Nasari v AAI Limited t/as GIO
[2024] NSWPICMP 342
•27 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Nasari v AAI Limited t/as GIO [2024] NSWPICMP 342 |
| CLAIMANT: | Mostafa Nasari |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 27 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute for motor accident in September 2020; sideswipe collision; pre accident psychiatric symptoms; pre-accident clinical records; Panel reconstituted by substitution of Member; claimant previously examined by Medical Assessors (MA) before reconstitution; Panel determined that review could proceed without further examination; no objection by parties; probability of mistake in clinical records confirmed by GP; claimant functioning well prior to motor accident; deterioration in condition after motor accident; MA examination; finding that claimant suffered major depressive episode and specific phobia (driving); Held – assessment revoked; non-threshold psychiatric injury caused by motor accident. |
| 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 27 May 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Mr Mostafa Nasari (the claimant) suffered injury in a motor vehicle accident on
7 September 2020. The claimant was in his vehicle stationary at a roundabout when the insured driver collided with the right-hand side of the claimant’s vehicle (the motor accident).[1][1] Insurer’s bundle, p 82.
GIO General Ltd insured the owner and driver of the other motor vehicle for liability to pay Mr Nasari any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Nasari’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 Hong who issued a Medical Assessment Certificate dated 27 May 2022 (the medical assessment certificate).[3]
[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
The Medical Assessor concluded that the motor accident caused an aggravation of pre-existing adjustment disorder with anxiety and depression which was a minor injury for the purposes of the MAI Act.
The Medical Assessor noted the claimant’s presentation was inconsistent. The Medical Assessor stated:
“There are various inconsistencies regarding his past psychiatric history which cannot be reconciled, even after I discussed these with Mr Nasari.
He does not agree with his general practitioner's recorded history, but could not provide an explanation.
Inconsistencies does not mean there is no genuine psychological injury, however it makes the assessment much more difficult.”
The Medical Assessor provided the following reasons on diagnosis:
“Mr Nasari presented a history that is significantly different to that provided by his GP. It is therefore difficult to be certain of the objective psychiatric history before and after the accident.
I have noted Dr Rastogi’s report, which only provided a limited psychiatric history before the accident and she did not have the objective evidence from the GP's medical records available. She did not record a history of pervasive depressive symptoms. She recorded problems with enjoyment and my view is that the reduction in recreational activities is due to pain and not his depression. I further noted, he reported if he was not in pain, he would work and he would not be depressed, which is consistent with an Adjustment disorder.
After the subject accident, he reported he developed new symptoms:
• He had suicidal ideation, now resolved. Suicidal ideation in itself, is not a psychiatric injury or diagnosis.
• He reported concentration and memory problems. On assessment, there was no concentration or cognitive problems identified, and I accepted he has subjective concentration problems, but this is not the same as a new psychological injury or diagnosis.
• Therefore, I do not believe these news symptoms reach criterion for a specific psychiatric diagnosis.
He does not have a Panic disorder after the subject accident, as his panic attacks are related to driving and not spontaneously.
Mr Nasari does not fulfil DSM-5 criteria for Major depressive disorder. His depressive symptoms are not pervasive and his reduced enjoyment is due to his physical injuries and pain and not due to a psychological condition.”
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The Panel was reconstituted in early May 2024 when the legal Member on the Panel was replaced.
The parties then filed bundles of documents for the Panel’s consideration.
On 16 May 2024 the Panel wrote to the parties in the following terms:
“The Panel is of the view that we can issue a decision without the need to further re-examine the claimant.
Given the recent reconstitution of the Panel the parties are directed to file any submissions by close of business, 22 May 2024 if they oppose that course noting:
(a) The delay since the original examination by the Medical Assessors; and
(b) The change in the constitution of the Panel.”
The parties did not respond to this direction. Accordingly, the Panel concluded that the parties did not object to the Panel determining the matter without a further examination despite the delay and the reconstitution.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[10]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[10] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013.
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 9.1 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:
“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.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
Claimant’s submissions dated 27 August 2021[13]
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
[13] Claimant’s bundle, p 12.
These submissions related to both physical and psychological injuries caused by the motor accident. The claimant relied on the report of Dr Rastogi dated 17 August 2021 which diagnosed the claimant with specific phobia with major depressive disorder.
The claimant submitted that this diagnosis meant that the claimant’s psychological injuries were non-minor.
Claimant’s submissions dated 24 June 2022[14]
[14] Claimant’s bundle, p 142.
