Park v QBE Insurance (Australia) Ltd
[2025] NSWPICMP 463
•30 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Park v QBE Insurance (Australia) Ltd [2025] NSWPICMP 463 |
CLAIMANT: | Park |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Montgomery-Hribar |
MEDICAL ASSESSOR: | Dr Ankur Gupta |
MEDICAL ASSESSOR: | Dr Christopher Canaris |
DATE OF DECISION: | 30 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; consideration of impact of previous head injury; claimant examined; Held – no previous psychological symptoms or injuries; major depressive disorder with anxious stress caused by the accident; non-threshold injury; MAC confirmed. |
DETERMINATIONS MADE: | The Review Panel confirms the certificate of Medical Assessor Samson Roberts dated |
STATEMENT OF REASONS
INTRODUCTION
On 5 January 2023, Seonyi Park (claimant) was a passenger in a vehicle that was stopped at traffic lights. It was rear ended by another vehicle, causing her vehicle to be pushed into the vehicle stopped in front (accident).
The claimant made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on QBE Insurance (Australia) Limited (insurer).
A dispute has arisen between the insurer and the claimant as to whether the claimant’s psychological injuries are “threshold injuries” within the meaning and for the purposes of the MAI Act.
The dispute was referred to Medical Assessor Samson Roberts. On 20 March 2024 the claimant was assessed by Medical Assessor Roberts, who issued a certificate on 14 April 2024. The Medical Assessor certified that the injury caused by the accident, being Major Depressive Disorder, is not a threshold injury for the purposes of the MAI Act.
The insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Roberts’ assessment under s 7.26 of the MAI Act. On 17 June 2024, a delegate of the President determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the application to a review panel.
This review panel (the Panel) has been constituted to conduct a review of Medical Assessor Roberts’ certificate dated 14 April 2024.
LEGISLATIVE FRAMEWORK
Review procedure
Pursuant to Schedule 2 cl 2(e) of the MAI Act, whether the injury caused by the accident is a threshold injury for the purposes of the Act is a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act, at first instance by a Medical Assessor,[1] and on review by a review panel.[2]
[1] Section 7.20, MAI Act.
[2] Section 7.26, MAI Act.
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. The function of the Medical Assessor is to form his or her own opinion on the medical question in dispute; it is not to choose between competing opinions, nor to assess the correctness of such opinions. As the High Court noted, with respect to a medical panel:
“The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”.[3]
[3] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47].
Threshold injury (formerly minor injury) provisions
The Motor Accident Injuries Amendment Act 2022 (the 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 accident occurred when the relevant term was “minor injury” which, because of the MAI Amendment Act, is now described as a “threshold injury”. Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury”.
A “threshold injury” is defined in s 1.6 of the MAI Act and includes a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(4) of the MAI Act provides that the regulations may exclude or include a specified injury from being a threshold injury.
Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury as follows:
“4 Meaning of ‘threshold injury’, section 1.6(4) of the Act
…
(2) Each of the following injuries is included as a threshold injury for the purposes of the Act—
(a) acute stress disorder,
(b) adjustment disorder.
Note— See section 1.6 (5) of the Act in relation to the making of Motor Accident Guidelines for or with respect to the assessment of whether an injury is a threshold injury.
(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013.”
Sub-section 1.6(5) provides that “[t]he Motor Accident Guidelines may may provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act”.
The Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. Version 9.3 of the Guidelines is effective from 6 December 2024 and replaced version 9.2, except for claims arising from motor accidents before 1 April 2023. For such accidents, such as the current accident, certain clauses do not apply, and specific clauses from version 9 of the Guidelines continue to apply.
Part 5 of the Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act, and provide the following general provisions for assessment:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Relevantly, clauses 5.10 to 5.12 regard threshold psychological or psychiatric injury assessment and provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Whether a person has suffered threshold injuries as a result of a motor vehicle accident affects their entitlement to both statutory benefits and damages: see ss 3.11, 3.28 and 4.4 of the MAI Act.
Causation of injury
Causation is not specifically addressed in Part 5 of the Guidelines. However, it is accepted that it is appropriate to apply the test for causation as set out in clauses 6.5 to 6.7 in a threshold injury assessment.[4] These clauses of the Guidelines provide:
[4] Briggs v IAG Ltd (t/as NRMA Insurance) [2022] NSWSC 372 at [35]. See also the discussion of Stern JA (Mitchelmore and Ball JJA agreeing) in Insurance Australia Limited t/as NRMA Insurance v Le [2025] NSWCA 121.
“…
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
PROCEDURAL MATTERS
Part 5 of the Personal Injury Commission Act 2020 (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: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.
On 7 February 2025, the Panel was convened in this matter. On 10 February 2025, the Panel made directions for the provision of a joint bundle from the parties containing all material relied on and the parties’ written submissions for the purposes of the Review.
On 2 April 2025, the Panel met to discuss the proceedings and determined that a medical examination of the claimant was required. The claimant was advised of the arrangements. The Panel also determined that additional documents potentially relevant to the Review were required to be produced and made directions accordingly.
On 10 June 2025, the medical examination with Medical Assessors Gupta and Canaris took place. The Panel then reconvened for a second teleconference on 25 June 2025.
MEDICAL ASSESSMENT UNDER REVIEW
The claimant was assessed by Medical Assessor Samson Roberts on 20 March 2024. The injury of “Psychiatric Condition – Psychological Injury – Major Depressive Disorder and Post-Traumatic Stress Disorder” was referred for assessment.
The medical assessment was undertaken via MS Teams with the assistance of an interpreter. The Medical Assessor described the psychosocial and pre-accident history of the claimant, and her current symptoms. He then undertook a clinical examination of the claimant and a review of the documentation provided by the parties.
The Medical Assessor determined that the claimant’s account reflected the presence of prominently depressed mood and lack of enjoyment. It was noted that she described difficulties pursuing her studies due to concentration deficits, and reported social withdrawal, disturbed sleep and altered appetite. It was also noted that she expressed some trauma symptoms.
