QBE Insurance (Australia) Limited v Tanner

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Tanner [2025] NSWPICMP 594
CLAIMANT:	Deborah Tanner
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Ankur Gupta
DATE OF DECISION:	11 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); Medical Assessor diagnosed a post-traumatic stress disorder (PTSD) which was non-threshold; insurer’s review of MAC under section 7.26; threshold dispute; psychiatric injury; claimant had pre-accident history of depression but not anxiety; claim form completed soon after accident noted nightmares etc but over a year until GP records refer to symptoms; dashcam footage partly showed accident; claimant re- examined; Held – claimant had PTSD in partial remission; Review Panel satisfied accident was sudden and frightening and claimant exposed to threat of serious injury; MAC confirmed; David v Allianz Australia Insurance Ltd, Allianz Australia Insurance Limited v Susak, and Lynch v AAI Limited t/as AAMI followed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. confirms the certificate issued by Medical Assessor Samuell on 23 May 2024, and therefore 2. confirms that the claimant’s psychiatric injury caused by the accident is not a threshold injury for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Deborah Tanner was involved in a motor accident on 8 December 2022. Ms Tanner says she was side swiped by another vehicle on the passenger side after they had both navigated a roundabout.
Ms Tanner says she injured her lower back and sustained a prolapsed bladder and uterus as a result of the accident. Ms Tanner also says she has developed a psychological or psychiatric injury as a result of the accident.
Ms Tanner made a claim for statutory benefits against QBE, the third-party insurer of the vehicle that she says caused her accident and her injuries. A medical dispute about whether the injuries sustained by Ms Tanner were threshold injuries arose, and Ms Tanner referred that dispute to the Personal Injury Commission (the Commission) for assessment. Three medical assessments occurred in those proceedings as follows:
(a)    on 2 November 2023, Medical Assessor Izzo determined that the claimant’s cystocoele and uterine prolapse were not caused by the accident;
(b)    on 10 November 2023, Medical Assessor Truskett determined that the claimant’s lower back injury was a threshold injury, and
(c)    on 23 May 2024, Medical Assessor Samuell determined Ms Tanner had a post-traumatic stress disorder caused by the accident and that this was not a threshold injury.
No applications for review were lodged by the claimant in respect of Medical Assessors Izzo and Truskett’s decisions. The insurer however lodged an application with the Commission seeking a review of Medical Assessor Samuell’s decision.
On 15 July 2024, Mr Lum, then a delegate of the President, determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 6 March 2025 the President’s delegate convened this Review Panel (the Panel) to conduct the Review proceedings.

LEGISLATIVE FRAMEWORK

General

Ms Tanner’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident.[1]
[1] Sections 3.11(1)(a) and 3.28(1)(a).
There are also limitations and restrictions in Part 4 as to the entitlement and amount of damages that can be recovered. One of these is that if the injured person has only “threshold injuries”, they cannot recover any damages[2].
[2] Section 4.4.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says (in terms of psychiatric or psychological injuries) that a threshold injury includes an acute stress disorder and an adjustment disorder.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[3] provide:
“[5.10] In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11] The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[3] The current version of the Guidelines is version 9.3.
In other words, the Guidelines provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not. If the claimant has a disorder not recognised in the DSM-5-TR, that injury is a threshold injury. The DSM-5-TR also provides for the diagnosis of an adjustment disorder or acute stress disorder. While they are both recognised psychiatric illnesses, they are threshold injuries by operation of cl 4(2) of the Regulation).

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
[4] Schedule 2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Samuell’s, further medical assessments and the review of medical assessments by this Panel[5].
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Where there is evidence establishing that the claimant sustained a non-threshold injury caused by the accident, a finding must be made that the accident caused a non-threshold injury even if the injury has healed, or the claimant has recovered from the injury, or the condition is in remission at the time of the medical assessment[6].
[6] See Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6.
If the claimant has a pre-existing non-threshold psychiatric condition (such as previous post-traumatic stress disorder) and the evidence establishes that a later accident caused or materially contributed to a worsening of that pre-existing condition, that aggravation will also be considered to be a ‘non-threshold’ injury[7]. An aggravation of a pre-existing threshold psychiatric condition (such as an adjustment disorder) may be a new injury, but it will also be a threshold injury.
[7] See Todev v AAI Limited t/as GIO [2023] NSWSC 836 and AAI Limited t/as GIO v Hoblos [2023] NSWPICMP 210.

ASSESSMENT UNDER REVIEW

Medical Assessor Samuell examined the claimant on 14 May 2024 and issued his certificate on 23 May 2024. The Medical Assessor confirms at [2][8] that he was asked to assess the “a psychological injury”.
[8] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
Medical Assessor Samuell takes the following history at [8] – [10]:
(a)    the claimant was 64 years of age at the time of the accident and in receipt of a disability support pension due to a 27-year-old problem with her leg;
(b)
the claimant denied any psychological difficulties before the accident however Medical Assessor Samuell records a further history that she was prescribed

