Portillo-Vera v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Portillo-Vera v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 758
CLAIMANT:	Hugo Portillo-Vera
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Elizabeth Medland
MEDICAL ASSESSOR:	Christopher Canaris
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	6 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment as to whether the claimant suffered a threshold psychological injury; claimant involved in low speed rear-end collision in the carpark; in the aftermath of the collision he was confronted with aggressive behaviour from the insured driver and other drivers wishing to exit the carpark; dispute as to whether the psychological injury was caused by a motor accident; Held – persistent depressive disorder not caused by the motor accident and was caused by the events that followed the collision which the Panel considered were not part of the motor accident; the collision caused no more than a negligible contribution to the psychological disorder; consideration of Ackling v QBE Insurance (Australia) Ltd, AAI Ltd v State Insurance Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales), Allianz Australia Insurance Limited v Gonzales, and Pham v NRMA Insurance Limited.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the medical certificate of Medical Assessor Barrett dated 23 May 2023.

STATEMENT OF REASONS

INTRODUCTION

Mr Hugo Portillo-Vera (the claimant) alleges injury from a motor accident occurring on
22 October 2019. The claimant was the driver of a vehicle in the carpark of Liverpool Plaza. When exiting the carpark another vehicle collided with the rear of the claimant’s vehicle. When exiting his vehicle and attempting to exchange details with the other driver, the claimant was confronted with angry motorists who were attempting to exit the carpark.
He subsequently lodged a claim upon Insurance Australia Limited t/as NRMA Insurance (the insurer), the insurer of the vehicle considered at fault. The claimant seeks payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act).
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury caused by the motor accident and whether any such injury is a “threshold” injury for the purposes of the MAI Act.
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim damages is opened.
An application was lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, 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”.
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.
The dispute about whether the injury caused by the motor accident is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
Medical Assessor Melissa Barrett issued a certificate and reasons dated 23 May 2023, which certified that the injury referred for assessment, persistent depressive disorder (chronic major depression) was not caused by the motor accident and therefor a decision as to whether the claimant had suffered a threshold injury was not required.

THE REVIEW

The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act. On 9 August 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
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 of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel met via video conference on 23 July 2024 and determined that a re-examination of the claimant was required. A medical examination was arranged to take place on 10 September 2024 with Medical Assessor Canaris and Medical Assessor Jones via Microsoft Teams. The examination took place as scheduled.
The Panel reconvened via videolink for a second preliminary conference on 1 October 2024.

RELEVANT STATUTORY PROVISIONS

The term “threshold injury” is defined in s 1.6 of the MAI Act. It provides that a threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(b).
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulation) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4 “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl 4(3) of the Regulation.
Part 5 of the Motor Accidents Guidelines (Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI 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:
“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.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric 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, 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.”

THE GUIDELINES

Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[1] Clauses 1.6 and 1.7 provides:
“1.6 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.
1.7 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.”
[1] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[2]
[2] See s 3B(2) of the CL Act.
“5D   General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

ASSESSMENT UNDER REVIEW

Medical Assessor Barrett took a history that the claimant initially felt “shock” because people had yelled at him. He felt pain the next day and attended his general practitioner (GP). The claimant is reported to have been angry about how the other driver reacted and how the other drivers reacted and how the police reacted.
The Medical Assessor considered the claimant to be suffering from symptoms consistent with a diagnosis of persistent depressive disorder. The Medical Assessor also noted paranoid ideation was not described in the pre accident psychologist and GP notes and as such the late age of onset of paranoid ideation, combined with a past history including prostate cancer, and vascular risk, she was of the view the differential diagnosis of paranoid ideation “…may include some organic cause of development of neuropsychiatric symptoms of paranoid ideation, such as cerebrovascular disease or metastatic cancer”.
The claimant’s prior documented symptoms indicate persisting anxiety and depression for more than two years prior to the accident and therefore by the time of the accident the claimant would have fulfilled the diagnosis of persistent depressive disorder. Therefore the disorder was pre-existing.
The Medical Assessor acknowledged the clinical evidence of the claimant finding the accident upsetting, however, what is repeatedly documented and what was stated at the assessment is the main cause of the distress was not the collision itself, but the alleged behaviour of the driver, passers-by and police. She considered the accident as described as “…not a plausible aetiology for exacerbation of pre-existing persistent depressive disorder”. Instead, the Medical Assessor is of the opinion that the events after the accident have caused the exacerbation of the pre-existing disorder.