Diagnostically, the Medical Assessor found her presentation was consistent with a depressive illness. As features of anxiety were also apparent, the Medical Assessor diagnosed Major Depressive Disorder with Anxious Distress. It was noted that the diagnosis of post-traumatic stress disorder was considered, however the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) criteria were not met. The Medical Assessor determined the diagnosed condition arose as a result of the accident.
On 14 April 2024, Medical Assessor Roberts issued a certificate that the injury caused by the accident, being Major Depressive Disorder, is not a threshold injury for the purposes of the MAI Act.
EVIDENCE BEFORE THE PANEL
Pursuant to the direction of the Panel issued 10 February 2025, the parties have lodged a joint bundle of documents containing all material relied on for the purposes of the Review.
On 25 March 2025 the claimant uploaded an Application to Admit Late Documents attaching the records of treating psychiatrist Dr Jung Sook Kim as at 20 March 2025. The insurer was provided with an opportunity to provide its position on the admission of these documents. No response was received. The Review Panel determined that it was appropriate to admit these documents where they are relevant to the dispute to be determined and where the medical examination had not taken place at the time of production.
On 28 April 2025 and 22 May 2025, the claimant provided additional bundles of documents, in accordance with the Direction of the Panel.
The above material has been considered and evaluated by the Panel.
Application for personal injury benefits
The claimant’s application for personal injury benefits is dated 17 January 2023 and has been signed by the claimant.
The claimant describes the accident as:
“As soon as the car ([Rego 1]) infront of us stopped when the traffic light turned yellow, me (passenger) and the driver ([Rego 2]) stopped. However, the car ([Rego 3]) that was behind us crashed our car strongly (I guess 50km/h or over), In this reason, we were pushed to the first car.
Collision – [Rego 2] was stationary when [Rego 3] has hit the back of [Rego 2]. Pushing [Rego 2] into rear of [Rego 1]. Damage to the front and back on [Rego 2]. Damage to the front on [Rego 3] and damage to the back on [Rego 1]”
In respect of the injuries the claimant received as a result of the accident, the claimant reports:
“I have diziness everytime [sic] I get up from the bed or chair. In addition, I feel dizzy when I bend my back. That was the reason why I was shocked and called an ambulance one day after the accident. Head contusion- Intermittent dizziness, vomiting. Neck injury - My Neck doesn't stretch well and I feel strange. Right Lower back injury- My lower back is painful when I get up from the chair and I am not able to lift something and [i]t is hard for me to go upstairs by using my back.”
In response to the question of whether she was suffering an illness or injury affecting the same or similar parts of her body at the time of the accident, the claimant has stated:
“At the time of accident, I was so shocked because the car behind us hit my back and I went forward to the window with seatbelt. Everytime I walk on the floor, my lower back is painful. I need to walk very slowly. Not only this, the ceiling is spinning due to the dizziness that came from the shock of the car crash. So in the end, I was in panic and I called the abulance in the next morning. I am currently suffering from the dizzines and back pain. This impacts on my long-hours of going to university and study on a chair. [sic]”
Ryde Hospital
The Discharge Summary of Ryde Hospital dated 27 December 2021 has been considered. The Panel notes this regards a fall pre-accident. The summary states the claimant presented with a fever and loss of consciousness. It was noted that the claimant’s friends reported that she had complained of feeling dizzy then fell and hit her head. She was semi-conscious for 14-17 minutes. She had urine incontinence during this period. The claimant was discharged against medical advice as she did not have Medicare cover and was unable to pay for the recommended studies.
The Discharge Summary of Ryde Hospital dated 29 December 2021 has been considered. This refers to the claimant’s presentation on 27 December 2021 after she fell from a standing position and hit her head against the floor. The claimant presented with dizziness and felt generally unwell and was unable to concentrate on her studies. She tested positive to COVID-19. A CT scan of the claimant’s brain (non-contrast) was undertaken which indicated “ICH in Lt frontal and BG + non-depressed fracture of the right occipital bone”.
The notes of 30 December 2021 refer to the claimant reporting dizziness with positional changes which worsens with rest.
A CT Brain on 10 February 2022 notes there is evidence of prior skull vault as well as brain injury. No recent re-injury or haemorrhage could be seen.
The Discharge Summary of Ryde Hospital dated 6 January 2023 has been considered. This report includes:
“Vertigo since this morning – upon get up from bed today patient developed spinning sensation – patient was involved in MVA yesterday – hit from behind – was in shock yesterday post MVA – denied any headache – no visual problem – no vomiting. Hx of syncope and fall last year sustained head injury with occipital bone fracture and cerebral contusion.”
Her neurology examination was noted as normal.
The Triage presenting information reports “Pt walk in, passenger MVA yesterday, car was hit from behind, denies any head strike, onset of dizziness since 1300hr, states as head spinning at the time, self resolved when close eye, Pt alert, PEARL, NVI, equal ROM all limbs, speak full sentences”.
A CT of Head and Carotid Angiogram dated 6 January 2023 concludes no acute intracranial or neck arterial injury, no fracture.
On 11 April 2023, it was reported:
“Miss Seonyi Park presented to Ryde Hospital Emergency Department on 11-APR-2023 with R shoulder pain post fall 2 days ago. Her shoulder was painful on movement. XR did not show any obvious fractures. She has been discharged with advice to follow up with GP and to re-present if red flags present.”
It was recorded that she fell while walking two days prior and was unsure how it happened. Initially it caused mild pain in her right shoulder and she continued exercising for 40 minutes as she felt ok. She then developed significant pain and was unable to sleep. She denied any head strike. There was no mention of the accident.
NSW Ambulance Report
The NSW Ambulance Report dated 27 December 2021 has been considered. This recorded that the claimant had a syncopal episode and hit her head on the wooden floor. She was transported to Ryde Hospital.
The Panel notes there is no ambulance report regarding the accident.