anti-depressant medication six months before the assessment;
(c)    the claimant reported having had a brain aneurysm with surgery, shoulder surgery, a breast lesion and reduction and that she had a family history of heart disease, diabetes and cancer;
(d)    she had a previous motor accident claim from a whiplash injury seven years before;
(e)    she drinks occasionally, has restarted smoking but does not take illicit substances;
(f)    she reports driving with a seat belt at 30 kms per hour when a utility vehicle side swiped her from the left and that her vehicle “tipped on two wheels” and was opened “like a can opener”. She described it as “very scary”. She said the car was not driveable afterwards and police attended the scene;
(g)    she reported attending Maitland hospital the day after the accident but not being admitted having been given an injection and pain medications. She has had physiotherapy, and
(h)    she reported psychological symptoms developing “not long after” and Medical Assessor Samuell reports she “kept seeing it and feeling it”, “it” being the accident.
In terms of her current symptoms, Ms Tanner reports disturbed sleep due to seeing the accident which wakes her. She reported that sleep problems only started after the accident which the Medical Assessor noted is “in contrast to the contemporaneous records.” She reported never being a big eater, her mood is tearful most of the time and easily changeable. Concentration was reported as normal.
The claimant could not recall the anti-depressant she was taking but she did recall taking Targin for her pain and that she had seen Dr Causley for her difficulty sleeping.
The claimant reported her relationship with her ex-partner ended as a result of the accident as they have been arguing. She gets on well with her surviving children (one died twenty years ago). She loved gardening but could not do this because of the physical injuries sustained in the accident and loved reading and if she has a good book finds it hard to put down. She drives without restriction, cooks and cleans although it takes longer. She shops, dresses and cleans herself and showers daily. She reported having no friends where she is living and does not mix with people. She does however speak with her sister.
Medical Assessor Samuell refers to the police report which described the accident as a “major traffic crash” and he reviewed the dashcam footage.
He diagnosed a post-traumatic stress disorder as the accident was distressing to her and the vehicle went up on two wheels and that this could therefore satisfy the stressor criterion (Criterion A) for a post-traumatic stress disorder and that she had other symptoms which have lasted more than 12 months. He says “as no other causes were identified” he accepted the disorder was caused by the accident. While he acknowledged her pre-existing depression, he says this was “not material to the subsequently diagnosed condition.”

ISSUES FOR DETERMINATION

Insurer’s submissions[9]

[9] The numbers in square brackets are a reference to the paragraph number in the submissions.

The insurer submits at [3] that the Medical Assessor has failed to adequately consider the evidence which contradicts the claimant’s evidence. The insurer suggests for example that the dash-cam footage does not show the claimant’s vehicle “tipped on two wheels” or that it was “opened like a can opener”.
The insurer submits at [4] that the Medical Assessor’s methodology and path of reasoning is not apparent.
At [5] the insurer submits the Medical Assessor’s finding that the claimant had a pre-existing condition and that it was not material to the diagnosed condition is not accompanied by any reasons.
The insurer also submits the Medical Assessors does not appear to have applied the criteria from DRM-5-TR and for example there is no evidence she meets criterion C as she has returned to driving and travel without issue. The insurer also doubts she meets criterion E as the Medical Assessor noted that sleep disturbance existed before the accident. The insurer raised issues with criterion G (no new impairment in social, occupational or functional restriction) or criterion H (whether symptoms due to another condition).
In the insurer’s original submissions[10] the insurer says at [7.1] and [7.2] the claimant has not produced any evidence to support a finding that the claimant’s psychological symptoms satisfy the DSM-5-TR criteria.
[10] Page 3 of the insurer’s bundle commencing at page 14.
The insurer acknowledges at [7.3] the reference to nightmares and insomnia in her claim form but says at [7.4] there is no further evidence of psychological injury.
The insurer notes at [7.5] the pre-accident psychological complaints and says at [7.6] that any ongoing psychological symptoms are not related to the accident.

Claimant’s submissions

The claimant takes issue with the insurer’s summary of the dash-cam footage saying it does not clearly show what the claimant’s vehicle did or did not do.
The claimant also notes the Medical Assessor has indicated he has read and considered all the documents and provided a details assessment of her history, treatment and symptoms.
The claimant takes issue with the insurer’s submission concerning criterion H saying this was addressed in his finding of causation, but the claimant does not appear to address any of the other submissions about the various criteria.

Procedural matters

The Panel issued directions to the parties on 14 March 2024 primarily to ensure the Panel had up to date bundles of documents relevant to the Review proceedings.
The Panel noted:
“… the Medical Assessors on the Panel are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychiatric injury 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 diagnoses of the original assessor, the claimant’s treating doctors, the parties’ medico-legal experts or the particular diagnosis that may have been included in the application or reply form.”
In response to those directions, the insurer provided a bundle of documents comprising 89 pages and the claimant a bundle comprising 502 pages.
The Panel met on 20 May 2025 to discuss the Review and determine how we would proceed. The Panel requested up-to-date clinical notes and photographs of the cars (in particular the claimant’s car) after the accident. The Panel sought confirmation that there were no qualified medical expert reports relied on in the Review proceedings.
The parties were advised of the re-examination details and the claimant was directed to attend the re-examination.
The claimant did not respond to the report and directions document. The insurer advised that, other than the dashcam footage, the insurer had no available photographs of the vehicles after the accident showing the damage done to them.
The Panel advised the parties that we were proceeding on the basis that neither the claimant nor the insurer sought to rely on any medico-legal reports.

REVIEW OF THE EVIDENCE

General remarks

The claimant referred both her physical and her psychological injuries to the Commission for assessment. Many of the documents put before the Panel concerns the claimant’s physical injuries. The Panel has considered all the documents but will refer only to those relevant to the matters we need to determine.

