QBE Insurance (Australia) Limited v Chebat

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Chebat [2024] NSWPICMP 611
CLAIMANT:	Christine Chebat
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Christopher Canaris
DATE OF DECISION:	29 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychological injury; threshold dispute; pre-existing psychological symptom denied by claimant; discussion of aggravation of psychological condition constitutes injury; AAI Limited t/as GIO v Hoblos and Todev v AAI Limited t/as GIO (Todev) applied; five-day delay in recorded compliant insignificant in context of psychological conditions; records establish material aggravation of an underling generalised anxiety disorder; application of principles in Lynch v AAI Limited t/as AAMI and David v Allianz Australia Ltd; discussion of contrary decision in Merhi v Insurance Australia Limited t/as NRMA Insurance (Merhi); articulation of reasons why the Review Panel declines to follow Merhi as reasoning inconsistent with common meaning of injury and observations of Court of Appeal in Mandoukos v Allianz Australia Insurance Limited and Supreme Court decision of Todev; Held – claimant suffered an aggravation of a psychological condition which is not a threshold injury.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment Certificate Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Medical Assessment Certificate dated 25 May 2023 and certifies that the motor accident caused a non-threshold psychological injury as follows: · aggravation of pre-existing generalized anxiety disorder.

REASONS

BACKGROUND

On 28 February 2022 Ms Christine Chebat (the claimant) suffered injury in a motor vehicle accident. The claimant was working as a traffic controller holding a road closed sign when the insured vehicle collided with the claimant and/or the sign held by the claimant. The exact circumstances of the accident are discussed later in these reasons.
QBE Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Ms Chebat 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 Chebat sustained a psychological injury caused by the motor accident which 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[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical dispute was referred to Medical Assessor Fukui who issued a Medical Assessment Certificates dated 23 May 2023 (the medical assessment certificate).[2] Medical Assessor Fukui concluded that the motor accident caused a post-traumatic stress disorder.
[2] Insurer’s bundle, p 6.
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.

REASONS OF MEDICAL ASSESSOR

The Medical Assessor concluded that the motor accident caused post-traumatic stress disorder which is not a threshold injury.
The Medical Assessor noted the claimant’s presentation was consistent.
Under the heading “Diagnosis and reasons”, the Medical Assessor stated:
“Ms Chebat was involved in an accident while she was working as a traffic controller. An aggressive driver ran into her while she was carrying a foldup traffic sign. There was a direct collision between the van and the sign. Despite colliding with her the driver drove away but was later apprehended and charged.
Ms Chebat developed psychological symptoms characteristic of Post-traumatic Stress Disorder (PTSD) as a result of the subject motor accident. The nature of her accident meets Criterion A for DSM-5 diagnosis of PTSD as she feared for her life when the van drove towards her. She has continued to experience significant intrusion symptoms characterised by nightmares, flashbacks and reported intrusive distressing memories of the accident. She experiences significant distress and exposure to internal and external cues that remind her of the accident such as seeing road works, when talking about the accident and when she sees vans (Criterion B). She avoided driving for six months and limits her driving to local and familiar areas and avoids peak hour traffic (Criterion C). She has been angry and irritable, has become socially withdrawn and has lost interest or participation in significant activities (Criterion D). She is hypervigilant and feels on edge. She described feeling heightened senses and has problems with concentration as well as sleep disturbance. She easily loses temper (Criterion E). Her symptoms have been present for more than one month (Criterion F). The disturbance causes clinically significant distress or impairment in social, occupational and other important areas of functioning. Ms Chebat has lost friends due to social withdrawal; her self-care has declined, and she no longer works as a traffic controller (Criterion G). The disturbance is not attributable to the physiological effects of a substance or any other medical condition (Criterion H).
Her reported depressive and anxiety symptoms are features of PTSD and are not separate diagnoses.”

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer 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.

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.
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.

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 the MAI 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 The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (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 MAI Act. Version 9.2 of the Guidelines commenced on 10 November 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 16 June 2022[12]

[10] See s 3B(2) of the Civil Liability Act 2002.

[11] [2021] NSWSC 13 (Raina) at [65].

[12] Claimant’s bundle, p 26.

The claimant alleged that she suffered physical and psychological injuries caused by the motor accident.
The claimant noted that the general practitioner (GP) had diagnosed post-traumatic stress disorder, depression and anxiety.

Claimant’s submissions dated 20 July 2023[13]

[13] Claimant’s bundle, p 1.

