QBE Insurance (Australia) Limited v Ye
[2025] NSWPICMP 797
•16 October 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Ye [2025] NSWPICMP 797 |
| CLAIMANT: | Zhong He YE |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Steven Yeates |
| MEDICAL ASSESSOR: | Alan Doris |
| DATE OF DECISION: | 16 October 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) psychiatric by Medical Assessor (MA); claimant injured in motor vehicle accident; MA determined the claimant’s permanent impairment was 15%; the insurer sought a review of the assessment under section 7.26; the Review Panel re-examined the claimant; Held – Review Panel revoked certificate of MA; substituted determination of 5% WPI. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Medical Review Panel revokes the certificate of Medical Assessor Gerard Walsh of 3 July 2024 and substitutes the determination that the psychological injury sustained as a result of the accident gave rise to a whole person impairment of 5%. |
STATEMENT OF REASONS
INTRODUCTION
On 10 June 2021, the claimant, Zhong He Ye (Mr Ye), was involved in a motor vehicle accident (the accident) and has alleged that as a result of that accident he has, amongst other injuries, sustained psychological injury.
It is the alleged consequences of the psychological injury which is the subject of this Review.
The compulsory third party insurer is QBE Insurance (Australia) Limited (the insurer).
The insurer indemnifies the owner and/or the driver of the vehicle at fault for liability to pay to Mr Ye any damages under the Motor Accident Injuries Act 2017 (the Act).
On 5 January 2025, the insurer issued a liability notice accepting liability for the payment of statutory benefits past 26 weeks after the accident having determined
Mr Ye had a non-minor injury sustained as a result of the accident.
Liability Notice – Claim for damages
On 25 January 2023, the insurer referred to Mr Ye’s claim for damages lodged on
5 December 2022 and conceded that as Mr Ye had sustained an injury which was not minor for the purposes of the Act, he was entitled to bring a claim for damages.While the insurer has conceded liability for the payment of any damages, it does not concede that as a result of the accident, Mr Ye sustained whole person impairment (WPI) in excess of 10%.
Accordingly, there is a dispute between the parties about the degree of permanent impairment.
THE REVIEW
The Panel is to conduct the Review in accordance with s 7.26 of the Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) of the Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from
10 November 2023, apply to the Review.
STATUTORY PROVISIONS
Permanent impairment
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’, found in cls [6.201]-[6.228] of the Guidelines.
Pre-existing impairment
Pre-existing impairment is addressed in cls 6.31-6.33 as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders” within the Guidelines, namely cls [6.201]-[6.228] of the Guidelines.
In order to measure impairment caused by a specific event, a Medical Assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in the Guidelines, and subtract this value from the current impairment rating: cl 6.218.
Causation
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.’
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
DOCUMENTS PRODUCED
The parties produced the following documents to Pathways:
Claimant
(a) submissions dated 15 September 2023;
(b) submissions dated 31 July 2024;
(c) Application for Personal Injury Benefits;
(d) Liability notices for benefits and for claim of damages;
(e) correspondence with McInnes Wilson;
(f) clinical notes of Dr Angela Lam dated 19 May 2023;
(g) clinical notes of Professor Peter Papantoniou dated 18 April 2023;
(h) certificates of capacity;
(i) clinical notes of Winnie Liang dated 2 May 2023, and
(j) clinical notes of Dr Jung Sook Kim dated 4 May 2023.
Insurer
(a) joint report of Dr T Antoun and Dr A Nagesh of 3 February 2024;
(b) submissions dated 9 October 2023;
(c) submissions dated 23 July 2024;
(d) certificate of Medical Assessor Gerard Walsh dated 27 June 2024, and
(e) report of Dr John Bosanquet dated 15 May 2023.
EVIDENCE AVAILABLE TO THE REVIEW PANEL
Medical Assessor Walsh summarised the following material:
Joint report of Dr Nagesh and Dr Antoun of 3 February 2024
“Injury history: It was noted that ambulance and police were not called. There was no loss of consciousness, and he was able to self-extricate.
Diagnosis: Adjustment disorder. PTSD was ruled out as the subject MVA was not severe enough to satisfy Criterion A.
Treatment: At the time of this assessment, no prescribed medications were documented.”
Report of Dr John Bosanquet, orthopaedic surgeon, of 15 May 2023
“Injury history: The Claimant was involved as a driver in a motor vehicle accident on 10 June 2021. He was wearing a seatbelt and driving a Toyota Camry. He was at traffic lights and stationery. He was hit from behind by another sedan and pushed into the vehicle in front. The car that caused the collision left the scene quickly. The Fire Brigade and Police attended. He was able to drive the vehicle home. It was then towed away and later written off. He saw his local GP the next day.