Claim form and claim documents

The claimant’s typewritten claim form[11] was declared by Ms Tanner as true and correct and is dated 8 December 2022[12].
[11] Page 11 of the claimant’s bundle.
[12] The Panel notes this date cannot be correct as that was the date of the accident, and the form refers to things that happened on 9 and 10 December 2022.
The claimant denied any previous claims (other than the current one) and says she was not employed at the time of the accident, being in receipt of a disability support pension. Ms Tanner provides no description of the accident and did not list the injuries she sustained in it. She does say she developed lower back pain on the night of the accident (the eighth of December) and woke up on the ninth with back pain and that at 6.00am on the tenth, she went to Maitland Hospital and was discharged later that day. She says she was advised to see her doctor on the Monday. She said she has had scans and been given medication which is expensive. She also says in the claim form:
“I keep having nightmares seeing and feeling him hit my car and it going up in the air on 2 wheels. I can’t sleep because of the pain and re-living the accident. The pain level keeps sitting around a 6 out of 10. I can’t bend without pain and can’t sit for too long. I keep moving around trying to stop the pain. Waiting to go to physio.”
The first certificate of capacity and fitness was signed by the claimant and dated 8 December 2022[13]. It was signed by Dr Cooper of Central Maitland Medical Centre and not dated by him. However, as he has indicated on the first page that he first saw the claimant on 12 December 2022 it would appear he did not complete the certificate on the day of the accident, but he completed that certificate on or after 12 December 2022.
[13] Page 22 of the claimant’s bundle.
Dr Cooper diagnosed the claimant’s injuries as “Jarred back ++, hit at force. Increased [uterus bladder pressure] and seat belt triggered prolapse.” He referred to an unrelated right leg injury and osteoarthritis as relevant pre-existing conditions. His management plan included rest, analgesia, home exercises and that she needed to have physiotherapy as soon as possible. He noted an x-ray and scans showed no fractures.
The police report was completed on 23 December 2022[14] and includes the following information:
(a)    the accident occurred on 22 December 2022 at about 9.00am;
(b)    the accident occurred on Chelmsford Drive at a roundabout and the road was dry and sealed;
(c)    the claimant was driving a 2017 model Kia Picanto;
(d)    the speed limit was 50 kmph, the claimant reported driving at 30 kmph and the other car at 50 kmph, and
(e)    the claimant’s car was said to be a write off and the insured vehicle had offside door damage.
[14] Page 16 of the claimant’s bundle.
The crash summary details are:
“About 9 am on Thursday the 22nd of December 2022, the victim was driving her Kia Ja Picanto along Chelmsford Drive, Metford towards the New England Highway. Upon entering the roundabout of Chelmsford Drive, Cross Metford Road, a silver Holden Rodeo was behind the victim's vehicle before entering the lane 1 of 2 where the driver has driven across both lanes along the roundabout and colliding with the victim's vehicle causing significant damage.”
There is dashcam footage of the accident. The footage begins with the claimant’s small car in front of a white car. The car behind the white car is the car with the dashboard camera. All three cars navigate a roundabout without issue. The insured’s utility vehicle is in front of the claimant’s car at this time.
After leaving the roundabout, on a straight stretch of a four-lane road separated by a median strip, the white car can be seen changing from the left hand (kerb side) lane into the right-hand lane. The claimant’s car then moves into the right-hand lane still in front of the white car. A utility vehicle can be seen in the left lane moving into the right lane and impacting with the claimant’s car. The claimant’s car cannot actually be seen, because it is a smaller car hidden from view by the white car behind it. The claimant’s car stops in the

right-hand lane after the impact as does the insured vehicle some distance ahead. The damage to the two cars cannot be seen with any clarity.

The audio of the dashcam footage includes a sharp and prolonged intake of breath (presumably from the driver) at the time of the collision and the immediate sound of screeching tyres as that vehicle (and the vehicle in front) come to stop.

Hospital notes

The Maitland Hospital discharge summary[15] notes:
[15] Page 25 of the claimant’s bundle.
(a)    Ms Tanner presented at 5.50am on 10 December 2022;
(b)    she complained of lower back pain from a car accident two days ago;
(c)    she had been hit on the passenger side, but her airbags did not deploy;
(d)    she felt fine at the time and did not seek medical attention;
(e)    she took Panadeine Forte and Morphine at home at 2.00am;
(f)    she was alert, mobilising in the department and not in distress;
(g)    there was no cervical spine tenderness, but she complained of pain radiating into her hips;
(h)    her back pain worsened the day before at L4-S1/2;
(i)    there were no neurological signs in the lower limbs, normal bowels and bladder and “no saddle paraesthesia”, and
(j)    a short course of ibuprofen was added to her pain regime, and she was advised to see her GP the following week.
The claimant attended Maitland Hospital again on 16 December 2022[16] complaining of something having “dropped” noticed at first in the shower, she felt sharp pains to her lower pelvic region and that “feels like her insides are going to fall out when she goes to the toilet.” The motor accident was referred to and a question raised over any involvement of the seat belt. A stage 3 prolapse was discovered on examination, “netting” was done, and the claimant was referred back to her GP and potential referral to a gynaecologist.
[16] The discharge summary is at page 26 of the claimant’s bundle.

Treating medical records and reports

The insurer summarised in its submissions the claimant’s following pre-accident history. The Panel notes the claimant has not taken issue with this summary and has not referred the Panel to any particular entries or other conditions.
The relevant matters from the clinical notes are:
(a)    pre-accident gynaecological health issues – the claimant had a previous prolapse in 2015 with surgery in 2016 and continued symptoms until 2020 when the claimant had further surgery;
(b)
chronic psychological conditions - since around 2007 the claimant reported stress, poor sleep and depression. She was referred to Psychology One on