SUBMISSIONS

Claimant’s written submissions dated 1 June 2022

These submissions were lodged in support of the claimant’s original threshold injury dispute. The claimant relied upon the report of Dr Jacobs which included a diagnosis of major depression caused by the accident.
The claimant submits that the insurer has the burden of proof and had not provided evidence to suggest the claimant has suffered a minor (now known as threshold) injury.

Claimant’s submissions dated 20 June 2023

The claimant submits that the Medical Assessor incorrectly applied the test of causation and wrongly separated the physical collision from the aggressive behaviour inflicted on the claimant at the scene of the accident. It is submitted that the Medical Assessor erred in finding the events following the collision were non-accident related events.
It is further submitted that the Medical Assessor erred in determining that the claimant’s physical injuries were determined to be minor injuries, as assessed by Medical Assessor Home and therefore not a plausible cause of exacerbation of the pre-existing condition.
The claimant submits that the Medical Assessor’s diagnosis of pre-existing persistent depressive disorder was made with insufficient evidence.
The claimant submits that Medical Assessor Barrett in determining causation wrongly separated the accident itself from the aggressive behaviour inflicted on the claimant and that she wrongly diagnosed the claimant with persistent depressive disorder at the time of the subject accident. The claimant contends that the claimant’s pre-existing condition was worsened by the subject accident and was thus not a threshold injury. The claimant further contends that the Medical Assessor wrongly concluded that physical injuries assessed as minor by Medical Assessor Home were not a plausible cause of the exacerbation of a pre-existing condition.
The respondent contends that the behaviour of people not directly involved in the accident lies outside the scope of the definition of a motor accident. The respondent further contends that Medical Assessor Barrett did not err in her consideration of Medical Assessor Home’s determination.

Insurer’s submissions dated 11 July 2023

The insurer submits that the Medical Assessor did not err in distinguishing between the collision and the aftermath when determining causation.
The insurer refers to the definition of “motor accident” as set out in the MAI Act. It is submitted that the injury caused by the conduct of the passers-by and police in the aftermath of the accident do not fall within the definition.

SUMMARY OF DOCUMENTS CONSIDERED

The Panel have considered all the documents included in the parties’ bundles of documents lodged in response to the Panel’s directions.
The Panel noted correspondence from the insurer dated 27 May 2020 informing him that his fractured rib was not a minor injury as defined by the Act substituting an earlier determination to the contrary.
The Panel noted the report of Road Safety Solutions dated 10 February 2022. This concluded that damage to the rear of the claimant’s vehicle was not consistent with contact with the front of the insured’s vehicle as there was no evidence of damage to the front of the claimant’s vehicle. It noted that the claimant’s vehicle had extensive pre-existing damage and that the lack of visual damage to the front of the insured’s car was sufficient and definite physical evidence that the claimant could not have received a fractured rib, irrespective of whether there had been any contact between the two cars.
The Panel noted the police report which is essentially consistent with the Road Safety Solutions report. Police noted the poor condition of the claimant’s vehicle, and subsequently noted some blue dust paint which easily wiped off on the other driver’s vehicle. They had difficulty obtaining information from the claimant but were assisted by the claimant’s daughter who interpreted.
The Panel noted the police notebook entry dated 22 October 2019 which records a version of events similar to that provided by the claimant, other than that the other driver reportedly refused to exchange details but offered him $100. The claimant reported that the other driver was agitated and smelt of alcohol.
The Panel noted the other driver’s statement which indicates that the claimant stopped suddenly and states that he did not collide with the claimant’s vehicle.
The Panel noted the report of AHC Investigations dated 4 December 2019.
The Panel noted the claimant’s statements dated 28 November 2019 and 9 December 2019.
The Panel noted the report of Dr Vidyasagar Casikar dated 12 April 2022. This concluded that the claimant had sustained a soft tissue injury to his cervical and lumbar spine against a background of constitutional degenerative disease which he apportioned at 90% for the subject accident and 10% for past injuries with 0% whole person impairment.
The Panel noted a range of radiological and nuclear medicine investigations.
The Panel noted a range of reports related to prior injuries including a report from
Dr Matthew Giblin dated 6 August 2014 who noted that he had found him “quite depressed”.
The Panel noted the report of Metropolitan Psychological Centre Pty Ltd dated
25 September 2014. This appears related to his prior injury, and he is noted to be showing “emotional disturbances of depression-anxiety secondary to the pain, the feeling of incapacity, & negative self-image, lack of work and health certainty and a sense of hopelessness”. His pain is described as “between 6 and 9 when inactive or active” and he “clearly articulates a catastrophic perception of his current status and future as he fears being hopeless and useless”. A further report dated 28 April 2016 notes that he has had to have his hand in a sling, that he was living on his own, and that he felt “neglected, worthless, upset, agitated” with “decreased motivation” with “significant sleep disturbance”. He is noted to have presented as “unkempt, agitated, frustrated and tired” and to be struggling to maintain basic hygiene and level of self-care since his surgery in March 2016.

