QBE Insurance (Australia) Limited v Guo
[2024] NSWPICMP 425
•2 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Guo [2024] NSWPICMP 425 |
| CLAIMANT: | Yingxian Guo |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Doron Samuell |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 2 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; T-bone collision; significant pre-accident psychiatric symptoms; consideration of pre-accident records; examination by Medical Assessors; AAI Ltd v Hoblos referred to; Held – claimant suffered pre-existing anxiety disorder which was materially aggravated by the motor accident due to the emergence of further symptoms; claimant sustained a psychological injury; non-threshold injury confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate dated 28 March 2023 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Yingxian Guo (the claimant) suffered injury in a motor vehicle accident on 24 June 2021. The claimant was a front seat passenger with her friend driving when the insured vehicle made a right hand turn across the path resulting in a collision.[1]
[1] Insurer’s bundle, p 164.
QBE Insurance (Australia) Ltd insured the owner and driver of the motor vehicle for liability to pay Ms Guo 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 Guo’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Sidorov who issued a Medical Assessment Certificate dated 28 March 2023 (the medical assessment certificate). The Medical Assessor concluded that the motor accident caused a non-minor psychological injury.[3]
[3] Insurer’s bundle, p 5.
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”.[4] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
Statutory amendment
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
REASONS OF MEDICAL ASSESSOR
The Medical Assessor concluded that the motor accident caused a post-traumatic stress disorder which was not a minor injury.
Under the heading “diagnosis and reasons” the Medical Assessor concluded:
“Based on the account presented by Ms Guo, her presentation and review of provided documentation, she meets the diagnostic criteria for a Posttraumatic Stress Disorder, as per the DSM-5.
This is based on a history of Ms Guo being involved in a motor vehicle accident where she had fear for her life and safety at the time of the accident, with the subsequent development of intrusive thoughts and nightmares relating to the subject accident, persistent avoidance of stimuli associated with the subject accident and negative alterations in cognitions and mood associated with the subject accident, as well as marked alterations in arousal and reactivity associated with the subject accident, including increased irritability, hypervigilance, exaggerated startle response, difficulties with concentration and sleep disturbance.”
The findings by the Medical Assessor on causation of the psychological condition were:
“Ms Guo’s Posttraumatic Stress Disorder is related to the subject accident. There are no other identifiable causes. I note that prior to the subject accident Ms Guo had previously experienced significant depressive and anxiety symptoms, as well as being diagnosed with Attention Deficit Hyperactivity Disorder, necessitating psychological and psychiatric interventions, however, there is evidence of deterioration in her mental state post-subject accident and the appearance of new symptoms, consistent with a Posttraumatic Stress Disorder, that were not present prior to the subject accident.”
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 assessments 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.[6]
[6] 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[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] 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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
The insurer filed a bundle of documents. In response to a further direction from the Panel, the insurer filed the records from Blacktown Mental Health Hospital. The claimant consent to the admission of the further records.[10]
[10] Email dated 13 June 2024.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[11]
“(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.”
[11] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.2 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.[12] In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that that the claimant had not filed medical evidence in support of the claim concerning psychological injury noting the extensive history of psychiatric injury arising from the [14]previous employment as a police officer with the Victoria police questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] [2021] NSWSC 13 (Raina) at [65].
Claimant’s submissions
In response to the Panel’s direction, the claimant advised that she “relies on Assessor Sidorov’s certificate and does not have further documents to serve”.[15]
Insurer’s submissions dated 7 March 2022[16]
[15] Portal message dated 8 April 2024.
[16] Insurer’s bundle, p 14.
The insurer referred to cls 6.6 and 6.7 of the Guidelines and relevant statutory provisions concerning the definition of minor injury.
The insurer submitted that the claimant suffered a “severe” pre-existing psychological condition and referred to:
(a) clinical records of the claimant dated 24 October 2018, 8 November 2018,
8 December 2018, 13 December 2018, 12 August 2020, 21 January 2021,
27 January 2021, 5 February 2021, 12 February 2021 and 3 March 2021;(b) referral from Dr Zhang to Dr Teoh dated 12 February 2021;
(c) clinical records dated 26 February 2021, 3 March 2021, 28 April 2021 and
7 May 2021 where the claimant was advised to continue medication, and(d) clinical records in May and June 2021 that the claimant continued to consult
Dr Teoh.The insurer referred to the ambulance record and general practitioner (GP) note on
25 June 2021.It submitted that there was no reference by the GP on 7 and 8 July 2021 to a psychological condition. Other records contributed the psychological condition to other causes
(19 August 2021 and dates in October 2021) and on 7 October 2021 it was recorded that the claimant was feeling better.The insurer submitted that there was “no diagnosis of any alleged injuries causally linked to the accident which are classified as a non-minor injury for the purposes of the Act”.[17]
[17] Insurer’s bundle, p 16, par 26.
