Moussa v Allianz Australia Insurance Limited
[2025] NSWPICMP 101
•19 February 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Moussa v Allianz Australia Insurance Limited [2025] NSWPICMP 101 |
| CLAIMANT: | Youssef Moussa |
| INSURER: | Allianz Insurance Australia Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Christopher Canaris |
| DATE OF DECISION: | 19 February 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 10 March 2021; rear end collision causing contact with third vehicle; claimant re-examined; claimant worked as an electrician in his business; loss of capacity due to chronic pain caused financial issues resulting in loss of business; claimant re-examined; finding that chronic pain caused loss of capacity and failure of his business resulting in financial stress; inability to support family causing major depressive disorder; observations that claimant succeeded on findings of original Medical Assessor who made similar findings but incorrectly applied the test of causation; Held – motor accident caused major depressive disorder; original Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 7 June 2023 and certifies that the psychological injury caused by the motor accident is a not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Mr Youssef Moussa (the claimant) suffered injury in a motor vehicle accident on
10 March 2021 when the insured vehicle collided with the claimant’s vehicle pushing the vehicle into another car (the motor accident).[1][1] Claimant’s bundle, p 20.
Allianz Australia Insurance Ltd insured the owner and driver of the other motor vehicle for liability to pay Mr Moussa any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Mr Moussa’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Fukui who issued a Medical Assessment Certificate dated 7 June 2023 (the medical assessment).[3] Medical Assessor Fukui concluded that the motor accident did not cause a psychological injury.
[3] Insurer’s bundle, p 5.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[4] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
Statutory amendment
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
REASONS OF MEDICAL ASSESSOR
In respect of diagnosis, the Medical Assessor stated:
“Mr Moussa was involved in a motor accident in March 2021 following which he has been limited in his capacity to return to full time work as an electrician. He described experiencing constant ruminations and worry about his health and his inability to fully support his family and experienced anxiety being in a car. He had to resume working after six months off work and has been struggling to return to full time work due to his pain condition. Consequently, he has suffered significant financial constraints which has had a significant adverse impact on his mental health.”
The Medical Assessor concluded that the claimant suffered from anxiety and depression which was not caused by the motor accident. The Medical Assessor provided the following reasons on causation of the psychological condition:[6]
“Mr Moussa’s depressive symptoms emerged after he started experiencing significant financial stress as a result of not being able to work full time as an electrician. His depressive symptoms and ruminations revolve around his sense of worthlessness due to not being the provider and “the man” that he feels he should be for his family. It is my opinion that his Major Depressive Disorder is secondary to the psychosocial stressors from a loss of income as well as a change in lifestyle that he has had to make for himself and his family and the impact of chronic pain condition. It is therefore my opinion that his Major Depressive Disorder is not causally related to the motor accident.”
[6] Insurer’s bundle, p 19, para 18.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical 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.[7]
[7] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[8] 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.[9]
[9] 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.[10]
[10] Rule 128 of the PIC Rules.
The parties filed bundles of documents for the Panel’s consideration.
On 11 September 2024 the Panel issued the following direction:
“It is the Panel’s preliminary view that the Medical Assessor has applied an incorrect legal analysis on causation and the insurer’s submission supporting the assessment do not apply the correct test.
The insurer is on notice that, consistent with the findings of Medical Assessor Fukui and applying correct causation principles, the claimant was suffering from a Major Depressive Disorder caused by the motor accident.
Consistent with the principles discussed in Lynch v AAI Ltd [2022] NSWPICMP 6 at [70]-[73] we may find that that claimant has established that he was suffering from a psychological injury caused by the motor accident which was not a threshold injury.
The insurer can file any submissions in response to these preliminary observations by 20 September 2024.The claimant is to be medically examined by both Medical Assessors by Teams on 8 November 2024 at 3 pm.”
The insurer did not file any submissions in response to this direction. The lack of response is surprising as the insurer was disputing the claimant’s allegation that he suffered an injury which was not a threshold injury.