The Panel noted the Patient Health Summary of Liverpool Family Medical Centre as printed on 19 November 2021. He is noted to have a history of prostate cancer for which he had radiotherapy and hormone therapy as well as gastro-oesophageal reflux disease and hypertension. Entries go back as far as 1 September 2012 when he is noted to have a history of lower back pain. A note on 25 May 2013 refers to right arm pain following an incident at work in later entries relate to the workplace accident giving rise to his workers compensation claim. On 20 August 2014, a reference to depression appears in the setting of physical limitations, a perception that the insurer did not care but just wanted to push him back to normal work duties, with loss of interest in almost all his hobbies, decreased motivation, low self-esteem, preferring to stay alone and often talking to no one, with some sleep disturbance with early morning waking. There are numerous further entries relating to depression and anxiety with sleep disturbance in the setting of his physical problems and he was noted to be seeing a psychologist. There are also sundry letters from specialists in relation to his physical injuries relating to his WorkCover claim.
The Panel noted a Housing Pathways medical assessment written by Dr Jonathan Herald, orthopaedic surgeon, dated 2 May 2016 which refers to his physical injuries while noting that he was unable to care for himself, feeling depressed, and living in his nephew’s garage.
The Panel noted the patient health summary of AllCare Medical Centre Hammondville as printed on 24 May 2024. These are not informative from a psychiatric perspective apart from a mental health plan dated 13 May 2016 relating to depressed mood and anxiety associated with his work-related right shoulder injury and torn long head of biceps. He was noted to be on Endep 25 mg daily and to be seeing a clinical psychologist (Vinicio Herrera).
The Panel noted the clinical notes of Advance Liverpool Medical Centre as printed on
9 February 2024. The only entry of relevance is a note on 31 May 2018 in which he presents as worried about his son who was overweight and autistic. It seems there had been no agreement with his wife in relation to the boy.
The Panel noted the patient health summary of Myhealth Liverpool as printed on
23 October 2023. This records his initial presentation six days after the accident but omits mention of the other drivers being angry and abusive. His neck is said to be sore because of a whiplash like injury with numbness returning to his fingers and restricted motion in his neck although this was said to be “the same as before”. He also had some chest wall pain from his seat belt. He found it difficult to sleep and was noted to be visibly upset.
A subsequent entry on 11 November 2019 notes that he is still “having a very hard time with his mind and feels unwell” with difficulty sleeping and difficulty adjusting. He was advised to see a psychologist and he was referred to Mr Herrera.
A subsequent note on 31 January 2020 records that he is “very upset with insurance company” and that he “feels that he is being very hard done by”. A private investigator was said to be involved but there was no footage of the incident as this was destroyed after four weeks. He had tried speaking to the Plaza management but had not been helped. His mood was poor, and it was suggested that he needed to see a lawyer. Later entries refer to physical symptoms but note that the insurer had not approved his back injections. He was noted to be feeling “down”, “still in pain”, and perceiving the insurance to be “playing games”.
A note on 21 October 2020 notes poor sleep, reduced interest, guilt, low energy, difficulties with short-term memory, reduced appetite, and personality change in that he was “not as happy”. He “clearly suffers from anxiety and depression, though I feel meds not indicated this stage” and “he is finding psychology helpful”.
A note on 11 March 2021 describes “worsening mental health” and he “feels down in himself”, “feels exhausted”, “feels that his lawyer not helping” and there is a reference to “?hacked file”. On 16 November 2021, a note suggests that he “needs to see psych” and that he had been referred to a psychiatrist by his pain management specialist. A note on
17 May 2022 noted he had seen Dr Jacobs, a psychiatrist. On 13 October 2022, he presented with multiple issues with stress said to be secondary to his CTP claim and injuries, “Insurer stress”, and distress with low mood and flashbacks of the day of the accident. His sleep was poor, interests were reduced, guilt was present, and that he was low, his short-term memory was affected, and his personality had changed and that he was “not as happy”. On 15 December 2022, he was noted to be still low and seeing a psychiatrist. There are subsequent refences to a possible L4/L5 microdiscectomy and on 6 July 2023 he was noted to have had the surgery.
The Panel noted sundry handwritten notes which appeared to be in by his psychologist (Vinicio Herrera) and an allied health recovery request dated 27 October 2020 by his psychologist which offers a diagnosis of “residual symptoms” associated with “adjustment disorder with depressed mood and mixed anxiety in relation to chronic pain, restrictions and limitations”. There are comments relating to vulnerability, “unfounded fears” in relation to his safety and he is said to be “super alert to site of incident” with sleep disrupted because of pain, feelings of frustration and feeling overwhelmed over how he has been treated by the insurer, anger towards the insurer relating to persistent decline of recommended treatment, upper and lower back pain and chest pain leading to difficulties in undertaking activities of daily living, poor concentration, forgetfulness, and being dependent on medication.
The Panel noted copies of the claimant’s responses on a Pain Catastrophising Scale, the Pain Self-Efficacy Questionnaire his responses on the DASS 21, and the PCL-5 dated