Employment: He would be capable of office work with his pre-existing degenerative changes and should avoid heavy lifting, kneeling, squatting, climbing stairs and ladders. He could return to pre-accident employment; however, the pre-existing degenerative changes may cause restrictions.
Impairment: He was living in a unit with his two children. He drove his children to school, did the shopping, cooking and cleaning. His friends helped with heavy shopping. It was noted, “He is obviously independent in his self-care”. WPI for the cervical spine was 5%, lumbar was 5%, and both knees 2%. Overall, there was no whole-person impairment.”
Clinical records of Dr Jung Sook Kim, Psychologist, from 21 June 2022 to 28 April 2023
“Injury history: The brief history was in keeping with previous accounts.
Symptoms: He developed depression and anxiety, sleeping difficulties, concentration difficulties, recurrent thoughts of the accident, persistent headaches and dizziness, flashbacks of the accident, and only being able to drive short distances. He reported nightmares, avoidance, social withdrawal, and poor concentration and memory. On 07/03/2023, it was noted that he was more relaxed and that psychological symptoms had ‘somewhat’ improved.
Diagnosis: Depression, Symptoms of PTSD, Car phobia.
Impairment: It was noted that there were reduced driving hours and reduced household chores, he stopped recreational and social activities and was rarely interacting with his friends. On 07/03/2023, it was noted that the Claimant made a trip to visit his family in China and that he returned relaxed.”
Clinical records of Dr Angela Lam
“Symptoms: Symptoms of depressed mood, feeling anxious, and disturbed sleep were only mentioned without further information provided. There were no mental state examinations. On 16/05/2022, a worsening of mood with irritability was noted but not described further.
Treatment: There were never prescribed psychotropic medications during the period of these clinical records. No reason for this was documented.”
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, Mr Ye was referred to Medical Assessor Gerard Walsh for assessment of a psychiatric condition, being post-traumatic stress disorder.
The injury which was referred to Medical Assessor Walsh was:
“Psychiatric condition – psychological trauma (‘psych trauma’ as in the referral information).”
Medical Assessor Walsh took a pre-accident history at [8], noting that Mr Ye was single, at the time of the examination aged 61, and the main carer of a then 15-year old-son and an 8-year-old daughter. He told the Medical Assessor that he never had any problems with mood. He said that the last time his mood was good was before the accident, and it had not improved in the years since. He used to enjoy football, running, and cycling, had friends and used to go out with them two to three times per week. He last worked in 2019.
He had returned to China and was there between 2004 and 2019 so his children could study there.
He then took a history of the motor accident at [9], noting that he was driving whilst wearing a seatbelt. He came to an intersection and stopped behind another stationary vehicle at the traffic lights. Suddenly, a vehicle hit him from behind. The impact caused his car to move forward and impact the vehicle in front. Mr Ye documented that the car behind then did a U-turn and left the scene. He reported that he had an injury to his neck, back, shoulders and wrists and sustained a psychological injury. The Fire Brigade and police attended. He was able to drive the vehicle home. The car was then towed away and later written off. He saw his local general practitioner (GP) the next day.
Medical Assessor Walsh then set out the history of symptoms and treatment following the accident at [10], noting that Mr Ye alleged physical injuries in his back, and neck, and experienced pain. He said he did not go to the hospital, his car was towed away, and the tow truck driver dropped him home. He then said he began having intrusive, distressing thoughts immediately after the accident. He said he experienced anxiety symptoms when having those thoughts. Mr Ye said he was fearful of driving, thinking that there was going to be another crash and that after the accident, he began experiencing nightmares about the accident. He stated that he had poor concentration and lost enjoyment in previous activities. He became more isolated as he did not want to engage with others. He said his GP referred him to see a psychologist about six months after the accident because his mental state was not improving.
Medical Assessor Walsh set out Mr Ye’s current symptoms at [12] which include:
Mood Symptoms:
Mood – He said that his mood has been low since the accident. Appetite - He reported a normal appetite.
Sleep – He said his sleep was poor. He wakes up during the night. He experiences nightmares about the accident once every week. He wakens in a panic, sweating and hot. He said he never had problems with his sleep before the accident.
Concentration – He said his concentration was poor and he could only sustain his concentration for 20 minutes. He said he becomes distracted and loses focus. He said his memory is poor and he misplaces items.
Suicidal – He said that he has never had suicidal thoughts.