These submissions were filed in support of the application to review the medical assessment.
In support of the application the claimant further relied on his statement dated 10 June 2022 and a medical certificate of the general practitioner (GP) dated 10 June 2022.
The claimant noted that the Medical Assessor was prepared to reconsider his diagnosis if the claimant provided further information regarding the GP’s medical records and reconcile the differences in the history provided.
It was submitted that the Medical Assessor should not have issued a certificate in circumstances where he was of the view that he did not have sufficient material before him to decide about causation and diagnosis. It was asserted he was denied procedural fairness as there was no opportunity to provide further material explaining the inconsistencies.
The claimant referred to the differences in the histories recorded by the Medical Assessor and that provided in the worker’s further statement and the recent GP report.
The claimant further submitted that the Medical Assessor failed to provide adequate reasons explaining why the panic disorder/specific phobia was not causally related to the motor accident.
Insurer’s submissions dated 20 September 2021[15]
[15] Insurer’s bundle, p 15.
The insurer disputed that the claimant developed a psychological condition which satisfies the definition of non-minor injury and maintained the position that the claimant only sustained minor injuries caused by the motor accident.
Insurer’s submissions dated 19 July 2022[16]
[16] Insurer’s bundle, p 1.
These submissions opposed the claimant’s leave to review the medical assessment. The insurer opposed the claimant’s application to refer the dispute back to the original Medical Assessor.
The insurer submitted that the claimant’s submission that the Medical Assessor did not have sufficient material to make the decision about causation and diagnosis was a mischaracterisation of the contents of the medical assessment certificate. The Medical Assessor stated that it was difficult to be certain of the objective psychiatric history noting the various inconsistencies regarding the claimant’s past psychiatric history.
The insurer submitted that the claimant was afforded procedural fairness noting that the Medical Assessor invited the claimant to explain any inconsistencies.
The insurer submitted that the Medical Assessor did not determine that the claimant had a panic disorder or specific phobia as was suggested in the claimant’s submissions. The Medical Assessor found that the claimant had a pre-existing adjustment disorder which had been exacerbated by the accident.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
Various contemporaneous records refer to the onset of physical symptoms following the motor accident.
On 25 February 2019 the GP noted that the claimant had abdominal pain for more than a month, was suffering from panic attack, scared of travelling and was stressed with family and work.[17]
[17] Claimant’s bundle, p 79.
On 5 March 2019 the claimant stated that he was stressed with life that his parents lived overseas, and he has to support them. Symptoms included sleeplessness and the claimant wakes up with low and anxious moods.[18] On 8 March 2019 the GP commenced the claimant on Lexapro.
[18] Claimant’s bundle, p 80.
On 12 March 2019 the claimant reported “poor sleep, early morning wakening, low self-esteem, depressed mood, anxious, stress at work, relationship problems, irritability and panic attacks”. The GP noted that the claimant was suffering from severe depression and required referral to psychologist and psychiatrist.
On 22 April 2019 the GP noted that a letter was imported from Dr Saboor and the claimant was commenced on fluoxetine.[19]
[19] Claimant’s bundle, p 156.
On 14 October 2019 the GP noted that the claimant is suffering from depression and had seen a psychiatrist and was advised to take Lexapro which he had ceased without consulting the doctor. The claimant had seen a psychiatrist in Pakistan and was commenced on Vortioxetine which he took for a short while before ceasing. The GP noted that the claimant “now gets on and off headaches, tiredness, low moods and anxious symptoms”.[20]
[20] Claimant’s bundle, p 83.
On 28 October 2019 the GP noted the reason for consultation was depression/anxiety.[21]
[21] Claimant’s bundle, p 158.
Post accident records
Post accident clinical records refer to various physical symptoms caused by the motor accident.
On 30 November 2020 the GP noted that the claimant had been very stressed with worry about relatives overseas, was always tired and lacks motivation.[22] Similar symptoms were recorded in subsequent consultations when an examination referred to “significant depression and anxiety and stressed”.[23]
[22] Claimant’s bundle, p 90.
[23] Claimant’s bundle, p 91.
Ms Hamidi, psychologist, provided a report dated 25 June 2021 following nine psychological sessions over the previous six months.[24] The psychologist noted the claimant presented with persistent pain in the back, knee, neck and right rib area and various psychological symptoms.
[24] Claimant’s bundle, p 136.
