She reported she currently weighs around 88kg and was weighing 98kg before starting the injections. She said her cardiologist is happy with her progress. (Her height is 165cm, therefore her current body mass index (BMI) is approximately 32, which is considered mildly obese.)
Ms Minna also reported that a few weeks before the Review Panel assessment she was unable to move her neck, and the pain was coming from her back, and she had headaches. She was prescribed a muscle relaxant.
With respect to her previous medical history, Ms Minna denied any history of thyroid disease or diabetes. She said she had her appendix and tonsils out prior to having moved from Egypt. She denied any other operations or medications previously.
ONGOING PROBLEMS RELATED TO THE MOTOR VEHICLE ACCIDENT
Ms Minna reported her main physical problems relate to pain in her back, especially lower back pain. She also has pain in her neck and gets headaches. She said when she is sitting down or driving, the pain in her lower back goes up to her neck. She said this limits how far she can drive. She is also limited in other activities such as cleaning her house, washing and cooking. She said she is trying to do all these activities but cannot do them in the same period of time as previously. She said this is particularly a problem as she is also essentially caring for her son at present. She said sometimes her friends and neighbours assist in these domestic activities.
Ms Minna reported that she is unable to do childcare work as she did previously, because of pain. She mostly spends her time lying down which she finds is good for her back. She said her pain interferes with her sleep and she has difficulties moving from side to side and her “back feels too heavy.” Ms Minna reported her pain is present “all the time.” She has not seen a pain specialist or been referred to a pain clinic.
The Medical Assessors asked her what would be different in her life if she had no pain and she said that she would be happy in her life, she would move around more, go out, spend time with her friends, and she would be looking for work. She said she would “live a better life.” She remembers the life before she was married and stated it was different, and she was very active. She said when she looks at photographs and talks to her friends about the past, she said “those days are gone.” She remembers time with her friends, her cousins and her old friends, and said she would like to go back to being 19 years old.
The Medical Assessors asked how her back pain was now compared to when she started receiving the Disability Support Pension and she responded that she thought it was the same. She said her pain is coming back and feels similar to when she had back surgery previously. She reported she had surgery in 1997 on two discs in her lower back. She said she might need further surgery, but then said she has not been told that she needs surgery now.
SUBSTANCE USE HISTORY
Ms Minna has no history of alcohol ingestion or recreational drug ingestion. She does not ingest tobacco, nor has she been addicted to prescription medications. She has no problematic gambling history and does not ingest excessive caffeine. She previously would like to drink coffee and tea but said now coffee makes her blood pressure go low.
PSYCHIATRIC HISTORY
Ms Minna reported that she was prescribed Zoloft (sertraline), an antidepressant, in 1997. She said at the time she did not like it, and it made her drowsy. When asked why she was put on this, she responded that she was very upset, stressed and not happy and had just come to Australia and “had a plan.” She said her dream was not happening and “everything was destroyed.” She said in 1997 she slipped down some stairs.
The Medical Assessors asked Ms Minna if she had received any other treatment for her mental health problems over the years and, initially, she responded “no.” When asked whether she had seen a psychologist or a psychiatrist over the years she said she thought she saw a psychologist due to a previous motor vehicle accident. That accident, she confirmed, was 20 September 2017. She reported that she had been going to work in childcare and was at a red traffic light and her car was stopped, when a truck reversed into her. She said the truck hit the front of her car. She remembers honking her horn consistently. She said she remembers being “very, very scared” when she saw the truck. She had a feeling at the time that the truck was going to kill her.
The Medical Assessors asked if there were any physical injuries related to this 2017 motor vehicle accident, and she responded in the affirmative. She said she had “the same problem” with her back and neck. She went to the hospital on the same day. When asked if she had any mental health problems from that accident she responded in the affirmative. She said she had dreams, nightmares of the accident and would see “lights in the street.” She would dream of the accident happening again. She remembers her general practitioner referred her to see a psychologist, Navim, and she is not sure how many times she saw him. She does not believe she was prescribed psychiatric medications. The assessors asked if this was a compensation case and she responded in the affirmative. She received a final payout and the case was “finished.” She reported that this occurred about a year or a year and a half after the accident (and before the subject accident). She denied any experience of any other motor vehicle accidents.
DOCUMENT REVIEW
The claimant has a lengthy history of psychological and psychiatric difficulties and symptoms. In addition to undergoing a lumbar spinal fusion on 22 September 2017 and gastric sleeve surgery on 6 June 2017 she has a lengthy history of depression in particular from 2014.
The claimant’s general practitioner’s records confirm complaints of significant back pain in December 2014. She was provided with a mental health plan with the diagnosis of depression and anxiety. A further mental health plan was developed in August 2016.
Following a motor vehicle accident in September 2017 the claimant presented with anxiety and post-traumatic stress disorder and was referred to a psychiatrist for treatment. The claimant’s records persist in noting a diagnosis of stress and depression throughout 2018.
The claimant was involved in a further motor vehicle accident on 16 July 2018 and was diagnosed with depression.