The insurer noted that Dr Teoh diagnosed attention deficit disorder and major depression on 15 April 2021.
The insurer referred to the Centrelink medical certificate dated 19 May 2021 and
15 December 2021 and submitted that the “Claimant’s diagnosis and symptoms were consistent both prior to and after the accident”[18] and that the injuries cannot be causally related to the motor accident.[18] Insurer’s bundle, p 17, par 29.
The insurer submits that there was no exacerbation of any psychological condition, or, in the alternative, such exacerbation was short lived.
Insurer’s submissions dated 20 April 2023[19]
[19] Insurer’s bundle, p 1.
The insurer filed submissions seeking to review the medical assessment.
The insurer referred to the findings of the Medical Assessor which noted that the claimant previously experienced psychological symptoms and was diagnosed with ADHD and the finding that there was evidence of deterioration in the mental state and new symptoms caused by the motor accident which formed the diagnosis of post-traumatic stress disorder.
The insurer submitted that the Medical Assessor “failed to corroborate the above symptoms with the clinical evidence before him” and asserted that apart from the “claimant’s self-reported symptoms” the Medical Assessor has not “with reference to the clinical evidence and submissions before him” identified the deterioration in the mental state and the appearance of new symptoms which formed the diagnosis of post-traumatic stress disorder.
The insurer referred to the overlap of the pre-and post-accident psychological symptoms, particularly insomnia, depression and anxiety which was evident in the Centrelink medical certificates dated 19 May 2021 and 15 December 2021.
The insurer submitted that the claimant was symptomatic up until the motor accident and referred to the referral by the GP to Dr Teoh dated 12 February 2021 and the opinion of
Dr Teoh dated 15 April 2021.The insurer submitted that there has been no report of “any different symptoms” to the treating practitioners that would warrant a post-traumatic stress disorder diagnosis such as nightmares about the accident and avoidance of the scene of the accident or driving.
The insurer submitted that the post-accident symptoms recorded in the insurer’s reply submissions are the same as those reported in the months leading up to the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The clinical notes of the GP refer to psychological symptoms since 2018.[20]
[20] Insurer’s bundle, pp 76-85.
Dr Balaji, psychiatry registrar of Blacktown Hospital noted that the claimant presented on
29 November 2020 having overdosed with Ibuprofen (10 tablets) in the context of a history of generalized anxiety and depression.[21] Assessment noted generalised anxiety with mood swings, ongoing interpersonal conflicts due to cluster B personality traits with no active psychotic symptoms. The claimant was on Sertraline 50 mg when discharged on18 December 2020.[21] Further bundle, p 7.
History of presentation included recent marital separation, poor distress tolerance, self-harm behaviours and intermittent suicidal ideation.
The claimant was referred by the GP to Dr Teoh in a letter dated 12 February 2021. The referral noted:[22]
“b/g of anxiety/panic attack. Depression was on different SRI/SSRI antidepressant medication, not improving, known to Blacktown mental health team and psychiatrist Dr Shoba Balaji, also seen by psychologist ? ADD/ADHD, for further psychiatric assessment and management.”
[22] Insurer’s bundle, p 28.
The Centrelink medical certificate dated 12 February 2021 noted a diagnosis of anxiety/depressed and insomnia.[23]
[23] Insurer’s bundle, p 38.
On 15 April 2021 Dr Ben Teoh, psychiatrist, noted the claimant reported a long history of insomnia and nocturnal enuresis with reported panic attacks characterised by hyperventilation, tremor, nausea and palpitation.[24] The doctor noted that the applicant had difficulty with concentration and impulsivity was prescribed antidepressant medication without significant improvement and was on melatonin for insomnia.
[24] Insurer’s bundle, p 169.
Dr Teoh opined that the presentation was consistent with a diagnosis of attentive deficit disorder and major depression and was prescribed Ritalin 30 mg.
On 10 June 2021 the GP noted symptoms of poor sleep, early morning wakening, depressed mood, low self-esteem, irrational fear, compulsive behaviour with no delusions, hallucinations or suicidal thoughts.[25]
[25] Insurer’s bundle, p 73.