21 January 2019, 19 March 2020 and 29 September 2020. These all indicate significant levels of distress. There is a further PCL-5, DASS 21, and Pain Self-Efficacy Questionnaire dated 13 June 2020. An allied health recovery request dated 21 January 2020 records vulnerability, numerous unfounded fears, feelings of guilt, reliving of the incident with intrusive thoughts as well as shock and disbelief, disturbed sleep, frustration and feeling overwhelmed, and anger and distress in relation to verbal abuse by the other driver and a perceived threat to his safety. There is also anger towards the police, loss of confidence, and avoidance of talking about the incident. There is a very similar allied health recovery request dated 29 September 2020. Much of this is reprised in a letter to his GP from his psychologist dated 17 June 2020 in which he is also noted to be avoidant of long-distance travel and heavy traffic.
There are a number of Centrelink documents which refer to his pre-accident physical problems and he is noted to be on Palexia (tapentadol – an opioid) because of persistent and constant right and left shoulder pain and weakness which caused sleep disturbance, and his cervical fusion surgery is noted. On 25 July 2018, he was noted to have a baseline work capacity of 8 to 14 hours per week and a temporary work capacity of 0 to 7 hours per week and an estimated capacity for work within two years with intervention of 15 to 22 hours per week.
The Panel noted Centrelink sickness medical certificates of various dates. He was certified as unfit to work between 18 June 2018 and 17 September 2018 because of persisting and constant right shoulder pain and weakness. He is later certified as unfit to work between
26 June 2019 and 23 August 2019 with a diagnosis of prostate cancer for which he was on androgen deprivation therapy with planned radiotherapy. A certificate dated
5 September 2019 certifies him as unfit to work because of his persisting and constant right shoulder pain and weakness. There are records of social security payments –Newstart Allowance – from 28 June 2018 to 12 December 2019 while there are payments over 2006, 2007, 2008, and 2009 marked as “FAO” which appeared to be Family Allowance payments.
There are sundry Medicare records from 7 September 2022 to 15 September 2021. There are scripts for nonsteroidal anti-inflammatory drugs, tapentadol, blood pressure medications, hormone therapy for prostate cancer, and to prescriptions for amitriptyline dated
18 May 2021 and 15 September 2021 when on each occasion he is prescribed 25 mg with 50 tablets and two repeats.
The Panel noted the certificate of Medical Assessor Doron Samuell dated 31 August 2021 relating to a treatment dispute. Medical Assessor Samuell took a history similar to that provided by the claimant on this occasion. He diagnosed a chronic adjustment disorder with mixed disturbance of mood and determined that psychological treatment as per allied health recovery requests dated 29 September 2020 related to injuries causing the accident, were reasonable and necessary in the circumstances, and would improve the claimant’s recovery.
Also noted was the certificate and reasons of Medical Assessor Home dated 28 June 2024. Medical Assessor Home certificated that an L4-5 and L5-S1 decompression with bilateral rhizolysis was not reasonable and necessary in the circumstances and does not relate to an injury caused by the motor accident.
The Medical Assessor noted the biomechanical report of Mr Griffiths, however was satisfied that the mechanism of the accident could cause a soft tissue injury to the lumbar spine, however did not cause any additional structural injury to the spine. The Medical Assessor noted underlying disc degeneration identified previously in radiological imaging in 2014.
The Panel noted correspondence from Dr George Jacobs, treating psychiatrist, to the claimant’s GP dated 1 May 2022. Dr Jacobs obtained a similar history except that there is no mention of other drivers being abusive. He noted him to be mildly depressed at interview, noted some paranoid ideation, and made a diagnosis of partially treated major depression with some trauma symptoms and considered that his paranoid symptoms may have reflected over-arousal. He left him on amitriptyline 25 mg at night and added quetiapine 25 mg at night.
The Panel noted handwritten copies of Dr Jacobs clinical notes.
The Panel noted a report of Dr Michael Hong, psychiatrist, dated 29 July 2022 on behalf of the insurer’s lawyers. Dr Hong took a history of depression and anxiety in the aftermath of a work-related injury in 2013. He had been seeing his psychologist, Vinicio Herrera, four weekly, which he had started doing some two years before the accident with increased frequency of sessions after the accident. He provided a history of the other driver seeming to be drunk and offering to pay him $100 and that other drivers in the car park were upset because he was blocking their way. There was no mention of these other drivers being abusive or yelling or of the at fault driver being abusive or yelling. He said that before the accident his depression and anxiety had not been severe although his sleep had not been very good, and he had felt sick because he had had many surgeries. After the accident, he had more depression and anxiety, was more easily upset, and felt “paranoid”. When asked why he had psychologically declined, he said it was because he had suffered pain especially in his back. He was noted to be on Palexia, Naprosyn, and Seroquel (quetiapine) 25 mg at night which he took around twice a week. He was noted also to have seen a psychiatrist,
Dr George Jacobs, twice. He reported being depressed but without pervasive depressive symptoms although he had reduced enjoyment and motivation and some reduction in concentration and memory as well as sleep problems because of pain. He also reported nightmares. Dr Hong traversed much of the documentation already described. He noted the claimant to be mildly restricted in affect range and reactivity. He made a diagnosis of acute stress disorder and rejected a diagnosis of major depressive disorder and post-traumatic stress disorder. He assessed him at 5% whole person impairment rating him as Class 1 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 1 for travel, Class 2 for social functioning, Class 2 for concentration, persistence, and pace, and Class 2 for adaptation. Dr Hong made a 2% deduction for pre-existing impairment. While he had 0% pre-existing impairment based on his functioning, he considered that 2% ought to be deducted on the basis of treatment effects as his condition had improved substantially but not completely remitted prior to the accident.

