QBE Insurance (Australia) Limited v Hoblos

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Hoblos [2023] NSWPICMP 209
CLAIMANT:	Raian Hoblos
INSURER:	QBE Insurance (Australia) Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Atsumi Fuku
DATE OF DECISION:	7 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act2017; threshold injury dispute for psychological injury; claimant involved in four separate motor accidents over short period; prior psychological history; subject motor accident was a T-Bone collision at speed; held to be sufficiently serious to have threatened death or threatened serious injury to the claimant; discussion of common law and statutory principles of test of causation for psychological injury; rejection that principles in State Government Insurance Office v Oakley applied; Slade v Insurance Australia Ltd applied; reference to Motor Accidents Guidelines (Version 9.1, commenced on 1 April 2023) as to test for injury; Briggs v IAG Ltd (No 2) applied; observations by Windeyer J in Federal Broom Co Pty Ltd v Semlitch referred to; discussion of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for determining post-traumatic stress disorder; each criterion under DSM-5 must be caused by the motor accident; Held – claimant suffered post-traumatic stress disorder caused by motor accident; original assessment confirmed.
DETERMINATIONS MADE:	Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 6 May 2022 and otherwise 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 Raian Hoblos (the claimant) was involved in four motor accidents over a short period. The accidents occurred on 14 December 2020, 19 December 2020, 19 December 2020 and 3 January 2021.
The claimant was also involved in prior motor accidents in 2018 and November 2019.
The present proceedings relate to the accident that occurred on 3 January 2021 (the motor accident). In the motor accident when the insured vehicle T-boned the claimant’s vehicle at speed (the motor accident).
QBE Insurance (Australia) Ltd (QBE) is the insurer liable to pay Ms Hoblos any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The claimant also alleges injuries were received in the second motor accident on 19

December 2020 when the other vehicle tried to turn right and impacted into the passenger’s door of the claimant’s vehicle[1] (the previous motor accident). That accident occurred around 4 pm whist the earlier accident that day occurred around 2 pm.[2]
[1] Claimant’s bundle, p 62 and photographs, QBE bundle, p 1619.
[2] Claimant’s bundle, p 419.

AAI Ltd (GIO) insured the owner and driver of the motor vehicle for liability to pay Ms Hoblos any damages and/or statutory compensation entitlements under the MAI Act for the previous motor accident.
The issues presently in dispute are whether Ms Hoblos’ injury is classified as a
“threshold injury” within the meaning of the MAI Act caused by the motor accident. There is also a medical dispute concerning whether the previous motor accident caused a threshold injury.
There is no claim for relief in these proceedings for the motor accidents that occurred on 14 December 2020 and the one occurring earlier in the day on 19 December 2020.
To avoid uncertainty, these accidents are referred to as the “preceding motor accidents”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a 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[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Parmegiani who issued separate Medical Assessment Certificates dated 6 May 2022 in respect of the prior motor accident and the motor accident. Medical Assessor Parmegiani concluded that Ms Hoblos sustained a non-minor psychological injury caused by both the prior motor accident and the motor accident for the purposes of the MAI Act.
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
[4] Sections 3.11 and 3.28 of the MAI Act.
MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[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 2023 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.
17. 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

19.The Medical Assessor issued separate certificates for the prior motor accident and the motor accident. The separate reasons are similar given the relationship of the issues in dispute for the separate accidents.
20.The factual findings relevant to causation were articulated by the Medical Assessor under the heading of Diagnosis and Reasons. The Medical Assessor stated:
“Ms Raian Hoblos is a 31-year-old lady who has been hearing impaired since birth, who presents with a complex clinical picture after her involvement in a series of motor vehicle accidents between 14 December 2020 and 3 January 2021.
From a psychiatric perspective, Ms Hoblos was initially treated several years earlier for symptoms of major depression and Posttraumatic Stress Disorder after her home was raided by the police in a case of mistaken identity. She stated that she recovered fully and was well before the accident, though some evidence from her treating psychologist in 2019 (see above) suggests that there may have been persistent symptoms of mood disorder at that time. Certainly, the general practice notes preceding the series of accidents makes no note of ongoing psychiatric symptoms.
I note that a prior history of major depression and Posttraumatic Stress Disorder increases the likelihood of new episodes of these conditions, even when exposure to a stressful or traumatic event is less substantial.
Ms Hoblos reported that after the first accident on 14 December 2020 she did not experience any specific psychological symptoms, other than some frustration and disappointment. Such symptoms do not support a formal psychiatric diagnosis.
She was involved in another accident on 19 December 2020, while driving in the company of her daughter. Again, she did not report being particularly disturbed by the accident, and drove away after exchanging details.
Ms Hoblos was then involved in another motor vehicle accident later that day, on 19 December 2020.
She stated that after that accident her mood deteriorated, and she began to experience intrusive memories, flashbacks, and nightmares of the accident.
I don’t believe that her condition was treated specifically before she was involved in the subject motor vehicle accident on 3 January 2021. Following exposure to that final accident, Ms Hoblos’ mood deteriorated further, and she continued to experience symptoms of intrusive memories, flashbacks and nightmares related to both accidents. She continued to drive but limited her range. She became more irritable and indulged in more regular arguments with her husband.
Ms Hoblos was treated with higher doses of antidepressant medication by her psychiatrist and was referred to a pain management service for the management of concurrent symptoms of chronic pain.
When assessed on 28 April 2022, the predominant symptoms that she reported were most supportive of a clinical diagnosis of Posttraumatic Stress Disorder. They included recurrent and intrusive memories of the accidents, flashbacks, nightmares, avoidance of driving and persistent irritability.
She did not report symptoms consistent with a Major Depressive Disorder, though I believe it is quite possible that the high dose of antidepressant medication eventually managed to reduce the symptoms of depression, at which point the PTSD symptoms have become more evident.
It is therefore my opinion that based on her current clinical presentation Ms
Hoblos fulfils diagnostic criteria for Posttraumatic Stress Disorder.”

The Medical Assessor diagnosed post-traumatic stress disorder caused by the prior motor accident and the motor accident. These reasons were:
“Ms Hoblos was left relatively unscathed by the first two motor vehicle accidents that occurred respectively on 14 December 2020 and earlier on 19 December 2020.
After the third accident, she stated that she began to experience symptoms consistent with an acute stress reaction, including intrusive memories of the accident, flashbacks, nightmares, and irritability. Technically the symptoms were still consistent with an acute stress reaction at the time she was involved in the final accident, as a period of one month had not yet passed.
Following the subject accident on 3 January 2021, she experienced distinct symptoms of PTSD related to this accident that have persisted in time.
She now presents with symptoms of Posttraumatic Stress Disorder, which are related to both accidents. Hence it is my opinion that the subject motor vehicle accident, notwithstanding the earlier accident on 19 December 2020, is a significant causal factor for the current diagnosis of Posttraumatic Stress Disorder.”

THE REVIEW

The application for referral of the medical assessment to a review panel was made separately by GIO and QBE 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 delegates 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 (the 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.
27. 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 Panel was constituted to determine the issue of threshold injury in respect of the previous motor accident and the motor accident and issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
In its initial Direction the Panel also advised all parties that:
“Both matters are being heard by the same Panel. Accordingly, the insurers are to serve their respective bundles on each other as well as the claimant. Subject to any objection and determination otherwise, all documents filed by the insurers will be considered in both applications.”
There was no objection by any party to this direction.
The Panel issued a further direction which is set out in full save as to dates for submissions.
“1. The Panel understands that the following documents are before it:
(a)Claimant’s bundle (947 pages);
(b)GIO bundle (117 pages);
(c)QBE bundle (2766 pages); and
(d)QBE supplementary submissions (3 pages).
2. We understand that the present medical disputes concern the second motor accident which occurred on 19 December 2021 (the motor accident) and the motor accident on 3 January 2022 (the subsequent motor accident).
3. Given the extensive documentation before the Panel and the absence of submissions referring to specific documents, the Panel advises that it does not intend to go searching for references within documents where the submissions do not specifically address the materials. In this respect the parties are referred to the observations of the High Court in Gamestar Pty Ltd v Lockhart[10]where it was observed that a Court is not required to
[10] [1993] HCA 79; (1993) 112 ALR 623 (Gamestar).
“search for supportive evidence” in support of a claim. We also note that Bellew J made comments in Bevan v Bingham [2023] NSWSC 19 concerning the obligation of legal practitioners to place only the necessary evidence before the decision maker.