Medical evidence
The ambulance report noted the claimant “had trouble breathing and collapsed on the road” and was “inconsolable with paramedics, continuing to hyperventilate despite reassurance” and was conveyed to Blacktown Hospital for further assessment.[26]
[26] Insurer’s bundle, p 164.
On 25 June 2021 the GP noted the motor accident, and that the claimant was “shaky”, “anxious” and did “not sleep well”.[27] The GP noted that the claimant was seen by the mental health team at her home and diagnosed mixed anxiety/depression.
[27] Insurer’s bundle, p 46.
The discharge summary from Blacktown Mental Health dated 25 June 2021 noted:[28]
[28] Late bundle, p 1.
“Consumer was upset since car accident last night
Wants to have medical check-up post-accident
Last night left ED without medical advice
Plan
Consumer decided to go to GP for follow-up
Police and PACER to drop consumer to medical centre for physical check-up
Hand over given to GP over the phone
Advise GP to continue with mental health care plan
Nil further follow-up from PACER
Above plan discussed with Dr Lee
Dr Le agreed with plan”
Presenting problems to Blacktown Mental Health on 25 June 2021 included that the claimant was “shivering and feeling low” and expressed suicidal ideation. On examination the claimant was “very teary” and distrustful of hospital staff.
On 24 September 2021 the GP noted that the claimant had been seeing a psychologist and psychiatrist and complained of “exacerbation of anxiety after MVA”.[29] A certificate of capacity at that time noted an exacerbation of anxiety caused by the motor accident.[30]
[29] Insurer’s bundle, p 71.
[30] Insurer’s bundle, p 139.
Some clinical notes of the GP refer to other health conditions such as gynaecological issues. The insurer submitted that the notes did not always refer to psychological issues. Whilst this is correct we do not accept that this is significant.
A letter from Mr Ross Leonard dated 4 October 2021 noted the claimant had engaged in six sessions for “depression/anxiety/ADHD management”, remained pleasant and engaged well was reportedly keen to engage in further sessions.[31]
[31] Insurer’s bundle, p 138.
On 7 October 2021 the GP referred to the claimant seeing a psychologist and had “finished 5 sections”, was feeling better and wanted to “have one more section”.[32]
[32] Insurer’s bundle, p 71.
The Centrelink medical certificate dated 15 December 2021 noted a diagnosis of anxiety/depression and insomnia.[33] The GP then noted symptoms of “poor sleep, early morning wakening. Depressed mood, low self-esteem, irritation fear, compulsive behaviour and pain attacks” with no delusions, hallucinations or suicidal thoughts.[34]
[33] Insurer’s bundle, p 33.
[34] Insurer’s bundle, p 69.
RE-EXAMINATION
Mr Guo was examined by both Medical Assessors on 21 June 2024. The examination findings of the Medical Assessors are:
“History
The claimant was aged 43 at the time that we assessed her. She said that she was receiving a Centrelink benefit for the two years before the assessment due to mental health difficulties. When asked what qualified her for the benefit, she told us that she had difficulty sleeping and problems driving. She also advised us that her memory had ‘faded a bit’. She last worked three years before the present assessment as a property design agent.
At the time of the subject accident, she said that she was working for 15 hours per week and receiving a part Centrelink benefit. She advised us that the reason for the Centrelink benefit was that she was suffering from depression. She said that she ceased her last job in around December 2021 due to nightmares, anxiety and concern about her health.
The Panel asked Ms Guo about her self-perception of mental health before the subject accident. She acknowledged that she had sleep difficulty and interpersonal difficulty with a partner. She said that she had found it “very easy to get anxious and nervous”. She said that she was at the initial stage of a treatment plan before the subject accident. She estimated that she had sleep difficulties for around five years. She denied having any bad dreams before the subject accident. She acknowledges that she had a presentation to the Blacktown Hospital before the subject accident when she felt suicidal and thought that life was meaningless. She denied any other history of psychological difficulty. The Panel brought to the claimant’s attention references to earlier mental health difficulties that were inconsistent with the history provided to us. The claimant admitted that as, a child, she engaged in self-harming and said that after her parents’ relationship broke down, she was depressed.
She said that she was uncertain about any family psychiatric history.
Her medical history was limited to an ectopic pregnancy before the subject accident. There was a family history of breast cancer in her aunt and grandmother.
The claimant told the Panel that she never consumed alcohol, cigarettes or illicit substances.