Anxiety Symptoms:
Frequency – He said anxiety episodes occur once or twice every two days and can last for a few minutes.
Triggers – He stated that anxiety episodes were triggered by memories of the accident or a car driving behind him. It is also caused by pain in his head and neck. The Claimant reported that symptoms of anxiety include increased heart rate, sweating, shaking, choking, chest discomfort, feeling faint, fear of losing control, and dying. He said he never experienced anxiety symptoms before the accident.
Trauma Symptoms:
Intrusive thoughts – He said he thinks about the accident once every 2 days. They last for a few minutes.
Dreams – He reported experiencing nightmares about the accident as already described.
Flashbacks – He did not experience flashbacks.
Psychological distress – He reported that these thoughts cause him distress.
Physiological distress – Physiological anxiety symptoms experienced when exposed to triggers of the injury are described in the anxiety section above.
Avoidance of thoughts – He said he tries to avoid thinking about the accident. Every time he passes the accident site it brings back memories of it. He said he cannot avoid going past it because it is close to his home.
Distorted cognitions – He fears that all cars are going to crash into the back of him. He said he thinks that he has bad luck because of the accident.
Diminished interest – He said he lacks interest in previous activities.
Detachment – He feels attached emotionally to his family.
No positive emotions – He reported that he does not have any positive emotions.
Irritable – He said he was more irritable towards his children once a week.
Reckless – He said there was no recklessness.
Hypervigilance – He said he is hypervigilant when driving, and fearful about another accident. He worries when there is a knock on the door.
Startle – He talked about being startled by cars passing by his house.
Concentration - He said his concentration was poor and he could only sustain his concentration for 20 minutes. He said he becomes distracted and loses focus. He said his memory is poor and he misplaces items.
Sleep - He said his sleep was poor. He wakes up during the night. He experiences nightmares about the accident once every week. He wakens in a panic, sweating and hot.
The Medical Assessor proceeded to set out current and proposed treatment at [13], noting that Mr Ye said he had not taken any medications for his mental health before. He did not think he had any symptoms warranting medications and then said he thought medications would make him worse. The Medical Assessor also noted Mr Ye was not undertaking psychological treatment. He started psychology weekly sessions six months after the accident. He said his last session was around seven months ago because there were too many assessments. He also states that he sees a GP once a month and does physiotherapy.
Medical Assessor Walsh undertook a mental state examination at [14]-[16] which is provided below:
“Current living situation:
The Claimant lives with his 15-year-old son and his 8-year-old daughter.
Self-care and personal hygiene:
He said that he could wash and dress himself without prompting. He said that he does all the cooking every day. He does the household chores and does the shopping twice a week. He said he now asks his son to help more because he has less energy and mentally needs more support. Before the accident, he did all of the household chores.
Social and recreational activities:
He said he used to enjoy playing football and used to exercise by running and cycling with his son. He said nowadays, he walks around his house for approximately 10 minutes every day. He has not played football, running and cycling since the accident because of the physical effects on his knees from the accident.
Travel:
Before the accident, he said he used to drive anywhere without any problems. He said that since the accident, he worries about cars driving behind him and constantly checks his rearview mirror. At roundabouts, he waits for all the other vehicles to pass through before he can enter the roundabout.
Social functioning:
He said that he used to have around a dozen friends. He said he used to go out with friends 2 to 3 times a week. He said that he goes out with friends every 3 weeks. He said he did not want to talk to people after the accident and lacked the motivation to contact them. He said he has 2 brothers who live in China and speaks to them on the telephone every 2 to 3 weeks. His mother is in a nursing home following a stroke and she cannot communicate. His father died in 2017. He did not know the cause of death except to say it was due to ‘illness and old age’.
Concentration persistence and pace:
He never had any problems with his concentration before the accident. He said his concentration was poor and he could only sustain his concentration for 20 minutes. He said he becomes distracted and loses focus. He said his memory is poor after the accident and he misplaces items.
Employability:
He said he is not working because of is the main carer for his children. He does not do any volunteer work. He last worked in 2019. He previously worked full-time.”
Medical Assessor Walsh diagnosed a post-traumatic stress disorder. The circumstances of the accident were sufficient enough to meet Criterion A, given that his car was written off. He also had sufficient symptoms sufficient enough to meet Criterion B to E, with sufficient duration longer than a month causing significant distress and impairment.
Medical Assessor Walsh considered that there was a plausible mechanism of injury from the circumstances of the accident and the development of post-traumatic stress disorder.