27 September 2007. In a fitness to drive certificate dated 13 November 2017 the claimant was said to suffer from chronic depression which affected her ability to drive and required medication. Subsequent certifications do not mention a mental illness or medication for it;
(c)    injuries were sustained in a previous motor vehicle accident (rear end collision) on 3 May 2016. A claim had been made against AAMI (or QBE) and the injuries were to the neck/cervical spine, followed by an onset of lumbar spine pain in June 2018. At that time the claimant had investigations which revealed “multilevel degenerative disc disease” and the claimant complained in June 2020 of chronic and neuropathic pain;
(d)    in January 2017 the claimant sought to renew her mobility parking scheme participation with her GP, Dr Waris completing the certificate. The claimant was said to have chronic pain, severe arthritis and depression which was stable;
(e)    In November 2017 when renewing her drivers license, Dr Cooper certified the claimant had a mental health condition which may impact her safe driving (chronic depression) and a musculoskeletal disorder that may also impact her driving (chronic pain);
(f)    the claimant had complained of ‘longstanding chronic severe disabling pain’ associated with nerve damage affecting her right leg. This arose due to surgical complications following a meniscus tear in 1992. As a result, the claimant requires ongoing narcotic analgesia (MS Contin 90 mgs twice daily);
(g)    there was also a history of osteoarthritis (2009), hyperthyroidism (2004), chronic obstructive pulmonary disease (2010), right and left shoulder surgeries for bursitis and tendinopathy (2015 and 2017 respectively), and cataract surgery (2019), and
(h)    in 2019, the claimant suffered a brain aneurysm and had a craniotomy and recovered.
The Panel is satisfied this is an accurate summary of the main features of the claimant’s

pre-accident state.
The Panel notes that at page 36 of the claimant’s bundle in the records of Dr Cooper, is a past history list of conditions and medications. The claimant had been prescribed Pristiq ER 50 mg once daily from 22 August 2014. The Panel notes that Pristiq or Desvenlafaxine is an anti-depressant used to treat major depressive disorders in adults. A document summarising the claimant’s medication as at 24 July 2018[17] does not include Pristiq but does include Endep 10 mg to be taken at night 12 hours before desired waking time. While Endep is an anti-depressant medication it is also used for neuropathic pain.
[17] Page 85 of the claimant’s bundle.
There is a “to whom it may concern” letter from Dr Cooper dated 8 January 2019[18]. He refers to the claimant’s high doses of opiate analgesia and a recent significant increase of her morphine use which “may have affected [her] concentration, perception etc.” That, and her cataracts were said to “have played a great part in the event of 17 December 2018.” The claimant had cataract surgery in April 2019.
[18] Page 98 of the claimant’s bundle.
The claimant’s medications as at April 2019 were noted[19] as including Endep and Cymbalta. The summary on or about 10 June 2021[20] does not include Endep and Cymbalta but does include Zyban SR 150 mg one twice a day and that is also mentioned in the GP management plan of 4 July 2022[21]. The notes indicate it was ceased on 21 September 2022[22]. While Zyban is an antidepressant often prescribed as a treatment for major depressive disorders, the medical members of the Panel note it is also be prescribed as a support for someone attempting to cease smoking. There is no corresponding note about depressive symptoms at this time in the records, but the claimant gave a history of trying to stop smoking that correlates.
[19] Page 101 of the claimant’s bundle.
[20] Page 155 of the claimant’s bundle.
[21] Page 169 of the claimant’s bundle.
[22] The entry dated 21 September 2022 on page 206 of the claimant’s bundle.
The claimant first attended Dr Cooper (of Central Maitland Medical Centre) after the accident on 12 December 2022 when Ms Tanner complained of worsening lower back pain only. She was referred for radiology, and Norflex (muscle relaxant) was prescribed. On 16 December 2022 the claimant complained of the vaginal symptoms of prolapse, she declined an appointment with Dr Yoonus and was advised to go to hospital.
On 19 December 2022 the claimant attended Dr Cooper. The prolapse was uncomfortable and “occurred fairly soon after MVA” and it had not reduced. Her back was stiff and sore, and she was struggling to sit and was advised to use extra Panadol and start physiotherapy.
On 4 January 2023, Dr Cooper prescribed Cymbalta with little explanation other that the claimant’s back and leg pain had flared-up, and her leg pain was severe. On 16 January 2023 the claimant had a fall and collapsed after a sudden jab of sciatic pain. On 6 February 2023 the claimant attended Dr Yoonus to discuss the results of her MRI lumbar spine and Cymbalta was ceased “prescription withdrawn.” Dr Cooper noted the claimant had been taking 90 mg of MS Contin for a long time and planned to reduce it to 75mg.
Dr Yoonus completed a questionnaire for QBE on 22 February 2023.[23] Dr Yoonus addresses the claimant’s pelvic pain, the prolapse and her neck and back ache. There is no mention of any psychiatric or psychological symptoms. He made it clear that he thought the claimant needed surgery as “early as possible.”
[23] Page 32 of the claimant’s bundle.
On 13 March 2023 the claimant saw Dr Yoonus for her chronic pain who explained that MS Contin is not used for this type of pain and suggested it be gradually reduced and that she should start Gabapentin instead.
The claimant has provided reports from Dr Soaki, obstetrician gynaecologist. In a report dated 23 March 2023 he said it would be difficult but theoretically possible for the organ prolapse to have occurred as a result of the accident. All his previous examinations did not reveal any prolapse. She was referred for a hysterectomy, laparotomy and pelvic floor repair.
The claimant provided a bundle of updated notes from Central Maitland Medical Centre (over 1,000 pages) as at 29 May 2025.
On 4 April 2023 the claimant saw Dr Yoonus for a review of her chronic pain and reported a flare up of backache but “no concerning withdrawal symptoms.”
In April, May, June and July the claimant attended for her previous pain medications with limited detail about the attendances. On 1 August 2023 was a note that the claimant was tolerating the new medication regime and “withdrawal improving.”
On 24 August 2023 the claimant reported more pain, bad back and sleep issues and Endep was started at 10 mg.
On 17 October 2023 the claimant attended for renewal of her driver license and following a dog bite. The wound had become infected.
On 14 December 2023 the claimant reported needing pain medications and for the first time since the accident it is recorded that she had low mood and an increase in Endep was prescribed (25 mg) and Axit (another antidepressant) was added.
In early January the claimant was referred for counselling with Dr Causley. There were further attendances for pain scripts and other medications.
On 9 May 2024 the claimant reported she was due to have a hysterectomy in two weeks, and she planned to reduce her pain medications after this. Thereafter (until October) the attendances all concern medication and repeat scripts.
On 30 May 2024 the claimant was given scripts for Endep and other medication. Targin and 24 June 2024 the claimant was given scripts for Axit and other medication.
The last entry concerning a medical attendance on Dr Yoonus was on 4 October 2024 for a review of her pain scripts only. The claimant had moved to the Northern Territory.