These submissions opposed leave to review the medical assessment.
The claimant submitted that the insurer has failed to demonstrate that the Medical Assessor failed to adequately consider the relevant material and the insurer’s submissions.
The claimant submitted that the Medical Assessor gave consideration to all of the clinical, medicolegal and related material provided by the parties and provided adequate reasons.
The claimant submitted that the insurer provided a re-diagnosis of the claimant’s injuries without reference to any medicolegal or other expert.
The claimant noted that the insurer’s submissions highlighted “the desperate nature” in suggesting a delay five days after the accident was relevant to a complaint of psychiatric sequelae.
The claimant submitted that the medical assessor was not bound by the GP’s diagnosis of acute stress disorder and is required to form her own opinion.
The claimant noted that the insurer referred to clauses of the Guidelines which only apply to the assessment of permanent impairment, but this did not relate to the determination of the particular diagnosis of psychological injury. Reference was made to clause 6.7 of the Guidelines which noted that the matter accident only had to be a contributing cause to injury.

Insurer’s submissions dated 12 July 2022[14]

[14] Insurer’s bundle, p 17.

The insurer submitted that the claimant only sustained soft tissue injuries to various body parts and noted a variety of pre-existing physical conditions.
The insurer referred to the GP records which revealed a pre-accident history of anxiety and depression including:
·        constant headache, imbalance on 19 February 2016;
·        stress reported on 24 July 2017;
·        anxiety attack on 8 December 2017 when diazepam was prescribed;
·        acute anxiety on 17 December 2017;
·        anxiety attacks on 30 May 2018;
·        anxiety… insomnia on 3 September 2019;
·        history of migraines on presentation to Blacktown Hospital on 10 November 2019;
·        history of depression on 5 May 2020 when Zoloft was prescribed and referred to a psychologist;
·        reference to depression and counselling and continuation of Zoloft on 12 May 2020;
·        reference to very symptoms including an acute stress related to being sacked from work on 15 December 2020;
·        reference to insomnia and ongoing counselling on 18 December 2020;
·        the claimant was prescribed Stemetil on 19 January 2021, and
·        reference to being emotionally traumatised as the claimant was indirectly caused by the employer to have the vaccine or lose her job on 10 September 2021.
The insurer noted that the claimant was referred by her GP to a psychologist, LeRoy Onuoha, whose clinical records have not been served in support of a recognised psychiatric diagnosis.
The insurer referred to the diagnosis by Dr Barich in a certificate of capacity dated 6 May 2022 of an acute stress disorder which it submitted was not a recognised psychiatric illness.
The insurer submitted that there was “no evidence” that the claimant was exposed to actual or threatened death or serious injury to satisfy criterion A for the diagnosis of post-traumatic stress disorder.
The insurer submitted that in the absence of a recognised psychiatric illness other than acute stress disorder or adjustment disorder, the psychological injury resulting from the motor accident was a minor psychological injury.

Insurer’s submissions dated 14 June 2023[15]

[15] Insurer’s bundle, p 1.

These submissions sought leave to review the medical assessment certificate.
The insurer submitted that the Medical Assessor failed to engage with the evidence and the clearly articulated submission that the claimant was not exposed to an event that satisfied criterion A for the diagnosis of post-traumatic stress disorder and otherwise did not actively engage with the evidence that the claimant had significant pre-accident mental health conditions and did not address the submission that the current presentation was attributable to the pre-existing condition.
The insurer referred to criterion A and submitted that then claimant did not “report” any fear that she would be killed or seriously injured as is required under criterion A.
The insurer referred to the ambulance report which reported an aggressive driver “turned the car into her” from approximately two metres and the police report which recorded that the insured “impacted a traffic sign which has impacted a traffic worker”.
The insurer noted the history to the GP on the day after the accident which it submitted contained an inconsistency and noted that psychological sequelae was not reported until 4 March 2022, that is five days after the motor accident.
The insurer noted the emergency discharge referral which recorded that the insured drove into the self-standing sign which impacted the claimant and submitted that this inconsistency was not put to the claimant.
The insurer referred to the fact that the claimant is studying architecture at university and works part-time as a disability worker for the National Disability Insurance Scheme and stated that this is the same as pre-accident. It submitted that the claimant has not established criterion D and criterion G in these circumstances.
The insurer noted that the Medical Assessor noted manicured nails and a neat and clean presentation and submitted this was inconsistent with the conclusion that the claimant “let herself go”.
The insurer submitted that the Medical Assessor failed to address a diagnosis of an acute stress disorder which was a more appropriate diagnosis as required under criterion H.
The insurer submitted that the Medical Assessor failed to explain why the depressive and anxiety symptoms were not attributable to the claimant’s pre-existing depression and anxiety conditions.
The insurer referred to its argument at paragraph 22 of its reply submissions that the claimant had a significant pre-accident history of anxiety and depression.
The insurer referred to the material which included prescription of Zoloft for depression pre-accident and more recent stress associated with work in late 2021 causing the claimant to be “emotionally traumatised”.
The insurer submitted that the failure to engage with this material meant that the Medical Assessor failed to comply with clauses 6.6. and 6.7 of the Guidelines in respect of the findings on causation and failed to comply with clause 6.220 in a comparison of the claimant’s pre-accident and post-accident functioning.