4.     Based on the material, the Panel expresses a preliminary view that the claimant was suffering from a pre-existing psychiatric condition (diagnosable under DSM-V) at the time of the motor accident.
5.     The Panel raises for the parties’ consideration, assuming the finding of a pre-existing psychiatric condition, the test for injury. The Panel’s preliminary view is that the claimant must satisfy, on the balance of probabilities, that she suffered an aggravation or exacerbation of a pre-existing psychiatric condition caused by either the motor accident and/or the subsequent motor accident.[11] [12] The question of injury must be considered separately for each motor accident.
[11] In relation to the onus, the parties are directed to Briggs v IAG Ltd (No 2) [2022] NSWSC 372 at [73] and Lynch v AAI Ltd [2022] NSWPICMP 6 (Lynch) at [44]-[62].
[12] In relation to the timing of any psychiatric injury, the parties are referred to David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 at [84] – [104] and Lynch at [70]-[74].
6.     If the Panel makes a finding of injury by way of aggravation for either motor accident, the Panel must then decide whether any injury does not constitute a minor injury as defined under the Motor Accident Injuries Act, 2017 and subordinate legislation.
7.     The claimant is to be medically examined by Medical Assessor Fukui as follows:
….
8.     The Parties are directed to make any further submissions with specific reference to:
(a)The pre-existing diagnosable psychiatric condition,
(b)The legal test for injury where there is a pre-existing psychiatric condition,
(c)Whether an aggravation of a pre-existing psychiatric condition injury where the underlying psychiatric condition is not an acute stress disorder and/or adjustment disorder, is not a minor injury, and
(d)    QBE and the claimant are directed to refer by page reference to any specific documents.”

The parties’ respective submissions to this Direction are referred to later in these
Reasons. QBE noted that the Panel’s direction incorrectly referred to the year when the previous motor accident and motor accident occurred.
The Panel is issuing separate reasons for the previous motor accident and the motor accident. However, the Panel has adopted and repeated the summary of evidence, submissions and some findings in the reasons given for the prior motor accident.

STATUTORY PROVISIONS

“Injury” is defined in s 1.4 of the MAI Act to mean:
“personal or bodily injury and includes--
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
“Motor accident” is defined in s 1.4 of the MAI Act to mean:
“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.”
A threshold injury is defined in s 1.6(1) of the MAI Act:[13]
[13] This sub-section was amended by Amendment Act, Schedule 1 [5].
“(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.”

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 of same meaning as DSM -5.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4   Diagnostic imaging is not considered necessary to assess threshold injury.
5.5   A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6   The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:

“Threshold psychological or psychiatric injury assessment

5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[14] In Raina v CIC Allianz Insurance Ltd[15] Campbell J stated:
[14] See s 3B(2) of the Civil Liability Act 2002.
[15] [2021] NSWSC 13 (Raina) at [65].
“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 20 May 2021[16]

[16] Claimant’s bundle, p 1.

These submissions were filed with respect to the injuries suffered in the motor accident.
43. The claimant submitted that she suffered an aggravation or exacerbation of her preexisting conditions including an aggravation of her post-traumatic stress disorder.
Further, the motor accident “caused a new episode of PTSD and this diagnosis is causally related to the subject accident”.
The claimant submitted that the insurer was required to discharge the onus that the injury was a minor injury. Weight should be given to treating medical professionals such as the Allied health request dated 13 February 2021 which diagnosed posttraumatic stress disorder.

Claimant’s submissions dated 19 July 2021[17]

[17] Claimant’s bundle, p 4.

These submissions were filed with respect to the injuries suffered in the prior motor accident.
The claimant referred to the diagnosis by Helen Madigan on 11 February 2021 that she suffers from post-traumatic stress disorder. Reference was made to a variety of symptoms including nightmares and flashbacks of the motor accident, anxiety, panic and hypervigilance.

Claimant’s submissions dated 7 July 2022[18]

[18] Claimant’s bundle, p 10.

These submissions were filed opposing GIO’s application to review the medical assessment for the prior motor accident. It was submitted that the Medical Assessor took a detailed history, considered the extensive material and made clinical and forensic decisions based on his experience.

Claimant’s submissions dated 7 July 2022[19]

[19] Claimant’s bundle, p 13. ²⁰ GIO bundle, p 11.

These submissions were filed opposing QBE’s application to review the medical assessment for the motor accident. The claimant submitted that the Medical Assessor explained his reasons and that a previous condition increased the likelihood of sustaining a further psychological injury to a further event.

GIO submissions dated 12 August 2021²⁰

49.       The insurer summarised recent evidence which referred to pre-existing conditions.[20] That evidence was:
[20] GIO bundle, p 12.
(a)   St George Hospital Discharge Summary dated 21 June 2021 which referred to chronic complex pain syndrome caused by multiple motor accidents at the end of 2020;
(b)   Bankstown Hospital Discharge Summary dated 25 June 2021 referring to multiple motor accidents causing chronic regional pain;
(c)   Westmead Hospital discharge summary dated 30 June 2021;
(d)   Dr Eddie So, psychiatrist dated 20 June 2021 who diagnosed acute anxiety disorder with panic attacks moderate to severe and that further tests were required to establish post-traumatic stress disorder, and
(e)   various reports of Dr Iftikhar Ahmed, psychiatrist in 2021 that diagnosed a major depression disorder although “did not provide an assessment, as per DSM -V criteria, as to how the Claimant meets this diagnosis”. The claimant referred to all four motor accidents and a previous accident in 2018.

GIO referred to the clinical notes of Dr Abdul Saad, psychologist from 2012 to 4 February 2020. It also referred to the clinical notes of the general practitioner (GP) both prior to and following the motor accident.
GIO noted that the claimant had been seeing Dr Ahmad since 2012 including as late as November 2020 (report dated 26 February 2021). It submitted that there was no evidence that the claimant was in remission prior to the motor accident.
GIO referred to the minor nature of the prior motor accident as outlined in the report of Dr Andrew McIntosh dated 20 May 2021 and the property damage photographs. It submitted that there was “insufficient evidence to determined that any alleged injury was solely as a result of the subject accident”. (our emphasis)[21]
[21] The assertion that the motor accident has to be the sole cause of the injury is incorrect.
The nature of the prior motor accident, in light of three other motor accidents, did not meet Criterion A for post-traumatic stress disorder.
Even if the prior motor accident caused a psychological injury, that injury was “minor” within the meaning of the MAI Act and the Guidelines.

GIO submissions dated 24 November 2021[22]

[22] GIO bundle, p 18.

GIO referred to the report of Dr Rastogi dated 16 July 2021 and his report referred to the motor accident being a “major deterrent to her psychological aggravation”. It submitted that any alleged psychological injury was not as a result of the motor accident.

GIO submissions dated 7 June 2022[23]

[23] GIO bundle, p 1.

The treating evidence disclosed that the claimant had a pre-existing psychological condition since 2012 and had been diagnosed with various psychological conditions including post-traumatic stress disorder.
GIO referred to the reports of Dr Ahmad, the treating psychiatrist such as that dated 6 October 2020 (two months prior to the motor accidents) who diagnosed major depressive disorder with anxiety symptoms and a prescription of fluoxetine. The report by Dr Ahmed dated 26 February 2021 referred to a presentation in November 2020 referencing psychiatric symptoms.
Contrary to the conclusion of the Medical Assessor of an absence of psychiatric symptoms, the clinical notes of Revesby Family Clinic show:
(a)   Mental Health Plan on 3 August 2020 diagnosing mixed anxiety and depression;
(b)   Referral to Dr Ahmad dated 15 August 2020 for anxiety and depression, and
(c)   Mental Health Plan completed on 20 November 2020 which diagnosed “Major Depressive Disorder”.
The claimant’s report of pre-accident recovery is contradicted by the records.
GIO referred to the history recorded by Dr Rastogi which supported its submission that the claimant “made complaint of psychological symptoms after the” two accidents which preceded the motor accident.
GIO submitted that the Medical Assessor was correct in noting that the claimant’s first relevant medical attendance was after the motor accident.
62. GIO submitted that the Medical Assessor erred in respect of causation and failed to apply cl 6.5 to 6.7 of the Guidelines. It noted that the test “related to” was an error. Further there was no explanation how the finding by the Medical Assessor that the
claimant had symptoms of an acute stress reaction following the motor accident, which is a minor injury, developed into post-traumatic stress disorder.
GIO submitted that the Medical Assessor did not engage with its prior submissions dated 12 August and 24 November 2021 which referred to specific material (reports of Dr Ahmed and Dr Rastogi) and that the motor accident could not satisfy Criterion A for post-traumatic stress disorder.
In respect of the absence of satisfaction of Criterion A, GIO referred to property damage photographs and the “biomechanical report”.

QBE internal review dated 4 May 2021[24]

[24] Claimant’s bundle, p 25.

65. QBE referred to various reports and stated:

“Upon consideration of the medical evidence before me I am satisfied that at most you have sustained an exacerbation of your psychological symptoms. An exacerbation of your psychological symptoms does not meet the criteria of DSM5 diagnosis. Therefore, I find the psychology or psychiatric injury caused by the motor accident is a minor injury for the purposes of the Act.”

