Phan v QBE Insurance (Australia) Limited
[2024] NSWPICMP 110
•26 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Phan v QBE Insurance (Australia) Limited [2024] NSWPICMP 110 |
| CLAIMANT: | Ngoc Chinh Phan |
INSURER: | QBE Insurance Australia Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Sharon Reutens |
MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 26 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 19 August 2020; right hand turn causing collision; various injuries sustained including psychological condition; consideration of medical reports which referred to acute stress disorder and possibility of post-traumatic stress disorder; claimant re-examined; clinical expertise of the Medical Assessors was that the claimant suffered from post-traumatic stress disorder under DSM5 caused by motor accident; Held – medical assessment certificate revoked; claimant suffered non-threshold psychological injury. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 19 September 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Ngoc Chinh Phan (the claimant) suffered injury in a motor vehicle accident on
19 August 2020. The claimant was driving when the insured vehicle turned right and collided with the claimant’s vehicle (the motor accident).[1][1] Claimant’s bundle, p 33.
QBE Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Ms Phan any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Ms Phan’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Samuell who issued a Medical Assessment Certificates dated 19 September 2022 (the medical assessment certificate). Medical Assessor Samuell concluded that the motor accident caused a minor psychological injury.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
Statutory amendment
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original medical assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
REASONS OF MEDICAL ASSESSOR
The Medical Assessor concluded that the motor accident caused an adjustment disorder with depressed mood which was a minor injury for the purposes of the MAI Act.
The Medical Assessor noted under the heading “consistency”:
“She has not been in a relationship since her husband’s passing. She described no difficulty in her relationship with her children. She sends her children to school, goes shopping and tidy’s her house. She is able to engage in all activities of daily living. She is worried about falling and restricts her socialising on that basis. She accompanies her daughter to school by bus. She cooks and cleans. She said that she does some of her shopping online. She dresses herself and showers and toilets herself. She said that she can forget to take a shower on occasion.”
Under “diagnosis” the Medical Assessor concluded:
“Ms Phan had a motor vehicle accident on 19 August 2020. She had some pre-existing psychological difficulty following the death of her husband in 2019. Her symptoms are mild and are dominated by symptoms of anxiety. It is noted, too, that the subject incident was followed by falls. The treating general practitioner diagnosed an Acute Stress Disorder. The timeframe for that disorder had expired when I assessed Ms Phan. At the time of the assessment, she described a chronic Adjustment Disorder with anxious mood. The stressor in this instance is the subject accident and its sequelae. The symptoms are in excess of what one would expect given the circumstances. The symptoms cause some disability.
Causation and reasons
The subject accident satisfies the stressor criterion for the Adjustment Disorder. No other cause of her Adjustment Disorder was identified. The subject accident caused the Adjustment Disorder.”
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[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. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The parties filed bundles of documents for the Panel’s consideration. The claimant filed updated clinical records from Dr Nguyen.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[9]
“(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.”
[9] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
Claimant’s submissions dated 19 January 2021[12]
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
[12] Claimant’s bundle, p 49.
These submissions concern the minor injury decision made by the insurer and its decision to decline to fund medical treatment. The claimant referred to a number of physical injuries caused by the motor accident and psychological injury.
Claimant’s submissions undated[13]
[13] Claimant’s bundle, p 1.
These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor had failed to properly consider the Allied Health report of psychologist, Julio Urquia dated 22 October 2020 who considered the presence of post-traumatic stress disorder.
The claimant further submitted that the Medical Assessor did not provide clear reasoning and does not refer to DSM-5 in diagnosing the claimant’s condition as an adjustment disorder with anxious mood.
The claimant submitted that her symptoms conform to the diagnostic criteria for post-traumatic stress disorder.
The claimant further submitted that consistent with the decision of Lynch v AAI Ltd,[14] that if the symptoms occurred at any time, then the injury falls outside the definition of “minor injury”.
Insurer’s submissions dated 3 May 2021[15]
[14] [2022] NSWPICMP 6 (Lynch).
[15] Insurer’s bundle, p 2.
The insurer referred to the claim form which asserted a number of injuries.