RE-EXAMINATION

The interpreter engaged by the Commission, Louis Llambi, was present for the duration of the assessment.

Psychosocial history and pre-accident history

The claimant is a 69-year-old separated age pensioner living on his own. He has an adult daughter and two sons from his second marriage, who live with their mother.
He had a prior history emanating from his WorkCover claim in 2013 in which he had sustained physical injuries and for which he was seeing a psychologist but not taking antidepressants. He had had a fusion of the cervical spine in 2018.
He admitted to anxiety and depression after his work accident and had been on Endep (amitriptyline) but not on any other psychotropic medication. With respect to the work accident, he was working as a cleaner and had to use a new machine which got out of control – as he tried to stop the machine, he tore a tendon in his arm. He has had two surgeries and says he is better now.
He denied any other history of psychiatric illness.
He said he had been otherwise medically well apart from hypertension. He has had some heart problems for which he has had to see a specialist. However, the Panel noted other medical history including prostate cancer for which he had been on antiandrogen medication.
He does not drink alcohol. He does not smoke. He does not use drugs. He does not gamble.
He denied any history of problems with the law. He had no other claims history.
He knew of no family history of psychiatric illness.
He hails from Peru. He has been 24 years in Australia. His parents and his sister were already here. He separated from his wife in 2014. He has three children.
He was a taxi driver and also worked as a mechanic, and sometimes in factories.
Life in Peru was “quiet – I was working always”.
He went out a lot more before his accident.

History of the motor accident

On the day in question (22 October 2019), his car was hit from behind in the car park of Liverpool Plaza shopping centre. He was exiting the parking area. As he was leaving, he approached the boom gate. The gate opened and as he started to move the car behind hit him from behind. The first hit was “a soft touch” but the car again hit him hard “a matter of seconds” later. He got out of his car and asked the driver to get out to exchange details. The other driver did not want to get out and he “could see he was drinking because he looked disturbed and when I got close enough, I could smell alcohol on his breath”. He eventually got out of the car “and I could really smell his breath, and he was refusing to give me his details, so I decided to call the police”. He went back in his car and locked himself in. He rang Liverpool Police three times, but they did not pick up. He then rang 000 but he had trouble making himself understood and was on the phone for about 10 minutes. People behind him became upset because he did not want to move his car because he knew the other driver would leave. He said other drivers were trying to push his car out of the way. They were abusing him and eventually he moved his car. Once he got down the ramp, he pulled up wanting to give the other driver the opportunity to exchange details – however, the other driver simply drove off. Eventually police arrived but by then everyone had left.
The two drivers trying to push his car out of the way were “very aggressive and violent” and apparently reached into the car to release the brake. At the same time, there were many other drivers swearing. Thankfully, they did not hurt him.
The at fault driver throughout much of this seemed unconcerned and “sat there smiling”.
He said that when the police arrived, “they wouldn’t even get out of the car” and that the police seemed to be laughing and seemed to be saying they could not understand him. They took notes in their notebooks and was asked to sign what they had written. It seems that he may have rung his daughter who interpreted for him although “the strange thing is that I could not remember making the call”.