MATERIAL BEFORE THE PANEL

The parties filed bundles of documents for the Panel’s consideration.

Pre-accident medical records

On 8 December 2017 the GP noted the claimant was assaulted at school with symptoms including anxiety and dizziness.[16] Diazepam was prescribed. Ongoing anxiety symptoms were noted by the GP on 11, 15 and 17 December 2017.[17]
[16] Insurer’s bundle, p 42.
[17] Claimant’s bundle, p 60.
The GP noted the claimant suffered “anxiety attacks” on 30 May 2018.[18]
[18] Claimant’s bundle, p 61.
On 3 September 2019 the GP noted that the claimant was suffering from anxiety associated with an issue with her sister and insomnia.[19]
[19] Claimant’s bundle, p 64.
A K-10 assessment by Dr Barich dated 5 May 2020 provided a score of 32.[20] The GP then referred the claimant to Mr Le Roy Onuoha, psychologist, for opinion and management of a depressive disorder.[21] Zoloft was prescribed.[22]
[20] Insurer’s bundle, p 44.
[21] Insurer’s bundle, p 45.
[22] Claimant’s bundle, p 65.
On 12 May 2020 the GP again noted depression but with counselling was “much better”.[23]
[23] Claimant’s bundle, p 65.
On 18 December 2020 the GP noted ongoing insomnia with more counselling the following week.[24]
[24] Claimant’s bundle, p 67.
On 10 September 2021 the GP referred the claimant to Dr Shaffi noting severe headache and numbness in the lower limbs since a COVID vaccination injection.[25]
[25] Insurer’s bundle, p 38.
On 21 September 2021 the GP referred the claimant to Professor Simon for opinion and management regarding severe headache and numbness in the lower limbs since the COVID vaccination injection.[26]
[26] Insurer’s bundle, p 41.