QBE submissions dated 18 June 2021

QBE referred to the prior motor accidents in November 2019 and in December 2020 and the medical notes prior to the accident on 3 January 2021 which included reports of various psychological symptoms.
QBE noted that the claimant was diagnosed with a major depressive disorder by Dr Ahmad in a report dated 6 October 2020 and an adjustment disorder by Dr Hawi on 6 January 2021.
The Coral Project Report asserts that the claimant reported the same psychological symptoms from the motor accidents in December 2020 to the motor accident on 3 January 2021.
69. QBE noted that the AHRR report dated 13 February 2021 provided a diagnosis of posttraumatic stress disorder and Dr Rad considered the same diagnosis based on complaints of anxiety, interrupted sleep and flashbacks. However, on 25 May 2021 an AHRR completed by Houda El-Hassan preferred a diagnosis of adjustment disorder with severe depression and anxiety.
QBE submitted that a formal assessment under DSM-5 was not conducted which was otherwise required by the Guidelines.

QBE submissions dated 15 June 2022

These submissions were filed seeking leave to review the Medical Assessment. QBE submitted that the Medical Assessor failed to consider the following documents:
(a)   report of Dr Synnott dated 16 August 2021 who had a conference with Dr Ahmad and they both agreed that there was no psychiatric diagnosis for the subsequent accident;
(b)   records from Insurance Australia Ltd confirm that the claimant suffered psychological symptoms following the November 2019 motor accident including up to at least July 2020 when the claimant reported symptoms of
“stress, tearful”. A report from Momentum Rehab dated 27 December 2019 reported the claimant had thoughts she may have died from the November 2019 incident;
(c)   records from NRMA and GIO relating to the motor accidents on 14 and 19 December 2019 which detail treatment and diagnosis of post-traumatic stress disorder and adjustment disorder for these accidents;
(d)   prior records of Restwell Street Medical Centre detailing psychiatric diagnosis in July 2018 with referral to a psychologist in 2019;
(e)   prior records of Greenoaks Medical Centre detailing psychiatric symptoms following the November 2019 accident, and
(f)    report of Mr Saad, treating psychologist who in October 2019 reported that the claimant had a history of psychological symptoms.
QBE submitted that the histories of psychiatric symptoms should have been put to the claimant.
QBE noted that the claimant reported psychiatric symptoms on 22 December 2020 (severe insomnia, negativity, tearfulness and social withdrawal) which was inconsistent with the observation of absence of treatment until after the accident on 3 January 2021.
QBE submitted that each motor accident must meet the relevant psychiatric diagnosis under DSM-5 and it was inappropriate to “accumulate” the effects of the multiple motor accidents.[25] Each motor accident must “on its own merits” meet the diagnostic criteria for post-traumatic stress disorder.
[25] QBE bundle, p 9, [61]-[63].
No authority was cited for the submission.
QBE otherwise submitted that there was an absence of reasons by the Medical Assessor in making a diagnosis of post-traumatic stress disorder based on the absence of analysis of prior symptoms, an incorrect accumulation of the effects of both motor accidents and an absence of consideration of the effects from each motor accident. In this regard it noted that the erroneous comment of an absence of treatment after the motor accident and prior to the subsequent motor accident.

QBE submissions following receipt of GIO’s bundle of evidence[26]

[26] QBE supplementary bundle, p 1.

QBE repeated that it relied on its previous submissions dated 18 June 2021 and
15 June 2022. It otherwise noted GIO’s submission that Dr Rastogi expressed the opinion that the fourth accident in January 2021 was a “major deterrent to her psychological aggravation with exacerbation of major depressive disorder”.
QBE disputed Dr Rastogi’s comments on causation. It referred to the clinical note of the GP dated 22 December 2020 and submitted:
“In particular, the pre-accident records confirm that the claimant reported suffering from identical symptoms prior to the subject accident as a result of her involvement in the 3 previous motor vehicle accidents.”
The complaints to the GP on 22 December 2020 are inconsistent with GIO’s submission that the first attendance [for medical treatment] was after the last motor accident.
QBE relied on the opinion of Dr Synnott that the claimant did not suffer a psychological condition caused by the motor accident and that the condition arose from the management of the multiple motor accident claims.
QBE submitted that the assessment provided by Medical Assessor Parmegiani was
“fundamentally flawed” and that no formal or accurate diagnosis of post-traumatic stress disorder was made in that medical assessment.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

In a report dated 4 October 2014 Mr Saad, psychologist noted treatment for posttraumatic stress disorder and major depressive disorder since July 2012.[27] Subsequent reports from Mr Saad in 2015 noted ongoing anxiety and mild intellectual delay.
[27] Claimant’s bundle, p 914.
A subsequent clinical note of Mr Saad in January 2019 referred to domestic issues with neighbours and housing problems.[28]
[28] QBE bundle, p 71
The claim form for the November 2019 motor accident refers to a rear end collision causing neck and back pain and anxiety.[29]
[29] QBE bundle, p 97.
The GP clinical note dated 6 January 2020 referred to the November 2019 motor accident and referenced symptoms including not sleeping well, not eating well, anxiety whilst driving poor motivation, frustrated, poor memory and miserable.[30] The diagnosis was an adjustment disorder. A further note dated 23 January 2020 referred to “anxiety and depression related to her accident”.[31]
[30] Claimant’s bundle, p 354; QBE bundle, p 147.
[31] Claimant’s bundle, p 357. ³³ QBE bundle, p 169.
An Allied health recovery request dated 4 February 2020 diagnosed post-traumatic stress disorder caused by the November 2019 motor accident.³³
Further symptoms were noted at subsequent consultations with the GP. On 23
February 2020 the GP noted that the claimant had “significant psychological sequalae following a motor vehicle accident”. [32]
[32] QBE bundle, p 285.
On 18 June 2020 the GP discussed and developed a mental health treatment plan.[33]
[33] Claimant’s bundle, p 364. ³⁶ QBE bundle, p 1292.
The clinical note referred to poor sleep, irritability, low self-esteem and withdrawal.³⁶

A GP mental health treatment plan prepared by Dr Hasnat dated 3 August 2020 diagnosed mixed anxiety and depression and an adjustment disorder.[34]
[34] Claimant’s bundle, p 228.
On 15 August 2020 Dr Hasnat referred the claimant to Dr Ahmad for opinion and management of her anxiety and depression.[35]
Dr Iftikhar Ahmad, psychiatrist provided a report dated 6 October 2020[36] when he diagnosed the claimant with a major depressive disorder with anxiety symptoms. The issues reported by Dr Ahmed at that time concerned the claimant’s difficulties with the Housing Department for house modifications.
On 20 November 2020 Dr Hasnat prepared a further mental health treatment plan based on a diagnosis of major depressive disorder.[37]
On 14 December 2020 the claimant was briefly admitted to hospital complaining of mild neck pain and chest pain following the motor accident occurring on that day.[38] X-rays of the chest and cervical spine were reported as within normal limits.⁴² An X-ray of the lumbar spine showed a gently scoliotic convex to the left with no other abnormalities.[39]

Medical evidence

[35] Claimant’s bundle, p 239.

[36] Claimant’s bundle, p 316.

[37] Claimant’s bundle, p 247.

[38] Claimant’s bundle, p 323. ⁴² QBE bundle, p 1266.

[39] QBE bundle, p 1268.