The psychologist noted that the claimant presented with high levels of pain catastrophising and avoidance behaviours and was reluctant to engage in social and recreational activities due to low motivation and depressed mood. Ms Hamidi noted that there was little improvement in symptoms at the end of treatment with reporting of higher psychological distress and pain levels.
The GP provided a statement dated 10 June 2022 which commented on the clinical note dated 14 October 2019. The GP stated:[25]
“He was seen on the 14-10-2019 where he was seen by a doctor that treated him for his GORD symptoms. Mostafa reports that the same doctor who was a gastroenterology (sic) did gastroscope examination on him and treated him for his gastroesophageal symptoms. He claims that the same doctor commenced him on Vorioexetine because he was not responding to the treatment.
I may have mistakenly documented that doctor as [a] psychiatrist because Vorioexetine is a medication that is used for depression and anxiety, I could have mistakenly documented that information.”
[25] Claimant’s bundle, p 150.
The clinical note of the GP described the claimant as being upset that he was recorded as seeing a psychiatrist whilst in Pakistan.[26]
[26] Claimant’s bundle, p 183.
Various clinical records in 2022 and 2023 refer to ongoing chronic cervical and right knee pain.[27]
[27] Claimant’s bundle, p 192.
Qualified opinions
Dr Stephen Rimmer, orthopaedic surgeon, was qualified by the insurer and provided a report dated 25 May 2021.[28]
[28] Insurer’s bundle, p 32.
Dr Rimmer opined that the claimant demonstrated an abnormal illness behaviour which would account for the lack of improvements. The doctor noted the claimant had undergone extensive physiotherapy and hydrotherapy and refused to go to the gym as it made his symptoms worse.[29]
[29] Insurer’s bundle, p 43.
Associate Professor Myers opined that the motor accident could not have caused an acute traumatic muscular tear of the right external oblique muscle.
Dr Richa Rastogi, psychiatrist, was qualified by the claimant and provided a report dated
17 August 2021.[30] The doctor noted that the claimant had a previous history of brief anxiety associated with migration to Australia in 2015 and 2016 and then made a recovery. Reference was made to the notes of the GP dated 25 February 2019 which stated the claimant was suffering from panic attacks, scared of travelling and notes dated14 October 2019 that the claimant had seen a psychiatrist in Pakistan.[30] Claimant’s bundle, p 21.
Dr Rastogi stated:
“He has documented history of pre-existing psychological vulnerabilities and the presence of anxiety with panic symptoms needing counselling and medications. He was still functioning well in premorbid capacity with nil impediments in functioning despite relapses of anxiety that have been due to situational triggers. The pre-existing anxiety certainly increases his vulnerability to subject accident placing him with a guarded prognosis.”
Dr Rastogi diagnosed the claimant with a depressive disorder as the symptoms had lasted for more than 12 months.
Statements
The claimant provided a statement dated 13 August 2021.[31] He stated that he arrived in Australia in 2012 and commenced business as a tiler in 2016.
[31] Claimant’s bundle, p 15.
The claimant described the motor accident which caused sharp pain in his right-side rib, abdomen, right knee, right neck, right shoulder as well as his lower back. He stated that he was unable to see his regular GP and made an appointment to see a GP in Maryland on
8 September 2020.The claimant stated that he had been unable to return to his work duties and had deregistered his company. His medication included Endep, Mobic and Nurofen.
The claimant stated that the motor accident caused various symptoms including fear of driving, flashbacks of the accident, fear of reinjury, panic, anxiety and feeling depressed. He said he had been described antidepressants but had experienced side-effects and ceased taking that medication.
The claimant stated that he saw a psychologist around 2015/2016 because he was feeling depressed and anxious due to homesickness and worried about his family living in Pakistan in a war zone. In 2019 the claimant returned to see his family in Pakistan and consulted a doctor regarding abdominal pain. Further tests regarding the abdominal pain occurred when he returned to Sydney around July 2019.
The claimant stated that he was no longer depressed or anxious after he saw his family in Pakistan. When he returned to Sydney he was actively working, had income and felt settled in his life. Since the motor accident the claimant has been unable to return to employment due to ongoing disabilities, had no income and struggled financially to support his family and to pay for ongoing medical treatment. This has all contributed to the feelings of depression.