History of symptoms and treatment following the motor accident

He has had physical problems which he saw as caused by the accident. He did not feel pain at the time “because I was in shock” but when he got home and calmed down started to feel pain in his neck and his back that he had not felt before “and all around my ribcage”. He believes these were caused by the collision. He speculates that the other driver may have lost his ticket and wanted to get out under the open boom gate. He added that the second hit was “quite hard” and “that’s when the injuries happened”.
He initially thought his pain would go away but saw his GP five or six days later. He was referred for physiotherapy, but this did not solve the problem. Later investigations showed a fractured rib “which is something the insurance company has never agreed to”. He has had “some kind of radiation treatment to the lower part of my back [radiofrequency ablation]” and on 10 July last year had had surgery which had “helped considerably”.
The Panel asked about the psychological impact. He replied,
“I’ve been traumatised from this situation because I feared for my life – I couldn’t believe how angry the people got – they were pushing my car down the ramp – if I’d let go of the brake, it would have been a disaster because that’s where all the people were walking around, and it flows onto the street so I could have hit a pedestrian…”
The Panel asked him how this affected him now. He is “still very affected – I can’t sleep at night – I have to take tablets – sometimes I have to get up and go for a walk to release my feelings – in order to feel more relaxed”. He said that even after taking tablets, he gets nightmares which wake him, though sometimes he just wakes and starts to think of what happened and becomes increasingly anxious and afraid. He often does not remember his nightmares “but what I can remember is going into a tunnel and walls closing in on me and being crushed” or being “in a car and I cannot stop, and it keeps going and going and I cannot control it”. For the most part he merely wakes knowing that “something scary has happened”.
He is anxious when he is out and about and driving, particularly if something happens on the freeway and he has to stop. He consequently does not go out except to get food and does not socialise and is afraid when he is out around other cars. He does not feel confident when other people are around, and he cannot trust how people would behave.
He has not had any treatment for the psychological side of things. He did see a psychiatrist who prescribed medication, but the insurer never agreed to pay, and he did not have the money. He was prescribed Seroquel 25 mg daily and another medication (in fact amitriptyline 25 mg at night) but never filled the script because he suffered hypertension and was worried that it would interfere with his blood pressure. He still takes the Seroquel “because otherwise I can’t sleep”.

Details of any relevant injuries or conditions sustained since the motor accident

There were no further injuries.

Current symptoms

As above.

Current and proposed treatment

As above.

CLINICAL EXAMINATION

Mental state examination

The Panel assessed the claimant by Microsoft Teams. A good audiovisual connection was established. His head and shoulders were visible. He presented as a man of appearance consistent with his stated age, with untidy grey hair, a grey goatee beard, and moustache.
He provided the account documented above. His narrative was coherent and internally consistent, but the Panel noted inconsistencies with documentary evidence.
His mood was dysphoric and his affect restricted.
There was no evidence of psychosis (although the Panel noted evidence in the documentation of paranoid ideation) or cognitive impairment.

Current functioning

He contends with physical limitations with driving, but this is getting better since he had his surgery. He finds it difficult to cope with housework and his house gets a bit untidy. Some of this because of his physical limitations but he has also “given up – I don’t care – I have lost that will to live in a tidy spot…”.
He would sometimes wake up and not feel like doing things and might go some days without a shower. Every couple of weeks, he gets enough clothes together to put them through a laundromat. His appetite is indifferent, and he generally does not cook or just eats a piece of bread. He does not have the drive to cook for himself. He has lost a bit of weight – possibly around 8kg.
He does not go out socially. He would just sit at home watching TV. He goes out to do a little bit of shopping or to take a walk when he feels very stressed. He has otherwise not been out anywhere, he does not have visitors, although his daughter would visit rarely.
He limits himself to local journeys “because I don’t have anywhere to go” and he is an anxious driver, especially in traffic.
He has a sister who lives nearby and two sons who also live close by. He has a daughter who lives in the city. He might visit his sons and would try to see them every week when he can. He might stay with them an hour or an hour and a half. He enjoys the visit saying, “They seem to be happy to see me”. He often sees his sister – he gets on well with her.
The Panel asked after concentration. He said he finds this difficult. Many times, he would get up to do something and forget what he was going to do. He might go shopping and forget what he wanted to buy. He similarly might turn on his computer to do a search and forget what he was looking for. He reads “almost nothing”. He watches movies on TV and the news, but often has to rewind because he has lost the story line.
He is many years retired. He had an accident at work in 2013 and was on Jobseeker, certified as able to work 20 hours a week but after the accident had not been able to look for work and is now on the aged pension. He had been looking for jobs as a car park assistant.

