QBE Insurance (Australia) Limited v Matti
[2025] NSWPICMP 616
•18 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Matti [2025] NSWPICMP 616 |
CLAIMANT: | Suzan Matti |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Surabhi Verma |
MEDICAL ASSESSOR: | Ankur Gupta |
DATE OF DECISION: | 18 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury; claimant stopped her car before the traffic lights turned red; insured utility vehicle travelling behind her did not stop which resulted in the insured vehicle colliding with the right rear end of the claimant’s car; claimant suffered injuries to her neck, right shoulder, lower back, and both knees as well as psychological sequalae including depression and insomnia; Medical Assessor found accident caused post-traumatic stress disorder (PTSD) and major depressive disorder which is not a threshold injury; Held – Review Panel found aggravation of major depressive disorder with anxious distress which is not a threshold injury; Review Panel found that aggravation of PTSD has ceased; certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 6 August 2024 and issues a new certificate determining that: (a) the following injury caused by the motor accident: · aggravation of major depressive disorder with anxious distress, is not a THRESHOLD INJURIES for the purposes of the Act. (b) the following injury caused by the motor accident: · aggravation of underlying post-traumatic stress disorder, has resolved. |
STATEMENT OF REASONS
INTRODUCTION
On 12 May 2023, Suzan Matti (the claimant) was driving her son to school along Cowpasture Road at Edensor Park. At the intersection with the M7, the traffic lights turned amber as she approached. The claimant stopped her car before the traffic lights turned red. The insured utility vehicle travelling behind her did not stop. In order to avoid a collision, the insured driver swerved to the right, which resulted in the insured vehicle colliding with the right rear end of the claimant’s car.
There was no loss of consciousness. The claimant says that she was immediately scared for the safety of her son and feared that he may have been seriously injured. The claimant says that she was in shock. After checking on the safety of her son, the claimant was able to self-extricate. No airbags deployed. No ambulance or police were called to the scene. The claimant’s son telephoned his uncle who arrived at the scene to assist. He then drove them home. The claimant’s vehicle was towed away and subsequently written off for insurance purposes.
The claimant says that she suffered injuries to her neck, right shoulder, lower back and both knees, as well as psychological sequalae, including depression and insomnia.
QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (Act). The insurer denied liability for payment of statutory benefits beyond 52 weeks on the basis that the injuries caused by the motor accident are threshold injuries for the purpose of the Act. That decision was said to be based upon medical evidence and was confirmed upon internal review.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred to Medical Assessor Alan Doris for assessment of the following injury:
·psychological condition – post-traumatic stress disorder, and
·major depression.
Medical Assessor Doris certified on 5 August 2024 as follows:
The following injury caused by the motor accident:
· Post-traumatic stress disorder (PTSD); Major Depressive Disorder
is NOT A THRESHOLD INJURY for the purposes of the Act.
THE REVIEW
The insurer sought a review of Medical Assessor Doris’ certificate on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relied upon the particulars set out in the application and supporting documentation.
The insurer brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The grounds of review upon which the insurer relied are as follows:
(a) failure to adequately consider the relevant material, and
(b) failure to properly apply the diagnostic criteria.
Particulars were given in support of each of those submissions.
In relation to the alleged Failure to consider the relevant material, the insurer submitted that Medical Assessor Doris failed to adequately consider the extent of the claimant’s pre-existing medical history, which the insurer highlighted in its submissions dated 20 May 2024, of which brief details are given.
The insurer maintained that Medical Assessor Doris failed to give proper weight to the extent of the claimant’s pre-accident and active medical history in his diagnosis and reasons.
The insurer notes that Medical Assessor Doris opines that the claimant’s major depressive disorder is secondary to the persistent pain and functional impairment (insurer’s emphasis) arising from her physical injuries, which the insurer says are pre-existing and degenerative in nature, and do not relate to the subject accident.