His formal diagnosis was post-traumatic stress disorder.
Medical Assessor Walsh assigned a Class 3 for Travel because Mr Ye was excessively anxious when driving, particularly with roundabouts where he now must wait for all cars to pass through before he can enter.
The Medical Assessor assigned Class 3 for Concentration, Persistence, and Pace, due to his reduced concentration and memory.
He assigned a Class 4 for Adaptation because Mr Ye said he is not working because of is the main carer for his children. He does not do any volunteer work.
The WPI score was 15%. There was 0% for pre-existing impairment.
SUBMISSIONS
Submissions of the claimant dated 15 September 2023
The Panel notes that the submissions of Mr Ye of 15 September 2023 relate to both physical injuries and psychiatric injuries. For the purposes of this summary, the Panel only refers to the submissions regarding the psychiatric injury which are set out at below:
[1]-[2] Mr Ye notes the issue is whether permanent impairment from the accident injury exceeds 10% and submits his degree of impairment is greater than 10%.
[3]-[4] Mr Ye submits the insurer advised on 17 May 2023 that impairment does not exceed 10%. He notes that he asked the insurer if
Dr Bosanquet had evidence of pre-existing conditions but received no reply.[5] Mr Ye submits the insurer did not concede a WPI of greater than 10% and allowed him to proceed to the Commission.
[9]-[10] Mr Ye submits Dr Kim recorded psychological symptoms including car phobia, anxiety, and fear of another accident. He lists his ongoing disabilities which include pain, movement restriction, difficulty with chores, work incapacity, lifting limits, reduced social activities, headaches, insomnia, fatigue, nausea, sitting/standing limits, reaching restrictions, sleep disturbance, depression, and interference with daily living.
[11]-[13] Mr Ye submits all physical and psychological injuries are a result from the accident. He submits he had full work capacity before the accident and that he continues to suffer all listed injuries, as shown in recent certificates of capacity.
[14]-[15] Mr Ye submits his WPI, physical and/or psychological, is greater than 10%. He further submits QBE itself recognises he has a non-threshold injury.
Submissions of the insurer dated 9 October 2023
The Panel notes that the submissions of the insurer of 9 October 2023 relate to both physical injuries and psychiatric injuries. For the purposes of this summary, the Panel only refers to the submissions regarding the psychiatric injury which are set out at [28]:
[28] “… any psychological symptoms suffered by the claimant are unrelated to the subject motor vehicle accident.”
[29] “If any psychological symptoms are deemed to be related to the subject accident, the insurer submits that this does not result in a psychiatric diagnosis which gives rise to a permanent impairment which exceeds 10%.”
[30] “Any psychological injury deemed to have been caused by the accident is submitted to have not resulted in any permanent impairment.”
Submissions of the insurer dated 23 July 2024
The Panel briefly summarises the submissions of the insurer dated 23 July 2024 by reference to paragraph numbers:
[4]-[5] The insurer submits the Medical Assessor incorrectly applied the PIRS in relation to Adaptation and that this constitutes a material error.
[6]-[8] The insurer submits the Medical Assessor allocated Class 4 for Adaptation because Mr Ye is not working because he is the main carer for his children and has not worked since 2019. The insurer, referring to the PIRS, submits Class 4 indicates a severe impairment, but this was wrongly applied. The insurer submits the Medical Assessor relied on Mr Ye’s history, being the primary carer for his children, without assessing his actual impairment.
[9]-[11] The insurer refers to cl 6.221 of the Guidelines, requiring Adaptation to be assessed by reference to pre-injury roles such as caring, finances, household tasks, or study. The insurer further refers to Guidance Note No 7, which similarly requires consideration of pre-injury roles and how they have changed due to psychiatric injury. The insurer submits Mr Ye’s pre-injury role was caring for his children, and this should have been the relevant reference point.
[12]-[13] The insurer submits the Medical Assessor erred by assessing Adaptation as though Mr Ye was employed pre-accident, instead of his pre-injury role of caring for others. The insurer further submits the Assessor did not explain how Mr Ye’s caring role changed post-accident, given he still looks after his children.
[14]-[15] The insurer submits Mr Ye was not working at the accident date because of carer responsibilities, not psychiatric injury, and that the matter should be referred to a Review Panel to determine the effect of psychiatric injury on his caring role.
[16] The insurer submits the Medical Assessor wrongly assessed social and familial circumstances instead of psychiatric impairment, contrary to the purpose of PIRS.