Medical evidence

The ambulance report recorded the following history:[27]
“O/A PT was sitting in gutter with L leg extended and police and cycle paramedic on the scene. Pt explains that she was working as a traffic controller when she became involved in an altercation with a motorist who wanted to go down a closed road when the pt advised the motorist that he wasn’t able to enter the road. She was holding a traffic sign against her L knee when the motorist turned the car into her from approx 2 metres away and hit the pt and drove over her L foot and she hyperextended her L knee and step backwards from the impact. Pt states she was assisted to the ground by colleagues. Prior to arrival ICP had cannulated and given 4 mg of ondansetron. L leg exposed and boot removed for further assessment. No obvious sign of trauma but pt has mild swelling in L knee. Pt assisted to str and assessment continued. No obvious sign of trauma on secondary and pt denied pain to any other part of the body. Pt denies chest pain, denies SOB, denies dizziness. FAST test negative. Pt calm and stable enroute.”
[27] Insurer’s bundle, p 27.
The discharge referral from St Vincent Hospital on 28 February 2022 recorded the following:[28]
“Christine was working as a traffic controller when a member of the public purposefully drove into a self-standing sign on the road that then impacted above her left patella causing a hyper extension of her left knee. She was not knocked over with this and Christine tells me that the toes of the shoe were run over, but luckily she was wearing steel capped boots and no injury was sustained. She was able to weight bear initially but due to increasing pain in the knee she was brought to hospital by ambulance.”
[28] Insurer’s bundle, p 39.
Examination at hospital showed swelling to the supra-patella region of the left knee with no loss of skin integrity. There was reduced range of motion and power due to pain.
The first post-accident consultation with the GP was on 1 March 2022 when the GP noted the following history:[29]
“At work yesterday while working on the road as part of the job to direct traffic, when she asked one driver not to enter the zone prohibited at the time of road work this particular driver drives against the order pushed the closed road sign against the left knee and pt were shouting from pain.”
[29] Claimant’s bundle, p 75.
The Certificate of Capacity provided by the GP dated 1 March 2022 stated that the claimant was injured when she was “hit by car during duty” and suffered various soft tissue injuries and “acute stress disorder”.[30] The claimant was then referred to a psychologist.
[30] Insurer’s bundle, p 23.
On 4 March 2022 the GP noted the claimant was suffering from “insomnia, anxiety attacks, wakes up with pain after short sleep, emotionally affected and easy (sic) crying”.[31]
[31] Claimant’s bundle, p 76.
The claim form completed by the claimant on 7 March 2022 referred to the motor accident causing various physical injuries and a “psychological disorder – PTSD, anxiety, depression”.[32] The mechanism of the accident reported in the claim form was:
“I was working as a traffic controller. A man driving a van wished to drive into Talbot Place. There was a ‘road closed’ sign preventing traffic entering Talbot Place. He demanded to be allowed to drive into Talbot. He exited his van and moved the sign. I waited with a sign so he could drive into Talbot. The man then drove his van into the sign and me. The impact bent and damaged the sign.”
[32] Claimant’s bundle, p 32.
On 8 March 2022 the GP referred the claimant to Me Onuoha for opinion and management of emotional injury following the work trauma.[33]
[33] Insurer’s bundle, p 48.
On 2 April 2022 the GP noted that the claimant was suffering from depression.[34] On 12 April 2022 the GP noted that the claimant was suffering from nightmares and interrupted sleep.[35]
[34] Claimant’s bundle, p 78.
[35] Claimant’s bundle, p 79.
Certificates of Capacity dated 1 April 2022, 12 April 2022 and 6 May 2022 noted various injuries and “acute stress disorder (insomnia and pain in knee)”.[36] The certificates refer to the claimant commencing Valdoxen 25mg nocte.
[36] Claimant’s bundle, p 145, p 148 and p 151.
Certificates of Capacity dated 7 June 2022, 5 July 2022 and 2 August 2022, 19 August 2022, 30 August 2022, 11 October 2022, 23 November 2022, 23 December 2022, 25 January 2023, 1 March 2023, 29 April 2023, 17 May 2023, 13 June 2023 noted that the claimant continued counselling for psychological condition and continued on Valdoxen.[37]
[37] Claimant’s bundle, p 382, p 390, p 411, p 423, p 429, p 440, p 449, p 452, p 456, p 478, p 491, p 494, p 497.
The GP provided a report to the police dated 9 August 2022.[38] The doctor noted that the claimant was suffering psychologically with insomnia, anxiety attacks, emotionally affected, cries easily, has nightmares and has headaches. The GP noted that the claimant was commenced on Valdoxan 25mg at night and referred to a psychologist for psychotherapy.
[38] Claimant’s bundle, p 316.
Dr Fred Nouh, orthopaedic surgeon, provided a report dated 15 March 2022.[39] The doctor recorded the following history.
“On 28 February 2022 she had an altercation with a driver who refused to follow the road sign as a result went back into his car and drove towards her at low speed. She was hit by the road closure traffic sign onto her left knee. As a result of the impact she hyper-extended her left knee.”
[39] Claimant’s bundle, p 297.
An Allied health recovery request dated 10 February 2023 noted a diagnosis of “adjustment disorder with mixed anxious and depressed mood features of PTSD” with the following symptoms:[40]
“Christine initially presented with symptoms consistent with adjustment disorder with mixed anxious and depressed mood. Her reported symptoms include insomnia, nightmares, anxiety, low mood, poor concentration, poor motivation etc. …
Christine presently still describes many symptoms consistent with a diagnosis as well as features of PTSD. She reports anxiety when driving on certain streets and when at traffic lights. She has been socially isolating herself more recently. Christine has booked appointments more regularly to help combat her current worsening in symptoms.”
[40] Claimant’s bundle, p 469.

Qualified opinion

Dr Yajuvendra Bisht, psychiatrist, was qualified by the claimant and provided a report dated 3 July 2023.[41]
[41] Claimant’s bundle, p 504.
Dr Bisht diagnosed post-traumatic stress disorder and major depressive disorder in accordance with DSM-5 and opined that the condition had not stabilised.

Police reports

The police report noted the following description of the motor accident:[42]
“VEH1, while negotiating roadwork barriers and signs westbound along Corfu Street, Woolloomooloo, has impacted a traffic control worker, causing unknown injury to her left leg. Driver failed to stop and provide details. Driver 1 is at fault, however investigation continuing.”
[42] Claimant’s bundle, p 296.