On 18 December 2020 the GP noted the recent motor accident with complaints of neck, back and shoulder pains which were affecting “function” and the claimant was “struggling with pains”.[40]
95. On 19 December 2020 (at 3pm) the GP noted the claimant had been “struggling with pains since her MVA on 14/12”.[41] A certificate was issued at that time for the injuries sustained on 14 December 2020 specifying “neck, bilateral shoulder, thoracic and lumbar spine issues”.⁴⁶
[40] Claimant’s bundle, p 364.
[41] Claimant’s bundle, p 364. ⁴⁶ QBE bundle, p 713.
A hospital discharge summary on 20 December 2020 referred to a rear end collision the previous day causing bilateral tenderness over the trapezius muscles. The doctor recommended simple analgesia.[42]
[42] Claimant’s bundle, p 330.
On 22 December 2020 Dr Hawi recorded the following:[43]
“pt troubled by severe insomnia
Not sleeping well
Withdrawn
Negative and teary
Complaining of ongoing neck and back and shoulder pains”
[43] Claimant’s bundle, p 365.
On 4 January 2021 Dr Hawi recorded the following history:[44]
[44] Claimant’s bundle, p 365.
“pt involved in yet another accident yesterday (4^th accident)
Daughter was with her in the car
Pt feeling very stressed
Couldn’t sleep last night
Feeling shaky
Feeling traumatised
Afraid
Neck feeling sore and tender to palpation
Pt has contacted rehab
Pt tossing and turning overnight
Feeling very stressed
Is worried that it will happen
Other car went through a red light and T boned her car yesterday driving at about 60 km/h
Pts car need to be towed away
Pt finding it difficult for her to concentrate
Loss of appetite
Pt concerned about her transport needs
Pt also experiencing nightmares and flashbacks relating to the accident”
A certificate of capacity dated 5 January 2021 referred to the subsequent motor accident causing neck pain, anxiety and sleep issues.[45]
[45] Claimant’s bundle, p 97.
On 6 January 2021 Dr Hasnat referred the claimant to a psychologist for opinion and management of “anxiety issues and ?PTSD/Adjustment disorder due to MVA”.[46] A similar referral is dated 8 February 2021.⁵²
[46] Claimant’s bundle, p 259. ⁵² QBE bundle, p 1508.
A certificate of capacity dated 22 January 2021 referred to the prior motor accident causing neck and back pain, phobias and bad dreams.[47] This diagnosis for the prior motor accident was repeated in subsequent certificates.[48]
[47] Claimant’s bundle, p 103.
[48] See for example, QBE bundle, p 1659.
A report by Dr Rad, pain specialist, dated 4 February 2021, noted the various motor accidents and opined that the claimant was suffering from “possible PTSD” and a whiplash injury.[49]
[49] Claimant’s bundle, p 111.
An Allied health recovery request dated 11 February 2021 diagnosed post-traumatic stress disorder from the four car accidents with symptoms of recurrent nightmares, driving avoidance, hypervigilance, poor concentration and sleep disturbance.[50]
[50] Claimant’s bundle, p 118. ⁵⁷ QBE bundle, p 1250.
On 16 February 2021 Dr Hasnat provided a certificate for the 14 December 2020 motor accident certifying “?PTSD, Adjustment disorder” and pain in various regions caused by that accident.⁵⁷

A request for physiotherapy dated 23 March 2021 noted injuries to the left shoulder, whiplash and lumbar spine with referred left leg pain caused by the motor accident.[51]
[51] GIO bundle, p 32.
The clinical notes of the GP dated 23 March 2021 set out in some detail the four motor accidents. The motor accident on 3 January 2021 was described as a “bad accident” and the doctor referenced “psychological trauma”.[52]

[52] Claimant’s bundle, p 420.

A discharge referral from hospital dated 30 April 2021[53] noted ongoing aches and pains since multiple motor accidents.
[53] Claimant’s bundle, p 150. ⁶¹ QBE bundle, p 716.
On 7 May 2021, Dr Alan Nazha, pain physician noted the claimant present on testing as extremely severe for depression, anxiety and stress.⁶¹
On 20 May 2021 Ms Houda El-Hassan provided an allied health recovery request (AHRR) report in relation to the subsequent motor accident and stated:
“Originally she was diagnosed with PTSD but with further assessment it’s been clear that she has a provisional diagnosis of adjustment disorder with severe depressive and anxious symptoms”.
The current psychological signs and symptoms identified in the report were:
“[N]ightmares, flashbacks of accidents, being easily startled, feeling tense and
“on edge”, having difficulty sleeping, trouble remembering key features of the traumatic event, negative thoughts about herself and the world, distorted feelings like guilt and blame, loss of interest in enjoyable activities”.
The GP noted on 9 June 2021 that the claimant was “in a mess regarding to [sic] 4 – 5 insurance”, that “no one is helping her, no one is cooperating with her”.[54]
[54] Claimant’s bundle, p 427. ⁶³ GIO bundle, p 105.
Dr Eddie So, psychiatrist provided a report dated 20 June 2021.⁶³ The doctor noted that the claimant was involved in a series of motor vehicle accidents in December 2020 and January 2021 with “no past psychiatric issues and has never been with mental health services”.[55]
[55] GIO bundle, p 105.
The doctor diagnosed acute anxiety disorder caused by the motor accidents in December 2020 and January 2021. Further assessment was required to elucidate the presence of post-traumatic stress disorder.
A discharge referral from St George Hospital dated 20 June 2021[56] noted presentation with chronic complex pain syndrome after multiple motor accidents at the end of 2020.
[56] GIO bundle, p 98.

Dr Ahmad

Dr Iftikhar Ahmad, psychiatrist, provided a report dated 26 February 2021 noting previous reviews in November 2020 and January 2021. The doctor noted that the claimant presented with documents related to a $42,000 debt for an accident in 2018.[57]
[57] GIO bundle, p 108.
Dr Ahmad obtained a history that the four motor accidents were the fault of other people and the claimant was quite frustrated and irritable. On examination the claimant presented in severe distress, pre-dominantly apprehensive with intense affect. The doctor increased Fluoxetine to 30 mg with the potential to increase the medication to 40 mg daily in 3-4 weeks if there was no improvement.
In a report dated 1 April 2021 Dr Ahmad noted that the claimant was compliant with
Fluoxetine, 40 mg but resulting in weight gain.[58]
[58] GIO bundle, p 111.
A report dated 8 June 2021 noted similar presentation since last review.
Symptomatology was “low and anxious mood, disturbed sleep, racing thoughts, unable to cope, stressed out, unable to look after herself/family, unbearable pain, losing faith in agencies/departments, feelings of hopelessness and helplessness”.[59]
[59] GIO bundle, p 113.
On 27 July 2021 Dr Ahmed diagnosed major depressive disorder – moderate, with anxiety symptoms, pain syndrome.[60]
[60] GIO bundle, p 115.

Qualified evidence

Dr Richa Rastogi was qualified by the claimant and provided a report dated 16 July
2021.[61] The doctor noted the claimant’s pre-existing psychiatric condition and the four motor accidents. The door recorded the following symptoms after the motor accidents:
(a)   14 December 2020 – “sad and emotional and amotivated to do things”;
(b)   19 December 2020 (two accidents) – poor sleep, irritability, rapid mood swings, amotivation and anhedonia, and
(c)     3 January 2021 – nightmares and flashbacks, panicky, hypervigilant, poor sleep, irritability, rapid mood swings.
[61] Claimant’s bundle, p 87.
Dr Rastogi diagnosed an exacerbation of major depressive disorder with anxiety. In respect of causation, Dr Rastogi opined:[62]
“Ms Hoblos was involved in four motor accidents within four months, with a very complex presentation. She had a pre-existing history of major depressive disorder and was seeking treatment. She was provided with services from NDIS and Brighter Future with domestic services.
[62] Claimant’s bundle, p 92.
She experienced soft tissue injuries following the first accident but was managing to function. She suffered aggravation of whiplash injuries with the second and third accident-causing further physical deconditioning, lack of adaptation of pain and psychological aggravation of her depression. The fourth accident in January 2021 was a major deterrent to her psychological aggravation with exacerbation of major depressive disorder and significant impairments with the presence of anxiety, panic attacks, magnification of depressive cognitions and functional impairments.”
Dr Andrew McIntosh, biomechanical engineer, provided a report dated 20 May 2021.[63] The doctor concluded in respect of the previous motor accident that the claimant was a restrained driver in a low severity side sweep collision with a resultant change of velocity of less than 10 kmph. The magnitude of the biomechanical forces applied to the spine and hips would have been low and it was unlikely that any physical injury was caused by the previous motor accident.
[63] GIO bundle, p 65.
Dr Inglis Synnott, psychiatrist, provided a report dated 16 August 2021.[64] The doctor stated that he spoke with Dr Ahmad who had seen the claimant prior to the motor accidents and in January, February, April, June and July 2021. Dr Synnott stated that Dr Ahmad stated:
(a)   the claimant’s main focus was physical symptoms related to the motor accident, not psychiatric symptoms;
(b)   of particular concern was that the hearing aid had been dislodged as well as back, neck and shoulder pain;
(c)   the claimant’s psychiatric state had deteriorated since the motor accident due to dealing with several insurance companies, various service providers and lawyers;
(d)   the everyday stresses which were the basis of consultations prior to the motor accident had been compounded by the motor accidents, and
(e)   the claimant had difficulty in processing and organising her thoughts and was unable to nominate which symptoms were caused or exacerbated by which motor accident.
[64] QBE bundle, p 26.
Dr Synott opined that both he and Dr Ahmed agreed that there was no psychiatric condition that can be attributed to the motor accident on 3 January 2021.
The report was sent to Dr Ahmad who was asked to “confirm your agreement to this by signing and dating at base of this correspondence”.[65] The document sent to by Dr Synott to Dr Ahmad is not signed by Dr Ahmad.
[65] QBE bundle, p 30.
A document headed “Coral Project Executive Summary” dated 19 August 2021 is a repeat of the observations in Dr Synott’s report.[66]
[66] QBE bundle, p 32.