Personal History
Ms Guo was born in Jiangsu and grew up there. She said that life growing up was normal. She denied any adverse early life events or difficulties, other than her parental separation. She told us that her boyfriend died in an accident when she was aged 20 or 21. When we asked the impact of that, she said that she lost a significant amount of weight in a brief timeframe.
Her father was a policeman and her mother an accountant. Both parents are alive. Her mother lives in Australia. She is estranged from her father who remarried and has his own family. Her mother lives next door. She has no siblings.
She said that she attended university where she studied trade and export and worked in China in a bank. She met and married her husband in China. She had her daughter in China before moving to Australia. Her longest period of employment was as a bank worker for three to four years.
Current treatment
At the time of the assessment she was being treated by a psychologist, Dr Amy, commencing in 2023. She said that she is being treated with dialectical behaviour therapy (DBT) 20 times per year in 2023 and 10 times per year in 2024. She said that she requires ongoing DBT due to her sleep disturbance. In addition, she said that she has been consulting with the psychiatrist, Dr Miao, for over two years.
At the time of the assessment, she was taking Vyvanse and an antidepressant which name she could not recall. It was noted that she had been taking Ritalin before the motor vehicle accident.
Current Symptoms
Ms Guo continues to complain of some sleep disturbance. She said that she has nightmares once or twice per month and may have difficulty falling asleep. She said that her nightmares are about car accidents. She said that she may have two or three poor nights of sleep per week.
She said that her mood is dependent on whether or not she is required to drive. She said that, during school term days, she will be nervous due to her driving commitments and, on holidays, describes herself as being ‘very relaxed’.
There is no diurnal pattern to her mood.
She said that she has no problems with her concentration if she takes her prescribed medication.
She has not been suicidal recently.
Social History
Ms Guo is a permanent resident of Australia who was eligible for that status through her husband. Ms Guo lives with her daughter. She said that her daughter has been living with her continuously for two years. She said that, before that, her daughter was living with her ex-husband, who has since returned to China, for two and a half years.
She said that, following the breakdown of her marriage, she had some health concerns and could not drive. She said, on that basis, her daughter lived with her ex-husband. She said they lived close by. The Panel asked her about her inability to drive before the subject accident and she referred to “health problems” and then said that she ‘didn’t need to drive’. She did then advise the Panel that she did not need to drive, rather than was unable to drive.
She has full custody of her daughter, now aged 15. She says that her daughter has both Autism and an Attention Deficit Disorder, requires speech therapy and takes Ritalin. She said that she and her daughter enjoy a good relationship and that her treatment with DBT has helped them improve their communication. She has no other children.
The Panel asked Ms Guo about her interpersonal functioning. She advised us that she had been married for 12 years and said the marriage ended as she felt as though she was being controlled by her ex-husband. She has not had any relationships since the marital dissolution. She has not been dating.
She has one to two friends whom she says are not very close. She said they may meet each other on the street and talk for five to 10 minutes. She said that she rarely goes out for dinner or entertainment. She last went back to China in 2023 for a period of one month.
We asked about her hobbies and interests, and she told us that she enjoys calligraphy, reading poems and spending time with her daughter. She said, though, that she does very little during term time due to the driving-induced anxiety.
The Panel enquired about the claimant’s activities of daily living. She said that she uses a domestic robot to assist with her cleaning. She washes her own clothing and receives no external assistance. She does her own shopping, sometimes online. She dresses herself and showers and toilets herself. She showers in winter every second day. She said that she cannot cook on occasion and her daughter may assist her. She drives seven days per week during the school term.
Accident
Ms Guo could not recall the precise date of the subject accident. She was accompanied by her friend and restrained in the front passenger seat at the time of the impact.
She said that their vehicle had been stationary at lights when a vehicle coming towards them hit their vehicle on the front and side. She was observed to be closing her eyes and clutching her chest when she recalled the subject accident.
The claimant was able to alight from the vehicle without assistance. She advised us that airbags were not deployed.
Immediately after the subject accident she said that she had breathing difficulty and advised us that her heart was beating fast. She said that she “couldn’t move at all”. She left the scene of the accident by ambulance and was taken to the Blacktown Hospital. She said that she self-discharged as she “felt discriminated [against].” She returned the following day to the Blacktown Hospital with symptoms of anxiety.
Following the subject accident, she said that she has attended her general practitioner, psychologist and the Blacktown Mental Health services. There were no post-accident accidents.