We otherwise note that this matter was delayed because the claimant failed to attend the medical examination organised in November 2024.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[11]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[11] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (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 threshold injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12] In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
Claimant’s submissions dated 22 June 2022[14]
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] [2021] NSWSC 13 (Raina) at [65].
[14] Claimant’s bundle, p 7.
The claimant submitted that the medical evidence established that he had sustained radiculopathy caused by the accident and a depressive disorder.
Claimant’s submissions dated 23 June 2023[15]
[15] Claimant’s bundle, p 1.
These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor found the psychological condition was caused by mutual stress, ruminations and a sense of worthlessness, stresses from loss of income and impact of chronic pain.
The claimant submitted that each of these factors arises as a consequence of the motor accident with no intervening events.
The claimant submitted that the Medical Assessor failed to apply the test of causation as set out in the Guidelines and “commonsense”.
Insurer’s submissions dated 8 August 2022[16]
[16] Insurer’s bundle, p 6.
These submissions addressed all injuries alleged to be caused by the motor accident. In respect of the psychological injury, the insurer submitted that there was “no evidence” that the claimant had sustained a non-minor psychological injury caused by the motor accident.
The insurer referred to the certificate of capacity which noted worsening depressive symptoms due to an inability to return to work in the referral reporting symptoms of stress and depression. The general practitioner (GP) diagnosed the claimant with an adjustment disorder with mixed anxiety and depressive symptoms which it considered to be a diagnosis of an adjustment disorder.
Insurer’s submissions dated 17 July 2023[17]
[17] Insurer’s bundle, p 2.
These submissions opposed leave to review the medical assessment. The insurer submitted that the Medical Assessor had provided a comprehensive certificate and addressed all relevant information.
The insurer submitted that there were multiple contributing causes to the development of the psychological condition and the Medical Assessor determined that “non accident related factors” were the cause of the claimant’s condition.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
There are no pre-accident medical records.
Medical evidence
A certificate of the GP dated 16 March 2021 noted the motor accident caused whiplash, left wrist sprain and possible cervical disc prolapse.[18] Subsequent certificates refer to the physical injuries.
[18] Claimant’s bundle, p 46.
The claimant completed a claim form dated 29 March 2021 when he asserted that the motor accident caused injuries to the neck, shoulder and back and the following psychological symptoms:[19]
“Difficulty driving post – accident.
Fear of being hit every time he drives.
Has become more cautious since the accident.
Bouts of anxiety.”
[19] Claimant’s bundle, p 20.
On 3 August 2021 the GP referred the claimant for assessment and counselling due to symptoms of stress and depression due to the motor accident.[20]
[20] Claimant’s bundle, p 75.
On 3 August 2021 the GP provided a certificate noting the claimant had “worsening depressive symptoms due to inability to return to work”.[21] That diagnosis was repeated in subsequent certificates.[22]
[21] Claimant’s bundle, p 78.
[22] Claimant’s bundle, p 81.
In a report dated 19 August 2021 the GP noted neck, left shoulder and left arm radicular symptoms following the motor accident. The doctor noted a report of depressive symptoms “due to his inability to return to work” and diagnosed an adjustment disorder with mixed depression and anxiety symptoms.[23]
[23] Claimant’s bundle, p 83.
In a report dated 25 October 2021 the GP noted that the claimant fulfilled the DSM V criteria for an adjustment disorder with mixed depressive and anxious symptoms.[24]
[24] Claimant’s bundle, p 86.
RE-EXAMINATION
Mr Moussa was examined by both Medical Assessors on 8 November 2024.
The medical examination findings of the Medical Assessors are:
“Who attended the assessment
The claimant (Mr Moussa) was re-examined alone with MS Teams. Assessor C. Cannaris and Assessor J. Baker were present for the re-examination.