Clinical notes
J Medical & Cosmetic Care
The clinical notes of J Medical & Cosmetic Centre have been considered.
The “GP Questionnaire Regarding Treatment and RTW” dated 13 February 2023 prepared by Dr Hajeong Lee, general practitioner (GP), was considered. Under “Diagnosis” it is noted “psychological … to be further assessed”, and “Expected treatment” records “psychology possible”.
The Rehabilitation Services request form dated 23 February 2023 notes that the claimant reports the dizziness symptom caused by the accident is different to the symptom caused by the previous injury. Under “Diagnosis/Injury” it listed the claimant reported “Psychological Symptoms: unable to sleep well, disturbed by nightmares, lots of flashbacks, fear of traffic even as a passenger (mainly dependant on the train due to psychological barriers), fatigue easily, difficulty in concentrating, increased stress, sweating when feeling nervous”. Physical injuries are also reported.
The referral letter to Dr Jung Sook Kim, psychologist, dated 25 February 2023 notes the claimant has been suffering from pains and psychological symptoms affecting her daily functioning and work, and that the claimant reports “pains, mood changes, concern on future career or plan”. Her visual analogue scale (VAS) of pain was 8/10, impact of event scale-revised (IES) was 55/75, and K10 was 23/50.
In the patient report dated 25 February 2023, under “Progress of injuries” it is recorded “nightmare”. In the patient report dated 11 May 2023, under “Progress of injuries” it is recorded “nightmare: occasional”. Under “Progress at work” it is noted “bus – anxiety”.
The Certificates of Capacity / Certificates of Fitness dated 25 February 2023, 11 May 2023, 20 June 2023 and 4 July 2023 (all unsigned) refer to the claimant’s physical injuries and “recurrent spinning dizziness”. Under Management, her referral to Dr Kim for “psychology assessment / counselling” is noted.
The Rehabilitation Services request form dated 3 May 2023 was completed by Dr Lee. Under “Diagnosis/Injury” it is listed the claimant reported:
“Psychological Symptoms: unable to sleep well occasionally, disturbed by nightmares, lots of flashbacks when travelling on [sic] a car, fear of traffic even as a passenger, especially when driver starts to speed up (mainly dependant on the train due to psychological barriers), avoid taking car such as taxi/bus, fatigue easily, difficulty in concentrating and focus, sweating when feeling nervous, reduced community access”.
Physical injuries are also reported. The claimant reported that, due to her psychological barriers, she had difficulty travelling to the clinic. The rehabilitation provider suggested that she discuss a referral to a psychologist with her GP.
The Allied Health Recovery Request prepared by Dr Lee dated 25 May 2023 diagnoses “Major Depressive Disorder, Post-Traumatic Stress Disorder” and states under “Current signs and symptoms”:
“Ms Park was involved in a rear-ended motor vehicle accident on 05/01/2023. She was a passenger in a car driven by her boyfriend. The nature of the accident was severe and the car was written off. She was taken to hospital by ambulance. She experienced shock and confusion after the accident and has experienced frequent fainting. She developed physical pain and has been undergoing physiotherapy along with painkillers. She is having difficulties focusing on her studies and having a restricted lifestyle. Ms Park reported various symptoms including feelings of hopelessness and helplessness, lack of pleasure, fear of another accident, sleeping problems, tiredness and fatigue, lack of energy, headaches, sensitive over little things, dizziness, poor appetite , irritability, difficulties coping, agitation, social withdrawal, avoidance behaviour, unable to relax due to intrusive thoughts, recurrent thoughts of the accident, concentration difficulties, flashbacks of the accident, feelings of shame, and confusion.
Ms Park was administered DASS 21 on 24/05/2022 and she scored 28/ 42 for depression, 34/ 42 for anxiety, and 40/42 for stress”
The Allied Health Recovery Request prepared by Dr Lee dated 9 August 2023, recorded on 10 August 2023, diagnoses “Major Depressive Disorder, Post-Traumatic Stress Disorder” and states under “Current signs and symptoms”:
“Ms Park completed 8 sessions of treatment from 19/06/2023 to 07/08/2023. The treatment aimed to assist her to better deal with her symptoms and get her life back on track. I found that she was motivated to improve her condition and tried to follow through with treatment by engaging in daily activities. She recently resumed studies but at reduced load (2 subjects). She tried to get involved with exercise such as walking and at the gym. It is still early stages of treatment and she needs to have regular treatment so that she can return to pre-injury lifestyle. Ms Park continued to report various symptoms including feelings of hopelessness and helplessness, lack of pleasure, fear of another accident, sleeping problems, tiredness and fatigue, lack of energy, headaches, sensitive over little things, dizziness, poor appetite, irritability, difficulties coping, agitation, social withdrawal, avoidance behaviour, unable to relax due to intrusive thoughts, recurrent thoughts of the accident, concentration difficulties, flashbacks of the accident, feelings of shame, and confusion.
Ms Park was administered DASS 21 on 07/08/2023 and she scored 30/42 for depression, 34/42 for anxiety, and 26/42 for stress.”
On 12 September 2023, there is a file note prepared by Mr Ryan Oh recording a discussion with “JSK”. The Panel has assumed this is a reference to the claimant’s psychologist, Dr Jung Sook Kim . It is recorded:
“Ms Park is experiencing consistent and also worsening mental condition to which JSK contacted us to support the patient. Ms Park is having: 1. Depressive mood and anxious moments; 2. Relationship issue with her boyfriend (or husband) causing the mood worse; 3. Lack of sleep due to the condition; 4. Loss of weight (as seen by JSK) – not sure if she wanted to lose. JSK suggests a pharmaceutical intervention for this patient asap. For above symptoms, TCA or SNRI is recommended. For example, Mirtazapine is a good option for her mood as well as sleep and appetite”.
On 12 September 2023, the claimant attended upon Dr Lee. It is recorded that she was “in stress but willing to overcome and like to start med.” Mirtazapine 15mg tablet was prescribed.