[17]-[18] The insurer notes the accident occurred in 2021, but Mr Ye ceased employment in 2019, two years earlier. The insurer submits the Medical Assessor did not comment on Mr Ye’s capacity for employment, despite medical evidence (Dr Bosanquet, Dr Nagesh, Dr Antoun) showing he retained full-time functional ability and capacity to return to work.
[19]-[20] The insurer submits the Medical Assessor failed to justify Class 4 when objective and subjective evidence contradicted it, amounting to misapplication or failure to explain reasoning, relying on the decision in Wingfoot. The insurer submits the correct classification was Class 1, as Mr Ye’s duties and functional capacity remain the same as pre-accident.
[21] The insurer submits that without this error, WPI would have been below 10%, making the error material in effect.
Submissions of the claimant dated 31 July 2024
The Panel provides the relevant sections of the reply submissions of Mr Ye dated
31 July 2024 below:“[7] The claimant firstly submits that the insurer is incorrect; and the President should not accept the insurer’s submission that the PIRS class allocated for “Adaptation” is incorrect.
[8] PIRS assessment is conducted by qualified independent medical assessors and/or PIC Medical Assessors.
[9] The insurer does not hold the qualifications, skills and expertise to exercise the functions of making an assessment.
[10] The insurer is not a properly trained medical assessor.
[11] To assert and to accept the insurer’s PIRS assessment is in breach of legislation and Motor Accident Guidelines (the Guidelines).
[12] The claimant submits that the submissions made by the insurer is based on their own medical opinion and application of facts.
[13] The insurer has only provided submissions relating to the inappropriate allocation of class scaling which is a medical opinion and not a jurisdictional error.
[14] The insurer has submitted that the claimant was carer of his children at the time of the motor accident and based on the clause 6.221 of the Guidelines, he should be assessed in context of caring for others.
[15] The claimant submits the insurer has incorrectly interpreted clause 6.221.
[16] Clause 6.221 of the Guidelines states:
6.221 Where adaptation cannot be assessed by reference to work or a work-like setting, consideration must be given to the injured person's usual pre-injury roles and functions such as caring for others, housekeeping, managing personal/family finances, voluntary work, education/study or the discharge of other obligations and responsibilities.
[17] It is submitted that the claimant could be assessed by reference to work or a work like setting as he was prior to the accident capable or working and had done so. The Medical Assessor had identified throughout his Certificate that the claimant was capable of working prior to the accident and had done so, by working for his brother’s company up until he returned to Australia; and last worked in 2019 and previously worked full-time. 3
[18] The insurer is incorrect to alleged that the Medical Assessor was only required to consider the claimant’s “Adaptation” in the context of caring for others.
[19] The President’s Delegate should be capable of finding that the Medical Assessor had taken consideration of all issues with respects to the classification of “Adaptation”. The insurer has ignored the finding that the claimant’s work or work like setting has been affected.
[20] Whilst the insurer submits the claimant was not working at the time of the accident, this was taken into full consideration by the Medical Assessor having mentioned this throughout his Certificate.
[21] It is submitted that the claimant does not need to be working for him to be assessed under Adaptation.
[22] Clause 6.217 of the Guidelines states: -
6.217 The scale must be used by a properly trained medical assessor. The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience.
[23] It is submitted that the PIC Medical Assessor has correctly applied clause 6.217 by using his clinical judgement to apply the correct scaling.
[24] The Medical Assessor has gone so far as identifying that he allocated Class 4 and not Class 3 in his reasoning at page 15: -
‘Class 4 and not Class 3 was selected because he has chosen not to work to be the main carer for his children. However, he would likely be only able to work at a reduced pace. He said he is not working because of is the main carer for his children. He does not do any volunteer work. He last worked in 2019. He previously worked full time.’
[25] In addition to the above, the Medical Assessor has also stated the following in his Certificate in support of his assessment and allocation of class: -
At page 3:
‘Work history including previous work history if relevant: He arrived in Australia in 1989 and worked as a cook in various kitchens. He was working as a chef until 1997. He said he returned to China from 2004 to 2019 for his children to study there. Whilst there, he worked in his brother’s company.’
At page 6:
‘Employability: He said he is not working because of is the main carer for his children. He does not do any volunteer work. He last worked in 2019. He previously worked full-time.’
[26] It is clear that the Medical Assessor has on numerous occasions addressed the claimant’s ‘Adaptation’ criteria in considering both settings of the claimant’s work or a work-like setting and usual pre-injury roles and functions such as caring for others when undergoing his assessment.