EXAMINATION

Ms Chebat was examined by both Medical Assessors on 14 August 2024 who provided the following report.
“Who attended the assessment
Video assessment. Ms Chebat was at home.
Drs Canaris and Hong were in their Sydney offices.
History
Psychosocial history and pre-accident history
Ms Chebat was born in Australia and grew up with her parents, being the youngest of three siblings. There was no developmental trauma identified, such as bullying at school or an abuse history.
She does not have cardiac, thyroid or liver disease.
She does not have drug or alcohol problems.
She is not aware of a family history of mental illness.
In terms of past history, the Panel discussed the reason for Dr Fukui’s certificate being appealed and asked Ms Chebat about previous mental health symptoms, diagnosis and treatment in her life. She said that when she was 18 or 19 years old she struggled with anxiety because her parents are much older. Her parents are 47 and 42 years older than she is and they are older than most of her friends' parents. She had worrying thoughts about them and their health, and thought that she might lose them, and said her anxiety affected her socially and sometimes she couldn't relate to her friends. There were no other specific problems recalled.
The Panel asked Ms Chebat about seeing a psychologist and she said she never had any psychological treatment. On discussion about Mr Leroy Onuhua, she said she was referred before the subject accident, but did not go until after.
She went on to say it wasn't really a mental health problem, it was just anxiety, and explained to the Panel that it was very short-lived and very mild. The Panel discussed the multiple entries in the records from 2012 and in the years leading up to the accident itself. She did not recall any specific psychiatric medication and said that she might have taken anxiety medication for a couple of months and nothing else. The Panel had discussed her GP records, 2012 noted stress, 2016 noted tiredness, 2017 several entries, with panic attacks, stress, Diazepam. 30/5/18 noted panic attacks, 3/9/19 anxiety, insomnia. In 2020, several entries related to her psychological health, depression, referred to psychologist LeRoy Onuhua, she was started onZoloft. 18/12/20 entry related to her psychological symptoms. 10/9/21 noted she felt emotionally traumatized due to being forced to have COVID vaccine and developed side effects from that.
History of the motor accident
On 28 February 2022, Ms Chebat was working in Woolloomooloo as a traffic controller and recalled it was 11 o’clock in the morning. She said Sydney Water had informed them they were doing ‘auditing’ and the area was to be closed off. There was a vac-excavator coming. She remembers she was in Talbot Lane when a van arrived. She was talking to a co-worker and heard two beeps behind her from the van. Ms Chebat turned around and saw the male driver in a van and approached him to find out why he beeped. She recalled he gestured for her to move the road closure sign. He then told her he only lived 20 metres down and wanted to park there and go to his home. She explained to him that it was dangerous, the road was closed, and he was not allowed to pass. She recalled he swung the van door open, exited and then tried to move the sign himself.
The sign was a stand-alone sign on the floor with a bar at the top, and the road closure sign was hung from the bar. As he tried to move the sign, she said they both started physically wrestling for the sign and there was ‘pushing and shoving’. She felt frightened and said the man had an angry expression, and she always remembered that look. Eventually he took the sign from her.
The man went back to the van and from what the Panel understands from Ms Chebat's description, is that she was standing next to the sign at this point, and then he drove the car into the sign and the sign pushed into her. She didn't fall but remembered she felt fearful and screamed in pain due to her knee being caught in the sign. She was certain the self-standing sign was between the van and her on impact. She said she was scared the van would drove over her and she feared for her life.
The Panel discussed the Ambulance record and she then confirmed the van ran over her foot. She was wearing steel-capped boots.
The Panel discussed the unusual circumstances of the collision. If the van drove into the sign and into her front on, and over her boot, it seems impossible she did not fall from the collision, If the van did drive over her boot and she did not fall, then it is only possible the van was driving pass her from the side, and it would not have been able to drive over her. On repeated enquiries, it was not possible to reconcile this unusual history.
Ms Chebat then sat down and some people came to help. She said she did not lose consciousness. She remembered the man went into his house and then drove off, and she called out ‘Don’t let him get away’. By the time the police arrived, the man had already gone. The ambulance took her to St Vincent's Hospital, where she had scans and was monitored for half a day.
She initially said she was more scared he would drive over her. She later said she was more frightened because the man had a certain look and angry expression and she felt scared by him.
The matter went to court in November 2022 and Ms Chebat attended with her parents. The police told her that she may not have to give evidence and would not have to see the man, however, when she arrived, the man suddenly appeared and she suffered an anxiety attack. She remembers seeing him with the same angry expression on his face. She said the outcome was bad and all he received was a $550 fine.
She reported that physically she suffered a left knee problem and back problems from the accident. The left knee problem has largely gone now but she has an L4/5 disc problem, which has not resolved. She has not had surgery.
History of symptoms and treatment following the motor accident
She reported after that incident, she was fearful and couldn’t drive for three to six months and her father had to take her everywhere. When she got in a car, when she saw a van or she would see a man that looked like the driver, she would ‘freak out’ and suffer an anxiety attack. She also had nightmares since the accident.
Over time, Ms Chebat started driving but even now, she states she only drives to familiar places and when she comes to any place where she feels vulnerable, for example, an intersection, she would have a picture in her head about the accident involving the van.
Details of any relevant injuries or conditions sustained since the motor accident
The Panel asked Ms Chebat about other accidents, especially an accident about a year after the subject accident. Initially she had no recollection of any accident, and with prompting about her record dated 26 June 2023, she said that her sister was driving, she was in the car with her brother and nephew, and a truck tailgated them and then veered into their lane and caused a collision. Ms Chebat said the truck driver then ran off. She said she didn’t go to the hospital but she went and saw her GP.
Current symptoms
Ms Chebat reported that she is easily triggered when she sees a van, when she hears the sounds of chains clashing, which is similar to the road sign. She would then have a ‘replay’ or imagery of the accident itself.
She reported low moods and non-specific general anxiety. She reported concentration and memory problems and low energy levels. She reported a loss of confidence and sleep problems, and nightmares. She does not have suicidal ideation.
She said she was 76kg before the accident and now 60kg and lost some weight in 2024 as she has no appetite.
She reported being impatient and irritable since the accident.
She said she has panic attacks.
Current and proposed treatment
Ms Chebat takes Voltaren as needed for pain. She was on psychotropic medications and ceased it early in 2024 and reported it was ineffective anyway.
She has been consulting LeRoy Onuhua, psychologist only since the accident, for around 2-3 years now, but said treatment has not helped and she is ‘no better after talking’. Ms Chebat has never had a psychiatric admission.