The insurer also maintains that Medical Assessor Doris failed to acknowledge the claimant’s long-standing, and ongoing, treatment with a psychologist.
As to the alleged Failure to properly apply the diagnostic criteria, the insurer submitted that Medical Assessor Doris failed to consider the extent of the claimant’s pre-existing medical history and failed to appropriately articulate his reasons, having regard to the evidence produced, and the claimant’s self-reporting. Detailed submissions were made in relation to the Diagnostic Criteria for post-traumatic stress disorder and major depressive disorder.
Having regard to the diagnostic criteria, the insurer submitted that the claimant does not have a current diagnosis of post-traumatic stress disorder, noting that criteria A, B, C, D, and E have not been met for more than one month, for at least the past month.
The insurer submitted that the claimant does not satisfy the diagnostic criteria for major depressive disorder relative to the subject accident.
The insurer’s review application was opposed by the claimant on various grounds. It is not necessary to deal with those submissions in detail as they were not accepted by the President’s delegate. Those submissions can be summarised briefly as follows.
The claimant disputes that the Medical Assessor failed to adequately consider relevant material concerning the extent of the claimant’s pre-accident medical history.
The claimant submitted that the Medical Assessor’s finding that the motor accident has made a material contribution to the claimant’s symptoms is entirely consistent with the evidence before him.
As to the insurer’s submission that the Medical Assessor failed to properly apply the diagnostic criteria in his finding of post-traumatic stress disorder and major depressive disorder, the claimant submitted that the insurer’s submissions are completely speculative and unsupported by evidence and do not identify how the issues raised are relevant to the Medical Assessor’s finding of post-traumatic stress disorder.
As to the Medical Assessor’s diagnosis of major depressive disorder, the claimant submits that the Medical Assessor considered it to be a recurrence or an aggravation of a pre-existing condition and, hence, it cannot be submitted that he has not considered her pre-existing psychological history.
President’s delegate Ashley Payne issued a Determination of an Application for Review of a Medical Assessment on 27 September 2024 which stated the satisfaction of the President’s delegate there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s alleged failure to provide adequate reasons as to how the claimant satisfied the diagnostic criteria for post-traumatic stress disorder, as outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the injuries referred to Medical Assessor Doris, unless the parties otherwise agree. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on
28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “non-minor injuries” are known as “non-threshold injuries”.The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
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 accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“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.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.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
| Document | Author | Date | Page | ||
| Submissions (see previously) | Turner Freeman | 18.09.2024 | 1 | ||
| Signed statement | Suzan Matti | 14.02.2024 | 7 | ||
| Liability Notice post fifty-two weeks | QBE | 01.03.2024 | 12 | ||
| Application for internal review | Turner Freeman | 08.03.2024 | 18 | ||
| Internal Review Certificate | QBE | 28.03.2024 | 20 | ||
| Application for personal injury benefits | Claimant | 07.06.2023 | 30 | ||
| Forensic Medical Reports | |||||
| 38. | IME Report to claimant’s lawyers | Dr Abhishek Nagesh, psychiatrist | 05.03.2024 | 37 | |
| Dr Nagesh makes a diagnosis of major depression of moderate degree with anxious distress. Utilising the Psychiatric Impairment Rating Scale (PIRS), Dr Nagesh assesses whole person impairment (WPI) caused by the motor accident as follows: Listing Classes in ascending order: 2, 2, 2, 3, 3, 3 Median Class Value of 2.5 is equal to 3 Aggregate score: 15 WPI: 15% Dr Nagesh utilises the PIRS to assess WPI for pre-existing condition of PTSD, depression and anxiety, as follows: Listing Classes in ascending order: 1, 1, 1, 1, 1, 1 Median Class Value: 1 Aggregate score: 6 WPI: 0% Dr Nagesh made no apportionment for pre-existing or subsequent conditions and no adjustment for treatment effects. | |||||
| 39. | IME Report to claimant’s lawyers | Dr Drew Dixon, orthopaedic surgeon | 19.06.2024 | 45 | |
Dr Dixon says that the claimant’s injuries caused by the subject accident are as follows:
“1. Whiplash injury to her neck with post-traumatic stiffness with dysmetria, left-sided trapezial muscle spasm with radicular complaint with nocturnal paraesthesia in the left hand.