The claimant provided a further statement dated 10 June 2022.[32] He stated that there were errors in the medical records of Nelsons Ridge Medical Centre, specifically:
(a) he did not recall receiving a referral to consult a psychologist in March 2019 and did not utilise any referral to consult a psychologist before the motor accident;
(b) he was prescribed fluoxetine by Dr Saboor on 22 April 2019 but did not commence taking that medication;
(c) he advised Medical Assessor Hong that he saw Dr Saboor on one occasion prior to the motor accident but did not take medication he prescribed;
(d) he did not say to Medical Assessor Hong that had no recollection of seeing
Dr Saboor;(e) the record of the GP dated 14 October 2019 is inaccurate as the claimant did not tell Dr Hakimi that he consulted a psychiatrist in Pakistan and did not see a psychiatrist in Pakistan and did not take Vortioxetine, and
(f) the claimant consulted a specialist in Pakistan for his GORD symptoms.
[32] Claimant’s bundle, p 147.
RE-EXAMINATION
Mr Nasari was examined by both Medical Assessors.
The medical examination findings of the Medical Assessors are:
“Who attended the assessment
On 10 August 2023, Mr Nasari attended a re-assessment alone via MS Teams. He provided NSW drivers license identification. Dr Smith attended the assessment from his rooms in Sydney. Dr Chew attended from his rooms in Sydney. The panel were assisted by interpreter Sholeh Khologhi.
The assessment took approximately 1 hour.
History
Psychosocial history
Identifying Details
Mr Nasari is a 33-year-old man who lives in Carlingford, Sydney with his wife of 6 years and 2 children age 3.5 and 11 months.
Personal History
Mr Nasari was born in Afghanistan and arrived in Australia in 2012 age 22. He currently holds a 5-year Safe Haven Visa and has applied for Australian Permanent Residency.
He fled Afghanistan as he was Hazara and persecuted by the Taliban who killed his father in 2011. He flew to Dubai then Indonesia and travelled by boat to Christmas Island. He spent approximately 3 months in immigration detention.
He has a mother, brother and sister who currently live in Iran.
He reported that prior to the Taliban his childhood was good. He completed 4 years of schooling which was interrupted by the Taliban. He said that his literacy was poor. He worked in the family grocery store.
In Australia he didn’t work for 2 years then has worked in tiling until the subject accident.
Family History
Mr Nasari denied a known family history of mood, anxiety, addictive or psychotic disorders.
Past Psychiatric History
He said that around 2018 / 2019 in the context of missing home and his family he developed some depressive symptoms. He reported that he saw psychiatrist
Dr Saboor and was prescribed antidepressants but did not take them. He reported that during this time he travelled to Pakistan to see his family. They met him there as he was unable to enter Afghanistan. His family have since moved to Iran. He said that he did not take any psychotropic medication.History of the motor accident
Mr Nasari said that on 7 September 2020 he was driving between jobs. He stopped on a roundabout when a driver lost control and hit his car on the front drivers’ side. There was significant damage to the car which was written off. A police car was behind his car.
He immediately felt pain on the right side of his body and was in ‘shock’ with his body and hands shaking. He managed to get out of the car. The police asked if he needed an ambulance, but he declined. He called his coworker to pick up the tools from the vehicle. He called his wife to tell her what had happened. He then drove himself home.
History of symptoms and treatment following the motor accident
He continued to suffer pain particularly on the right side and could not sleep. The next morning he attended a GP practice. He was still concerned so called his regular GP who could not see him that day but arranged an appointment for the next day. He attended and also had x-ray and ultrasound scans. He continued to have pain in his neck, shoulder, chest and knee.
He said that the pain has remained and if anything has gotten worse.
He said that he was unable to access significant treatment because “insurance stopped paying”. He said that the pain management clinic had provided some options such as autologous injection, but he could not afford them.
He reported that he has felt low and anxious since the accident. He has been avoidant of leaving the house. He has been fearful of driving and actively avoids it. He has no enjoyment from any activities. He has poor energy and concentration. He often feels like life is not living and has contemplated suicide. He doesn’t engage with his children. His doctor referred him to a psychologist who he only saw for a few sessions.
Details of any relevant injuries or conditions sustained since the motor accident
There have been no further motor accidents and no subsequent injuries.
Current symptoms
He reported anxiety and depressed mood. There is diurnal mood variation. He described reduced interest and enjoyment of his previously enjoyed activities. He has a reduced appetite. He feels anxious when leaving the house. He has a disturbed sleep pattern with poor sleep at night and hypersomnia in the daytime. He described difficulties with thinking and concentration. He has thoughts that life is not worth living. He feels hopeless and worthless. He reported that he had ongoing severe anxiety around driving. He actively avoided driving.