The Allied Health Recovery Request prepared by Dr Lee dated 27 November 2023 diagnoses “Major Depressive Disorder, Post-Traumatic Stress Disorder” and states under “Current signs and symptoms”:
“Ms Park completed 8 sessions of treatment from 23/08/2023 to 17/11/2023. Although she was unwell, she tried her best to maintain her study load (which had been reduced to 2 subjects). She is having difficulties focusing on her studies and has had to request for special consideration. She ls set to undertake practical work from December 2023 and she is not confidence. Other than study, she tried to go for walks and attend church. Overall, she is showing motivation to Improve her condition and will benefit from ongoing treatment In terms of getting her life back on track. Ms Park continued to report various symptoms including feelings of hopelessness and helplessness, lack of pleasure, fear of another accident, sleeping problems, tiredness and fatigue, lack of energy, headaches, sensitive over little things, dizziness, poor appetite, irritability, difficulties coping, agitation, social withdrawal, avoidance behaviour, unable to relax due to intrusive thoughts, recurrent thoughts of the accident, concentration difficulties, flashbacks of the accident, feelings of shame, and confusion.
Ms Park was administered DASS 21 on 17/ 11/2023 and she scored 24/42 for depression, 34/42 for anxiety, and 40/42 for stress.”
The Allied Health Recovery Request prepared by Dr Lee dated 23 December 2024 diagnoses “Major Depressive Disorder, Post-Traumatic Stress Disorder” and states under “Current signs and symptoms” “Depression – feelings of hopelessness, lack of pleasure, low mood, lack of energy, feelings of shame etc; PTSD – avoidance behaviour, flashbacks and recurrent memories, sleeping difficulties, fear of another accident etc”. Her Depression, Anxiety and Stress Scale (DASS) score administered on 19 November 2024 was 28 for depression, 26 for anxiety, and 32 for stress.
Dr Jung Sook Kim
The clinical notes of Dr Jung Sook Kim, psychologist, have been considered. The claimant attended 19 consultations between 24 May 2023 to 11 January 2024.
Under “Diagnosis”, Dr Kim notes “In my clinical opinion, she meets the criteria for having a mental condition according to the [DSM-5] having features consistent with the following diagnosis: Depression; PTSD”, and under “Causation” it is recorded “The MVA and its aftereffects”.
Dr Kim records that the claimant’s pre-accident functioning consisted of full time study, active involvement in social and recreational activities, preparing to work, and sharing domestic duties with her boyfriend. In terms of the claimant’s current functioning, it is recorded that she has stopped most activities, reduced her study load, reduced her home duties and rarely cooks, instead relying on pre-made and takeaway food.
The clinical notes record symptoms including sleeping difficulties, fear of another accident, difficulties dealing with stress, concentration difficulties, recurrent thoughts of the accident, avoidance behaviour, lack of energy, low moods, eating irregularly and binge eating.
On 3 July 2023, it is noted that the claimant was advised to take sleeping tablets as her sleeping problems were getting worse. The clinical notes from 10 July 2023 onwards note the claimant was taking sleeping tablets. On 14 September 2023, it was noted that the claimant’s GP had prescribed antidepressants, but the claimant was holding off starting the medication until after completion of her assignments. On 12 October 2023, it was noted that the claimant was taking antidepressants, in addition to sleeping tablets and painkillers.
MQ Health General Practice
The records of MQ Health General Practice printed on 23 May 2024 and 5 May 2025 have been considered. The Panel notes that a significant portion of the records printed on 23 May 2024 have been redacted.
The records of February 2022 refer to the claimant having a COVID0-19 infection and then having a dizzy spell, falling backwards and hitting her head. It was recorded that the claimant occasionally feels dizzy when standing quickly, which resolves immediately.
The records of 20 April 2023 record the claimant presenting to Ryde Emergency Department after a fall onto her right shoulder. On examination she had full range of movement (ROM) of her right shoulder and is noted to be “improving”.
The records of February 2025 and March 2025 refer to the claimant working and regard medical conditions unrelated to the current dispute.
There is no reference to any psychological symptoms or injuries in the MQ Health General Practice clinical notes, nor any reference to the accident.
Royal North Shore Hospital
The Ambulatory Care Centre Neurosurgery Clinic at Royal North Shore Hospital reviewed the claimant on 21 February 2022. It was noted she was referred to the clinic after a fall in December 2021. It was noted that the claimant did not report any concerning symptoms nor any seizure activities, nor did she have any other concerning issues. It was noted the claimant reported to be an international student and does not drive. It was concluded there was no further neurosurgical intervention.
Medico-legal reports
Dr Graham George
The claimant attended upon Dr Graham George, psychiatrist, on 18 September 2023 via teleconference. Dr George provided a report dated 27 September 2023. Dr George diagnosed the claimant to have an adjustment disorder with mild anxiety and depressed mood of mild to moderate degree. Dr George opined that the claimant did not appear pervasively depressed on the day of assessment but continues with some residual symptoms. Dr George noted the claimant is under the care of a general practitioner and psychologist and is taking some psychotropic medication to assist her sleeping pattern.
Dr George noted that the claimant’s adjustment disorder relates to the accident, but to some degree would have been contributed to by her unstable accommodation situation, where she was living in a living room for eight months and also would have been contributed to by an unstable relationship with a verbally abusive boyfriend.
Dr George noted that the claimant’s adjustment disorder does not appear to have interrupted her university studies, where she travels to and from independently, and that she is able to engage in ten hours per week of work as a cleaner. He considered the claimant should have a full resolution of her adjustment disorder within several months.
Rehabilitation reports
The reports prepared by Rehab Dynamics dated 28 February 2023, 17 April 2023, 3 May 2023 and 28 June 2023 have been considered.