[27] Clause 6.210 of the Motor Accident Guidelines states: -
6.210 Adaptation (also called deterioration or de-compensation in work or worklike settings) refers to the repeated failure to adapt to stressful circumstances.
[28] It is submitted that the Medical Assessor had considered the claimant’s deterioration or de-compensation in work or work-like settings as explained above.
[29] Lastly, clause 6.220 states:
- 6.220 Impairment in each area of function is rated using class descriptors. Classes range from 1 to 5 according to severity. The standard form (Figure 6.2) must be used when scoring the PIRS. The classes in each area of function are described through the use of common examples. These are intended to be illustrative rather than literal criteria. The medical assessor should obtain a history of the injured person's pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The medical assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors.
[30] It is clear that the insurer’s submissions has taken the literal criteria of the Guidelines which is incorrect.
[31] It is submitted the Medical Assessor was correct in applying an illustrative approach having considered all aspects of the claimant’s circumstances (i.e work life and caring for children).
[32] The insurer is incorrect to take the literal approach in submitting the claimant was not working at the time of the accident and therefore the assessment must only consider the caring of children when determining “Adaptation”.”
RE-EXAMINATION BY THE PANEL
The Medical Review Panel Members, Medical Assessor Steven Yeates and Medical Assessor Alan Doris assessed Mr Ye for the Panel via audio/visual link which took place at 11.00am on 17 July 2025. Their report is set out below:
“Family History
Mr Ye was born and brought up in China. He grew up with his parents and two brothers. His father died in 2018 and his mother in March 2025. He maintains contact with his brothers and visited them in China for five weeks from early May 2025. Mr Ye denied knowledge of any family history of serious mental health problems including addictions in his family including extended family.”
Personal History
Mr Ye described his upbringing as normal and he attended school in China until year 11. He denied any difficulties with the social aspects of school. He denied having any serious health problems during his childhood or adolescence.
After leaving school Mr Ye commenced work in restaurants and trained to be a chef. This has been his principal occupation. Mr Ye married in 1997 and has one daughter from this marriage who is now aged 24. The marriage ended in divorce in 2003. He has had one other long term partnership though has not married again. His partner lives in China and they spend time together when Mr Ye is in China where he has spent prolonged periods over the last 25 years. He has mostly resided in Sydney since 2019. He has two children from this relationship who are now aged 16 and 9 years.
Mr Ye currently lives with his 16-year-old son and younger daughter. He has been a solo parent to his children since 2019 and has not worked outside of the home. His older daughter lives with her mother in China. He has some friends in Australia. Mr Ye did not want to answer when asked about any other important people in his life in Australia currently.”
Past Medical and Psychiatric History
Mr Ye denied having any serious physical health problems before the motor accident. Mr Ye denied ever consulting with a health professional about a mental health problem before the motor accident. Mr Ye denied smoking. He denied drinking alcohol to excess or using illicit substances. Mr Ye said that he does not like to take pain killing medication. He is not prescribed any medication for a mental health problem.
Pre-accident Functioning
Mr Ye said that before the motor accident he lived with his son and looked after him. His son attended mainstream school in Sydney. Mr Ye would take his son to school or other activities. Mr Ye would occasionally do things with his son such as kick a football around or play basketball. Mr Ye would meet with friends occasionally for yum cha, coffee or dinner, and estimated this would be every two weeks. He sometimes went for a walk or jog. He said that he had no particular difficulty in any of the functions of everyday life.
History of the Accident
The motor accident occurred on 10 June 2021. Mr Ye said that he was stationary at traffic lights. He was driving with his son as a passenger. A car ran into his vehicle from behind pushing his car into the vehicle in front. He recalls feeling dizzy and shocked as the impact was unexpected. He was able to get out of the car and speak to passersby who had witnessed the incident. The offending vehicle had turned and left the scene. Police and Fire Service attended. Mr Ye did not feel immediately injured and was pleased that his son appeared uninjured.
History of Symptoms and Treatment following the Accident
The day after the motor accident Mr Ye developed pain in her head and neck and consulted with his doctor. He commenced physiotherapy. He experienced anxiety and recalls feeling shocked and scared. His confidence when driving was reduced. He was more irritable than normal. Mr Ye developed difficulties with his sleep and he experienced nightmares. Due to the persistence of his psychological symptoms, he was referred for psychological treatment with Dr Jung Sook Kim.
Mr Ye continued to have problems with musculoskeletal pain in his neck and problems with his knees. He was referred to an orthopaedic surgeon and had arthroscopic surgery on his knees in April and August 2022.
There have been no further accidents or conditions since the motor accident.
