Petratos v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 10
•8 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Petratos v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 10 |
| CLAIMANT: | Evangelia Petratos |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Glen Smith |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant suffered injury in a motor accident on 3 August 2020 when the insured vehicle drove into the path of the vehicle she was travelling in as a rear-seat passenger; air bags deployed; confrontation and abuse from driver of insured vehicle at the scene of the accident; whether psychological injury was a threshold injury; no pre-existing psychological condition; where the Medical Assessor at first instance found that a psychological injury, Adjustment Disorder with Mixed Anxiety and Depressed Mood, was caused by the motor accident; Held – original assessment revoked; finding that the claimant’s presentation fulfilled criteria for post-traumatic stress disorder and the psychological injury was a not a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury. The Review Panel: 1. Revokes the certificate of Medical Assessor Alexey Sidorov dated 3 July 2022. 2. 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. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Evangelia Petratos, suffered injury in a motor accident on 3 August 2020 when a vehicle insured by NRMA drove into the path of a vehicle in which she was travelling as a rear-seat passenger.
As a result of the accident, the claimant claimed that she sustained physical injuries as well as a psychological or psychiatric injury.
The insurer accepted liability to pay the claimant statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) for the first 26 weeks.
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”.[1] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
[2] Section 4.4 of the MAI Act.
The issue in dispute in this matter is whether the claimant’s psychological or psychiatric injury resulting from the accident was a threshold injury for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and the term “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI 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,[3] and pursuant to s 7.26 of the MAI Act, on review, by a review panel.
[3] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Alexey Sidorov who issued a Medical Assessment Certificate dated 3 July 2022 (the medical assessment).[4]
[4] Claimant's bundle, p 19.
The Medical Assessor’s diagnosis of the claimant’s psychological condition was:
“Based on the account presented by [the claimant], her presentation and review of provided documentation, she meets the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood as per DSM-5. This is based on the history of [the claimant] developing symptoms of low mood, irritability as well as anxiety with associated disturbed sleep secondary to pain that had developed after she was involved in the subject accident in August 2020. [The claimant] also describes some trauma-related symptoms including nightmares and intrusive thoughts regarding the accident as well as anxiety around driving a car and avoidance of doing so however not meeting the full criteria for a Posttraumatic Stress Disorder as per DSM-5.”[5]
[5] Claimant's bundle, p 24.
In respect to causation, the Medical Assessor found that the psychological injury - Adjustment Disorder with Mixed Anxiety and Depressed Mood, was caused by the motor accident.
THE REVIEW APPLICATION
On 28 July 2022, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Michael Hong, Medical Assessor Glen Smith and Member Maurice Castagnet (the Panel).
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.[7]
[7] 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, the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[9] Section 7.26(6) of the MAI Act.
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 Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that “acute stress disorder” and “adjustment disorder” have the same meanings as in DSM-5.[11]
The Motor Accident Guidelines
[11] DSM-5 is the document entitled Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
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 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.”
Causation of injury
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12]
[12] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
MATERIAL BEFORE THE PANEL
[13] [2021] NSWSC 13 (Raina) at [65].
The Panel considered the claimant’s paginated and indexed bundle of 169 pages filed on 4 October 2023.
The insurer indicated that the documents relied upon by the insurer are contained in the claimant’s bundle of 4 October 2022. On that basis, it had no further documents to file.
However, the Panel notes that the insurer’s (undated) submissions to the President (in reply to the claimant’s leave application for a review) were not part of the claimant’s bundle. The Panel considered these submissions.
The Panel considered the claimant’s Application to Admit Late Documents dated 16 October 2023 (173 pages) which were filed pursuant to the Panel’s directions of 16 August 2023.
The Panel considered the claimant’s Application to Admit Late Documents dated 30 October 2023, which was also filed pursuant to the Panel’s directions of 16 August 2023, although a few days late. This document comprised of the report of Dr Shiva Basir dated 27 October 2023 (4 pages).
SUBMISSIONS
The claimant’s submissions
The claimant made submissions to the President seeking leave to review the medical assessment. These were dated 28 July 2022. The claimant did not make any further submissions directly to the Panel.
These submissions may be summarised as follows:
(a) The Medical Assessor failed to consider the additional/late documents submitted by the claimant as “AD15”. Those documents included a report from Dr Hani Hanna dated 5 July 2021.