The insurer referred to the certificate of capacity completed by the general practitioner (GP) which diagnosed an acute stress disorder. This diagnosis was repeated in an Allied health recovery request dated 13 January 2021.
The insurer referred to the initial rehab needs assessment report dated 5 October 2020 which referred to the claimant’s self-reporting that she had consulted a psychologist on a regular basis since the death of her husband 1.5 years prior to the motor accident.
The insurer noted that the Allied health recovery report request dated 22 October 2020 included a diagnosis of “possibility of PTSD progression” and was not a definitive diagnosis.
Insurer’s submissions dated 7 November 2022[16]
[16] Insurer’s bundle, p 35.
These submissions were filed opposing the application to review the medical assessment certificate.
The insurer submitted that the Medical Assessor noted all the material, took a detailed history and conducted a thorough examination.
The insurer noted the certificates of capacity from the GP referred to a diagnosis of acute stress disorder and the Allied health recovery request report dated 26 October 2020 that Medical Assessor Samuel expressly stated that he had considered the diagnosis of post-traumatic stress disorder and the report only contained a diagnosis of a possible post-traumatic stress disorder progression with no definitive diagnosis of post-traumatic stress disorder. It noted that the subsequent Allied health recovery request report dated 13 January 2021 contained a diagnosis of acute stress disorder only.
The insurer noted that Medical Assessor Samuel stated that he had in fact considered the diagnosis of post-traumatic stress disorder and that all the criteria for such a diagnosis had not been met.
In relation to any previous psychiatric diagnosis, the insurer submitted that any psychological injury never satisfied the criteria of post-traumatic stress disorder or any other mental disorder.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents for the Panel’s consideration.
The Panel requested the claimant to file and serve the prior records of the treating psychologist. The direction provided in part:
“The certificate in the claimant’s bundle at page 37 appears to be unrelated to this matter. The Panel will ignore the document unless otherwise advised.
The claimant is to file and serve the records of the psychologist relating to the treatment prior to the motor accident (see the history in the Insurer’s bundle, p 18) by close of business, 22 January 2024.”
The parties did not respond to this part of the direction and submit otherwise.
The claimant provided updated records of Dr Nguyen which was not a response to our request. The claimant otherwise advised:
“We refer to the Review Panel Directions dated 13 December 2023 requesting pre-accident psychological records.
The Claimant is unable to remember the name of the psychologist consulted at Bankstown Hospital and we are unable to locate any clinical notes.”
Pre-accident medical records
There was no production of records for pre-accident treatment due to the death of the claimant’s husband.
Medical evidence
A certificate of capacity dated 19 August 2020 referred to “pain secondary to MVA”.[17]
[17] Claimant’s bundle, p 40.
The claimant completed a claim form on 26 August 2020. After referring to the motor accident, the claimant noted that she suffered injuries to her shoulder, chest, breast and left hand noting that the pain was affecting sleeping when turning her back.[18]
[18] Claimant’s bundle, p 33.
A certificate of capacity dated 3 September 2020 referred to soft tissue injuries and an acute stress disorder.[19]
[19] Insurer’s bundle, p 13.
A referral from the GP to the psychologist dated 4 September 2020 requested management of the claimant’s acute stress disorder following the motor accident.[20]
[20] Claimant’s bundle, p 62.
A certificate of capacity dated 26 September 2020 referred to the motor accident causing injuries to the thoracic spine, left ribs, sternum, shoulders, left knee, lower back pain, left wrist and “acute stress disorder”.[21] This diagnosis was repeated in certificate of capacity dated 26 November 2020.[22]
[21] Claimant’s bundle, p 43.
[22] Claimant’s bundle, p 46.
The initial rehab needs assessment report dated 5 October 2020[23] contain the following history:
“When asked about her depression, Ms Phan reported she had consulted a psychologist on a regular basis as she suffered from depression because husband passed away 1.5 years ago. She stated that Dr Nguyen had recommended for her to see a psychologist and when asked why, she reported the reason to be because she suffers from depression and that she is fearful of driving again.”
[23] Insurer’s bundle, p 17.
An Allied health recovery request dated 26 October 2020 referred to acute stress disorder and “possibility of post-traumatic stress disorder progression”.[24]
[24] Insurer’s bundle, p 23.