Psychosocial history and pre-accident history
The claimant reported that prior to this motor accident on 10 March 2021 he was married and living with his wife and four children aged about 14, 10, 7 and 4 years. He worked in his own business as an electrician. He stated that he had reduced the size of his small business to have more time supporting his wife and children. He said he had been married for about 15 years before his wife separated from him because of his psychological injury caused by the motor accident. He said his ex-wife and four children live with his wife’s family. He said he was homeless since the family home was sold due to the claimant not been able to maintain the mortgage. The claimant moves between his sister’s, brother’s and stepmother’s homes sleeping on the sofa or in a spare bedroom.
The claimant stated that he completed his primary education in Greenacre in a private school he then transferred to Birrong Boys High School. He completed Year 10 before commencing his career as an electrician. He successfully completed his apprenticeship and commenced increasing the size of his business. He said he was successful in his small business.
The claimant reported that his father died in about 2009 his father was aged about 62 years when he died. The claimant reported that he was aware that his father suffered from Leukemia. He stated his father had been diagnosed for about 8 months prior to his death. The claimant said that his uncle was the best bone marrow match for his father. The plan was for his father to receive a bone marrow transplant. Unfortunately, the claimant’s uncle arrived too late. The claimant’s father died prior to this procedure.
The claimant reported that he had suffered from depressed mood and grief due to his father’s passing. The claimant reported that he took about 3 months off work. He was prescribed an antidepressant by his general practitioner. He was not referred to a clinical psychologist. The antidepressant was stopped within 2 weeks. The claimant did not report any benefit from the medication. The claimant’s depressed mood resolved with his normal grief.
The claimant’s business at that time had sufficient workers for the contracts to be completed and finalised without disruption to his income. After the claimant’s grief resolved he returned to his employment and continued his career as an electrician. The claimant on direct enquiry at the re-examination reported that whilst he did have a depressed mood the experience of losing his father was markedly different to this psychological injury because he was able to supervise and manage his business without difficulty whilst he provided himself time to resolve his grief within the year of his father’s passing.
The claimant reported that prior to the motor accident he would enjoy riding his bicycle and attending the gym most days. He also enjoyed playing soccer. He was also participated in social and family events. He enjoyed participating in school events as well as playing social soccer.
In about 2020 the claimant reported that he had surgery to his left eye lid. A few months later he had similar surgery to his right eye lid. He explained this was a protective procedure, so he did not injure his corneas. He had no complication for this surgery.
During 2017 he had a pericardial effusion. He said he had fluid around his heart and that he had seen a cardiologist as he had experienced chest pain. He did not know the reason for his ‘mild heart attack.’ The pericardial effusion resolved with treatment and the claimant had no complications from this event. He ceased smoking tobacco in about 2021. He does not drink alcohol. He denied any other substance use. He did not report been allergic to any substances or medication.
History of the motor accident
The claimant had been the sole occupant and driver in his car when the motor accident happened on 10 March 2021. He was returning home after having his car serviced. He said that whilst driving on Milperra Road he initially had a near miss. he had applied his brakes suddenly. He said that he was then hit from behind by the car behind. He was shunted into the vehicle in front of him. He said that he had he was able to begin exiting his car and he had on foot on the Tarago’s step when the car behind him was hit again by another car. This shunted the claimant’s Tarago again into the car in front. The claimant said he had a double impact, and he had suffered “whiplash to his neck” in the accident.
The claimant reported that initially he did not experience any pain. He said that the NSW Police attended the scene. The claimant did not attend hospital and called for an Uber to take him home. He said he told his wife about his neck, back and arm pain before retiring to sleep.
The claimant said he was restricted to bed for the next few days. He reported that he had pain in his neck and had difficulty walking. He did attend his general practitioner the next day and he was investigated for his neck and arm pain. He said that he was found to have a cervical spine intervertebral disk rupture.