In the reports dated 17 April 2023, 3 May 2023 and 28 June 2023 under “Diagnosis of Injury” it is noted that the claimant has reported the following psychological symptoms:
“Unable to sleep well, occasionally disturbed by nightmares - Lots of flashbacks when travelling on a car [sic] - Fear of traffic even as a passenger, especially when the driver tries to speed up (mainly dependent on the train due to psychological barriers); Avoid taking car, such as taxi/bus - Fatigue easily - Difficulty in concentrating and focus - Sweating when feeling nervous - Reduced community access”.
In terms of treatment, it was suggested in the 3 May 2023 report for the claimant to discuss referral to a psychologist with her treating GP, Dr Lee. The 28 June 2023 report confirms that that an appointment had been arranged with Dr Jung Sook Kim, psychologist.
Other documents
The University of Technology Sydney (UTS) personal authority form (undated) signed by Dr Lee notes the claimant had a recent motor vehicle accident and has neck / back / pelvic pains, and generalised anxiety and headache. She was noted as “very severely affected” in her ability to attend classes, learn, regain and/or complete assessment requirements from “5 January 2023 to 30 April 2023 (expected)”.
The UTS personal authority form (undated) signed by Dr Kim notes the claimant has been suffering from Major Depressive Disorder and Post Traumatic Stress Disorder following from an accident on 5 January 2023 which has “severely affected” her ability to attend classes, learn, regain and/or complete assessment requirements.
The claimant’s UTS “Application to Reduce Study Load” dated 18 February 2023 states:
“Unfortunately, I was not able to pass the subject, Foundation of Nursing Practice 1A (93201) in the first semester in Bachelor of Nursing in UTS. I was so struggling to catch up with the subject after my treatment on my brain. For this reason, I was unable to take full study load for spring session in 2022. This is the reason why I am applying for the application for Reduced Study Load.”
The UTS Professional Authority Form dated 25 March 2023 prepared by Dr Lee remarks “recent motor vehicle accident – neck/back/pelvic pains; 2. Generalised anxiety and headache – booked for psychologist”. She was evaluated as “very severely affected” from “5 January 2023 to 30 April 2023 (estimate)”.
The UTS Special Consideration Form dated 25 March 2023 and an email response from UTS dated 15 September 2023 have been considered. In the reasons for the Special Consideration, the claimant refers to several health issues, including the “fracture on my left brain”. She states that she was in a car accident in January and “hit my brain again” and “since that time it takes a long time to understand and manage my study plan due to my brain”. No reference is made to any psychological injuries.
An MRI Brain report dated 15 February 2023 was considered. This concludes:
“Focal encephalomalacia seen in the left frontal cortex with dephasing on gradient sequences in keeping with area of haemorrhage. This does suggest a traumatic aetiology to this area of left frontal bone injury. Appearance does not appear acute. No previous imaging is available to see if this finding has been previously documented but follow up imaging is recommended”.
The Allied Health Recovery Request forms dated 14 April 2023 and 12 May 2023 refer to the claimant’s physical injuries. They also note the claimant has “moderate sleep disturbance due to neck pain and headache, anxiety in driving”. There are no other references to psychological injuries or symptoms.
The Allied Health Recovery Request form dated 1 June 2023 refer to her physical injuries and note “Moderate sleep disturbance due to neck pain”. There is no reference to psychological injuries or symptoms.
The Physiotherapy Focus Strathfield Physiotherapy Progress and Discharge Report dated 3 July 2023 has been considered. This notes the claimant had been referred for pain management and functional training on her neck, shoulder and lower back secondary to the accident. It notes she is currently able to manage her pre-injury activities and duties as a full-time university student with regular rest breaks.
The Pinnacle Rehab Functional Capacity Evaluation forms dated 24 June 2024 and 30 July 2024 have been considered. These forms regard the claimant’s physical capacity.
SUBMISSIONS
Despite the Panel’s explicit direction to only lodge one set of submissions, both parties have sought to rely on more than one set of submissions. All sets of submissions have been considered by the Panel. However, the Panel notes that parties should ensure they comply with directions made by review panels, including with respect to the provision of submissions for the purposes of the Review.
Insurer’s submissions
The insurer relies on submissions dated 26 July 2023, 29 February 2024 and 17 May 2024.
The insurer acknowledges the claimant is suffering from some psychological symptoms, however, submits that any injuries suffered as a result of the accident are threshold injuries for the purposes of the MAI Act. The insure submits that the claimant does not meet the DSM-5 diagnostic criteria for either Major Depressive Disorder and/or post-traumatic stress disorder, and there is no evidence she suffers from a recognised psychiatric illness.
The insurer notes the claimant’s previous head injury in or around December 2020 and her resulting dizziness. The insurer submits the claimant is continuing to recover from this injury.
The insurer notes that no emergency services attended the accident scene, and the claimant did not seek treatment until the following day when she presented at Ryde Hospital. The insurer notes that the claimant’s neurological examination was normal, as was a CT scan of her neck. The claimant first sought treatment from her general practitioner on 13 January 2023 and was referred for psychological treatment on 25 February 2023. She attended an initial consultation with Dr Jung Sook Kim over five months after the accident on 24 May 2023.
The insurer submits the Allied Health Recovery Request says the claimant’s current capacity was the same as pre-accident, and that the claimant has not been prescribed any anti-depressant medication.
The insurer notes Dr Graham George, psychiatrist, opined that the claimant has an adjustment disorder, which is a threshold injury for the purposes of the MAI Act. The insurer refers to aspects of Dr George’s report, including that the claimant does not indicate she has nightmares of the accident and does not report dissociative flashbacks, that she travels to university via train and bus, that she is continuing her university degree, that she worked as a cleaner for ten hours per week in addition to her studies, and that she described being stressed due to a recent move.
The insurer notes that the claimant’s application for reduced study load reported difficulties with studies partly due to her brain injury, which is unrelated to the accident.