2. Bilateral shoulder pain and stiffness as per Nguyen, today more marked on the left but previously more marked on the right.
3. Low back strain injury with aggravation of previously asymptomatic lumbosacral spondylolisthesis, Grade II.
4. Aggravation of both knees with residual effusions.
5. Reliance on analgesia.”
Dr Dixon makes an assessment from the Combined Values Chart of 18% WPI.
| 40. | Certificate and Reasons of Medical Assessor (see previously) | Alan Doris | 05.08.2024 | 53 |
| 41. | IME Report to claimant’s lawyers | Dr Uthum Dias, occupational physician | 01.10.2024 | 66 |
Dr Dias gives a detailed description of the mechanism of the subject accident, a previous motor accident, the claimant’s past medical history and personal/social history and physical examination. Dr Dias says that the subject accident caused the claimant to suffer from the following conditions:
·Persistent aggravation of pre-existing degenerative cervical spondylosis secondary to an acute musculoligamentous strain with an associated C5/C6 disc protrusion.
·Persistent aggravation of pre-existing degenerative lumbar spondylosis/ spondylolisthesis, with associated persisting bilateral L5 radiculopathies secondary to an acute musculoligamentous strain, with associated disk protrusions at L4/L5 and L5/S1, and associated bilateral sacroiliac joint dysfunction.
·Chronic right shoulder pain, stiffness and discomfort, secondary to an acute right shoulder rotator cuff tendon strain, with associated chronic post-traumatic subacromial/subdeltoid bursitis.
·Chronic pain shoulder pain, stiffness and discomfort secondary to an acute rotator cuff tendon strain, with associated chronic post-traumatic subacromial/subdeltoid bursitis.
·Persistent aggravation of pre-existing bilateral knee osteoarthritis, with associated patellofemoral dysfunction, secondary to an acute soft tissue injury.
If Dr Dias provided an assessment of WPI, it is not before the Panel.
Treating doctors report;
Physiotherapy report
Mark Rossi
12.04.2024
84
Report
Dr Renata Abraszko
06.07.2023
86
Report
Dr Renato Abraszko
02.08.2023
87
Report
Dr Kathir Nadanachandran, neurosurgeon
07.12.2023
89
Report
Dr Chandra Dave, Bone Specialist
01.03.2024
91
Certificate of Capacity
Dr Beniamin Tuma
29.05.2023
93
Certificate of Capacity
Dr Tuma
29.05.2023
93
MRI cervical and lumbar spine
Dr Pillay
24.05.2023
96
Psychology Allied Health Recovery request
Mariel Gadea
12.07.2023
98
Clinical notes and file of Dr Renata Abraszko
Various
119
Clinical notes and file of My Family Health Centre
Various
145
Clinical notes and file of Dr Tuma
Various
156
The insurer relied upon the following material which the Panel has considered:
Doc No.
Documents
Date
Page
R1
Insurer’s reply submissions – application for review (see previously)
28.08.2024
1
R2
Allied Health Recovery request
28.08.2023
6
R3
Clinical note of Dr Ben Tuma
13.10.2023
11
R4
Report of Dr Nadanachandran
07.12.2023
12
R5
Report of Dr Kerry Neville
15.02.2024
14
R6
Referral of Dr Ben Tuma
24.01.2024
18
R7
MRI cervical spine
14.09.2015
21
R8
MRI lumbar spine
24.05.2023
22
R9
Certificate of Medical Assessor Patricia Jungfer
24.01.2012
24
This assessment related to a previous accident that occurred on 5 October 2010. Medical Assessor Jungfer certified as follows:
The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%:
· Adjustment disorder with anxious mood
Medical Assessor Jungfer found 4% WPI.