History of symptoms and treatment following the motor accident
When the claimant arrived home, he noticed pain in his neck, back and both arms. His left arm was worse than the right. He reported his condition to his general practitioner the following day. He was initially prescribed analgesic medication, and he was investigated for his physical injury. The general practitioner referred the claimant for physiotherapy. The claimant attended about five times. Then his insurer provided a further six months of physiotherapy treatment. Whilst the claimant was recovering from his injury sustained in the motor accident, he became increasingly irritable and worried about his small business. He reported that his physical condition failed to improve, and he was increasingly depressed in his mood as his physical condition had failed to improve. He said that he had only a few contracts at the time of the motor accident as he was the sole worker for his small business. He said that he was unable to physically labour in his role as an electrician. He reported that he had difficulties raising his arms, pulling, poor hand grip, difficulty in looking up due to his poor neck extension as well as difficulty standing for long periods at a switch board. He said he tried to complete his contracts by employing another electrician. He returned to work with the support of physiotherapy and, after the physiotherapy was stopped by the insurer, he was unable to work, and the business failed. His brother paid for the claimant’s companies liquidation costs. The claimant has no outstanding debt outside of his immediate family providing him with a mobile telephone, board and lodging.
The claimant reported that his psychiatric and psychological symptoms commenced within the first few days after the motor accident. He reported that he had difficulty sleeping. He said he developed depressive ruminations about his health, his family and his failing business. He said that whilst he was receiving physiotherapy, he was able to work about 2 days per week in his role. When the physiotherapy was ceased, he was unable to work, and he became severely depressed in his mood. He said he had ruminating thoughts that he had failed his wife and children. His appetite became poor and his lost a large amount of weight, which he estimates as about 25 kgs. His energy level deteriorated, he felt worthless and hopeless.
At the time of this re-examination the claimant was asked why he did not seek some financial assistance from the Australian Government as he did not have any income protection, total or permanent disability insurance or superannuation. The claimant stated he felt shame when thinking about applying for Jobseeker allowance, or Disability Support Payment. He said he ‘did not feel like a man’ and that he would prefer to be dead. He said at the time of the re-examination he had still not applied for any Australian government assistance, nearly 4 years after the motor accident.
The claimant reported he did seek financial advice through Anglicare financial counselling. On advice he sold the family home and was not left with any residual debt. He also liquidated his business which had ceased trading. The claimant reported he had lost hope that he could ever work in small business again. He confirmed that he was not bankrupt. He owed money to his brother but to no other organisation of creditor.
The claimant reported that he lost his libido and his energy was low. He would fatigue quickly, and this resulted in him stopping his gym attendance. He became irritable and agitated. He was unable to afford a car. His wife divorced him, and the claimant left the family home to live between, his sister’s home, his brother’s home, and his stepmother’s home. He reported he initially withdrew from his wife and children as he felt shame for having suffered depressive illness. The claimant said he initially chose not to have contact with his children until he was well. He reported that it was about 1 year since he had seen his children, and his wife would not allow him to have access since their separation. The claimant reported that at the time of this re-examination his main worry was that he had no access to his children.
The claimant reported that he had not been referred to a psychiatrist, until his brother organised for him to attend a psychiatrist with him in West Ryde. The claimant reported that he attended for this one off one-hour appointment. He said the psychiatrist prescribed Lexapro. The claimant said he could not remember the psychiatrist’s name and he decided not to take the antidepressant. The claimant also said that he had stopped all analgesia as a personal preference.
The claimant had not been admitted to a psychiatric hospital and on direct questioning at the re-examination regarding the use of other treatments for depression that were not pharmacotherapy, or inpatient and psychological treatment, the claimant said he would choose not to use these evidence-based alternative treatment.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant was asked by direct enquiry whether he had experienced any prior motor accident. He confirmed that he had not had any other motor accidents. He was asked specifically about any subsequent motor accident. The claimant confirmed that the accident was the only accident in which he was involved.
Current symptoms
The claimant reported that he developed the following major depressive disorder symptoms because of motor accident:
· Depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of hopelessness and worthlessness
· Markedly diminished interest with inability to experience pleasure in almost all activities for most of the day, nearly every day as evidenced by the loss of access to his children, separation from his now ex-wife and friendship circle, loss of his career and loss of his interest in his self-care and personal hygiene.