In the insurer’s submission, the claimant does not meet five or more of the criteria for the diagnosis of Major Depressive Disorder pursuant to DSM-5, as the symptoms are required to cause ‘clinically significant distress or impairment in social, occupational and/or other important areas of function’. The insurer submits that there is no evidence that any of the symptoms reported by the claimant have caused clinically significant distress or impairment in social, occupational and/or other important areas of function.
The insurer also submits that any impairment may have been due to the claimant’s pre-accident medical condition, being her possible brain injury, rather than caused by the accident.
In respect of the DSM-5 criterion A symptom 1 and 2, the insurer notes that the claimant was reported by the Medical Assessor to be neatly groomed with evident attention to personal care, that she had commenced a new relationship prior to the assessment, and that she was attending university four days per week and attending church. The insurer highlights the Medical Assessor’s references to several statements by the claimant, including that she has lived with the same three housemates for the past two years and not sought to cultivate more friendships because her primary focus is on her studies, and that she rarely goes to church because she is ‘really sensitive’, and “she has a tendency to shake and cry when she is upset. She attributed this sensitivity to a possible brain injury and depression”.
The insurer submitted that, while the claimant reported a three-kilogram weight gain, it is unclear whether this satisfies the criteria for “significant weight loss when not dieting or weight gain” (criterion A symptom 3).
In respect of the claimant’s fatigue, while the claimant reports she tires easily, the insurer submits she is still able to complete her studies and form new relationships, and there is no evidence it has caused clinically significant distress or impairment. Accordingly, the insurer submits the claimant does not meet the criteria for fatigue or loss of energy nearly every day (criterion A symptom 6).
In respect of the symptom of diminished ability to think or concentrate or indecisiveness nearly every day (criterion A symptom 8), the insurer refers to the claimant’s report that she has difficulties pursuing her studies due to concentration deficits and that she says her “brain is slower”. The insurer submits these symptoms, and her consequential application to reduce her study load, is due to her pre-existing brain injury and not the accident. The insurer refers to the claimant’s application to reduce study load dated 18 February 2023 and her application for special consideration dated 25 March 2023, both of which reference her brain injury.
The insurer also submits that, based on the evidence, the claimant does not meet the criteria for insomnia (criterion A symptom 4), psychomotor agitation or retardation (criterion A symptom 5), feelings of worthlessness or excessive inappropriate guilt (criterion A symptom 7), nor is she suicidal (criterion A symptom 9).
Claimant’s submissions
The claimant relies on three sets of submissions, dated 5 July 2023, 5 June 2024 and 7 March 2025.
The claimant submits that she gradually developed psychological symptoms following the accident. On 25 February 2023, the claimant says she reported mood changes and anxiety to her GP, Dr Hajeong Lee. Dr Lee referred the claimant to a psychologist, Dr Jung Sook Kim.
On 24 May 2023, the claimant attended an initial consultation with Dr Kim. Dr Kim opined that the claimant met the criteria for having a mental condition according to the DSM-5 having features consistent with depression and post-traumatic stress disorder, and that the claimant’s psychological injury was caused by the accident.
The claimant continues to see Dr Kim. Despite ongoing treatment, the claimant submits that she continues to struggle with various psychological symptoms that impact her quality of life and ability to function.
The claimant submits that she has been experiencing psychological symptoms since the accident and, because of these symptoms, her ability to study, participate in social activities, and to network has been impaired.
The claimant submits that, since the accident her relationship with her friends and partner has deteriorated. She also submits that the study of her Bachelor of Nursing degree has been impacted due to her impaired concentration and lack of motivation. She reports to suffer from binge eating or refrains from eating when feeling nervous or depressed and says she has gained and lost approximately three to four kilograms since the accident.
The claimant submits that she continues to experience significant psychological distress, particularly when travelling by bus or in a fast-moving car. She reports to only travel when necessary and prefers using public transport. She reports feeling anxious and nervous when travelling in a car if the speed exceeds 50km per hour, even when this is within the legal speed limit. When travelling in a private hire car, she closes her eyes to cope with the anxiety.
The claimant submits that she now experiences episodes of crying, hand tremors, increased heart rate and sweating when she is anxious, and now has a propensity to anger over minor triggers. She reports to struggle with concentration, comprehension, problem solving and time management, which is said to affect her daily activities and ability to study.
The claimant also submits that her ability for self-care has deteriorated, and she reports to have ceased visiting the gym since the accident. She says she limits her social interactions to a small group of friends and her partner, and otherwise avoids social engagements.
The claimant submits that she has suffered from various psychological symptoms which correspond with the DSM-5 criteria for Major Depressive Disorder. The claimant refers to Dr Kim’s records, which she submits record that she has consistently complained of the following symptoms from 24 May 2023 to 11 January 2024:
(a) sleeping difficulties, requiring sleeping tablets from mid-July 2023;
(b) feelings of hopelessness and helplessness;
(c) low energy;
(d) low or depressed moods;
(e) concentration difficulties affecting her ability to study, resulting in reduction of study load following the accident;
(f) eating irregular or binge eating;
(g) difficulties dealing with stress or little things;
(h) being easily irritated by stress or little things/stimuli affecting her relationship with people around her, including her ex-boyfriend and friends, and
(i) feelings of sadness and emptiness.
The claimant submits that the symptoms Medical Assessor Roberts found during his assessment are consistent with the symptoms the claimant has reported to her psychologist.
The claimant also submits that the mere fact she was described as being “neatly groomed”, that she attends university four days a week, has been in a new relationship, and occasionally attends church does not mean her psychological injury does not meet the DSM-5 criteria for Major Depressive Disorder. The claimant also refers to the UTS personal authority forms signed by Dr Lee and Dr Kim that her ability to study has been severely affected due to her psychological symptoms and generalised anxiety.
The claimant also submits that she is not suffering from any symptoms caused by her previous brain injury, and that her references to a brain injury is her opinion only. She submits that medical evidence suggests she was asymptomatic from her pre-accident brain injury at the time of the accident. The claimant submits it has not been aggravated by the accident in any way, and she is not currently experiencing any symptoms caused by this prior injury.