Current Symptoms
Mr Ye described persistent anxiety when driving with hypervigilance for threat from other vehicles. Mr Ye limits his driving to approximately 20 minutes before pulling over and resting due to anxiety and reduced concentration.
He has persistent irritability which is exacerbated by his ongoing problems with pain in his neck and head. Mr Ye described his mood as low at times with low levels of energy.
He continues to experience some disruption to his sleep which he attributed to the effect of pain and nightmares relating to the motor accident which continue to occur occasionally. He has occasional intrusive reminders of the motor accident which are unpleasant despite not wanting to think about the event. He experiences occasional dizziness.
Mr Ye identified providing care to his son as a positive thing in his life. He gets enjoyment from cooking for his children and going with them to a local park where he will watch them play. Mr Ye enjoys reading novels in the genre of Chinese martial arts and may spend time during the day doing this. He also reads material on his phone.
Current and Proposed Treatment
Mr Ye is not currently receiving any treatment for a mental health problem. He stopped psychological treatment approximately one year ago.
Mental State Examination
Mr Ye joined the videoconference on the Teams platform from his home in Sydney. Cantonese translator Kim Aquilina (35832) assisted with the interview throughout. Mr Ye was clean-shaven and casually dressed, wearing a baseball cap, bomber jacket and jeans. There were no abnormal movements or behaviours. Mr Ye communicated effectively via the translator and gave comprehensive information in response to questions. His affect was lacking in variability and conveyed irritation at times. His mood was moderately low, both objectively and subjectively, with some irritability. He was future-focused. His thought form was normal. There was no evidence of abnormal beliefs, including delusions, and no abnormal perceptions. Thought content revealed beliefs that the insurer had unfairly treated him. Mr Ye was fully alert and orientated at interview. He attended well during a lengthy interview. His recall of events was in keeping with information in documents provided.
Current Functioning
Mr Ye is able to adequately care of his daily needs and personal hygiene. He looks after his two children including cooking for himself and them daily. Mr Ye will take his children to a local park and watch them play. He tends not to actively engage with other parents who may be present. He continues to meet occasionally with his friends, though less often than before the motor accident.
Mr Ye is able to driver on his own in familiar areas. He experiences anxiety when driving and so avoids driving for prolonged periods.
Mr Ye maintains relationships with his family and the mother of his children in China. He recently travelled to China to visit family. He has good relationships with his children. He has reduced contact with friends compared to before the motor accident.
Consistency of Presentation
Mr Ye has generally presented consistently to different assessors.
Diagnosis and Reasons
Mr Ye developed post-traumatic stress disorder (PTSD) due to the motor accident.
Copied below are the DSM 5 TR diagnostic criteria for this disorder and indication of Mr Ye’s relevant symptoms.
Diagnostic Criteria – Post-traumatic Stress Disorder in Individuals Older Than 6 Years
Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition Text Revision DSM-5-TR, American Psychiatric Association,
A: Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
[1] Directly experiencing the traumatic event(s).
44.The motor accident experienced by Mr Ye with his son as a passenger was severe. His car was written off and he was fearful of serious injury for himself and his son.
[2] Witnessing, in person, the event(s) as it occurred to others.
[3] Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
[4] Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
B: Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
[1] Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
Mr Ye has intrusive and distressing memories of the motor accident.
[2] Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
Mr Ye has nightmares relating to the motor accident.
[3] Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
[4] Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
[5] Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C: Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
[1] Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
Mr Ye avoids talking about the incident if he can. Reminders of the accident cause distress.
[2] Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D: Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
[1] Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
[2] Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., ‘I am bad,’ ‘No one can be trusted,’ ‘The world is completely dangerous,’ ‘My whole nervous system is permanently ruined’).
[3] Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
[4] Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
Mr Ye has persistent irritability, low mood, and anger with respect to the insurer’s management of his claim.
[5] Markedly diminished interest or participation in significant activities.
Mr Ye has a reduced interest and participation in social activities with friends he previously enjoyed.
[6] Feelings of detachment or estrangement from others.
[7] Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E: Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
[1] Irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
Mr Ye has persistent irritability, and this can impact his relationship with his children.
[2] Reckless or self-destructive behaviour.
[3] Hypervigilance.
Mr Ye has hypervigilance for threat when driving.
[4] Exaggerated startle response.
[5] Problems with concentration.
Mr Ye has some reduction in the length of time he can concentrate.
[6] Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
Mr Ye has sleep disturbed by nightmares.
F: Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
The disturbance has been for approximately four years.
G: The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Mr Ye has impairment in his social functioning.