| 45. | R10 | Insurer’s submissions – threshold injury dispute | 20.05.2024 | 34 |
| R11 | Clinical records of Edensor Park Medical Centre | 05.08.2015 | 40 | |
| R12 | Report of Dr Renata Abraszko | 02.08.2023 | 68 | |
| R13 | Clinical note of Mark Rossi | 16.10.2023 | 70 | |
| R14 | Clinical note of Mark Rossi | 24.11.2023 | 72 | |
| R15 | Referral to Dr Abraszko | 24.01.2024 | 73 | |
| R16 | Allied Health Recovery request | 12.02.2024 | 76 | |
| R17 | Report of Dr Tony Antoun | 13.02.2024 | 81 | |
| R18 | Report of Movement Medicine Physiotherapy Clinic | 12.04.2024 | 85 | |
| R19 | Tri-bilateral knees | 19.05.2023 | 87 | |
| R20 | X-ray lumbar spine | 06.07.2023 | 89 | |
| R21 | MRI left shoulder | 27.12.2023 | 90 | |
| R22 | Certificate of Medical Assessor Clive Kenna | 11.06.2003 | 92 |
This assessment related to a previous motor accident that occurred on 8 June 2000. Dr Kenna found that soft tissue injuries to the cervical spine, thoracic spine, lumbar spine and both shoulders gave rise to WPI that did not exceed the 10% threshold.
| 46. | R23 | Certificate of Assessor Bruce Trevitt | 02.02.2012 | 104 |
This assessment related to the previous accident that occurred on 5 October 2010. Medical Assessor Trevitt found 5% WPI for the cervical spine and 5% WPI for the lumbar spine.
| 47. | R24 | Report of Dr Abu-Arab, clinical psychologist | 06.08.2011 | 121 |
Dr Abu-Arab gives a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, according to DSM-IV relating to the previous motor accident on 5 October 2010. He assessed 6% WPI.
| 48. | R25 | Procare Activities of Daily Living assessment report | 08.02.2024 | 128 |
This is not of relevance for the Panel’s consideration.
EXAMINATION REPORT
The report of the Medical Assessors is as follows:
“BACKGROUND
1. There is a dispute between the claimant and the insurer about:
·whether the injury is a threshold injury under Schedule 2, s 2(e) of the Act.
Threshold injury dispute to be assessed
2. The following injuries were referred by the Personal Injury Commission (the Commission) for assessment:
Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder
SUBMISSIONS
3. The applicant contends that they have not suffered a threshold psychological injury
4. The respondent contends that they have suffered a threshold psychological injury
SUMMARY OF DOCUMENTS CONSIDERED
5. Documents
We have considered the documents provided in the application.
6. Additional late documents
We have considered the additional/late documents .
REASONS
HISTORY
7. Pre-accident medical history and relevant personal details
Ms Matti was born in Iraq and says that she suffered a lot during the Iran-Iraq war and then the Gulf War. She did not want to answer questions about the trauma that she endured in the war. She did not answer the question regarding sexual and physical abuse. She completed a degree in pure mathematics from the University of Baghdad and ‘escaped’ to Lebanon in 1994. She says that Saddam Hussein had decreed that anyone with a degree could not leave. She had to pay and get forged papers to escape. She had to travel with her father to Jordan and from there to Lebanon. Her father was stopped in Jordan and was not allowed to enter Lebanon. She stayed in Lebanon with her mother’s family and studied drafting. She moved to Australia in May 1995 as a refugee. Her father passed away in Iraq in a motor vehicle accident in 1996. She denies any history of mental illness in her family. Her mother moved to Australia in January 1998. Her younger brother followed six months later. Her older brother came over one year later, while her remaining sister migrated in 2005/06.