Claim forms

Ms Hoblos completed a claim form on 16 December 2020 relating to the motor accident on 14 December 2020.[67] Ms Hoblos indicated that the other driver tried to turn left across her path and hit the “side right driver”. The claimant stated the injuries were “shocked, shaking, anxiety”, hasn’t slept well, injury to spine and headaches.
[67] GIO bundle, p 94.
The claim form for the motor accident earlier on 19 December 2020 (prior to the motor accident) is dated 7 January 2021 and refers injuries to the spine, back and to
“anxiety”.[68] The police report for that motor accident indicates this was a minor rear end collision.[69]
[68] QBE bundle, p 1459.
[69] QBE bundle, p 1466.
The claim form for the motor accident is dated 5 January 2021[70] which described a motor accident when the insured driver tried to turn right and collided with the left side

of the claimant’s vehicle. The claimant stated that she suffered anxiety, sleep issues and pains to the neck, chest and lower back.
[70] Claimant’s bundle, p 62.

Ms Hoblos completed a claim form for the motor accident dated 5 January 2021 stating that she sustained neck and back pain and anxiety from the motor accident. The claimant noted that she had pre-existing anxiety, sleep issues and neck and lower back problems.

Other medical assessments

A certificate from Medical Assessor Izzo dated 7 October 2020 found that various treatment associated with a pelvic disorder was not related to the 2019 motor accident.[71]
[71] QBE bundle, p 701.
A certificate from Medical Assessor Home dated 26 May 2021 found that domestic assistance over three months in February 2020 and physiotherapy treatment at that time related to the November 2019 motor accident.[72]
[72] QBE bundle, p 113.
A certificate from Medical Assessor Cameron dated 10 July 2022 found that the previous motor accident caused soft tissue injuries to the spine.[73]
[73] Claimant’s bundle, p 77.

RE-EXAMINATION

The Panel determined that Ms Hoblos be examined by both Medical Assessors.
The re-examination report is as follows:

“Who attended the assessment

The assessment was conducted by assessors Michael Hong and Atsumi Fukui on
27 April 2023. Ms Hoblos attended the assessment in person at Dr Fukui’s office at Sydney. Dr Hong attended via videoconference from his office. The assessment was assisted by an AUSLAN interpreter, Kathryn Eales, National Accreditation Authority for Translators and Interpreters number xxxx who was present for the duration of the assessment.
HISTORY

Psychosocial history and pre-accident history

Ms Hoblos is a 32-year-old separated woman who lives with her 3 children aged 9 years, 7 years and 5 years. She separated from her husband on 28 February 2023 on a background of domestic violence and had a religious divorce. She spent 2 months in Queensland for her safety and recently returned to Sydney.
Ms Hoblos is an Australian born woman of Lebanese and Syrian background. She has been receiving the Disability Support Pension for hearing impairment since the age of 16. She was born with congenital deafness. She experienced academic and behavioural difficulties at school and left school during Year 9. She subsequently attended TAFE and completed a course as a dental assistant, obtaining her diploma in December 2020. She was unable to sustain employment after the series of car accidents.
With respect to her medical history, she had a Cochlear implant at age 3. There were no issues with her pregnancies. She denied a history of head injuries or loss of consciousness. She denied any substance use.
Ms Hoblos was born and raised in Sydney. She was the second of 5 children in her family and denied any trauma or abuse until an incident in 2012. She had been married since 2010 and was living in the family home with her ex-husband. There was a police raid in the middle of the night when her brother was suspected of committing an offence which was a case of mistaken identity. She stated that she woke up “shocked” and “thought the world was ending” due to the commotion. She stated that she felt the effect from that incident for the following
2-3 years. She stated that she couldn’t trust the police and she felt anger, shock and fear. She commenced seeing a psychologist for joint counselling with her exhusband for 2-3 years. She stated that ‘trauma melted away’ and that she got used to the police. She also had children and she was ‘fit, active and busy’ and was focussed on being a mother. She denied taking any medications.
Ms Hoblos denied a forensic history. However, she stated that during 2018-2019 while she was living in a housing commission accommodation, she had issues with a neighbour who called the police to her home alleging that she had left the baby alone. There was also another incident when the neighbour called the police when her ex-husband was screaming, and the baby was crying due to teething. Ms Hoblos stated that ‘all these mistakes’ led her to experience anxiety symptoms.
Ms Hoblos has had a total of 6 motor vehicle accidents between 2018 and 2021.
She was involved in a minor motor vehicle accident in 2018, following which she experienced symptoms of pain for several months but there was no claim for compensation. She denied any psychological injury from this accident.
In November 2019, she had another minor accident following which she consulted a psychologist and was also prescribed medication by her GP which she only took intermittently. Documents note that she had suffered psychiatric symptoms in 2019 following this accident.
Ms Hoblos then had 4 accidents over the course of a 3-week period with 2 accidents on the same day. She was involved in the accidents on the following dates:
14 December 2020, 19 December 2020, 19 December 2020 (matter 10517473) and 3 January 2021 (matter 10518810).
Ms Hoblos acknowledged that she had been prescribed medications for ‘a little bit of anxiety’ during 2020 but was unable to provide clear information. She stated that she was busy looking after her 3 children and studying and that she was anxious as she was time poor. (Documents indicate that she was referred to a psychiatrist and was seen by Dr Ahmad in October 2020 who diagnosed her with Major depressive disorder with anxiety symptoms and commenced her on an anti-depressant fluoxetine 10mg).
Ms Hoblos was asked about each of the 4 motor vehicle accidents she had within a span of 3 weeks from December 2020 to January 2021 and asked about her psychological symptoms.

History of the 4 motor accidents

14 December 2020

Mas Hoblos stated that she had graduated with her diploma, and everything was ‘going great’. While she was driving in the Bankstown area, the offending car merged into her lane and scraped the driver’s side of her car. She felt ‘in shock’ and felt shaky in her legs. She had a sore neck and went to Bankstown Hospital.
She stated that she can’t remember much but she continued to drive.

First accident on 19 December 2020

She was driving with her daughter in the backseat. She was driving a new model
Lexus. She was rear-ended by a car which she described as a “medium hit”, but she felt like her neck ‘snapped’. Her daughter was also shocked. She moved her car to the side of the road and noticed that there was damage to the bumper bar of her car. She felt disappointed. Police did not attend. She drove home and had an argument with her husband about the damage to the car. She was vague on detail but stated that there was no psychological impact from that accident. She stated that she was ‘a little bit shocked and disappointed’ and ‘frustrated’ but otherwise okay.

Second accident on 19 December 2020

Ms Hoblos was driving her car with her husband and 3 children. She was on her way to the hospital because of the earlier accident but then was told to go to the GP because there was no interpreter, and she was unvaccinated. She was vigilant and there was tension in the car because of arguments with the exhusband. A driver on a red P plate T-boned into the passenger side of the car. She felt ‘shocked’ and checked on her family. Her baby was crying. Her exhusband argued and fought with her. She thought ‘why is this happening again’.
She felt that the driver could have killed her family. She didn’t know what to do and there was ongoing fighting with her ex-husband. She stated, ‘I was really angry’. She couldn’t sleep that night because of ruminations. She had to deal with insurance which she found confusing and frustrating. She experienced pain in her neck and pelvis and after one week noticed that she was ‘anxious, nervous and frustrated’ which she described as the same emotional state that she felt after the accident on 14 December 2020.
By Christmas 2020, she still felt angry and there was ongoing fighting with her ex-husband. She was also in pain from her physical injury. She was having bad dreams about things going wrong with her family. She was vigilant whenever travelling.

3 January 2021

She was driving with her daughter in the backseat and was turning right as the light turned green when a speeding car went through a red light and rear-ended her vehicle causing her car to spin around. Her car had to be towed away. Ambulance attended. She described her neck feeling jolted with much pain. She was told to go home and rest or to attend her GP. Police also attended. She went to hospital the following day.

History of symptoms and treatment following the motor accident

Ms Hoblos stated that her mental state declined after the second subject accident on 3 January 2021 with increased depression and anxiety. She worried about the future. She was unable to sleep due to constant ruminations about the last 2 accidents and kept asking herself ‘why me?’. She had flashbacks. There was ongoing fighting with her ex-husband and there was no intimacy or romance.
Their marital relationship deteriorated.
She stated that she was referred to a psychiatrist Dr Ahmad and was commenced on anti-depressant fluoxetine. (Documents indicate that she had already seen Dr Ahmad in October 2020 and had been commenced on fluoxetine, the dose of which was increased in February 2021). She was referred to the Royal Prince Alfred Hospital for pain management due to constant neck pain. She stated that there has been improvement in her pain and anxiety since connecting with the pain management service.

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

In relation to the accident on 19 December 2020 (10517473) Ms Hoblos was involved in a further motor vehicle accident on 3 January 2021.
In relation to the accident on 3 January 2021 (10518810) Ms Hoblos has not sustained any further injuries subsequent to that accident. However, her marital relationship had deteriorated to the extent that she was experiencing domestic violence resulting in significant psychosocial stressors with subsequent separation.