Clinical Examination

Mental State examination
Ms Chebat was assessed by video. She presented as anxious to talk and gave long answers. Her speech was mildly pressured. There was no psychomotor slowing or abnormal movements. She was not restricted in her affect range and reactivity. She smiled and laughed appropriately. She spoke spontaneously and readily.
Current functioning
Ms Chebat is 23. She is living with her parents and 26-year-old brother. She has never been married and has no dependents.
She said she can only drive for up to about 20 minutes now.
She said she has never had a proper relationship. Recently a young man became interested in her but then she cut him off because she didn’t want to be in a relationship.
Ms Chebat said her friends call her, but she has lost friends as she doesn't want to talk to them. She said her relationship with her father has declined over time and her relationship with her brother has become very bad recently. The Panel asked her how this related to the accident. She said it was caused by the accident but couldn’t explain how.
She stays most of the time at home and scrolls on her phone. She sometimes reads novels. She doesn’t like to watch movies now and said that she only watches something if she knows the ending, and she finds it hard to handle things that aren’t predictable.
Previously Ms Chebat did household chores and cleaned up, but now her mother does it. She related this change to the accident but couldn't explain how.
In terms of education history, after high school, she started an architectural degree at UTS but didn’t finish it and said she started working. After the accident, she started doing a Certificate IV in Drafting, but didn’t finish it because she went to court for the accident and deferred.
In early 2023 she started a bachelor's degree from UWS in architecture and is still studying now.
When the accident happened, Ms Chebat was not doing study and had two jobs. She started doing disability work in 2020 and traffic control work from October 2021. She said combined, she would do more than 60 hours a week sometimes.
After the accident, she couldn’t return to traffic control work as she would be too triggered. She continued disability work but only doing two days a week. She said this was partly because of study but partly because she couldn’t handle pressure - the Panel asked her how this related to the accident itself and she said it is caused by the accident but could not identify any specific reason why this might be so, given that disability work does not involve triggers relating to the accident. She also mentioned that her back pain can be a problem.

Determinations

Diagnosis and reasons
Ms Chebat has a past psychiatric history, and there was evidence of psychological symptoms and treatment since 2012 (when she was around 11 years old) and in the years leading up to the subject accident. The Panel concluded her pre-existing anxiety symptoms were consistent with generalized anxiety disorder.
She reported having a workplace incident involving an angry man in a van. She had felt frightened by the man's behaviour, and it was predominantly when the man drove into the road sign and impacted into her that caused her to become frightened, and she developed an aggravation of pre-existing generalized anxiety disorder (GAD).