(b) The Medical Assessor failed to engage with the opinions of “treating psychologists”, Ms Clark and Ms Huggins and failed to refer or consider the considerable body of evidence running counter to the proposition that the claimant did report symptoms which met the diagnostic criteria of post-traumatic stress disorder. This constituted a failure to take into account a relevant consideration. The claimant referred to Rodger v DeGelder (2015) 71 MVR 514 at [84]-[85]. (It is necessary for the Panel to digress at this point and note that Mr Deane Clark was a treating chiropractor and not a psychologist.)
(c) The psychiatric symptoms recorded in the Medical Assessor’s certificate when cross-examined to the diagnostic criteria of post-traumatic stress disorder under DSM-5 leads to the conclusion that the claimant qualified for a diagnosis of post-traumatic stress disorder.
Insurer’s submissions
The insurer’s submissions to the President may be summarised as follows:
(a) The insurer submitted that the only document in “AD15” which was relevant to the injury being assessed that could be classified as a medical record was the report of Dr Hani Hanna dated 5 July 2021. In that regard, it is apparent from page 5 of the certificate of the Medical Assessor that he did consider the document.
(b) In so far as reference to the medical opinions of Mr Clark and Ms Huggins is concerned, the Medical Assessor was not required to explain why he did or did not accept those opinions in making his findings. The Medical Assessor met his obligations by conducting his own examination, reviewed the medical records before him and provided a path of reasoning for the diagnosis made.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence relating to the injury being assessed may be conveniently summarised as follows.
The claimant’s description of her injuries
In her personal injury claim form dated 26 August 2020, the claimant stated that in the accident, she sustained loss of consciousness, and injuries to the head, left hand, lumbar spine, neck and shoulders.[14] She stated that she was unemployed at the time of the accident and receiving a Jobseeker allowance from Centrelink.[15]
Guildford Road Medical Centre
[14] Claimant’s bundle p 72.
[15] Claimant’s bundle p 74.
The clinical records of Guildford Road Medical Centre recorded the following information in relation the claimant’s surgery consultations (that were relevant to the injury being assessed) with her general practitioner, Dr Hani Hanna:
(a)the consultation of 5 August 2020, referred to the claimant being involved in a motor accident on 3 August 2020 and complaining of neck pain, back pain, with both hands and head also affected. On examination, the following entries were recorded - weight 56kg, BMI 19.6, Alcohol Use Disorders Identification Test (AUDIT) score was 0.[16]
(b)At the consultations on 29 September 2020, 20 and 27 October 2020, 10, 18, 24 and 30 November 2020, 10 December 2020, 7, 12 and 19 January 2021, 2 February 2021 and 4 June 2021, references were made to continued complaints of neck pain, back pain, with both hands and head also affected. Depressed mood was noted.[17]
(c)Regular scripts of Zoloft (50mg) were prescribed at consultations during the period between 20 October 2020 and 5 March 2022.[18]
[16] Claimant’s bundle pp 101-102.
[17] Claimant’s bundle pp 93-100.
[18] Claimant’s bundle p 105 and Application to Admit Late Documents-1 pp 4-5.
In medical certificates issued by Dr Hanna to Centrelink dated 6 October 2020, 10 November 2020 and 12 January 2021 respectively, the medical conditions which impacted on the claimant’s capacity to work, or study were recorded as “car accident injury back neck depression”.[19]
[19] Claimant’s bundle pp 116, 117 and 122.
In certificates of fitness issued by Dr Hanna dated 12 January 2021 and 2 February 2021 respectively, the motor accident-related injuries were recorded as “back neck injury depression”. Details of any pre-existing factors that may affect these injuries were recorded as “nil”.[20]
[20]Claimant’s bundle pp 106 and 110.
In a letter dated 10 November 2020, Dr Hanna referred the claimant to psychologist, Ms Theodora Huggins for psychological treatment. The letter noted that the claimant was experiencing “Depressed mood” and was being prescribed Zoloft - 50mg. [21]
[21] Claimant’s bundle p 119.
Ms Theodora Huggins
In an Allied health recovery request form dated 17 December 2020, Ms Huggins reported a diagnosis of “PTSD Anxiety depression”.[22]
[22] Claimant’s bundle p 153.