MEDICAL EXAMINATION
Who attended the medical examination?
The claimant was examined on 10 June 2025 by Medical Assessors Gupta and Canaris. The examination occurred via MS Teams. A Korean interpreter was present throughout the examination.
Psychosocial history
The claimant was born and brought up in South Korea but has been living in Australia since 2020. She started a degree in translation at Macquarie University and worked as a cleaner at the library as a “cash job”. She then shifted to study nursing at UTS in 2020.
She says that she had a happy childhood and denies suffering from any abuse or trauma. She denies any history of mental illness in her family. The claimant lives with a flatmate in a shared room.
She denies any history of mental illness. She denies any history of major physical illnesses.
History of the Incident
The claimant was injured in a motor vehicle accident on 5 January 2023. The accident took place in Rhodes at around 6.00pm, while she was a front-seat passenger in a car driven by her ex-boyfriend. The vehicle was stationary at a red light, with one car ahead, when it was struck from behind and pushed forward into the vehicle in front, sustaining damage to both ends. No police or ambulance attended the scene. A tow truck driver transported them to a garage, and her ex-boyfriend later drove them home.
Symptomatology and treatment
The claimant says that her main problem is focusing on multiple things. She is struggling academically and her subject co-ordinator has complained about that.
She says that her mood is “up and down”. She says that her mood tends to lower at night. She cries for no reason. She says that her heartbeat is “very irregular” and her hands shake. She feels embarrassed because of that when she is with her friends. She says that she feels anxious sometimes, but not all the time. She did not describe any triggers for her anxiety. She suffered a panic attack while working as an Assistant in Nursing (AIN) three weeks ago when she had to break bad news about a patient to their relatives. She says that she panics whenever the bus starts driving fast, especially at night when she is returning from university. She says that her anxiety has been improving with the psychology sessions, but her mood is worse.
Her sleep is impaired. She wakes up three times during the night. She describes suffering nightmares. She struggles to fall back asleep.
She says that she was a passenger when she was injured. She says that she had arguments with her partner about driving “fast”. She gets annoyed even if a car is being driven at 50-60 kmph. She could use a taxi, but would ask the driver to slow down. She does not have a driving licence. She describes suffering flashbacks when she sat in the car with her ex-partner. She has not suffered any flashbacks in the last three months. She has been in a taxi during that time, which she managed by closing her eyes.
She describes an exaggerated startle response. She jumps at loud noises and her heart starts beating faster. She says that she sometimes hides in the toilet at work whenever a patient becomes aggressive.
She says that her appetite is not that good. She eats a lot of sweet things while working on her assignments. She had gained seven kilos six months ago but has since lost six kilos. She does not cook, but gets food delivered.
She avoids going out with friends. She says that she feels tired all the time. She used to enjoy going to the gym, but she no longer goes because of tiredness. She does not have any hobbies. She used to enjoy socialising with friends but has lost her motivation in this regard. She travelled to South Korea after the accident to see her family and returned one month later. She keeps in touch with her family regularly.
She says that she does not want to think about anything and is uncertain about her future. She says that her self-esteem is worsening, but she does not feel worthless. She denies any suicidal ideation.
She was prescribed Melatonin but does not take it every night. She was prescribed an antidepressant but is not taking any at present. She stopped it because of side effects. She continues to see her psychologist, Dr Kim, every week.
Subsequent Trauma
There is no subsequent trauma. However, Ms Park suffered a head injury on 10 February 2022, before the claimed injury. She was suffering from a COVID-19 infection and fell backwards because of a dizzy spell. She hit the back of her head and suffered a fracture of the right occiput.
Mental state examination
Ms Park presented as a casually dressed lady who appeared adequately nourished and reasonably kempt. She was helpful in her manner and easy to form a rapport. She was cheerful for most of the assessment. However, she did become distressed when talking about her injury and its impact. Her mood appeared low, but her affect was reactive. Her speech was normal in rate, rhythm, tone and volume. Her thought content revealed that she is fearful of travelling in a car. She does not have any suicidal ideation. She was not suffering from any perceptual abnormalities. She was able to focus throughout the assessment. She appeared to be well-orientated to time, place and person. Her insight and judgement were intact.
Current functioning
Ms Park says that she showers once a week to every other day. She blames this on tiredness. She feels guilty about the breakup with her ex-boyfriend and feels that it was because she had become oversensitive.
Her ex-boyfriend was in the subject accident with her, and they broke up one month later. She had another relationship, but it recently broke up. She says that she has become irritable and used to take it out on her ex-boyfriend. She is single at present. She reported that the main reason she was not socialising was because of her shaking hands. She says that she cannot recall expressing concerns about brain injury. She has not been to church recently. She sought support from church after the accident, but stopped attending because she relied on people to take her and felt embarrassed as she used to cry when she went there. She was asked to go to the gym by her psychologist, but has not gone for three months because of anxiety.
At the time of the accident, she was a second-year nursing student and was working in a restaurant as a cleaner, twenty hours per week over four days. She is currently a fourth-year nursing student. She has not deferred her studies and has kept studying full-time since the accident. She stopped working in the restaurant after the accident because she wanted to focus on her studies. She had been working as a nursing assistant one day a week but has reduced to one day per fortnight.
She was working one-on-one with end-of-life patients in a palliative unit with cancer units. She says that she felt sad because of patient deaths in the palliative care unit, which is why she reduced her work days. She uses the metro to get to the university, which is over one hour, and the bus to get to her workplace.
She says that she has been finding it difficult to focus on studies and has had to apply for special consideration to gain extra time for submitting assignments. She is passing her subjects and will qualify at the end of the year. She would have completed it at the end of last year.
Comments on consistency
No inconsistencies were noted. She was asked about the head injury from 2022 and says that she did not have any resulting issues. She says that she got a very high mark in an exam which she took three weeks after the head injury, which demonstrates the lack of impact of the head injury on her cognitive ability.