Current and proposed treatment
GP only
Current Medications
Olmetec (for blood pressure)
Endep (he says for sleep)
Celebrex for pain
Voltaren for pain
He is interested in further treatment with psychology and pain specialist.
Clinical Examination
Mental State examination
Mr Nasari appeared his stated age. There was no abnormal psychomotor activity. He engaged freely and easily. His speech was accented but of normal volume and spontaneity. His thought form was logical and sequential. He appeared oriented. He described his mood as depressed and hopeless, and his affect was restricted to that range with minimal appropriate reactivity. He reported feelings of worthlessness, hopelessness and ideas that life is not worth living but he denied immediate plans to act on those thoughts. He was willing to engage in treatment.
Comments of consistency
There were no inconsistencies today. Previous inconsistencies noted about past psychiatric history have been clarified. He was consistent in his account today with his signed statement.
Determinations
Diagnosis and reasons
Mr Nasari presented with symptoms consistent with the following recognised diagnoses, according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022):
1. Persistent depressive disorder, with current major depressive episode
2. Specific Phobia (driving)
Justification of Diagnosis
Mr Nasari has suffered from persistently depressed mood for over two years (Criterion A). In conjunction with his depressed mood, he has had a reduced appetite, sleep disturbance, reduced energy, feelings of worthlessness, difficulties with thinking and concentration, feelings of hopelessness and suicidal ideation (Criterion B). There has not been a period of greater than two months in which Mr Nasari has been free of depressive symptoms since the accident (Criterion C). Mr Nasari has experienced periods in which full criteria for the diagnosis of major depressive disorder have been met (Criterion D). There has never been a manic or hypomanic episode (Criterion E). There has been no history of psychosis (Criterion F). The symptoms are not attributable to the use of a substance or a general medical condition (Criterion G). The symptoms have caused clinically significant distress and impairment in functioning (Criterion H).
He presents with marked anxiety about driving (Criterion A). Driving invariably provokes anxiety (Criterion B). He actively avoids driving (Criterion C). The anxiety is out of proportion to the actual danger (Criterion D). The anxiety has been persistent lasting longer than 6 months (Criterion E). The anxiety and avoidance cause clinically significant distress and impairment of function (Criterion F). The anxiety is not better explained by another mental disorder (Criterion G).
Causation and reasons
Mr Nasari suffered from depressive symptoms prior to the motor accident in 2018/ 2019. These symptoms appeared to resolve prior to the subject accident with little treatment.
After the accident in the context of significant pain from the physical injuries which is ongoing, he had developed the Persistent Depressive Disorder with current Major Depressive Illness.
The specific phobia (driving) developed after the subject accident. There are no other identified causes for this specific phobia.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
· Persistent depressive disorder, with current major depressive episode.
· Specific phobia (driving)”.
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[33] and Insurance Australia Ltd v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[35] 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.
[35] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We note that the parties did not object to our suggestion that we could determine the matter without the Medical Assessors again examining the claimant following the reconstitution of the Panel. The Panel adopted this course because the new Member agrees with the reasons and otherwise agrees that the relevant issues have been addressed. Further, noting the decision of Lynch, a further examination would not alter the decision of the Medical Assessors that the claimant when examined, sustained a non-threshold psychiatric injury caused by the motor accident.
We also adopt the reasoning in Lynch[36] 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.
[36] Lynch at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors. We are particularly reliant on the clinical expertise of the Medical Assessors who jointly undertook the recent examination process and concluded that the motor accident aggravated the claimant’s pre-existing psychiatric condition.
These reasons show that we have considered the claimant’s pre-existing psychological history and had regard to post accident records. We also accept that the claimant was functioning in full time employment prior to the motor accident and his level of functioning then deteriorated.
The post-accident clinical records support the claimant’s case of an aggravation of psychological symptoms caused by the motor accident. Further, the report of the GP dated 10 June 2022 establishes that the details of the clinical note dated 14 October 2019 mistakenly recorded that the claimant then underwent psychological treatment whilst in Pakistan.
The recognised psychiatric diagnoses of persistent depressive disorder, with current major depressive episode and specific phobia (driving) are not threshold injuries pursuant to the provisions of the MAI Act.
CONCLUSION
For these reasons, the Panel concludes that the medical assessment certificate issued by Medical Assessor Hong is revoked. The new certificate is attached at the commencement of these Reasons.
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