On assessment, Ms Huggins recorded the following observations:
“loss of confidence, depression, lack of motivation, sense of helplessness, high startle response, ruminating and worrying thoughts re career planning … on being a childcare teacher, sleep difficulties… broken sleep, sad… cries… angry… emotional.”[23]
[23] Claimant’s bundle p 154.
Dr Shiva Moshir
The clinical records of psychologist, Dr Shiva Moshir recorded the following information in regard to the treating therapy sessions with the claimant.
(a) At an initial assessment on 30 June 2022, the following symptoms were noted:
“…high physiological arousal; feels frightened by loud noises. Avoids walking near busy roads due to high level of anxiety. Feels overwhelmed, flashbacks, emotional and experiences low mood every day. Difficulty concentrating and lacking in energy. Loss of confidence and difficulty sleeping (on average 4 hours per night). Cannot engage in activities – previously engaged in many activities including socializing with friends, lack of motivation. Experiencing intrusive thoughts about her future and injury. Feels scared for future, which increases hopelessness.” [24]
(b) On assessment, Beck’s depression inventory (BDI) self-reported symptoms score was noted at 53. A provisional diagnosis of post-traumatic stress disorder was made, and recommendations were made for cognitive behavioural therapy, acceptance commitment therapy and stress management.[25]
(c) At the treatment session on 9 August 2022, the following symptoms/experiences were noted: low mood, intense fear and anxiety when seeing cars on the road, reminder of the accident.[26]
(d) At the treatment session on 30 August 2022, the following symptoms/experiences were noted: panic attacks, flashbacks, household chores and self-care have become very difficult.[27]
(e) At the treatment session on 12 October 2022, the following symptoms/experiences were noted: lack of motivation to do anything, has become socially isolated, has lost confidence to apply for a job due to pain and depression.[28]
(f) At the treatment session on 22 November 2022, the following symptoms/experiences were noted: unable to stop overthinking, agitation, and low concentration during the session.[29]
(g) At the treatment session on 12 December 2022, the following symptoms/experiences were noted: afraid getting into car, drives only if absolutely necessary and only short distances. No confidence. Unable to look after baby as she would like.[30]
(h) At the treatment session on 24 April 2023, the following symptoms/experiences were noted: has tried a few times to go out but has become socially anxious, feels like people are staring at her.[31]
(i) At the treatment session on 7 July 2023, the following symptoms/experiences were noted: repeated memories of accident, distressed when reminded of the accident, anger towards driver at fault, forgetfulness – burnt food, pain from injuries, sleep disturbances – 3 hours of sleep, need to sit in back of car and not have a visual of the road, loss of interest in hobbies and activities.[32]
[24] Claimant’s Application to Admit Late Documents – 16 October 2023, p 155.
[25] Claimant’s Application to Admit Late Documents – 16 October 2023, p 155.
[26] Claimant’s Application to Admit Late Documents – 16 October 2023, pp 155-156.
[27] Claimant’s Application to Admit Late Documents – 16 October 2023, p 156.
[28] Claimant’s Application to Admit Late Documents – 16 October 2023, p 156.
[29] Claimant’s Application to Admit Late Documents – 16 October 2023, p 157.
[30] Claimant’s Application to Admit Late Documents – 16 October 2023, p 157.
[31] Claimant’s Application to Admit Late Documents – 16 October 2023, p 158.
[32] Claimant’s Application to Admit Late Documents – 16 October 2023, p 158.
In a report dated 27 October 2023, Dr Moshir noted that the claimant attended 11 therapy sessions in the period between 30 June 2022 and 13 October 2023. Dr Moshir was of the opinion that the claimant’s reported symptoms were consistent with DSM-5 criteria for diagnoses of post-traumatic stress disorder and Major Depression Disorder. Dr Moshir noted that based on the initial assessment and the medical records, the claimant did not experience any mental health symptoms prior to the accident.[33]
RE-EXAMINATION FINDINGS
[33] Claimant’s Application to Admit Late Document – 30 October 2023.
Medical Assessor Hong and Medical Assessor Smith conducted the examination of the claimant via audio-visual link. The claimant was located on her own at her home for the duration of the examination.
Psychosocial history and pre-accident history
The claimant was born in Australia and grew up with her parents, being the third of four siblings. She did not have a major sickness or surgery in her childhood and has not experienced childhood trauma. She has never been married.