Dr Causley, psychologist notes

On 24 January 2024 the claimant was referred by Dr Yoonus to Dr Causley[24] for assistance with treatment of the claimant “who presented with low mood, has chronic pain, would like to get further assessment for opinion and management” under a GP mental half plan and six sessions were sought.
[24] Page 496 of the claimant’s bundle.
Dr Causley’s notes[25] commence with an attendance on 30 January 2024. The claimant had come from Western Australia, but her family was in Darwin. She refers to the car accident putting a strain on her relationship with her partner. He has a history of the claimant being hit from the side and her car went up on two wheels and that a nurse behind had dashcam footage of the accident. She was still driving but is nervous when doing so. She says she cries a lot at night and when driving. The claimant said she had back pain and a prolapse following the accident.
[25] Page 480 – 502 of the claimant’s bundle.
She reported seeing the car accident when she closes her eyes, she has poor sleep (and that her back pain contributed to this). She had been on antidepressants but did not like them.
She reported being taken off MS Contin “cold turkey” which was hard. She has taken up smoking since the accident and needs to stop.
She described an event when she and her dog were attacked by two other dogs three months earlier.
One of her daughters had suicided but Ms Tanner said she has made no attempts on her own life.
On 20 February 2024 the claimant had seen a car accident near where her accident was, she reported an incident at home involving her partner which resulted in bruising, but no injury and her pain got worse. She reported wanting to move to the Northern Territory. She had a few falls due to acute back pain but was having no active treatment. She again reported poor sleep, one to two hours a night due to both her physical pain and “seeing MVA”.
There are limited notes of a further attendance on 12 March 2024, but the claimant reported “she keeps seeing the accident.”
A further bundle of Dr Causley’s clinical notes is provided at page 2 of the insurer’s additional bundle.
A report was provided to Dr Yoonus on 4 July 2024 at the conclusion of six counselling sessions. He says:
(a)    the claimant’s presentation was consistent with post-traumatic stress disorder;
(b)    she was still driving albeit with anxiety and had flashbacks and “other trauma symptoms”;
(c)    she was frustrated with the insurer;
(d)    her relationship had broken down with her partner and he had been aggressive and violent towards her;
(e)    she was hoping to move interstate;
(f)    at the beginning of his treatment her “PTSD Checklist” score was 60 but it had improved to 53 but her “DASS21” scores were in the extremely severe range for depression, anxiety and stress;
(g)    his treatment focussed on the accident but also processing “some very difficult childhood experience”, and
(h)    he recommended further counselling.
The claimant had the surgery (hysterectomy and anterior vaginal wall repair).

Other assessments

The claimant was examined by Medical Assessor Truskett on 10 November 2023. The only musculoskeletal injury he was asked to assess was the claimant’s lower back. In his decision of 16 November 2023, he certified the claimant’s lower back injury as a threshold injury, there being no evidence of an annular tear caused by the accident. While he accepted the claimant had been injured, he found the claimant had a soft tissue injury which had likely temporarily exacerbated her lumbar spine condition (previous imaging in November 2000 and December 2018 suggested previous complaints).
The claimant was examined by Medical Assessor Izzo on 2 November 2023 and he issued his decision on 13 March 2024 certifying that the claimant’s Grade 3 cystocoele (a condition where the wall between the bladder and vagina weakens causing the bladder to drop or sag into the vagina) and uterine prolapse were not caused by the accident on the basis that the “accident was not even severe enough to cause other injuries, nor to release the airbags”. He considered other factors at play including her past obstetric history (five children) and that she is post-menopausal.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS BARRETT AND GUPTA

Pre-accident history

Ms Tanner was born in Malaysia in an army family. She says that she had a happy childhood and denies suffering from any form of abuse. She says that she is the oldest in a sibship of six. She lost a brother in a car accident when he was five or six years old at the time. She is unaware of any history of mental illness in her family.
She has been married once. She is single at present. She has five children. She lost a daughter to suicide, twenty years ago, from a work-related condition. She is not close to her two older sons, but has a good relationship with her other son and her daughter. She has two granddaughters as well.
She left school after year ten and does not have any other qualifications. She has worked as a cleaner, a cook and at a car rental company. She worked at a boarding school as a cleaner, where she hurt her leg and stopped working around 27 years ago.