The Panel does not believe the nature of the subject accident based on the evidence and the other driver's behaviour was sufficient to cause PTSD and it was not consistent with a DSM-5-TR PTSD criterion A event description.
The Panel had discussed with her, the evidence relating to previous mental health symptoms and treatment and formed the view that she has pre-existing GAD previously and noted she has had treatment almost every year leading up to the accident itself. The Panel also noted that she presented as an inconsistent historian and minimised her previous history, even after the Panel discussed one of the reasons for Dr Fukui’s certificate being appealed, was the fact that she had told everybody (Dr Fukui, Dr Bisht, the GP, as noted in the Certificate of capacity and also told her psychologist and recorded in her application for personal injury benefits form), that she had no prior psychological problems, when the GP evidence suggests that she has, for which she cannot give a convincing response.
Nevertheless, there is evidence that the nature of the accident and the man's behaviour was sufficient to cause an aggravation of the GAD with some impairment at least for several months, and her anxiety was interfering with driving for several months.
This is not a threshold injury.
In terms of the relative contribution of the collision and the man’s behaviour, overall, the collision had a greater impact in causing this aggravation.
In reference to Ms Chebat's pre-existing Generalized Anxiety Disorder and DSM-5-TR criteria:
Criterion A: Ms Chebat described excessive anxiety and worrying thoughts about several events, including her parents and health related anxiety, and this was occurring more times than not.

Criterion B: She has difficulty controlling her worrying thoughts and associated
emotions.
Criterion C:      She described symptoms lasting longer than 6 months (her condition likely started in her childhood, and only 1 symptom is needed for GAD diagnosis in childhood) and over time there was evidence for at least 3 symptoms before the subject incident:
·     Feeling anxious and on edge
·     Anxiety associated with fatigue
·     Evidence of sleep disturbance in her file

Criterion D:      This condition causes clinically significant distress and she presented to her GP with anxiety and received treatment for her anxiety.
Criterion E:      It is not caused directly by a general medical condition or substance/medication/drugs.
Criterion F:      Ms Chebat's anxiety symptoms do not occur only during a mood disorder, psychotic disorder, posttraumatic stress disorder or pervasive developmental disorder.

Causation and reasons
The Panel noted Ms Chebat's past psychiatric history and evidence of psychological distress in the years leading up to the subject incident and noted her anxious symptoms commenced when she was quite young and was present for most of her formative years.
After the subject accident, she developed increased anxieties and some disability caused by the subject accident, including anxiety around driving and avoidant behaviour. The Panel noted other stressors and another accident in 2023, and concluded the aggravation in pre-existing GAD was caused by the subject accident. Whilst her history was inconsistent and difficult to accept at face value, there was sufficient evidence she developed an aggravation from the subject accident.”