Comments of consistency

The claimant’s account of what he told the police differed somewhat from the contents of the police notebook. He acknowledged that the other driver offered him $100 – he saw the registration number and wrote it on his hand – “there was a line of cars and so I moved my car, and he sped off”. There was no mention of the angry crowd and people pushing his car. He replied that he told them this but that the police didn’t care, and they didn’t have any concern about it – all they cared about was the damage to the car. They didn’t take him seriously and were laughing and smiling and saying they didn’t understand him. Similarly, not all doctors recorded that he had contended with an angry crowd or people pushing his car.
The Panel also noted that he seemed to significantly underplay physical injuries and mood disturbance prior to the subject accident.

DETERMINATIONS

Diagnosis and reasons

His presentation is consistent with a diagnosis of persistent depressive disorder (dysthymia) with anxious distress. In terms of DSM-5-TR criteria, there is evidence over several years of depressed mood for most of the day, for more days than not (Criterion A) with evidence of insomnia, low energy, and difficulties with concentration (Criterion B). His symptoms have never been absent for any significant time (Criterion C). The Panel did not think he met criteria for a major depressive disorder but noted that this was not essential to the diagnosis (Criterion D). He had never had a manic, hypomanic, or cyclothymic presentation (Criterion E) and there was no evidence of a schizoaffective disorder, schizophrenia, schizophrenia spectrum, or other psychotic disorder (Criterion F). His symptoms were not attributable to the physiological effects of a substance or to another medical condition (Criterion G) and cause him clinically significant distress and psychosocial impairment (Criterion H).
There was evidence of post-traumatic symptoms best captured by the anxious distress specifier as he did not otherwise meet criteria for a diagnosis of post-traumatic stress disorder.
There was also good evidence from the documentation on hand that his persistent depressive disorder was long-standing and had pre-existed the subject motor vehicle accident.
The history on offer suggested that his persistent depressive disorder had intensified in the aftermath of the accident.