· Insomnia nearly every night with initial and middle insomnia where he would wake from sleep ruminating about depressive themes and not been able to return to sleep.
· Diminished ability to concentrate with increased indecisiveness when attempting to make decisions, experienced by the claimant as depressive ruminations about his losses since the onset of his psychological injury.
· Recurrent thoughts of death and suicidal ideation without attempts to harm himself
· Fatigue with loss of energy nearly every day with loss of motivation to leave his home.
Current and proposed treatment
The claimant was treated by his general practitioner and was prescribed Amitriptyline 10mg tablets up to 3 tablets at night to assist with his depressed mood, and poor sleep. He was also treated by his clinical psychologist until his insurer ceased providing funding. He reported that he had not returned to the psychiatrist in West Ryde as he could not afford the cost of the sessions. The claimant reported that he was also been treated by a physiotherapist and was at work two day per week. When the insurer stopped funding, the claimant’s capacity to continue work decreased. He reported that he became increasingly depressed as he was unable to manage without treatment and support from his treatment team.
The claimant continued to attend his general practitioner about once every two to three months for follow up. At the time of this re-examination the claimant had not had any other treatment or support.
Mental state examination
The claimant presented as an irritable depressed and tearful man. His speech varied in rate from slow to faster when he had outbursts of anger and frustration. His affect was reactive with mood congruent tearfulness when he spoke about his depressive ruminations, such as “I’m not a man to my wife,” “I have failed my family,” and ‘I’m hopeless and worthless.” The claimant reported a depressed mood and was psychomotor agitated. He was orientated in time, place and person. The claimant’s concentration, persistence and pace were reduced. His concentration was frequently disrupted by intrusive distressing depressive thought about loss of self-worth, loss of family and loss of hope for the future.
The claimant did not report auditory hallucinations or depressive nihilistic delusions. He would frequently wander off topic and return to ruminating about his losses, hopelessness and loss of self-worth.
The claimant’s judgment was fair. He reported that he had suicidal thoughts. He reported that he did not have suicidal plans or plans to harm others. He was insightful into his condition.
Current functioning
Self-care and personal hygiene
The claimant was homeless with no fixed address. His spent his nights between his sister’s, brother’s and stepmother’s homes. He would sleep either on the sofa or spare room. He was supervised by his family. He was prompted to maintain his personal hygiene. He did assist his brother more when at his brother’s home. His did less and provided little assistance with cleaning when at his sister’s or stepmother’s home.
Social and recreational activities
The claimant reported that he did engage with and play with his nieces and nephews when he was at his sister’s home. He said he did not attend social or recreational events outside the family home. He was not interested in any televised sport, and he had ceased playing social soccer. He had lost interest in attending the gym as he lacked energy and would fatigue quickly. He would not share social or recreational events with his brother and had not attended outside events even when he had been contacted by telephone when invited by past friends. He stated he felt too ashamed that he was reliant on others’ finances and could not financially contribute.
Travel
The claimant reported he had no car. He said he could not financially afford a car. He would be transferred between the three homes by his brother or his sister. He said that there was no schedule as to how long he was permitted to stay in each house and that he would be shifted when the owners of the homes requested.
The claimant reported he did not use public transport. He said he was not required by his family to travel to medical appointments without being driven.
Social functioning
The claimant reported that his relationship with his now ex-wife was finished. He said that there was no prospect of reconciliation. He said he still sought a future relationship with his children. He stated his children had not precipitated when he asked for them to visit.
The claimant said that before there was too much tension in his relationships with his sister, brother and stepmother, he would accept their request to shift.
Concentration, persistence and pace
The claimant reported that he was pre-occupied with depressive themes or hopelessness and worthlessness. He stated he had his concentration disrupted by intrusive thoughts and depressive rumination about his loses. He said he was not required to manage any finances as his brother paid for his mobile telephone and he did not have any government funds from any Australian Government services. He said he was not interested in reading and would avoid the news.