Accident

Ms Tanner was injured in a motor vehicle accident on 8 December 2022. She says that she was driving a Kia Picanto to a shopping centre and was not far away when she felt herself being lifted in the air and landing on the right two wheels. A car had hit her on the passenger side. She says that her car would have rolled onto the other side (the driver’s side) or onto the roof facing oncoming traffic, if not for the lane divider. Her airbags were not deployed, but the back seats were “flung forward”. She did not suffer any head injury or loss of consciousness. The seat belt was tight on her abdomen which she says caused a uterine prolapse. She unclipped the seatbelt and got out of the car on her own. She says that she did not feel any injury at the time. The driver of the other vehicle was also not hurt and came over to her. She says that a nurse was driving behind her and she too came and helped. The police attended but she declined any medical help. The other driver apologised and accepted that it was “his fault”. She parked her car in a car park, and she called her partner to come and get her.
She says that she has suffered from lower back pain since the accident. She has received physiotherapy but that has not helped much.

Current symptoms

Ms Tanner says that her emotional symptoms started on the night of the accident and have persisted since. She says that she is still not able to sleep. She can get to sleep but wakes up because she “sees it all”. She tries breathing exercises but that does not help much. She says that she is unable to sleep for more than two hours. She gets out of her bed and has a coffee. She says that she typically drinks two to three coffees at night. She says that she is getting used to the sleep deprivation and does not feel tired all the time. She says that she does not nap during the day either.
She had quit smoking a year or two before the accident (with the aid of medication) but she now smokes 10 to 12 cigarettes per day and is trying to stop again. Ms Tanner says that her mood is “just average”. She feels happy on seeing her “little granddaughter” but nothing much else gives her joy. She used to enjoy gardening and feeding wild birds, but that is practically impossible for her where she currently lives. She can cry for no reason at times.
She only feels anxious while driving. She says that it is worse if she is in the right lane and another vehicle comes up in the left lane. She says that she panics that she is “going to get hit”. She can experience flashbacks when she travels as a passenger with her daughter. She has not developed any irritability or anger. She describes an increased startle response and hypervigilance while driving, but not when she is not driving.
She finds it hard to do things because of back pain which distresses her. She does not suffer from feelings of guilt. She says that she has never been a “big eater”. She eats an adequate amount of food. She says that the accident has “aged her and drained her”. It has impacted her self-esteem and confidence. She denies any suicidal ideation.
She says that she has improved and hopes to further improve and is motivated to seek further treatment for her mood through Beyond Blue.
Ms Tanner denies alcohol misuse. She denies drug use.

Treatment History

Ms Tanner says that she is taking an antidepressant medication, but she could not remember the name. She said she is on Targin for pain relief. She is not seeing any psychiatrist but is waiting to see a counsellor from Beyond Blue.

Psychiatric History

Ms Tanner says that she got depressed when her daughter committed suicide twenty years ago. Her partner at the time was cheating on her as well. She says that she was prescribed anti-depressant medication, which she took for a “long time” after these events. She says that she “weaned [herself] off” the medication after she felt that she was “fine”. She denies any other history of mental illness until the claimed injury.
She was asked about the motor vehicle accident that occurred on 3 May 2016. She was asked about the documentation from 2017, which mentions chronic depression. She stated that that may have been because her mother had passed away around that time. She stated that the accident was not severe and did not cause any emotional condition. She denies receiving any antidepressant medication in the months leading up to the accident.
She was asked about the documented violence in her relationship, she stated that this was related to the father of her children. She says that her most recent partner (the partner she had at the time of the accident) was not abusive.

Past Medical History

Ms Tanner has been suffering from chronic pain in her right leg since a work-related injury

27 years ago.
She was diagnosed with a brain aneurysm seven years ago and has had two surgeries for that. She has had some memory problems since the brain surgeries. She describes difficulty finding words but says that her cognition was otherwise fine.
She underwent a hysterectomy in August 2024, owing to uterine prolapse, which she relates to the claimed accident. She says that she has become a “little bit incontinent” since the surgery. She waited for this surgery for some time as the insurer refused to pay for it and she did not have private insurance. This was a stressor for her.
She has also suffered from melanoma and is under treatment at present.

Mental state examination

Ms Tanner presented as a casually dressed lady who was well-kempt and appeared adequately nourished. She engaged well in the assessment process and answered all the questions appropriately. Her mood appeared euthymic and her affect was reactive. Her speech was normal in terms of rate, rhythm, tone, and volume. Her thought content revealed that she still feels apprehensive about driving but does not avoid it completely. She was not suffering from any perceptual abnormalities. She could focus for the duration of the assessment and appeared to be well-orientated to time, place and person. Her insight and judgement were intact.

Current functioning

Ms Tanner lives independently in a caravan in Darwin. She used to live with her partner before that in the Hunter Valley area.
She cooks her meals as needed and keeps the caravan clean. She showers daily and cleans her teeth regularly. She manages her shopping independently. She sees her local doctor every month for medication. She does not have friends in Darwin but is trying to form new ones. She has formed a close bond with the property managers at her caravan park. She meets her children and granddaughters regularly. She does not decline invitations for family events. She says that she still reads which she still enjoys. She says that she can focus on a book for ages if it interests her. She also enjoys watching TV and can focus for an hour or two. She says that her concentration is okay “at times”. She can complete chores. She can forget things sometimes but manages that by writing reminders.
She was in a long-term relationship at the time of the accident, which has since broken down. Prior to the accident, they were not intimate but “got on really well” as best friends. She says that they were “arguing a lot” over her cognitive difficulties related to the aneurysm. That intensified after the accident over financial issues, which led to the breakup of the relationship two weeks after the accident. She still speaks with her ex-partner every day. She manages her money independently and pays her bills on time.
She has bought a new car and drives in her local area. She moved to Darwin in August 2024, after she was medically cleared following the hysterectomy. She drove from New South Wales to Darwin, with her ex-partner driving with her in a separate vehicle. She could drive to new places, but says that she would try to avoid it as she does not like to change lanes. She avoided driving if she did not need to and in heavy traffic. However, she has been driving regularly since moving to the Northern Territory. She said she could use a train if needed.