In terms of general medical history, she does not have cardiac, respiratory, or liver disease.
In terms of substance history, she drank socially before the accident and since the accident, she no longer drinks. She does not use drugs.
In terms of family history, she is not aware of a family history of mental illness.
The claimant has not had a previous car accident.
The claimant does not have a past psychiatric history.
In terms of employment, the claimant left school in the middle of Year 11. She said that she wanted to work but did not really know what she wanted to do. She did a lot of courses and worked in a chemist, as a receptionist, in a pub, and did some NDIS work before doing childcare work, which was her last job.
The claimant said there were some problems in the last workplace, so she stopped working in 2019. She completed a real estate course and was looking for work as a real estate sales agent when the accident happened.
History of the motor accident
On 3 August 2020, the claimant was involved in a motor accident in Guildford. She remembered that she and her two friends had decided to go out. She was the rear-left passenger, and her friend and her friend's sister were also in the car. She stated there was a car that suddenly pulled out from the left, and her car could not stop and collided into the other car. She had a patchy memory of the events that followed, and said she blacked out for a moment and remembered hearing a long beep.
She reported there were two male occupants in the other car, who came out and started abusing them, swearing, and trying to blame them, and did not even ask whether they were okay. She said that the family of the two men lived in the same street, they also came out and they were very confrontational. She said that they left very quickly, and they felt scared, because it was dark, and people were screaming everywhere. Her sister's boyfriend came to pick them up and took them home. She was in shock and said she did not know what to do and that her hand was bleeding.
She recalled one or two days after the subject accident, she attended her general practitioner in relation to the accident.
The claimant reported multiple airbags were deployed during the accident. She stated she thinks the car has been written-off by the insurer but could not be sure. (The Panel noted that according to the police report the pre-crash speed was 55kmph.)
Physically, the claimant reported that she still suffers low back pain, which she thinks comes from a nerve impingement. She reported that initially, she had a knee problem from the collision, and this has resolved now. Because of lower back pain, she said she finds it hard to sit down or to stand up for long, and after walking maybe 10 to 15 minutes she will usually stop. She has not had surgical treatment after the accident.
History of symptoms and treatment following the motor accident
The claimant suffered anxiety immediately after the accident, and she said that since the accident, she does not want to leave home and avoids being in a car, either driving or as a passenger. Whenever she is in a car she feels she is in danger. She refuses to go into small cars and has purchased a Toyota Kluger. Over time, she felt depressed and said that she feels like she has no purpose in life.
When the accident happened, she was on her red P plates and now, she is on her green P plates. She said that she does not drive when it is peak hour traffic. She could drive on highways in the past, but she does not think that she has been on the highway since the accident. She worries about being in another accident.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant has not had further car accidents or sustained other psychological injuries.
She met her partner not long after the accident and reported that she was pregnant within a few months. This happened during the COVID pandemic and there were problems seeing a doctor for a while. There were no complications during her pregnancy, but she remembered her back pain from the subject accident, was worse as she was gaining weight during her pregnancy. She had a normal birth, and her son is doing well. She remembered being more depressed during her pregnancy and said that she feels like she cannot be the mother that she wants to be. She cannot be happy with herself or be as good as she used to be.
Current symptoms
The claimant said she avoids going out to public places and she worries what people will think about her. She worries that people will know there is something wrong with her. She has never been one to tell other people about her mental health and does not tend to confide in her parents. She met her partner after the accident and said that she "bottles things up" and does not really open up to him either. They have been together for three years and overall, the relationship is steady and he is quite supportive.
The claimant’s anxiety symptoms are triggered by driving, some road conditions and traffic. She avoids driving long distances due to her anxiety.
She described having pervasively depressed mood.
She reported nothing gives her pleasure, except playing with her son.
She described being forgetful and distracted.
She reported having low energy levels.
She has lost confidence in driving and in general activities.
She said she was heavier as she used to play sports, and lost weight after the subject accident, and was 57kg before her pregnancy. She is now 57kg.
She reported having sleep difficulties even when her son sleeps well. She has had nightmares related to the accident and “random” dreams about situations similar to an accident. This has improved over time but not completely resolved.
She has distressing memories related to the accident.
She is generally tired.