MENTAL HEALTH PROBLEMS FROM THE SUBJECT MOTOR VEHICLE ACCIDENT
The Medical Assessors asked Ms Minna if she believed she had any mental health problems from the accident in 2020. She responded that it had been a long time since the accident, almost five years. She remembers that it was around the time of Corona Virus, and she knows that she has had medical problems since. She said it was a hard time for her, and she was having difficulty managing all of the various problems including her heart problems and surgery. She said that she was not in a good mood most of the time, she felt lonely and would cry at times, there was no one around and she had no family here. She reported she sometimes could not sleep because of pain and thinking about all of the losses in her life. She said she was not as active as she was previously including doing less housework.
Ms Minna was asked if there were any other problems emanating from the subject accident and she said that she sometimes had nightmares and sometimes she could not sleep. She would sometimes fall asleep, then wake-up, and she would sometimes feel tired. She said she would sometimes sleep in the daytime if she was tired, and in general she felt a lot of pain all over her body.
Ms Minna reported she had not seen a psychologist or a psychiatrist following this motor vehicle accident. She reported that the insurance company told her that she had had enough treatment and there was to be no more. When asked if she thought that she needed to see a psychologist or psychiatrist she responded that she did not know whether it was important. She said nothing happened with respect to that treatment and she did not know what to do.
Ms Minna referred to “the stress and the pain.” She said she sometimes cries. She referred to long term issues including that she had had a lot of problems with her ex-husband, and raising three children on her own was very hard. She said she had grown-up in a good family and had come to Australia with her ex-husband and three children; however, he and his family treated her very badly. This was from soon after arriving. His family involved his mother, two sisters and two brothers. Ms Minna commented that her ex-husband’s sister taught him how to gamble and then he became violent.
CURRENT FUNCTIONING
The Medical Assessors asked Ms Minna how she passes time, and she said she will wake-up, have a small breakfast, so that she can take her medications, and then she will lie down again. She said she does some cooking during the day and that sometimes her son will bring food from outside the house. She reported she may put some washing in the washing machine, but it depends on how she is feeling. She sometimes goes to the shop, which is three to five minutes’ drive away, if she feels better. She said she is in a lot of pain every day and she is scared because driving makes her pain worse. She said sometimes her children will take her out. She reported she does not like driving at night because she is scared. She said if her son drives and she is a passenger, she still has pain, however she is not concentrating on driving, just on her pain and herself.
Ms Minna reported she is able to shower and dress herself. She had her hair cut because she had difficulties tending to her longer hair. She said when she lifts her arms up, her shoulders become painful.
Ms Minna reported she will spend time looking at things on her phone. She will watch church-related programs, and listen to hymns, speeches from the priest or the Egyptian Orthodox Pope. She reported she is of Coptic Orthodox faith and will sometimes go to Mass. She commented that “Easter was very nice this year” as it coincided for a number of different religious denominations.
Ms Minna said the Coptic church which she attends is not far away and her children will take her sometimes. She said she is unable to drive at nighttime and sometimes people from the community will come and take her to church. She cannot drive at night because of the lights from cars in front of her, as well as the pain in her back. She said she has problems with her eyes and her glasses do not seem to help. She also said she is scared to have another accident because she is unable to see where she is driving. She said she is careful when she is driving and is a good driver in the daytime. She reported she has never had an accident that has been her fault.
Ms Minna reported she has no other family members here and they are all in Egypt and she misses them greatly. Not all of her family members in Egypt have the internet or they are busy. She will ask her brother how everyone else is. She commented that the last time she went to Egypt in 2018 made a big difference to her and even “the way [she] looked”. She said she is happier when she goes to Egypt. She reported she would love to go back to Egypt to see her family, however it is a long distance, and she does not have the money.
The Medical Assessors asked Ms Minna if she had made many friends in Australia and she said, “not too many.” She has no close friends currently. She does not like to interact with her friends at the church because they will talk about everything that has occurred between her and her husband and his family. She gets upset when this happens.
MENTAL STATE EXAMINATION
Ms Minna was a female of Middle Eastern appearance who appeared somewhat overweight. She wore a blue cotton knit jumper. She had dark hair, which was tied up, and neat short fingernails. She was polite, cooperative and attentive and displayed no abnormal movements. Her speech was normal, with an accent, and there was no evidence of formal thought disorder or delusional thought processes. She denied any thoughts of self-harm or thoughts of harm to others, declaring that she has faith.
Her mood was described as tense, and she said she was not happy to stay at home. She said she likes to go out with friends, have a coffee or go for a walk. Ms Minna’s affect (expressed emotion) was generally pained, and she appeared somewhat low in mood. Otherwise, her affect was reactive, congruent and appropriate. There was no evidence any perceptual abnormalities consistent with psychosis. Her cognition, insight and judgement appeared intact in the context of the assessment. Rapport was good and Ms Minna spoke openly and freely.