H: The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
There is no evidence that the disturbance is attributable to these factors.
Causation and Reasons
Mr Ye has no history of mental health problems before the motor accident.
Mr Ye was stationary at traffic lights, having picked his son up after a tutoring session. His car was struck forcefully from behind by another vehicle pushing Mr Ye’s car into the one in front. The offending vehicle immediately left the scene. Police and the Fire Service attended.
The following day Mr Ye developed musculoskeletal pain and psychological symptoms consistent with acute trauma. Despite treatment, Mr Ye has continued to have a range of psychological symptoms not present before the motor accident and relating to the motor accident, which are best categorically diagnosed as post-traumatic stress disorder (PTSD).
There have been no subsequent injuries or relevant conditions.
Permanency of Impairment
Mr Ye’s condition is stable and unlikely to change substantially and by more than 3% in the next year with or without medical treatment.
Psychiatric Impairment Rating Scale
| Name | Zhong He Ye | Claim Reference Number | M21031/23 |
| D.O.B. | - | Age at time of injury | 58 |
| Date of Injury | 10 June 2021 | Occupation before injury | Homemaker |
| Date of Assessment | 17 July 2025 | Marital Status before injury | Separated |
| Psychiatric Diagnosis | 1. Post traumatic stress disorder | 2. | |
| 3. | 4. | ||
| Psychiatric Treatment | Nil | ||
| Has Maximal Medical Improvement Been Reached? | Yes | ||
| Is Impairment Permanent? | Yes | ||
| Category | Class | Reason for decision | |
| Self-care and Personal Hygiene | 1 | Mr Ye is able to adequately care for his daily needs and personal hygiene. He looks after his two children including cooking for himself and them daily. His appearance at interview was neat and appropriate to the situation. | |
| Social and Recreational Activities | 2 | Mr Ye will take his children to a local park and watch them play. He tends not to actively engage with other parents who may be present. He continues to meet occasionally with his friends, though less often than before the motor accident. He is able to go out without a support person. | |
| Travel | 2 | Mr Ye is able to drive on his own in familiar areas. He experiences anxiety when driving and so avoids driving for prolonged periods. He recently travelled to China to visit family. | |
| Social Functioning | 2 | Mr Ye maintains relationships with his family and the mother of his children in China and visits occasionally. He has good relationships with his children. He has reduced contact with friends compared to before the motor accident. | |
| Concentration, Persistence and Pace | 2 | Mr Ye describes some reduction in concentration when doing tasks such as driving due to increased anxiety. He is able to read novels and gave the example of Chinese martial arts novels which he enjoys. He can focus on an intellectually demanding task for up to 30 minutes and then feels fatigued and will rest. | |
| Adaptation | 1 | Mr Ye is not working outside of his home. He looks after his 16 year old son and 9 year old daughter as a solo parent. He cooks, cleans and assists them in attending school, tutoring, and social interests. Mr Ye’s current adaptive functioning is consistent with his pre-accident functioning. There was no change in functioning that could be identified nor was Mr Ye’s functioning outside the normal range of the population. | |
List Classes in Ascending Order Median Class Value
| 1 | 1 | 2 | 2 | 2 | 2 | 2 |
Aggregate Score Total imp %
| 1 | 2 | 2 | 2 | 2 | 1 | 10 | 5% |
Pre-existing Impairment (If yes, determine % as above) Median Class Value
| nil |
Aggregate Score Total imp %
| nil |
Final % WPI
| 5% |
Apportionment – pre-existing/subsequent impairment
There is no evidence of a pre-existing or subsequent impairment, and so no apportionment.
Effects of treatment
There has been no significant effect of treatment.
Degree of permanent impairment caused by the motor accident
Mr Ye has a 5% impairment due to the psychological injury sustained in the motor accident.”
How the panel dealt with the submissions
There was a further meeting of the Panel on 31 July 2025 at 4.00pm when the Panel had a full discussion of the issues.
The Panel considered the submissions made on behalf of the claimant in respect of adaptation and did not consider it appropriate to adopt the approach of the assessment under review. The Panel considered that the nature of his role was as a carer of his two children, and he was doing the caring well, cooking, cleaning, seeing that they attended to school, assisting them with their school activities and tutoring them, and facilitating their social interests.
The nature of his adaptation to these duties was such that category 1 was appropriate.
CONCLUSION
The Medical Review Panel revokes the certificate of Medical Assessor Gerard Walsh of 3 July 2024 and substitutes the determination that the psychological injury sustained as a result of the accident gave rise to a WPI of 5%.
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