On 13 November 2020 the GP referred the claimant to Dr McKechnie for management of the claimant’s neck and lower back pain after recent motor accident.[25]
[25] Claimant’s bundle, p 28.
An Allied health recovery request completed by Ms Urquia dated 13 January 2021 included a clinical assessment of acute stress disorder.[26]
[26] Claimant’s bundle, p 68.
An Allied health recovery request completed by Ms Urquia dated 27 January 2021 included a clinical assessment of acute stress disorder and major depressive disorder.[27]
[27] Claimant’s bundle, p 63.
Ms Julio Urquia, psychologist, provided a report dated 28 January 2021.[28] The psychologist noted that the claimant’s presentation was consistent with an acute stress disorder with possible comorbid major depressive disorder and noted a variety of symptoms.
[28] Claimant’s bundle, p 33.
A referral by the GP dated 6 April 2021 requested treatment for the claimant’s “PTSD under the Mental Health Care Plan”.
In July 2022 the GP referred the claimant for psychological counselling noting that the claimant had depression and panic attacks.
RE-EXAMINATION
Ms Phan was examined by both Medical Assessors on 14 February 2024 who provided the following findings.
“The Medical Assessors examined Ms Phan at 1pm on 14 February 2024 via telehealth using the Microsoft Teams application. Ms Phan was unaccompanied for the interview and located at her home. Ms Pham’s identity was confirmed by NSW Driver’s License. The medical panel was assisted by Ms Dang, Vietnamese Interpreter.
Ms Phan is 47 years old and lives in Bankstown with her 2 daughters aged 14 and 18. She has not been in a relationship since the death of her last husband in 2019. She is in receipt of Jobseeker allowance from Centrelink.
She was born in Vietnam and migrated to Australia in 1994. She is an Australian Citizen. Her parents passed away when she was in her early teens. She has 3 elder brothers, 2 elder sisters and 1 younger sister. She is not aware of a family history of psychiatric issues. She grew up in poor conditions in Vietnam and was only educated to Year 2/3. Her father worked in the paddy fields. She left Vietnam by boat in 1990/1991 and went to Indonesia. She spent a number of years in refugee camps. She eventually travelled with her female cousin to Australia in 1994.
In Australia she has worked in various jobs including in a factory for 5-6 years and delivering pamphlets to mailboxes. She has not worked for around 10 years.
She does not smoke or drink. She does not use cannabis or other recreational drugs.
The Subject Motor Accident
When asked to describe the motor accident, the claimant reported that on 19 August 2020 She was seat belted, driving a Toyota Camry in a 60km/hr zone. Her eldest daughter was in the front passenger seat and her younger daughter was in the rear seat. An oncoming car turned right into her vehicle causing a collision to the front of the vehicle. The airbags were deployed. She recalled being extremely frightened. There was “a lot of smoke”. She felt hot and thought that the car was burning and that she might be seriously injured.
Symptoms and treatment after the accident
The claimant reported that she was transported to hospital by ambulance and was there for 4 days.
She reported that after the accident she felt anxious and couldn’t sleep well. She reported bad dreams occurring after the accident relating to the feeling and effect of the motor accident where she felt scared, she was going to die or be seriously harms. She reported that she was irritable and raised her voice more often. She reported that she felt fearful that something bad was going to happen. She reported that she struggled to go out and drive. She worked with a psychologist and has been able to drive her child to school on occasion. She has been able to drive in the local area. She prefers to walk or catch public transport. She has been more socially withdrawn but has 1 “friend” who is a parent from school. The often arrange to meet with the children on weekends at the park. She maintains a good relationship with her female cousin who she talks to regularly and she often comes to visit. She struggles with cooking and housework, and they have recently purchased a robot vacuum. She is able to watch short clips or parts of videos on YouTube.
More recently she has engaged with a Vietnamese speaking psychiatrist Dr Thomas Luong who she has seen 4-5 times. He has prescribed psychotropic medication. She reported that initially she was prescribed 3 different medications but is not maintained on venlafaxine 150mg twice daily. She said that the medication had helped with her anxiety and reduced the frequency of bad dreams.