Current symptoms

Ms Hoblos stated that her mental state became ‘very, very bad’ with escalating arguments with her ex-husband and feeling depressed. She stated that she continued to have nightmares and she broke a window while having a bad dream. She stated that she has become more angry. Her neighbours had called the police on her on 2 occasions, and she was taken to hospital for a mental health assessment under the Mental Health Act because the police thought that she was suicidal. These incidents occurred in April 2022 and again in February 2023. However, she has not had an inpatient psychiatric admission. She stated, ‘I don’t know what’s wrong with me, I feel like I’m crazy’. She described much sadness and stated, ‘I feel like I have a black heart’. She reported loss of
appetite, loss of interest and enjoyment. She denied experiencing suicidal ideation.

Current and proposed treatment

Ms Hoblos is currently prescribed anti-depressant fluoxetine 40mg per day which she had commenced in October 2020 and the dose was gradually increased over the following years to 40mg in June 2021.
She takes Ibuprofen for pain. She has continued to consult with a psychologist through the pain management service at Royal Prince Alfred Hospital.
CLINICAL EXAMINATION

Mental state examination

Ms Hoblos attended the assessment on time. She appeared to have good rapport with the AUSLAN interpreter as she walked into the consulting room. She was casually dressed and wearing sneakers. She was clean. She was not wearing any make-up. As she was only able to be interviewed through the AUSLAN interpreter, and she was wanting to ventilate her anger and frustration, she was extremely difficult to interrupt. She became easily agitated and emotional. She spoke in a tangential manner and repeated questions were needed to gain clear responses. She was much focused on her pain symptoms. She complained of feeling very depressed. She presented as angry and frustrated. There was some reactivity of affect, and she was quite expressive (people with hearing impairment often communicate with more expressiveness than a person without hearing impairment).

There was no evidence of psychotic symptoms or thought disorder. She expressed her dissatisfaction and disappointment, anger, frustration and sadness. Following the escalation of her marital discord and having been subjected to domestic violence, she described herself as feeling ‘sad and weak’.
She stated, ‘my life has gone downhill’.

Current functioning

It should be noted that Ms Hoblos travelled to Turkey in June 2022 ‘to forget about all this’. However, her domestic situation and mental state further deteriorated, and she left Sydney at the end of February 2023 and was living in a woman’s refuge and housing community in Queensland with her children with the support of a social worker. She returned to Sydney and has been living in a council housing in Padstow with her 3 children. Her parents have been looking after the children and she has been supported by her mother. She stated that she needs assistance with self-care and household duties due to her pain symptoms.
She is no longer physically active and is not working.

Comments of consistency

Ms Hoblos was a vague historian, and the assessment was less straight forward because of her hearing impairment with the need for an AUSLAN interpreter. She tended to minimise her psychological symptoms that she experienced since 2019 and she often responded by stating that she was unable to remember. She was reminded that medical documents indicated that she had been prescribed antidepressant medication prior to the subject motor accident and that she had continued to see a psychologist albeit sporadically.

Diagnosis and reasons

Ms Hoblos has a complex psychiatric history. She had no prior psychiatric history until 2012 when she was exposed to a traumatic incident following which she attracted diagnoses of Major depressive disorder and Post-traumatic stress disorder. Her symptoms improved with appropriate treatment and Ms Hoblos stated that she recovered fully and was well before the subject motor accidents.
However, documents indicate that she continued to experience anxiety symptoms and she was seen by a psychiatrist and commenced on antidepressant medication in October 2020 as well as consulting a psychologist.
Ms Hoblos was involved in 4 separate motor vehicle accidents over a three week period between 14 December 2020 and 3 January 2021.
She reported that after the accident on 14 December 2020, she did not experience any psychological symptoms and did not describe any symptoms that would indicate a psychiatric diagnosis.
She was involved in an accident on 19 December 2020 in the early part of the day and once again denied experiencing any psychological impact other than feeling “disappointed” about the damage to the car especially as she was driving a brand new car.
She was then involved the first subject motor vehicle accident later on the same day on 19 December 2020. She started ruminating about the accident that night and the level of frustration escalated. She also experienced physical pain and reported feeling anxious and nervous after a week. There was increasing argument with her ex-husband because of the damage to the new car and she started having nightmares and became more vigilant on the road. However, she did not stop driving. Her symptoms at that time were characterised by anger, frustration and anxiety. Her reported symptoms are characteristic of an acute stress reaction. The Panel noted most people with Acute stress disorder symptoms improve within 4 weeks without needing specific psychological/psychiatric treatment. Post-traumatic stress disorder (PTSD) cannot be diagnosed at the time of her second subject accident as a month had not passed. She also did not specifically seek professional support. Therefore, her psychological injury following the first subject accident on 19 December 2020 is considered a threshold injury,
Ms Hoblos’ mental state deteriorated significantly following the last accident on 3 January 2021. The nature of the accident was more serious compared to her previous accidents which were considered as minor accidents. Her car had to be towed on this occasion whereas she had been able to drive her car home on previous occasions. She sustained further physical injury causing more pain and both police and ambulance attended the accident.
She reported deterioration in her mood with depressed mood and poor self-care. She sought psychological support, and her psychiatrist increased the dose of her anti-depressant medication. She described major irritability and more impairment and needed hospital assessments due to concerns from others and this is a significant departure from her past psychiatric history.
Her psychological symptoms have fulfilled all of the DSM-5 diagnostic criteria for PTSD. The subject incident on 3 January 2021 is consistent with a criterion A stressor and was a major frightening event. She developed flashbacks and nightmares, avoidance of situations and anxiety when exposed to reminders of the car accident, persistent negative cognitions and low moods, including negative beliefs and fear. She has physiological hyper-arousal with disturbed sleep, concentration, high anxiety and general over-reactiveness. Her symptoms have persisted longer than 4 weeks and are associated with functional impairment. Finally, the Panel have not identified another medical or psychiatric condition that better explains her trauma symptoms.

Causation and reasons

The current Post-traumatic stress disorder with significant clinical impairment arose as a result of the subsequent motor vehicle accident on 3 January 2021 and this is not a threshold injury. She described domestic violence on a background of pre-existing marital problems; however, this was not the cause of her PTSD.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were 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[74] and Insurance Australia Ltd v Marsh.[75]
[74] [2021] NSWCA 287 at [40], [41] and [45].
[75] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[76] 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. The parties were referred to Lynch in a direction dated 16 December 2022 “that a minor injury can occur at any time and to address its application to a prior assessment to a psychological injury classified as non-minor in this matter”. No submissions were filed in response to that direction, particularly no submission was filed that Lynch was incorrectly decided.
[76] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[77] 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.
[77] at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons.