Inconsistencies
We brought to Ms Guo’s attention some inconsistencies, including the self‑reported history of psychological difficulty, with her responses provided above. She initially denied any history of child sexual assault and then advised us that a male inappropriately exposed himself to her when she was four or five. On another occasion she said that, while going home from school, an older male pulled her into a building and choked her. The Panel reflected back to the claimant that she appeared to have significant anxiety pre-dating the subject incident and she accepted that she was having anxiety and panic attacks that she said had since improved with the DBT. She stressed that the anxiety that she had while driving was different to the anxiety that she had before the subject accident. She acknowledged that she was taking antidepressants at the time of the subject accident.
Mental State Examination
Ms Guo presented as a pleasant and cooperative, well-groomed woman of Asiatic appearance. She appeared her stated years. She asked that we call her Ashley.
Her psychomotor functioning was observed to be normal throughout the interview. She was not observed to be distressed or disordered at any stage of the assessment.
Her speech was normal in form. Her answers to many questions were vague, at times tangential and, on occasion, unresponsive. There were several material inconsistencies in her narrative, compared with external data sources. She was able to describe some experiential symptoms of anxiety that she acknowledges have improved over time. She appeared to minimise pre-existing psychological difficulties.
Her affect was bright and reactive. There was no external evidence of anxiety, depression or distress.
Her cognitive functioning was normal at a clinical level, as far as we could tell with the interpreter.
There was no evidence of psychosis.
Opinion
Ms Guo is a 43-year-old Centrelink recipient and mother of one who had a motor vehicle accident in June 2021.
Before the subject accident, she had significant pre-existing psychological difficulties. There was a history of interpersonal difficulties, deliberate self-harm, anxiety and depression. Her mental health difficulties were clinically significant around the time of the subject accident. It was noted that the claimant was taking antidepressants at the time of the subject accident.
We accept that the subject accident was a source of distress to the claimant. The Panel noted that the claimant presented to the Blacktown Hospital the day after the subject accident complaining of significant psychological distress that was related to the subject accident. Since the subject accident, the claimant’s psychological symptoms appeared to have worsened, with a particular aggravation to the claimant’s pre-existing anxiety noted.
The Panel considered that the claimant had pre-existing personality vulnerabilities before the subject accident. The Panel also considered that the claimant had an Anxiety Disorder, that pre-existed in the subject accident, that was likely to have been an unspecified Anxiety Disorder (F41.9) as her anxiety symptoms, that pre-existed the subject accident, caused clinically significant distress, consistent with the contemporaneous records. Her symptoms did not meet the full criteria of any other Anxiety Disorder in the DSM-5-TR.
Following the subject accident, the unspecified Anxiety Disorder was materially aggravated, noting the claimant’s presentation to the Blacktown Hospital and the emergence of new, specific symptoms resembling a specific phobia for driving that emerged after the subject accident.
An unspecified Anxiety Disorder is not classified as a threshold injury according to the Act and, on that basis, the Panel determined that the aggravation of the pre-existing condition was a non-threshold injury.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[35] and Insurance Australia Ltd v Marsh.[36]
[35] [2021] NSWCA 287 at [40], [41] and [45].
[36] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[37] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[37] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[38] 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.
[38] at [44]-[62].
We adopt the reasoning in AAI Ltd v Hoblos[39] that the psychological effects are evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
[39] [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.[40]
[40] Todev v AAI Limited t/as GIO [2023] NSWSC 836 (Todev) at [50]-[53].
The Panel adopts the joint examination report of the Medical Assessors. We are particularly reliant on the clinical expertise of the Medical Assessors who jointly undertook the recent examination process and concluded that the motor accident aggravated the claimant’s pre-existing psychological condition.
We do not accept the insurer’s submission that the psychological symptoms did not vary pre and post motor accident. The intensity of the symptoms increased with a particular aggravation to the claimant’s pre-existing anxiety and an emergence of new, specific symptoms resembling a specific phobia for driving that emerged after the subject accident.
The onset of further psychological symptoms commenced shortly after the motor accident. There is a clear temporal relationship between the exacerbation of the psychological symptoms and the motor accident. The conclusion that the motor accident caused an exacerbation of a pre-existing psychological condition is consistent with the contemporaneous records.
The motor accident caused an aggravation of an anxiety disorder. This is not a threshold psychological or psychiatric injury.
CONCLUSION
For these reasons, the Panel concludes that the medical assessment certificate is confirmed, that is, we accept that the motor accident caused a non-threshold psychological injury.
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