Ms Matti was married but separated in 2007. She has been single since 2007. She describes financial and emotional abuse in the marriage as her husband was a “gambler”. She has a daughter who is 25 and her son is 17 years old. She lives with her daughter and her son. She says that her mother is with her “90% of the time”.
According to documentation, she was involved in an MVA on 08 June 2000, but could not remember the details.
She was then injured in an MVA on 05 Oct 10 and received 4% WPI. She was able to remember details of the accident. She says that she recovered fully from that accident. It took time but she became ‘normal’ with driving eventually.
She worked as a secondary school maths teacher for twenty years. Her last appointment was at Liverpool High School, three days per week.
She says that her last day at work was on 18 March 2020 and she was deemed to be totally and permanently incapacitated (TPD) to work from then on. She says that she nearly lost her life to COVID owing to asthma and had to stop working after that. She says that she was ‘really unwell with asthma’ that year, and her lung function was down to 20%. She says that she was also ‘really stressed’ because of not working and financial uncertainty.
She was referred on July 22 to psychiatrist Dr Richa Rastogi, who prescribed her antidepressant medication, but she did not continue for a long time.
She says that she has had PTSD from asthma and the war. She says that she is much better in that regard. She says that she does not cry because of those issues.
She says that she was off all the antidepressant medications at the time of the accident. She says that she was seeing psychologist Ms Mariel Gadia for a long time for issues such as depression related to the loss of her job and her asthma. She says that she was depressed but not severely when she suffered the accident. She describes herself as the ‘best that she ever was’. She says that she was feeling happy and used to walk every day. She denies any pre-existing impairment.
8. History of the motor accident
Ms Matti was driving her Toyota Camry, 2011 model on 12 May 23. She was driving her son to school, who was fifteen years old and was sitting in the front passenger seat. She stopped at a red light, and the vehicle behind her failed to stop, rear-ending her car. She says that it was a 60 kmph or a 70 kmph zone. The impact was sudden, and she was unaware of any car behind her. She says that the driver tried to avoid her car by steering right and hit her car on the right (driver's) side, towards the back. Her vehicle was pushed forward, but did not hit any other car. Her airbags did not deploy and she did not suffer any head injury or loss of consciousness. She says that she was in shock and was unable to make a phone call. Her son was fine and took the phone from her to call his uncle. She says that she was worried about her son, thinking that he had hurt his back. His son kept on telling her that he was fine, but she was worried nevertheless. Her son helped her out of the car but was shaking. The other driver came over to check on her. Her brother arrived and ‘took over’. She did not have to go to the hospital that day but did seek help one week later. Her son did not need any medical attention. He missed school that day, which was a Friday, and returned after the weekend. Her car was written off. She says that she has suffered from neck and back pain. She also has pain in left shoulder and numbness in her hands bilaterally.
9. History of symptoms and treatment following the motor accident
Ms Matti says that she was in ‘great pain’ after the accident and attended with a physiotherapist for a year, which was helpful. She then attended with a chiropractor, which was also beneficial. She has had two injections in her lower back as well. However, her back pain has increased recently as the injections have ‘worn off’. She is awaiting surgery on her lower back at the end of this year.
She says that her emotional symptoms started the day of the accident and have persisted since.
She says that she has improved. She is sleeping better and has stopped suffering from nightmares.
10. Details of any relevant injuries or conditions sustained since the motor accident
She denies any trauma since the injury.
11. Current symptoms
Ms Matti says that her mood is better. She says that she does not care about anything but manages to look after her mother. She says that ‘nothing has taste’ and nothing gives her pleasure. Her daughter asks her repeatedly if she is happy but she does not feels that emotion. She says that she feels anxious ‘a lot of the time’. She did not describe panic attacks. She says that she is always thinking that ‘death is around a corner’. She says that she thinks about dying but not suicide. She is a Christian and thinks that it is a ‘sin to be suicidal’. She does not think it would matter if she passed away. She says that her sleep has improved but she still wakes up ‘multiple times a night’. She sleeps on her couch in the afternoons and says that she can have a good sleep then. Her nightmares have become much less frequent.