Comments on consistency

There were minor inconsistencies noted in the presentation. For example, Ms Tanner at first denied any previous mental health issues (as she did with Medical Assessor Samuell) but then conceded a prior history after Ms Tanner’s account of her psychiatric history was put to her.
She said that she was taken off MS Contin cold turkey whereas the notes of Dr Yoonus suggest a gradual reduction in that medication and commencement of other medication (Gabapentin and then Targin).
The claimant said she was taking an antidepressant but, when pressed she could not remember the name of it. The most recent records before the Panel indicates the claimant had been prescribed two anti-depressants, Axit and Endep. She had told Dr Causley in 2024 she had been prescribed an anti-depressant but did not like it.
Ms Tanner spoke in simple lay terms about her various medical issues and mental health concerns. She had a lot of other stressors in her life which she openly disclosed and discussed. The claimant did not exaggerate her symptoms and in many of her answers gave responses that indicated she had minimal impairment (such as her ability to travel or her ability to concentrate on a book for hours). We formed the view that the claimant was doing her best throughout the re-examination to answer our questions.

Documentation

The medical evidence has been summarised elsewhere in these reasons. Of significance to the Medical Assessors are the following:
(a)    she was noted to have stress and insomnia on 29 May 2007. She was prescribed dothiepin 25 mg that day;
(b)    she was noted to be depressed on 27 September 2007;
(c)    her depression was noted to be stable on 23 May 2008;
(d)    her escitalopram 20 mg was stopped on 16 March 2009;
(e)    she was prescribed desvenlafaxine 50 mg on 17 April 2014. She was prescribed duloxetine 60 mg on 5 Jun 2017;
(f)    a fitness to drive medical assessment form dated 13 November 2017 noted that Ms Tanner had mental health issues which could impact safe driving. This condition was described as chronic depression, and it was stated that she was on medication for that;
(g)    duloxetine was stopped on 6 May 2019;
(h)    Zyban SR 150 mg one twice a day was prescribed in June 2021 and was ceased on 21 September 2022;
(i)    Endep was started on 25 August 2023 and increased in December 2023 when Axit was also added, and
(j)    no emotional symptoms were recorded in the notes from May 2019 until “low mood” was recorded on 14 December 2023.

CONSIDERATION OF THE ISSUES – THE PANEL

Causation

What is the test of “causation” of injuries?

Under s 3.11 and s 3.28, an injured person’s entitlement to statutory benefits beyond
52 weeks after the accident is determined by the claimant’s injuries “resulting from” the motor accident being threshold injuries.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance, Justice Walton set aside the decision of a Medical Review Panel in a “minor injury” dispute and a question of causation in respect of an amputated toe. At [40], his Honour said:
“The second defendant [The Panel] failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
The relevant Guidelines referred to by Justice Walton are the Motor Accident Guidelines, a single volume of nine parts governing all aspects of the motor accident scheme including premium determination, claims management (Part 4), permanent impairment (Part 6) and threshold injury (Part 5).
Justice Wright in the later decision of Briggs v IAG Limited t/as NRMA Insurance said:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to 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.”
In considering similar legislative provisions about causation in a case about entry into the Lifetime Care and Support scheme, Justice Beech-Jones in Insurance Australia v Milton said at [35]:
“Construed in context, the phrases “as a result of” and “due to” most likely correspond with the common law concept of causation.”
The Panel is not aware of any other cases suggesting a different test to the usual test of causation should be applied.
Therefore, in answering the statutory question about threshold injury, the Panel will consider the Guidelines relevant to WPI, and the twofold test of causation contained therein at cl 6.6:
(a) whether the accident could have caused or materially contributed to the claimant’s psychological or psychiatric injury, which is a medical judgment, and
(b) whether the accident did in fact cause or materially contribute to the claimant’s psychological or psychiatric injury, which is a factual or legal judgment.

Could the accident have caused or contributed to the injury?

The claimant has consistently described the accident as a forceful push from the side causing her car to go up on the two driver’s side wheels. She has consistently described damage to the passenger side of her vehicle.
The dashcam footage comes from a car behind the vehicle that was behind the claimant’s car. The claimant’s vehicle is small and hidden behind the vehicle that is immediately behind hers and therefore it is impossible for the Medical Assessors to determine whether it did go up on two wheels or not. There is no expert biomechanical evidence or accident reconstruction evidence on the mechanism of the accident. There are no photographs of the car to show it having been “opened up like a can opener” as the claimant once described it. But the claimant has consistently said her car was written off and the police report records the car was a write off.
Having viewed the dashcam footage, seeing the speed of the cars, hearing the audible exclamation from the driver of the car with the dashcam and having considered the claimant’s history, it is the Medical Assessors’ clinical judgment, that the particular circumstances of this accident could have caused or contributed to her psychological injury particularly in a vulnerable person such as the claimant with a history of chronic pain and previous mental health issues.

Did the accident cause or contribute to the injury?