She described being tense and she finds it difficult to relax.
She has been irritable.
She avoids social situations and family gatherings, due to her anxiety.
She denied having had suicidal ideation.
Current and proposed treatment
The claimant took Sertraline (Zoloft) but she ceased this as she is breastfeeding, and intends to try other antidepressant medications after she ceases breastfeeding.
She consulted psychologist, Theodora Huggins from three to four months after the accident but she did not find treatment helpful. She started treatment with another psychologist, Dr Shiva Moshir, from mid-2022.
She has not consulted a psychiatrist.
Clinical examination
Mental state examination
The claimant had a youthful appearance. She engaged well with the assessment process. She presented as mild-mannered and smiled at times but presented as flat in her affect overall. She spoke softly and readily. She was attentive and gave a clear history and provided clarification when asked.
Current functioning
The claimant is 22 and living with her partner, who works as a plumber. They have a son who is almost two years old.
She reported she is a “stay-at-home mum” and does not intend to put her son into childcare until he can talk properly and said that she is very worried when she is not with him.
She watches television, often lies down during the day, plays with her son, and does a bit of tidying up at home. She prepares food for her son. Her parents come over regularly, and often she will ask them to do things for her or ask them to help with her shopping. She does some shopping and cooking herself but said that she does not do a lot of it, and they tend to eat out or buy takeaway food.
The claimant has lost a lot of friends since the accident and only has contact with one or two friends now. She said that she even avoids her cousins. She said that she previously always enjoyed family-oriented activities, and they were always doing things as a family, for example, birthday parties and family celebrations. She used to go to her aunt's house for barbeques every weekend, but has stopped going since the accident. She said she has not been to any family events for a long time.
After the accident, she has not returned to any studies or any work, as she finds it hard to sit down for long. She does not think that she can do any work at present, because she is in pain all the time, and she also finds it hard to interact with people.
Comments of consistency
There was no inconsistency identified.
Diagnosis and reasons
The claimant has no prior psychiatric problems and describes the onset of severe anxiety, particularly in driving and as a passenger, since the accident. Over time, she developed persistent trauma symptoms, and this is consistent with the diagnosis of post-traumatic stress disorder with depressive symptoms. Whilst there has been some fluctuation in her psychiatric injury, it has not resolved over time. She described an increase in depressive symptoms during her pregnancy and has not suffered a new psychiatric injury.
The claimant’s presentation has fulfilled the DSM-5 diagnostic criteria for post-traumatic stress disorder .
Criterion A: requires exposure to actual or threatened death, or serious injury, and must be direct exposure. The subject accident fulfilled this description, as she was in a significant accident, where multiple airbags were deployed and she was frightened, and then confronted by a group of people who were abusing her and her friends.
Criterion B: She has developed flashbacks and nightmares related to the impact of the accident.
Criterion C: She described persisting anxious-avoidance and anxiety when exposed to reminders of the accident, and she avoids driving and cannot tolerate being in a small car. Criterion D: She continues to experience negative cognitions and low mood, including markedly diminished interest and detachment from others.
Criterion E: She described physiological hyper-arousal manifesting in her withdrawn behaviour, sleep, concentration, preoccupation with danger and threat-scanning, especially on the road.
Criterion F: Her psychological symptoms have persisted longer than one month.
Criterion G: She has developed significant psychological impairment.
Criterion H: the panel has not identified an alternative medical or psychiatric diagnosis that is a better fit for her trauma-related psychopathology.
Causation and reasons
The claimant has no past psychiatric history. She developed immediate anxiety symptoms, which gradually evolved into post-traumatic stress disorder. She experienced stress and increased depressive symptoms during her pregnancy as she had increased back pain. There are no other contributing factors in the relevant timeframe, therefore, the subject accident is a major cause of her psychological injury.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were or were not threshold injuries, 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: See Insurance Australia Group Ltd v Keen[34] and Insurance Australia Ltd v Marsh.[35]
[34] [2021] NSWCA 287 at [40], [41] and [45].
[35] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusion of the Panel’s Medical Assessors.
The Panel finds that the claimant suffers a post-traumatic stress disorder caused by the motor accident. This a not a threshold injury for the purposes of the MAI Act.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Sidorov is revoked. The Panel issues a replacement certificate which forms part of this determination.
0
2
0