She says that she is ‘so scared’ when she travels as a passenger in a car. She is better as a driver. She says that she can drive ‘normally’ but does get anxious at traffic lights. She takes her mother with her for long distance driving but has also done it independently. She says that she finds long drives stressful. She says that her appetite is maintained. She is on Ozempic to manage her weight. She says that she drives her son to the school, using the same route and passes the site of the accident. She says that she gets anxious every time. She says that she has flashbacks but ‘very minor’. They usually occur on days that she is feeling stressed. She says that she had become angry but has settled since she has been on medication. She says that she is ‘very patient’ with her mother. She says that part of her depression is related to not working. Work gave her happiness and she would return to work if her back surgery is successful. She says that her self esteem is “zero”. She says that that is related to not working, financial issues and the impact of the accident. She was asked about pre-existing back pain but she stated that her ‘back was good and she did not have pain’. Her asthma is under control now and she is unable to work because of the back injury, related to the claimed injury.
12. Current and proposed treatment
Ms Matti is on injections for asthma along with Flutiform and Ventolin inhalers. She is also on Fluoxetine 20mg. She had been seeing a counsellor for a year until the insurance stopped paying, around July 2024.
CLINICAL EXAMINATION
13. Mental state examination
Ms Matti presented as a casually dressed lady who maintained adequate eye contact over videoconferencing. She answered all the questions and did not come across as guarded. She appeared adequately nourished and reasonably kempt. Her mood appeared euthymic, and her affect was reactive. Her speech was normal in rate, rhythm, tone and volume. Her thought content revealed that she has become fearful of driving. She was not suffering from any perceptual abnormalities but describes occasional nightmares and flashbacks. She appeared to be well-orientated to time, place and person. She could focus for the entire duration of the assessment. She was able to remember dates of events such as the last day of work.
Her insight and judgement were intact.
14. Current functioning
Ms Matti bought a new car after receiving money for her car. She is a carer for her mother who suffers from dementia. She remains her mother’s main carer but there has been an increase in external carer hours since the accident as she is not able to do as much physically. Her mother’s care needs have increased as well. She says that she is a ‘very clean person: and manages her activities of daily living appropriately. She cooks regularly for her family. Her son is in year twelve and she looks after him as well. She has lost 12 kilograms with Ozempic. She has learned to make easy meals to suit her physical needs. She says that she is unable to concentrate ‘very well’. She says that she struggles to understand things. She tried to learn about chat GPT but struggled to understand the information on the internet. She listens to YouTube videos but does not understand the content like she used to. She has also become forgetful. She says that she could work as a teacher but is limited by her back injury. She says that she could manage to teach maths despite her concentration problems. She manages her mother’s medications and finances as well.
She has not worked since March 2020 because of asthma. She is on carer allowance for looking after her mother and disability payments. She says that it is hard but manages her expenses on her payments. She does not have to pay for her daughter and her son works for his ‘pocket money’. She can budget for things and pays her bills on time.
She gets on well with her mother and children. She is close to her siblings as well. She does not meet them very often. She is visited by her siblings every week who come to check on their mother. She partakes in family celebrations and says that she visited her brother for his birthday in June. She says that she manages her grocery shopping independently. She goes to Coles daily and buys a coffee on her way back. She says that she has one very good friend whom she goes out with occasionally. She has managed to form friendships with her mother’s friends and her mother’s carers. She buys clothes for her mother and looks after her mother's house as well.
She can drive to new places if needed. She could use public transport if needed. She takes her mother to the shopping centre every week.
15. Comments of consistency
No inconsistencies were noted.
REVIEW OF DOCUMENTATION
16. Summary of relevant documentation
The Medical Assessors noted documentation from My Family Health Medical Centre dated 4 Oct 2023 when it was noted that Ms Matti's depression and anxiety were worse since the motor vehicle accident.