Injury

It is unnecessary to consider the meaning of “personal or bodily injury” in the meaning of injury in s 1.4 as the definition includes a “psychological or psychiatric injury”.
142. Clause 6.6 of the Guidelines refers to page 316 of AMA 4 which in part relevantly provides:
“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”.
In Briggs v IAG Ltd[78] Wright J noted that the question of causation of injuries is addressed in Part 6 of the Guidelines. His Honour noted that whilst Part 6 of the
[78] [2022] NSWSC 372 (Briggs).
Guidelines related to the assessment of permanent impairment, “there is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries”.[79]
[79] Briggs at [35].
The other matter in support of his Honour’s conclusion is that the heading above cl 6.5 is “Causation of injury”. Clause 6.6 of the Guidelines refers to the occurrence or the worsening of the condition, which is the phrase used in AMA4. In that sense cl 6.6 supports the conclusion that an injury arises if there is a worsening of the medical condition.
Clause 6.7 refers to both the injury and the associated impairment and provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
QBE’s submission that cls 6.5 to 6.7 only applied to “permanent impairment disputes as opposed to minor/threshold injury disputes”[80] and was probably made being unaware of the observations in Briggs. QBE otherwise failed to consider the wording in cl 6.6 which refers to a worsening of a condition.
[80] QBE supplementary submissions, [32].
147. QBE submitted, without reference to any authority save as to Oakley, that the aggravated psychiatric symptoms must be “sufficient to (themselves) meet the diagnostic criteria of a recognised psychiatric disorder pursuant to DSM-V” and that this “test” must be carried out separately for both motor vehicle accidents.[81] The basis of the submission was said to be cls 5.11 and 5.12 of the Guidelines.
[81] QBE supplementary submissions, [22].
We accept that DSM-5 must be used in the diagnosis of the psychiatric injury.
We accept that the effects of each motor accident must be considered separately.
We do not accept the insurers’ submission that only the specific symptoms caused by a motor accident are examined in determining whether the claimant has satisfied that she has a psychiatric condition caused by a motor accident. That submission is inconsistent with common law principles that an injury can have multiple causes.
The insurers’ submission on “causation of injury” adopted the principles discussed in State Government Insurance Office v Oakley.[82] Both insurers left out relevant parts of the essential reasoning in Oakley.
[82] (1990) ATR 81-103 at 67,577.
The principles in Oakley relate to the assessment of damages when there has been a subsequent injury. It does not provide a test on causation of injury and the decision otherwise does not give guidance whether an aggravation of a psychological condition constitutes an injury within the meaning of the MAI Act.
Oakley described relevant legal principles for an assessment of the “added damage” or “additional damage” by a further injury[83] and not to a determination of whether an injury or an additional injury was caused by the negligence of the defendant. So much is clear from the wording of the critical passages in Oakley, which were unfortunately omitted by the insurers in their submissions.
[83] Oakley at 67,577.
That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[84]
[84] [2019] NSWCA 324 (Johnson).
155. In Johnson the worker suffered a compensable injury against the employer (Department of Education) and another psychiatric injury against a subsequent employer. The claim was for lump sum compensation against the Department. The Court held that common law principles of causation in tort applied to the workers compensation system and that the principles in Oakley applied with respect to the assessment of permanent impairment.
In Johnson, Simpson AJA noted[85] that Oakley has been applied by the Court of Appeal in Jefferies v Roads and Traffic Authority of NSW;[86] NSW Caltex Tanker Co (Aust) Pty Ltd v Robert Kerr[87] and Government Insurance Office of NSW v Aboushadi.[88]
[85] Oakley at [130].
[86] [1997] NSWCA 167 (Jeffries).
[87] [1999] NSWCA 115.
[88] [1999] NSWCA 396 (Aboushadi).
In Jefferies the Court, after applying the Oakley test, noted that the plaintiff, if falling within the first category, received the full damages, and, if falling within he second category “only those extra consequences of the second injury due to the existence of the first injury”.
The principles in Oakley have been applied to the assessment of impairment in the motor accidents legislation: Slade v Insurance Australia Ltd.[89] In Slade the issue was the assessment of permanent impairment under the Motor Accident Compensation Act 1999 which, for present purposes, is similar to an assessment under the MAI Act. In that case the claimant had suffered a motor accident in 2015 and a subsequent accident in 2016. The claim was for the assessment of permanent impairment of psychological injury caused by the 2015 motor accident. That assessment involved consideration of any deduction of permanent impairment due to subsequent injury and the application of cl 1.34 of the relevant Guidelines.[90]
[89] [2020] NSWSC 1031 (Slade).
[90] Clause 6.34 of the Guidelines is substantially the same as cl 1.34 of those Guidelines.
Wright J applied the common principles enunciated in Oakley to the situation covered by cl 1.34 of the Guidelines (subsequent injuries) when assessing the extent of the impairment. As his Honour observed:
“When the Oakley principles speak of ‘damage’ and ‘aggravation’, on the one hand, and ‘injury’, on the other, in clauses such as ‘but the damage sustained is greater because of aggravation of the earlier injury’, this reflects the distinction between ‘impairment’ and ‘injury’, as those terms are used in the MAC Act and the 2018 Guidelines.”
The insurers in their submissions have made the same mistake by confusing issues of assessing impairment caused by injury with the distinct issue of whether a person suffered injury.
GIO submitted that the Oakley test had been applied by a Review Panel citing NRMA v BKA.[91] That case was the remittal of the Supreme Court decision and simply applied the principles enunciated in Slade for the assessment of permanent impairment. The case is not authority that the Oakley principle is a test for injury and/or whether an aggravation of a psychiatric injury constitutes an injury under the MAI Act.
[91] [2022] NSWPICMP 450 at [162].
Slade has otherwise been applied in other Review Panel decisions on the question of assessment of impairment where there is a suggestion of deduction for subsequent injury.[92]
[92] Choi v Insurance Australia Ltd [2022] NSWPICMP 407.
The insurers’ submissions that the Oakley test applies to the determination of injury are misconceived and rejected.
QBE noted that s 5E of the Civil Liability Act 2002 applies to the MAI Act. The submission was undeveloped as to how that assisted on the present issues.
Section 5E provides that the onus of proof on the issue of causation is on the plaintiff. That position, insofar as it relates to threshold injury cases is settled and referenced earlier in these Reasons, that is, the onus of establishing a non-threshold injury lies on the claimant. The section does not otherwise assist in establishing what the claimant must prove on the issue of injury in circumstances where there has been an exacerbation of symptoms.
Section 5D provides:
“(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’).”
167. There was an absence of any submission on this section.
The heading above cl 6.5 of the Guidelines is “causation of injury” as distinct to causation of loss or impairment. Clauses 6.6 and 6.7 refers to whether the injury was caused or materially contributed to by the motor accident as well as interchangeably referring to impairment. That observation is clear from the sentence in cl 6.7 which provides:
“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”.
Clause 6.6 otherwise refers to the “occurrence or worsening of a medical condition”.
We earlier referred to the requirement that the claimant must show a psychiatric diagnosis under DSM-5.[93] Such a diagnosis examines clinical symptoms and impairment in diagnosing a specific psychiatric disorder. Quite apart from the specific requirements provided by DSM-5 in diagnosing a specific psychological injury, the notion that a mental illness is characterised by its manifestations has been the subject of judicial comment of some antiquity. In Federal Broom Co Pty Ltd v Semlitch
[93] Clause 5.11 of the Guidelines.
Windeyer J observed:[94]
[94] [1964] HCA 34 (Semlitch).
“The argument for the appellant was attractively presented; but it seemed to me to depend ultimately upon ideas that I think are erroneous. As I understood what was said, it was that in the case of a mental disease, functional and not organic in character, the disease is to be regarded as something apart from, and as it were producing, its manifestations. An analogy was suggested with a specifically organic disease, for example one of an infective character, and its symptoms. But even in relation to purely somatic disorders, identifiable as resulting from the derangement or degeneration of some organ, the assumed absolute distinction between the pathological condition, the disease, and its regularly occurring signs and symptoms may, it seems to me, be in some cases of doubtful validity. To regard bodily symptoms as always the product of an ailment, rather than of its essence, may be to treat concomitance as consequence. Some physicians might see the matter in one way; some in another. It seems to me to depend upon concepts of philosophy as much as on medical knowledge. A rigid separation of a disease from its symptoms is difficult in the field of psychosomatic and

neurological ailments. In the field of purely functional mental disorders I think it is impossible. What was urged for the appellant was that the irrational actions, hallucinations and delusions of a person afflicted in mind as the applicant was are but the symptoms of an underlying deep-seated disease of the mind: and that one cannot say that the disease itself has worsened merely because changes occur in, for example, the nature of a delusion or in the objects upon which a fixed idea is focussed. That I shall assume to be so. But to go from the idea that irrational beliefs and behaviour betoken an underlying disorder of the mind to thinking of the mind as an entity, a disorder of which may manifest itself in symptoms that are apart from rather than a part of the disease itself, seems to me a mistakenly simple view of a complex phenomenon. As I cannot conceive of the mind apart from its functioning, I cannot conceive of it as being disordered or diseased apart from its manifestly disordered functioning. I therefore find it impossible to conceive of the malady as distinct from its manifestations. They are, it seems to me, of its essence. That view may be the result of the limitations of my knowledge. I am not equipped to consider questions of that kind. Nevertheless the view that I take accords, I think, with the manner in which, for the purposes of classification, mental disorders are commonly described and given what one of the witnesses in this case called "a diagnostic label". Classification of functional abnormalities of mind appears to be based largely on the manner of their manifestations, in emotional states, irrationalities, delusions, and aberrations in behaviour.” (emphasis added)

The Panel, comprised of two psychiatrists, basically agree with his Honour’s observations.
QBE submitted that DSM-5 does not refer to an “aggravation” or “exacerbation” and otherwise noted that workers compensation principles did not apply to a finding of injury under the motor accidents legislation.
The latter proposition is obvious, and we accept that the test of aggravation or exacerbation in the workers compensation legislation is irrelevant to our determination. However, DSM-5 does not determine causation of psychological injury from an event but is a diagnostic tool whereby a psychiatric condition is decided based on reference to clinical symptoms and/or functional impairment. That approach is consistent with the observations of Windeyer J in Semlitch.
The exceptions to the statement that DSM-5 does not look to the cause of the psychological condition are adjustment disorder, post-traumatic stress disorders and the category of “Trauma and Stressor related Disorders” which require the identification of a causative event.
Accordingly, the suggestion by QBE that there is no concept of aggravation or exacerbation in DSM-5 is because that does not generally look at cause of a psychological injury but rather classification of a psychological condition.
The issue of what constitutes an injury within the meaning of the MAI Act turns on both common law principles and an interpretation of the legislation subject to the classification of the psychological condition satisfying the prescription in DSM-5.
We agree with the insurers that in establishing whether injury has been sustained, the motor accidents must be considered separately.
However, contrary to the insurers’ submission that a particular motor accident be the sole cause of the entire psychological condition, the common law has long recognised that there may be multiple causes for injury. It is sufficient that the tortious event is a material contribution to the condition. The common law has long accepted that:[95]
[95] March v Stramare (E & MH) Pty Ltd [1991] HCA 12 per Mason CJ at [5] Toohey and Gaudron J agreeing.
“[A] person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage
In the Panel’s view the insurers’ submission that each motor accident solely caused a psychiatric condition under DSM-5 is inconsistent with common law principles. By this we do not suggest that the various motor accidents can be aggregated but rather that the effects from a particular motor accident are considered and evaluated in determining whether the motor accident caused or materially contributed to the psychiatric condition, albeit a contribution by way of aggravation.
We have concluded later in these reasons that the claimant suffered from posttraumatic stress disorder caused by the motor accident. The diagnosis of posttraumatic stress disorder under DSM-5 requires satisfaction of various criterion,[96] which are separately referenced back to the trauma. Given the requirements under DSM-5 for the assessment of post-traumatic stress disorder, we accept that each criterion must be caused by the motor accident.
[96] See paragraph [188] herein.