Adaptation
The claimant reported that he was too low in his energy to work in his prior role. The claimant reported that he was permitted to care for his nieces and nephews when his sister was outside the house on occasions. He said he enjoyed this activity. When considering the claimant’s capacity to adapt to his new circumstances since the motor accident, the claimant’s functioning due to psychological injuries alone with the exclusion of pain from all causes, the functional capacity of the claimant was erratic and would more probably than not remain erratic permanently due to his depressive disorder alone.
The claimant reported that his physical capacity to work had markedly reduced after the withdrawal of the physiotherapist. He said with routine physiotherapy he was able to work about two days per week in light duties as an electrician. He said his physical injuries and associated pain resulted in him not been able to work these reduced hours since the insurer stopped funding for the physiotherapist. The reduction in work capacity due to physical injury and pain from all causes was not included in the claimant’s capacity for adaptation.
Comments of consistency
The claimant’s presentation was similar to prior reports and examination. The claimant provided updated information regarding his financial circumstances. The claimant had not sought help from the Australian Government in relation to Jobseeker allowance or Disability Support Payment. He did not hold any debt other than to his brother who assisted with the liquidation of the claimant’s small business. He did not have any superannuation or total and permanent disability payments. The claimant’s presentation was consistent with his diagnosis psychological injury, F 32.1 Major depressive disorder – moderate severity.
Diagnosis and reasons
Using DSM-5-TR criteria the claimant’s DSM-5-TR F32.1 Major depressive disorder – single episode of moderate severity is defined as:
Criterion A.
The following six symptoms have been present during the same two-week period and represent a change from previous functioning with the claimant experiencing a depressed mood as well as the following:
· Depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of hopelessness and worthlessness.
· Markedly diminished interest with inability to experience pleasure in almost all activities for most of the day, nearly every day as evidenced by the loss of access to his children, separation from his now ex-wife and friendship circle, loss of his career and loss of his interest in his self-care and personal hygiene.
· Insomnia nearly every night with initial and middle insomnia where he would wake
from sleep ruminating about depressive themes and not been able to return to sleep.
· Diminished ability to concentrate with increased indecisiveness when attempting to
make decisions, experienced by the claimant as depressive ruminations about his losses since the onset of his psychological injury.
· Recurrent thoughts of death and suicidal ideation without attempts to harm himself
· Fatigue with loss of energy nearly every day.
B. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
This criterion is met by the claimant not been able to return to sustain reliable work due to his increased disorganised behaviour caused by his major depressive disorder.
C. The episode is not attributable to the physiological effects of a substance or to another medical condition.
D. This criterion is met as the onset of the initial symptoms of his primary psychological injury included depressed mood and other symptoms resulted in presentient slow deterioration his mental state which was not related to any physiological effects of a substance or to another medical condition.
E. The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
This criterion is met as the claimant does not have a history of any of these conditions.
F. There has never been a manic episode or a hypomanic episode.
This criterion is met as the claimant does not have a history of any of these conditions.
The claimant’s psychological symptoms were more severe and more numerous than required for a diagnosis of adjustment disorder. Major depressive disorder is the second most common trauma related condition. The claimant’s Major depressive disorder has not resolved after the claimant’s financial and business interest had been fully resolved without the need for the claimant to apply for bankruptcy or defaulting on his home mortgage.
The contribution of pain to the claimant’s physical impairments were mild as they were capable of been managed by physiotherapy. The ceasing of physiotherapy had resulted in the claimant becoming more physically impaired. The physical impairment and pain from all causes were not included in the making of the psychological injury in compliance with the DSM-5-TR F32.1 Major depressive disorder – single episode of moderate severity. The Panel noted that the severity of the claimant’s major depressive disorder may have fluctuated from the time of onset to the date of this re-examination. Whilst prior to this re-examination the claimant may have had less severe psychological symptoms, he was never in full remission or without major depressive disorder symptoms at any time from the date of the motor accident to the date of this re-examination.