She was also asked about her history of recurrent urinary tract infections, as documented in the general practitioner’s notes. She says that she has been advised that it is related to stress.
Treating psychologist Dr Jung Sook Kim had documented in session notes dated 11 March 25 that she was going to the gym two to three times per week and was also attending church. However, the claimant stated that that was the advice she was given, but she was unable to sustain that. The claimant was asked about the MRI head scan dated 15 February 2023 for recurrent dizziness and severe snoring, which concluded that there was a lesion in the left frontal cortex. She stated that the dizziness only started after the car accident and stopped three months later.
PANEL’S DETERMINATION: DIAGNOSIS AND FINDINGS
A medical review panel is a new assessment of all matters with which the medical assessment is concerned. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5]
[5] Insurance Australia Group Ltd t/as NRMA Insurance v Keen (2021) 399 ALR 765; [2021] NSWCA 287; Insurance Australia Ltd v Marsh (2022) 99 MVR 1; [2022] NSWCA 31.
The Panel also notes that the claimant bears the onus of establishing that any injury is not a threshold injury for the purposes of the MAI Act.[6]
[6] Lynch v AAI Limited t/as AAMI [2002] NSWPICMP 6.
Based on the clinical judgment of the Medical Assessors, the Panel finds that the claimant meets the diagnostic criteria under the DSM-5 for Major Depressive Disorder, with Anxious Distress.
According to DSM-5, a diagnosis of Major Depressive Disorder requires consideration of five diagnostic criteria, A to E.
In respect of criterion A, the presence of five (or more) specified symptoms during the same two-week period, representing a change from previous functioning is required. At least one of the symptoms must be (1) depressed mood or (2) loss of interest or pleasure.
The claimant reports the following symptoms:
(a) Depressed mood most of the day (A1). For example, the claimant describes her mood as "up and down," worse at night, tearfulness without cause every day.
(b) Markedly diminished interest or pleasure in all or almost all activities (A2). For example, the claimant no longer goes to the gym, no hobbies, avoids socialising, previously enjoyed these activities.
(c) Significant weight change or appetite disturbance (e.g., a change of more than 5% body weight in a month) (A3). For example, the claimant reports her appetite is "not that good," alternating increased intake of sweets during assignments, gained 7kg and lost 6kg over six months.
(d) Insomnia (A4). For example, the claimant wakes up three times per night, nightmares, difficulty returning to sleep. This occurs most days.
(e) Psychomotor agitation (A5). For example, the claimant reports exaggerated startle response, restlessness.
(f) Fatigue or loss of energy nearly every day (A6). For example, the claimant reports that she feels tired all the time.
(g) Feelings of low self-esteem and worthlessness (A7). For example, the claimant says her self-esteem is worsening and feels uncertain about the future.
(h) Diminished ability to think or concentrate (A8). For example, the claimant reports academic performance issues as observed by her subject coordinator, and says she struggles to focus on multiple things.
Her symptoms satisfy criterion B as they cause clinically significant distress and impairment in social and occupational functioning, evidenced by her academic difficulties, isolation from friends, and emotional distress at work.
In respect of criterion C, there is no evidence before the panel that the episode is attributable to the psychological effects of a substance or another medical condition. The Panel finds that there was no ongoing impact from the head injury when the accident occurred.
In respect of criterion D, at least one of the depressive episodes is not better explained by a schizoaffective disorder or other psychotic disorder. There is no evidence in the records of any schizoaffective disorder or any psychotic disorder and no indication at the re-examination that such a disorder was present.
In respect of criterion E, there is no manic or hypomanic episode. The claimant did not report any such episodes, nor was there evidence of any such episodes in the bundles of material before the Panel. The Medical Assessors did not observe any indication mania at the medical examination.
Accordingly, the Panel finds that the claimant satisfies the DSM-5 criteria for Major Depressive Disorder given her symptoms outlined in paragraph 147 above, and the findings of the Panel at paragraphs 148 to 151.
The DSM-5 defines "anxious distress" as the presence of at least two or more of the following symptoms during a depressive episode:
(a) Feeling keyed up or tense. The claimant reports that she panics on fast-moving buses, startles easily, avoids driving, hides at work when patients are aggressive.
(b) Difficulty concentrating because of worry. The claimant reports that she struggles to focus and reports generalised anxiety.
(c) Fear that something awful may happen. The claimant anticipates danger when commuting, and fears patient aggression.
(d) Feeling that she might lose control. The claimant describes panic attacks and avoidance behaviours.
Based on the Panel’s diagnosis of four symptoms, the claimant’s anxious distress is Moderate-severe.
Causation
In Raiana v CIC Allianz Insurance Ltd, Campbell J noted[7]:
“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.”
[7] [2021] NSWSC 13 at [65].
The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining the issues of negligence and causation.[8] It is therefore necessary for the Panel to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[9] As observed by Spigelman CJ (Davies AJA agreeing) in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:[10]
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.”
[8] Sections 5D and 5E CL Act.
[9] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].
[10] Cited with approval by White JA (Macfarlan and Payne JJA agreeing) in Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [138].
The Panel considers that Ms Park’s Major Depressive Disorder can be fully attributed to the accident. There is no evidence to suggest a significant contribution from other causes. There is no evidence that the claimant had a psychiatric condition prior to the accident. The Panel finds she developed psychological symptoms following the accident.
The Panel is satisfied that the accident could have caused Major Depressive Disorder with Anxious Stress and that, but for the accident, the claimant would not have this diagnosis.
The Panel is satisfied that the following injuries were caused by the motor accident:
(a) Major Depressive Disorder, with Anxious Distress.
CONCLUSION
Major Depressive Disorder, with Anxious Distress is a recognised psychiatric illness in the DSM-5 which is not defined as a threshold injury under the MAI Act or Guidelines. The claimant satisfies the criteria for this condition as described above.
The Panel confirms the certificate of Medical Assessor Samson Roberts dated 14 April 2024.
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