The insurer has raised the issue of causation noting pre-accident mental health conditions and a lack of contemporaneous post-accident psychological evidence.
There is no doubt the claimant has had a number of stressors in her life before the accident and that she has suffered from depression, has sought treatment and been medicated during the course of her life. There is however no clinical note recording symptoms of depression or another psychiatric condition from 2019, leading up to the claimed injury. Ms Tanner was taken off anti-depressant medication on 6 May 2019, was recommenced on anti-depressants in June 2021 which were ceased in September 2022. The Panel notes the type of medication prescribed at this time was an anti-depressant but one which is also used as part of a regime for the cessation of smoking. There is no clinical note of depressive symptoms in the months before the accident. There are no symptoms of anxiety or post-traumatic stress recorded in the GP notes in the few years before the current accident.
Brereton J in Norrington v QBE Insurance (Australia) Limited [2021] NSWSC 548 said:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
There is no record in the GP notes of depression, anxiety or other post-traumatic symptoms until December 2023, a year after the accident. Ms Tanner says her emotional symptoms started after the subject accident. The subject accident was, to her, a significant stressor and she documents nightmares and sleep disturbance in her claim form completed soon after the accident.
The Panel is satisfied based on the claim form and her history, that the accident did cause or materially contribute to the development of the claimant’s mental health issues after the accident.

Diagnosis

It is the clinical judgment of the Medical Assessors that the claimant’s presentation after the accident is consistent with a diagnosis of posttraumatic stress disorder which is now in partial remission.
In terms of DSM-5-TR criteria:
(a)    Criterion A: The insurer suggests that the accident was less severe than what Ms Tanner describes. The Medical Assessors have viewed the footage and note Ms Tanner has been consistent in describing her experience of the accident as potentially life threatening and the dashcam footage does show her small vehicle being sideswiped at speed and with some force by a larger Utility vehicle. The panel considers that this fulfils criterion A as Ms Tanner was exposed to threatened serious injury by directly experiencing the traumatic event.
(b)    Criterion B: Presence of intrusion symptoms (only one is required) – the claimant reports at times since the accident, intrusive symptoms including nightmares flashbacks, distressing memories, and physiological reactivity from the time of the claim form to date.
(c)    Criterion C: Persistent avoidance of associated stimuli. The claimant has not avoided driving completely since the accident but describes an emotional response when she does, and avoidance of driving in certain situations, including in heavy traffic. Her capacity to drive has improved since the date of the accident permitting her to drive from the Hunter Valley to the Northern Territory on her own albeit with her former partner in another car.
(d)    Criterion D: Negative alternation in cognition and mood. Ms Tanner describes low mood, reduced interest in some activities, and diminished self-worth. Her mood appears to have improved in particular since she has permanently moved closer to her daughter and granddaughter, and she has been able to make friends in her new environment
(e)    Criterion E: Marked arousal and reactivity. There has been sleep disturbance, hypervigilance, and exaggerated startle response. While the clinical records suggest the presence of sleep disturbance before the accident and some sleep disturbance after the accident due to pain, the claimant also reported nightmares in relation to re-experiencing the accident.
(f)    Criterion F: Duration: Her symptoms have persisted since December 2022 although they have improved with time.
(g)    Criterion G: She describes clinically significant distress from the impact of the symptoms particularly in the first year after the accident.
(h)    Criterion H: There is no evidence of substance misuse or another cause for her symptoms.
It is the clinical judgment of the Medical Assessors that Ms Tanner’s symptoms were, in the early period after the accident, consistent with the full DSM 5 criteria for Post-Traumatic Stress Disorder. While she has shown improvement, particularly in mood and day-to-day functioning, she continues to experience some persistent symptoms of the disorder, including flashbacks, sleep disturbance, and anxiety while driving. Her presentation is therefore best described as posttraumatic stress disorder in partial remission.

CONCLUSION

In a dispute about whole person impairment (WPI), a medical assessor or a Panel is assessing the degree of the impairment resulting from injuries caused by the accident and is required to undertake an assessment as the claimant presents on the day[26]. In a threshold injury dispute, a medical assessor or a Panel is determining on the day of the assessment, whether the injury sustained by the claimant in the accident was a threshold or non-threshold injury and for that reason the focus is not just on how the claimant presents at the time of the re-examination but requires analysis of the injury sustained at the time of the accident and how it has manifested over time.
[26] Clause 6.21 of the Guidelines
In David v Allianz Australia Insurance Ltd[27], at [84 – 105] the Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” The Panel found at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time after the accident, the injured person falls outside the definition of ‘minor (now threshold) injury’. David was cited in the recent judicial review proceedings of Allianz Australia Insurance Limited v Susak[28]. While there appears to have been no argument in Susak about the correctness or otherwise of David, the premise that radiculopathy at one time satisfies a finding of non-threshold injury formed the basis of Acting Justice Griffiths’ decision.
[27] [2021] NSWPICMP 227.
[28] [2024] NSWSC 1359 (Susak)
In Lynch v AAI Limited t/as AAMI 2022 NSWPICMP 6, the Medical Panel there considered the same issue in respect of a psychiatric injury. At [68-69] the Panel concluded that Ms Lynch suffered from a Specific Phobia of Driving which is a non-minor injury. She was also found to suffer from a major depressive disorder which was in remission, but which was diagnosed in 2020. This was also non-minor. After citing David, and considering cl 5.10 -5.11 where the word “present” is required for a psychiatric injury, the panel said at [72]:
“That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
The Panel agrees with the reasoning of the Panel in Lynch.
The Medical Assessors have diagnosed a post-traumatic stress disorder in partial remission. A post-traumatic stress disorder is a psychiatric disorder recognised by the DSM-5-TR. This is not a disorder specified in the Regulation. It is therefore a non-threshold injury. While it may be in partial remission, some symptoms from it persist which impact and impair the claimant’s functioning to a mild degree.
It is the Panel’s view that the claimant did sustain a non-threshold psychiatric or psychological injury as a result of the accident. It therefore follows that the certificate of Medical Assessor Samuell should be confirmed.

[2025] NSWPICMP 594

11 August 2025