For the above reasons the claimant meets all the criteria required to diagnose DSM-5-TR F32.1 Major depressive disorder – single episode of moderate severity.
Causation and reasons
The claimant was independent in his lifestyle and capacity to work in his chosen career for many years prior to the onset of this motor accident. The claimant was fit for employment in his role and had worked successfully as a self-employed electrician. Prior to the onset of this motor accident. the claimant did not have any prior psychological injury or condition.
The claimant had grieved normally over his father’s death. He was not impaired by his normal grief and continued to work in his self-employment without impairment. The presence of a sadness is common in normal grief. The claimant did not use the antidepressant medication for long enough for him to have received a ‘trial of antidepressant treatment’ with medication. The usual length of a trial is between 4 and 6 weeks. The claimant’s general practitioner did not refer the claimant to a psychologist or psychiatrist. The normal grief period was not prolonged for the culture from which the claimant identifies. Normal grief is not a DSM-5-TR condition. For these reasons the claimant did not have a pre-existing condition as defined by DSM-5-TR criteria.
The claimant’s defined psychological injury was definable by DSM-5-TR as DSM-5-TR F32.1 Major depressive disorder – single episode of moderate severity. The psychological symptoms documented and reported by the claimant could by caused by the severity of the motor accident that the claimant experienced. This diagnosis provides the best diagnosis to define all the claimant’s symptoms. The anxiety related symptoms described by other authors is incorporated with this diagnosis as part of the claimant’s symptom of psychomotor agitation.
In the opinion of the Medical Assessors on behalf of the Panel the subject motor accident on 10 March 2021 did cause the psychological injury defined as DSM-5-TR as DSM-5-TR F32.1 Major depressive disorder – single episode of moderate severity.
Summary of injuries
The following injuries were caused by the motor accident and is not a threshold injury.
· DSM-5-TR code F32.1 Major depressive disorder – moderate severity.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[25] and Insurance Australia Ltd v Marsh.[26]
[25] [2021] NSWCA 287 at [40], [41] and [45].
[26] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[27] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act. The Panel adopts the further reasons in QBE Insurance (Australia) Pty Ltd v Chebat[28] clarifying the misconceptions stated in Merhi v Insurance Australia Ltd.[29]
[27] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
[28] [2024] NSWPICMP 611 (Chebat) at [87]-[93].
[29] [2024] NSWPICMP 316.
We also adopt the reasoning in Lynch[30] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[30] Lynch at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.
On the original Medical Assessor’s findings[31] and applying the correct causation test,[32] the claimant established that the motor accident caused the Major Depressive Disorder. However, the original Medical Assessor did not apply the proper test of causation finding that the claimant’s depressive symptoms were caused by the significant financial stress from the loss of employment and concluding that causation was not established. The original Medical Assessor’s conclusion that the motor accident did not cause the psychological injury was incorrect.
[31] See [14]-[15] herein.
[32] See [31] herein.
The insurer was provided with an opportunity to respond to the observations in our direction that the findings of the original Medical Assessor, applying correct causation principles, was sufficient to establish that the motor accident caused a Major Depressive Disorder.[33] There was no response to our preliminary observations. The insurer otherwise had no proper legal basis to support the original Medical’s Assessor’s conclusion that the motor accident did not cause the Major Depressive Disorder.[34]
[33] See [23] herein.
[34] See [40] herein.
The Panel concludes that the motor accident caused the claimant’s pain, physical incapacity and resultant financial stress which caused the psychological condition. The claimant has suffered and continues to suffer from a Major Depressive Disorder caused by the motor accident. The psychological injury was and is not a threshold injury as defined in the MAI Act due to the nature, severity and number of symptoms which have occurred since the motor accident to date. These symptoms are sufficient to exclude the diagnoses of acute stress disorder and adjustment disorder as defined in the current version of DSM-5-TR.
CONCLUSION
The medical assessment certificate issued by Medical Assessor Fukui is revoked. The new medical assessment certificate is attached at the commencement of these Reasons.
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