The Medical Assessors noted a certificate from Medical Assessor Allen Doris dated 5 Aug 2024 in which her injury was described as a recurrence of PTSD and a recurrence of major depressive disorder.
The Medical Assessors noted documentation from Greenfield Medical Centre. According to this documentation, Ms Matti was noted to be suffering from ongoing depression and was referred to a psychotherapist on 19 Jun 2018. She continued to present with symptoms of depression through 2018 and on 3 Oct 2018 she was prescribed agomelatine. Ongoing symptoms of depression were noted through 2019 and on 5 Mar 2020, she was noted to be on agomelatine 25 mg. A mental health care plan was completed for her on 27 Apr 2020. On 30 Sep 2020, it was considered that her diagnosis was PTSD and depression. Her medication at that time was agomelatine 25 mg and fluoxetine 20 mg. She was referred to psychiatrist Dr. Richa Rastogi on 18 Dec 2020 for depression, anxiety and PTSD. A mental health care plan was completed for her on 15 Mar 2021 for PTSD and depression. On 30 Apr 2021, it was noted that she had been considered to be totally and permanently disabled to work. Her medication was agomelatine 25 mg and fluoxetine 20 mg. She presented with anxiety over 2021 and 2022. On 28 Mar 2022 it was noted that she wanted to come off medication and the dose of fluoxetine was reduced to 10 mg. She was again referred to Dr. Rastogi on 11 2022 for depression and anxiety. On 26 Aug 2022 it was noted that she had stopped medication two months previously but was suffering from pervasive low mood and continuing to see a psychologist. She was re-prescribed fluoxetine 20 mg on 1 Dec 2022. She presented with depression and anxiety in Feb 2023 and a mental health care plan was completed for her for depression and anxiety. She next presented with mental health symptoms after the motor vehicle accident.
The Medical Assessors noted documentation from Edensor Park Medical Centre which describes a history of motor vehicle accident dated 8 Jun 2000. Ms Matti was noted to be depressed on 14 Dec 2002 and was taking venlafaxine 75 to 150 mg per day. On 12 Aug 2013, it was noted that she was having problems with her husband, which was due to his gambling habits and was stressful. Her antidepressants was stopped on 26 Aug 2013. On 24 Nov 2014, it was noted that she had suffered sexual harassment at work, which had caused her stress. Her depression was noted to have worsened by 28 Nov 2014 and she was referred to a psychologist. She was switched to duloxetine for ongoing depression on 13 May 2015.
The Medical Assessors noted a report from treating psychologist Ms Mariel Gadia dated 12 Jul 2023, which describes previous treatment for PTSD related to her time in Iraq.
The Medical Assessors noted documentation dated 13 Oct 2023 from treating general practitioner Dr. Benjamin Touma, which describes long-term PTSD, depression, and anxiety. The dose of agomelatine was increased to 50 mg.
The Medical Assessors further noted a history of motor vehicle accident dated 5 Oct 2010, following which the patient was diagnosed with a chronic adjustment disorder with mixed anxiety and depressed mood. She was assessed to have 4% impairment of the whole person on 12 Feb 2024 because of that accident.
The Medical Assessors noted a file review report by psychiatrist Dr. Kerry Neville, which describes pre-existing PTSD, depression, and anxiety in relation to the current injury. It was noted that she was not medicated when she suffered the motor vehicle accident in May 2023.
The Medical Assessors noted a report by psychiatrist Dr. Abhishek Nagesh dated 5 Mar 2024, which did not describe any previous episodes of mental illness apart from depression, anxiety and PTSD 10 years ago, which was considered to be in remission. Dr. Nagesh diagnosed Ms Matti with major depressive disorder with anxious distress and assessed her to have 15% impairment of the whole person.
The Medical Assessors noted that in an allied health recovery request dated 12 July 2023, treating psychologist Mariel Gedia described a history of war trauma.