She reports ongoing pain in her chest particularly when she sneezes or coughs. She reports pain in her head and neck. She reports ongoing periods of dizziness and has fainted on a number of occasions and been taken to hospital.
Current and Proposed Treatment
The claimant has no current treatment for her knee except for as required ibuprofen and Paracetamol. She expressed an interest in medicinal cannabis but did not want to pursue this because of cost.
She said that she finds it helpful to talk to her Christian pastor.
She was interested in obtaining psychological therapy however could not afford the cost.
She was willing to engage with a psychiatrist however also cited cost as a barrier.
Past Psychiatric History
She denied any formal diagnosed prior psychiatric history. She had no psychiatric hospitalizations.
She was asked about reference in the material to past mental health issues following the death of her husband. She said that she had seen a counsellor to help cope however denied any ongoing symptoms or difficulties from this.
Medical History
The claimant has a history of prior back and leg pain with a past worker’s compensation claim around 10 years ago.
Mental state examination
The claimant appeared reasonably and appropriately groomed. She engaged with difficulty at times, particularly when discussing her early background and relationships. She reported a “depressed and anxious mood”. Her affect was restricted to the dysphoric range. There was no formal thought disorder. There were no delusions and no hallucinations. She was oriented to time, place and person. Her cognition appeared grossly intact with no obvious concentration difficulties at interview. There was no suicidality.
Diagnosis & Reasons
The claimant suffers from Post Traumatic Stress Disorder (PTSD)
DSM-5-TR Diagnostic Criteria for PTSD
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1.Directly experiencing the traumatic event(s).
2.Witnessing, in person, the event(s) as it occurred to others.
3.Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4.Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s). Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
2.Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s). Note: In children, there may be frightening dreams without recognizable content.
3.Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.) Note: In children, trauma-specific reenactment may occur in play.
4.Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5.Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1.Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2.Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia, and not to other factors such as head injury, alcohol, or drugs).
2.Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3.Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4.Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5.Markedly diminished interest or participation in significant activities.
6.Feelings of detachment or estrangement from others.
7.Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1.Irritable behaviour and angry outbursts (with little or no provocation), typically expressed as verbal or physical aggression toward people or objects.
2.Reckless or self-destructive behaviour.
3.Hypervigilance.
4.Exaggerated startle response.
5.Problems with concentration.
6.Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F. Duration of the disturbance (Criteria B, C, D and E) is more than 1 month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
She fulfils the Criteria as follows:
ADirectly experiencing the motor accident with perceived threatened death and serious injury.
B. Recurrent, involuntary and intrusive distressing dreams
C.avoidance of driving (which has improved with treatment)
D.Persistent and exaggerated negative beliefs about the danger of the world to herself. Persistent negative emotional state of “depression and anxiety”.
E.Sleep disturbance, irritable behaviour.
F.The disturbance has persisted since the accident
G.The disturbance causes clinically significant distress.
H.The disturbance is not attributable to the physiological effects of a substance or another medical condition.
Conclusion
The claimant suffers from a Post Traumatic Stress Disorder which is not a threshold injury.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[29] and Insurance Australia Ltd v Marsh.[30]
[29] [2021] NSWCA 287 at [40], [41] and [45].
[30] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[31] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[31] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[32] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[32] at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.
The Panel is reliant on the clinical expertise of the Medical Assessors who undertook the recent examination process. We have considered the parties’ submissions concerning various diagnosis and the various material which we have summarised earlier in these Reasons which include some doubt as to a particular diagnosis. As we noted, we are not bound by these opinions which are brief and do not address the various criteria contained in DSM5.
In respect of accepting that the claimant has established causation of psychiatric injury, we have considered the contemporaneity of onset of psychological symptoms, the significance of the motor accident and the various clinical records. It is the consistent view by medical and health practitioners that the motor accident caused a psychiatric injury although the nature of that injury, assessed in accordance with DSM5, is in issue.
For these further reasons we are satisfied that the motor accident caused a post-traumatic stress disorder in accordance with DSM5.
CONCLUSION
The medical assessment certificate is revoked. The new certificate is attached at the commencement of these Reasons.
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