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 threshold or non-threshold 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[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[45] that a psychological condition caused by the accident can be present at any time to establish that a psychological injury is not a threshold injury for the purposes of the MAI Act.
[45] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We note that a differently constituted Panel, dealing with a physical injury, provided brief reasons in Merhi v Insurance Australia Ltd[46] questioning whether radiculopathy could be present at any time to satisfy the concept of a non-threshold injury caused by an accident. The Panel then stated:[47]
“In our respectful opinion, the reliance by review panel in David upon clause 4 of the Regulations read with cl 5.5 of the Guidelines so as to abdicate the assessment of the presence of radiculopathy undertaken by the medical assessor in the relevant assessment is misplaced.”
[46] [2024] NSWPICMP 316 (Merhi).
[47] Merhi at [101].
That Panel stated that the definition “starts with the Act” and asserted that the Panel stands in the shoes of the insurer when conducting a de novo assessment and any assessment was restricted to that undertaken by the Panel. We do not agree with the comment that the Panel stands in the shoes of the insurer. That comment does not address the issue of when the injury occurred.
That Panel otherwise did not address the full reasoning in both Lynch and Davidv Allianz Insurance Ltd[48] which are adopted as part of these reasons.
[48] [2021] NSWPICMP 227 at [84] – [104].
The Court of Appeal in Mandoukos v Allianz Australia Insurance Ltd[49] noted that the definition of injury, in the ordinary sense involving some definite or distinct physiological change or physiological disturbance, provided guidance to the ordinary meaning of the personal or bodily injury in s 1.4 of the MAI Act. That construction involves an examination of injury in a past tense although the Court noted that the definition may not apply to a psychological or psychiatric injury.[50] The comments by the Court of Appeal are inconsistent with the observations by the Panel in Merhi that the condition must be present at the time of the assessment, in the context of that case, many years later.
[49] [2024] NSWCA 71 (Mandoukos).
[50] The reservation by the Court of Appeal that a psychological injury may not have a distinct physiological change or physiological disturbance is often not stated in medical reports but is often a real effect of a psychological injury.
The Panel in Merhi otherwise erred, in our opinion, when it suggested that consideration of cl 1.4 of the Regulation is only a definition provision and was not relevant to when the “relevant assessment for the purposes of the Guidelines is to take place”.The provision supports that the meaning of injury, which is not only a commonsense interpretation, as discussed in Mandoukos, but defined in the past tense by the legislative provisions and not, as that Panel found, as at the date of assessment.
In our view the reasoning in Merhi has misconstrued the concept of “assessment” with an “examination”.[51] A Review Panel, in accordance with cl 5.6 of the Guidelines, is required to undertake an assessment and consider relevant records. It is not, contrary to what was asserted in Merhi, an abrogation of its function to rely on prior records, and is the function of the Panel, where reviewing those records and conducting an assessment to determine whether an injury (threshold or not) has occurred. Indeed, the Panel in Merhi did not address the obvious example of a fractured bone which had healed. If the only relevant time is during the Panel’s assessment, then, according to its reasoning, there would be no injury within the meaning of the MAI Act from a fractured bone which had healed.
[51] See at para [87] above.
The Panel does not agree with the Panel’s decision in Merhi and for the reasons above, will follow Lynch, and David. If there is evidence before the Panel that establishes at any time after the accident the claimant sustained a non-threshold injury caused by the accident, there must be a finding of non-threshold injury regardless of whether the injury has healed, the claimant has recovered, or the condition is in remission at the time of the Review.
We adopt the reasoning in AAI Ltd v Hoblos[52] that the psychological condition is evaluated by determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
[52] [2023] NSWPICMP 210 at [141]-[181] (Hoblos).
Since the reasons were published in Hoblos, the Supreme Court has held that a psychological injury was established if the motor accident aggravated, accelerated or exacerbated a psychological condition.[53] An exacerbation of a psychological condition does not have to be ongoing, to satisfy the meaning of an injury. Indeed, a common psychiatric diagnosis under DSM-5 TR is that the condition is “in remission”. That obviously means that the psychiatric injury has occurred, but its symptoms have subsided. The comments in Merhi are inconsistent with the common law meaning of aggravation of injury which has resolved, as applied by the Supreme Court in Todev.
[53] Todev v AAI Limited t/as GIO [2023] NSWSC 836 (Todev) at [50]-[53].
We also adopt the reasoning in Lynch[54] 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.
[54] Lynch at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.
The insurer referred to the five-day delay by the claimant in reporting psychological symptoms. We consider that delay of no significance especially as psychological conditions can develop over time. Furthermore, the delay is in the record of being reported, not in the development of the symptomatology. The insurer’s submission of purported delay is without merit.
The claimant, despite her denials, clearly was suffering from an underlying pre-accident psychiatric disorder evidenced by the clinical records set out earlier in these Reasons. That underlying condition made the claimant more susceptible to an aggravation of her psychiatric condition by an event which, we accept, the claimant found traumatising.
The insurer submitted that the previous Medical Assessor failed to properly consider causation and reference was made to the Medical Assessors’ failure to comply with paragraph 6.220 of the Guidelines with a comparison of the claimant’s pre-accident and post-accident functioning. Such a submission is misconceived as the paragraph concerns assessment of permanent impairment and the consideration of pre and post-accident functioning directed to the PIRS categories.
The insurer submitted that there were inconsistencies in recorded versions to ambulance and hospital. We do not accept that submission as the versions are generally consistent. We otherwise note the police version is short and lacking in detail. In our view it is probably, consistent with the recorded histories and the claimant’s statement to the Medical Assessor, that the insured vehicle hit the sign which collided with the claimant and probably rolled over her foot.
The Panel has critically considered the contemporaneous clinical records which are discussed earlier in these Reasons. Despite our view that the claimant cannot be accepted with respect to her denials of pre-accident symptoms, we are satisfied that the nature of the motor accident and the recorded complaint within the records establishes that there was a material aggravation of the underlying Generalised Anxiety Disorder.[55] As we previously noted, the claimant’s underlying condition made her especially susceptible to aggravation from an event such as this motor accident. This aggravation is otherwise established by the change in some functioning such as her employment status. Contrary to the insurer’s submission, the detailed history taken by the Medical Assessors has supported that there was a loss of functioning supporting our conclusion that the motor accident caused an aggravation of the underlying psychological condition.
[55] This is not a threshold injury within the meaning of the MAI Act.

CONCLUSION

The Panel has reached a different diagnosis from that contained in the original medical assessment. Even though the overall finding, that is the motor accident caused a non-threshold psychiatric injury, is unchanged, given the change in diagnosis, it is necessary to revoke the Medical Assessment Certificate. A new certificate is issued and attached at the commencement of the Reasons.

[2024] NSWPICMP 611

29 August 2024