The Medical Assessors attempted to ascertain the impact of the subject motor vehicle accident, given previous accident and multiple other psychosocial and medical problems that Ms Minna had experienced. Ms Minna had told Dr Roberts in the original Commission certificate that she had become well between 2017 and 2020. On clarification, she said during that time she still had a lot of pain, but it would come and go. She said after the subject accident she had “a lot of pain.”
The Medical Assessors asked her about her mental health before the 2020 accident and she responded that her pain had settled down, it had gone and then it came back. She described herself a “not one hundred percent well, but not one-hundred percent unwell.” The Medical Assessors attempted to ascertain any differences between her experience of depression and anxiety before the 2020 accident and afterwards, and she responded that she still experienced depression and anxiety after the subject accident. She said that after the second accident it was worse and this was because the accident had happened, she felt more pain, she felt more stressed, she felt more unhappy, and she was not active like before.
The assessors pointed out that in 2018 Ms Minna self-reported a score of 50/50 on K-10 assessment (indicating maximally severe mental distress). She referred to the fact that in 2018 she was in fact happy and went overseas and that she was active, she had surgery, and she lost weight. She recounted going to Jerusalem and Egypt in April 2018 and she was happy. She remembers that she was happy to see her family.
Ms Minna did not have a clear memory of some details of her history, for example having seen a psychologist, Medhat Metry, 14 years before the Review Panel assessment, but she said she may have gone. She had no clear memory of why she went to see a psychiatrist, Dr Ashraf Philips, but said that it may have been about family problems. She confirmed that she had had family problems from 1997 until now and that these problems persist.
Ms Minna reported she did see a counsellor at Liverpool through Women’s Health, with whom she talked about all these family problems. She said there was a problem in 2003 when her ex-husband’s girlfriend stabbed her when she was at church. She lamented, “Every time there is some problem.” When the Medical Assessors asked her about seeing a psychiatrist or being prescribed Citalopram, she commented that it was “every time [she] find him with a different woman.” She went on to say that she was trying to live her life, but she had “all these problems.” She said she had “too many things.”
CONCLUSION
Ms Minna reported a narrative and presented at assessment as consistent with having longstanding mental health problems with a long history of depressive and anxious symptoms dating back to at least 1997. She has seen psychologists at various times, psychiatrists at various times and been prescribed antidepressants at various times, over the years. She had a significant back injury requiring surgery and causing longstanding back pain. She has had longstanding difficulties stemming from her marriage and her divorce. These problems appear to still cause her stress. She had a previous motor vehicle accident in 2017, which caused both physical and psychological problems.
The subject motor vehicle accident in 2020 appears to have exacerbated her pain and physical difficulties, as well as added to, and exacerbated, her longstanding mental health problems. She also reported that she subsequently had challenges with cardiac symptoms requiring a pacemaker insertion, deep venous thrombosis, as well as problems with constipation and haemorrhoids. Ms Minna is not currently seeing a psychologist or taking any psychiatric medications. She reported significant ongoing pain and physical limitations.
Taking into account all factors, the Medical Assessors considered that Ms Minna, and this was supported by the available documentation, had experienced a Chronic Adjustment Disorder related to longstanding pain and various psychosocial stressors, that was exacerbated by the effect of the subject motor vehicle accident and her subsequent ongoing pain and physical limitations. There is a variability in the reactivity to Ms Minna’s symptoms that is not consistent with a more pervasive mood disorder or anxiety disorder. The differential diagnosis is that there is no recognised psychiatric illness, but rather Ms Minna responding to, and reacting to, her various life experiences in the context of her personality and history. In either case, it would be considered a threshold injury within the meaning of the guidelines in the Act.
The Review Panel has concluded that the psychological condition described as exacerbation of depressive disorder, is a threshold injury.
With respect to the treatment dispute, the Review Panel found that Ms Minna developed an exacerbation of a Chronic Adjustment Disorder due to the motor vehicle accident. The dispute is in relation to whether the need for eight sessions of psychological therapy was caused by the accident, and whether this treatment was reasonable and necessary in the circumstances. The Review Panel concluded that the need for psychological treatment did arise because of an aggravation of symptoms, caused by the motor accident. Eight sessions of psychological therapy is entirely appropriate treatment for the symptoms which developed. The Review Panel found that eight sessions of psychological therapy are reasonable and necessary treatment in the circumstances.
DETERMINATIONS – TREATMENT
Treatment and care – causation
The need for additional treatment to address the deterioration of the pre-existing condition arose as a result of the motor accident.
Treatment and Care – reasonable and necessary
The proposed treatment represented evidence-based treatment suitable for the clinical management of the diagnosed condition.
CONCLUSION – TREATMENT
The following treatment and care relates to the injuries caused by the motor accident:
· psychological treatment (including counselling) is causally related to the injury sustained in the subject accident.
The following treatment and care is reasonable and necessary in the circumstances:
· psychological treatment (including counselling):
treatment start date: 5 May 2023, and
treatment end date: 5 July 2023
is reasonable and necessary in relation to the injury sustained in the subject accident.
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