DETERMINATIONS
17. Diagnosis and reasons
The Medical Assessors opines that Ms Matti’s diagnosis is Major Depressive Disorder with anxious distress, as an aggravation of pre-existing symptoms. She also suffered an aggravation of underlying Post Traumatic Stress Disorder but that has resolved.
Ms Matti meets the diagnostic criteria for Major Depressive Disorder (MDD) as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) as follows:
A. Five or more of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure:
1. Depressed mood most of the day, nearly every day: She does not feel emotions such as happiness and feels that it would not matter if she were to die.
2. Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day: She reports that ‘nothing gives her pleasure’ and ‘nothing has taste,’ indicating anhedonia.
3. Sleep disturbance: She reports waking up ‘multiple times a night.’ Although she naps in the afternoon, this pattern suggests disrupted nocturnal sleep.
4. Fatigue or loss of energy: She sleeps in the afternoons owing to tiredness.
5. Feelings of worthlessness or excessive/inappropriate guilt: Ms Matti describes her self-esteem as ‘zero’
6. Diminished ability to think or concentrate: She describes reduced ability to focus.
B. Symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning:
She continues to care for her mother, but she describes a lack of emotional engagement and expresses a wish for death,
C.The episode is not attributable to the physiological effects of a substance or another medical condition:
Her depressive symptoms are an aggravation of pre-existing symptoms which predate the back pain.
Specifier: With Anxious Distress
· Feeling tense and anxious most of the time
· Increased anxiety while travelling as a passenger in a car
18. Causation and reasons
Ms Matti has a long and complex history of trauma, both from her early life in Iraq and subsequently from the severe nature of her Asthma, marital difficulties and two previous motor vehicle accidents. She has suffered from symptoms of PTSD, Depression and Anxiety for most of her adult life. She was symptomatic with depression and anxiety owing to the loss of ability to work and financial distress when she was injured on 12 March 23. She also had subclinical symptoms of PTSD. The accident would not have caused PTSD in a person of normal fortitude, but Ms Matti was especially vulnerable owing to her psychiatric history and suffered an aggravation of underlying symptoms of PTSD. The accident also led her to suffer from chronic back pain, which is now the main barrier to her returning to work. That has led to an aggravation of pre-existing symptoms of depression. The aggravation of PTSD has resolved, but her Depressive Disorder has persisted.
Summary of injuries referred by the parties
19. The following injuries WERE caused by the motor accident:
·Aggravation of pre-existing Major Depressive Disorder &
·Aggravation of underlying PTSD
20. Threshold injury
Major Depressive Disorder is not a threshold injury.
CONCLUSION – THRESHOLD INJURY
21. The following injuries are not threshold injuries:
·Aggravation of Major Depressive Disorder with anxious distress
22. The following injuries referred to me for assessment have been assessed and determined to have ceased
·Aggravation of PTSD”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the Act.
The Panel is not required to choose between medical opinions and is required to form its own opinions.[5] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another. The Panel adds the following further reasons.
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.
What has been referred for assessment in these proceedings is psychiatric condition. The Panel notes that the Medical Assessors are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychological injury, within DSM-5, caused by the accident, and then make a diagnosis of that injury.
The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnosis of the original Medical Assessor, or the diagnosis of the treating doctors or qualified Medico-Legal experts, or the particular diagnosis that may have been included in the application or reply form.
The Medical Assessors have explained the basis and rationale of their assessments. They observed that their findings are not greatly different to those of Medical Assessor Doris whose views they respectfully note.
In making its determination, the Panel has had regard to what was decided in Todev v AAI Ltd t/as GIO [2023] NSWSC 836 that was cited in Insurance Australia Ltd t/as NRMA Insurance v Cooper [2025] NSWPICMP 257.
CONCLUSION
For the above reasons, the Panel concludes that the Certificate dated 6 August 2024 should be revoked. The new certificate appears at the commencement of these reasons.
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