Causation and reasons

The Panel notes the dispute between the parties as to whether the psychological injury has arisen from a motor vehicle accident as defined under the MAI Act. The claimant argues that the physical collision and the events that followed should not be separated and all form part of the “motor accident”. On the other hand, the insurer submits that aftermath involving other motorists does not form part of a “motor accident”.
It is noted that it is preferable that the dispute regarding whether the injury has arisen from a motor accident be resolved prior to a referral to a Medical Assessor. However, this has not occurred and thus the Panel is obligated to make findings on causation as a legal concept.[3]
[3] AAI Ltd v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 at 161 (AAI Ltd).
The Panel notes the case of Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC (Ackling) 881, Johnson J, rejected the submission that a Medical Assessor has no jurisdiction to consider and determine whether an injury was caused by a motor accident. In this regard, his Honour found that cl 1.4-1.6 of the Permanent Impairment Guidelines (Guidelines) is such that a determination as to whether an injury is caused by the relevant motor accident lies within the medical assessment jurisdiction provided for in Pt 3.4 of the Motor Accidents Compensation Act 1999 (MAC Act). This approach was followed by Campbell J at [27] in the case of Owen v Motor Accidents Authority (NSW) [2012] where he found:
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D (See s 3B(2)).”
Accordingly, the Panel must determine causation by the application of the legal concept of causation.
In making this determination, the Panel has had regard to the definition of “motor accident” set out in the MAI Act at s 1.4 which provides:
“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during –
a)the driving of the vehicle, or
b)a collision, or action taken to avoid a collision, with the vehicle, or
c)the vehicle’s running out of control, or
d)a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
The Panel notes that the definition, for present purposes, is essentially the same as that contained in the MAC Act which has been considered by the Courts and therefore such case law is relevant to the issues in this matter.
In the matter of Allianz Australia Insurance ltd v Gonzales [2013] NSWSC 362 (Gonzalez) a similar factual scenario arose. In that case the claimant was seated in her car when another car reversed into her car. After the accident occurred the driver of the other vehicle made some telephone calls and then she was surrounded by a group of men. The behaviour of the men was intimidating. The insurer denied the psychological injury alleged. The insurer contended that any psychological harm was caused by the events that occurred after the collision thereby breaking the chain of causation and falling outside the scope of the MAC Act. It was found that the necessary link between the driving and the wrongful conduct of the driver and other men was not established.
In the matter of Pham v NRMA Insurance Limited [2015] NSWSC 1205 Harrison AsJ found that a Review Panel did not err in a similar factual scenario by determining the psychological injury did not arise from a motor accident. In his concluding remarks Harrison AsJ found:
“45.Both Gonzales and the circumstances in this case required a determination of whether injury was caused by ‘the use or operation of the vehicle’ or by some other factor. Both required an analysis of whether a confrontation following a motor accident fell within that definition. In Gonzales, the events which caused psychiatric damage occurred after the vehicles had stopped. The plaintiff had stepped out of her vehicle. There was no link between the faulty driving and the psychiatric damage. In Ms Pham’s case, the events which caused psychiatric damage also occurred after the vehicles had stopped. Ms Pham had stepped out of her vehicle to speak with the other driver.
46.I accept that sometimes it is difficult to determine whether or not injury was caused in the ‘use or operation of a motor vehicle’. However, the closeness of the link between an incident and the driving must be “very substantial” in order to satisfy the requirements of predominance, immediacy and proximity: Gonzales at [24].
Dr Parmegiani’s report (Ex A, p 103) stated that it was ‘the subsequent interactions with the driver of the other car and her male passenger, who acted towards her in a physically aggressive way’ and stole her driver’s licence which led to ‘Ms Pham develop[ing] fears of being hurt or persecuted by the other driver and her companion as, being in possession of her driver’s licence, they knew where she lived’. It was
Dr Parmegiani’s opinion that it was during the period after the accident, where the police attempted to identify the other driver and her passenger, that Ms Pham ‘developed a gradual onset of depressive symptoms, which deteriorated over time and culminated into a diagnosis of Major Depressive Disorder’. In my view, the Review Panel was entitled to determine that that psychiatric injury was not caused by the fault of the other driver in the ‘use or operation’ of a motor vehicle.
47.Hence, the Review Panel did not err in limiting causation to the actual accident itself. Nor did the Review Panel err by not reaching the conclusion that there was a very substantial link between the motor vehicle accident and Ms Pham’s major depressive episode. Utilising common law principles (Gonzales) the Review Panel determined that the major depressive episode was not materially contributed to by the motor vehicle accident. Although the Review Panel did not refer specifically to s 5D and the ‘but for’ test, its reasons demonstrate a detailed and practical assessment of whether the motor accident itself could have given rise to such a severe psychiatric illness. If on a strict legal analysis, the Review Panel’s reasons do not accord with the test set out in s 5D, they satisfy the test of material contribution set out in clauses 1.7 to 1.9 of the Permanent Impairment Guidelines.”
The claimant was undoubtedly distressed by the collision. It was clear, however, that the main source of distress was the reported behaviour of the driver and of others at the scene. In this regard, the Panel noted the following history:
“I’ve been traumatised from this situation because I feared for my life – I couldn’t believe how angry the people got – they were pushing my car down the ramp – if I’d let go of the brake, it would have been a disaster because that’s where all the people were walking around, and it flows onto the street so I could have hit a pedestrian…”
The Panel asked him how this affected him now. He is “still very affected – I can’t sleep at night – I have to take tablets – sometimes I have to get up and go for a walk to release my feelings – in order to feel more relaxed”. He said that even after taking tablets, he gets nightmares which wake him though sometimes he just wakes and starts to think of what happened and becomes increasingly anxious and afraid. He often does not remember his nightmares “but what I can remember is going into a tunnel and walls closing in on me and being crushed” or being “in a car and I cannot stop, and it keeps going and going and I cannot control it”. For the most part he merely wakes knowing that “something scary has happened”.
The Panel noted, moreover, the relatively minor nature of the motor collision while acknowledging that the claimant may not have perceived it as such. In so concluding, the Panel was mindful of the history provided by the claimant and the certificate of Medical Assessor Home. The Panel acknowledged submissions on behalf of the claimant that his prior cervical fusion procedure may have contributed to psychological vulnerability at the time in question but again noted that his fear of the other driver and other drivers at the scene seems to have been his overarching concern.
Consequently, the Panel considered that any intensification of the claimant’s persistent depressive disorder had been caused not by the motor accident, being the physical collision, but by the events that followed. The Panel has concluded that the events after the collision involving the insured and other drivers and the police does not form part of the “motor accident”.
In the Panel’s opinion, the motor collision itself has had no more than a negligible contribution to his psychological presentation post accident.

CONCLUSION

The following injuries WERE NOT caused by the motor accident:
· persistent depressive disorder (dysthymia) with anxious distress.

Consequently, a decision as to whether this was a threshold injury was not required for the purposes of the Act.
The Panel confirms the certificate of Medical Assessor Barrett dated 23 May 2023.

[2024] NSWPICMP 758

6 November 2024