The insurers were obviously aware of cls 6.6 and 6.7 of the Guidelines as they made the submissions that the clauses were irrelevant to the issue of injury. Having been on notice on the provisions, it was unnecessary to re-list the matter. Considering the binding observations of Wright J in Briggs that cls 6.6 and 6.7 applies to the determination of threshold injury, we are satisfied that a “worsening” of symptoms caused by a motor accident may constitute a psychological injury within the meaning of the MAI Act.

Finding of injury

The claimant submitted that the evidence of pre-existing condition “predominantly relates to a Major Depressive Disorder”[97] and it would be an “oversimplification to say that the Claimant aggravated a pre-existing psychiatric condition”.[98]
[97] Claimant’s further submissions, [12].
[98] Claimant’s further submissions, [14]. ¹⁰⁸ [2022] NSWPICMP 6.
The claimant submitted that she was vulnerable to sustaining psychological injury caused by either motor accident and at some point, either one or both of the motor accidents caused a post-traumatic stress disorder which have since developed. It was submitted that it was sufficient that the further psychiatric condition occurred at some point referring to Lynch v AAI Ltd.¹⁰⁸
GIO submitted that the claimant consistently reported symptoms of “stress”, “anxiety” and “insomnia” after the motor accident on 14 December 2020 and the two motor accidents on 19 December 2020. It submitted that there is no contemporaneous support for worsening of symptoms until “following the accident” (presumably a reference to the accident on 3 January 2021). GIO referenced the different and worsening symptoms recorded by the GP on 4 January 2021 which would fall within the DSM-5 diagnosis of post-traumatic stress disorder.
The claimant had a pre-existing psychological condition in 2019 prior to the series of four motor accidents. Following the examination by the Medical Assessors we doubt that the claimant was then suffering from a major depressive disorder despite the diagnosis by the treating psychiatrist, Dr Ahmed. This is because the claimant was functioning in a manner inconsistent with such a diagnosis including obviously driving around, caring for three children, and having recently completed a course. That level of functionality is inconsistent with a diagnosis of a major depressive disorder. The

Panel’s view is that in 2020, prior to the motor accidents, the claimant was probably suffering from anxiety consistent with the recorded observations of the treating psychiatrist.

We otherwise observe that the claimant was not suffering from post-traumatic stress disorder prior to the motor accident. The past post-traumatic stress condition had resolved although, as Medical Assessor Parmegiani noted and we agree, the past experiences made the claimant more susceptible to the development of a reoccurrence of that psychological condition.
We refer to and adopt our findings in the medical dispute between the claimant and GIO when we concluded that the prior motor accident caused an acute stress disorder of short duration.
DSM-5 sets out a number of criteria all of which must be present for a diagnosis of post-traumatic stress disorder. They are:

“Criterion

A – stressor (one required) – exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violent by:
B – intrusion symptoms (one or more required) – the traumatic event is persistently re-experienced by
•Recurrent, involuntary and intrusive distressing memories of the event;
•Recurrent distressing dreams;
•Dissociative reactions (e.g. flashbacks);
•Intense or prolonged psychological distress at exposure to reminders of the event;
•Marked physiological reactions to reminders of the event.

C – avoidance of trauma related stimuli by:
•Trauma related thoughts or feelings
•Trauma related external reminders

D – negative thoughts or feelings that began or worsened after trauma in the following ways:
•inability to recall key features of the trauma
•overly negative thoughts and assumptions
•exaggerated blame of self or others for causing the trauma
•negative affect
•decreased interest in activities
•feeling isolated
•difficulty experiencing positive affect

E - alternations in arousal and reactivity such as:
•irritability or aggression
•risky or destructive behaviour
•hypervigilance
•heightened startle reaction
•difficulty concentrating
•difficulty sleeping
F– duration – greater than one month
G– functional significance – symptoms create clinically significant distress or functional impairment
H– exclusion – symptoms are not due to medication, substance use or other illness.”

The findings by the Medical Assessors establish that the claimant is suffering from post-traumatic stress disorder. Those findings are supported by the previous finding of Medical Assessor Parmegiani
To the extent that QBE referred to contrary opinion we note that we are not bound by those opinions and required to form our own. However, we add the following reasons.
A number of certificates issued after the motor accident identify various motor accidents as causing psychological conditions. The certificates provide bare conclusions without any reasons and are issued to different insurers for the purposes of obtaining treatment. We consider those certificates of minimal evidentiary value.
The motor accident involved the insured vehicle travelling through a red light and Tboned the claimant’s vehicle at speed. Both from a lay and medical perspective, the motor accident was significant, and we categorise it as one which was sufficiently
serious to have threatened death or threatened serious injury to the claimant. Our conclusion is consistent with the clinical record of the GP on 23 March 2021 which described the motor accident as a “bad accident”.[99]
[99] Claimant’s bundle, p 420. ¹¹⁰ See [98] herein.
Whilst we accept that the claimant reported psychological symptoms to her GP on
22 December 2020, we do not accept QBE’s submission that the symptoms did not change following the motor accident. In this respect the Panel refers to the detailed clinical note on 4 January 2021¹¹⁰ of the presence of symptoms at that time. Other notes refer to fluctuating symptoms over following consultations and a variety of psychological diagnosis.
We otherwise observe that we are satisfied that the motor accident subsequently caused the symptoms required by the various criterion. That there were previous symptomatology does not negate a subsequent, in this case, serious motor accident, causing further psychological symptoms.
QBE otherwise relied on the opinion of Dr Synnott who opined that the claimant’s psychological condition was caused by dealing with a variety of insurance companies rather than any specific motor accident or otherwise that the psychological symptoms were pain related. That opined was said to be supported by Dr Ahmed. We note that Dr Ahmed has not signed the letter adopting Dr Synott’s opinion nor do we have the specifics of how Dr Ahmed supposedly adopted that opinion. The means by which QBE have presented that opinion is clear hearsay, which, whilst admissible, goes to its evidentiary value.
The Panel has formed a view contrary to Dr Synnott’s opinion and that which was supposedly endorsed by Dr Ahmed. We rely on the clinical expertise of two psychiatrists, their examination and the Panel’s thorough consideration of the clinical material. We also rely on the seriousness of the motor accident, a factor which has not been traversed in QBE’s submissions.
In accordance with our earlier discussion,[100] we find that the motor accident caused the claimant’s post-traumatic stress disorder.
[100] See at [141] to [181].

CONCLUSION

198. For these reasons, the Panel concludes that the certificate issued by Medical Assessor Parmegiani is confirmed.

FURTHER OBSERVATIONS

In a further direction QBE and the claimant were directed to refer to any relevant document by reference to page number. That direction was made because QBE had filed a bundle of over 2,700 pages and the claimant had filed over 1,000 pages.
The claimant’s further submissions did not adequately address our direction.
Moray & Agnew on behalf of QBE filed supplementary submissions dated 13 March 2023. It submitted that the Panel would fall into error by limiting the scope of examined material. It further submitted that the Panel would deny the parties natural justice by not examining all material in circumstances where the parties had not referred the Panel to specific material.
The response by QBE through its solicitors was unsatisfactory. It represents behaviour recently criticised by the Supreme Court in Bevan v Bingham.[101]
[101] [2023] NSWSC 19.
The reference by QBE to other authorities, such as Wingfoot Australia Partners Pty Ltd v Kocak,[102] do not support its assertion that the Panel’s obligation to examine numerous materials is more extensive than the obligation imposed on a Court.
[102] [2013] HCA at [46] and [56].
Having read the voluminous materials it is otherwise evident that QBE have filed multiple copies of repetitive documents.
Section 7.46 of the MAI Act provides that it is a condition of the insurer’s license to comply with relevant provisions of the PIC Act and the regulations under that Act.
Section 42(3) of the PIC Act provides a duty on the parties and the legal practitioners to co-operate with the Commission “to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings”.

[2023] NSWPICMP 209

7 June 2023