Rim v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Rim v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 27
CLAIMANT:	Sarah Rim
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Canaris
MEDICAL ASSESSOR:	Hong
DATE OF DECISION:	13 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychological injuries; review of Medical Assessment Certificate (MAC); claimant involved in a multi-car collision on the M4 motorway; pre-existing persistent depressive disorder with anxious distress from a 2020 workplace assault; dispute over whether motor accident aggravated pre-existing psychological condition or caused new psychological injury; claimant diagnosed with Adjustment Disorder with Anxiety caused by the motor accident; no evidence of material aggravation of pre-existing depressive disorder; Adjustment Disorder classified as a threshold injury; Held – motor accident caused Adjustment Disorder with Anxiety; pre-existing depressive disorder not aggravated by the motor accident; MAC revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alexey Sidorov dated 25 Janaury 2023 and determines that: (a) the following injury was not caused by the motor accident: (i) exacerbation of persistent depressive disorder with anxious distress. (b) The following injury was caused by the motor accident: (ii) adjustment disorder with anxiety. (c) The following injury caused by the motor accident: (iii) adjustment disorder with anxiety, is a threshold injury under the Motor Accidents Injuries Act 2017 (NSW).

STATEMENT OF REASONS

INTRODUCTION

The claimant, Sarah Rim, was involved in a motor accident, which occurred on 4 May 2021 on the M4 motorway near the Church Street off-ramp in Parramatta (the motor accident). The claimant was driving along the motorway at approximately 11.55 am when she noticed vehicles ahead had come to a stop. She braked and came to a halt to avoid a collision. While stationary, her vehicle was struck from behind by another car, which pushed her vehicle into the car in front. The incident involved several vehicles. The claimant recalled that it was raining at the time, causing slippery road conditions.
She described feeling anxious and shaking immediately after the collision, as she had never been involved in a motor accident before. Police and ambulance services did not attend the scene, and the claimant drove herself home after the incident. Subsequently, her general practitioner noted a diagnosis of “shock with increased anxiety”.
There is a dispute between the claimant and the insurer as to the diagnosis and classification of the psychological injury the claimant claims she suffered in the motor accident.
The claimant claims that the motor accident aggravated her pre-existing psychological condition, resulting in persistent symptoms of depression, anxiety, and diminished functioning, which should be classified as a non-threshold injury under s 1.6 of the Motor Accidents Injuries Act 2017 (NSW) (the Act).
The insurer determined that the claimant’s psychological symptoms constituted a threshold injury, citing a lack of evidence for a recognised psychiatric illness. The insurer maintained that the claimant’s depressive disorder with anxious distress was caused by a prior workplace assault in 2020 and was not materially contributed to by the motor accident.
The claimant made an application to the Personal Injury Commission (Commission) to resolve the dispute in relation to whether the claimant's psychological injury was a threshold injury. She cited medical evidence from her treating practitioners to support her assertion that the aggravation of her psychological condition was significant and met the definition of a non-threshold injury.

MEDICAL ASSESSMENT MATTER

Whether the injury caused by the motor accident is a “threshold” injury for the purposes of the Act is a medical assessment matter under Schedule 2, cl 2(e) of the Act.
Whether an individual’s injuries are classified as threshold or non-threshold under the Act significantly affects entitlement to statutory benefits and damages. Statutory benefits for loss of earnings and treatment expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries.” Furthermore, a claimant cannot recover damages under the Act if their “only injuries resulting from the motor accident were threshold injuries.”
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented to on 28 November 2022, with various amendments coming into force on 1 April 2023. Following these amendments, the terminology “minor injury” was replaced with “threshold injury,” and “minor injuries” became “threshold injuries.” Crucially, the substantive definition of what constitutes a minor injury remains unchanged and continues to apply to threshold injuries.
Any reference within these reasons to “minor injury” is to be understood as “threshold injury.” Similarly, references to the term “minor” when describing an injury allegedly caused by the motor accident should be interpreted as “threshold.”
A threshold injury is defined under s 1.6 of the Act as including a “soft tissue injury” or “a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Part 5 of the Motor Accidents Guidelines (the Guidelines), promulgated under s 10.2 of the Act, provides the procedural framework for determining whether an injury caused by a motor accident qualifies as a threshold injury. Version 9.1 of the Guidelines, effective from 1 April 2023, applies to motor accidents occurring on or after 1 December 2017.
The Guidelines prescribe the following process for determining threshold injuries:
(a)    The assessment must determine whether the injury is a soft tissue injury, or a threshold psychological or psychiatric injury caused by the motor accident.
(b)    Insurers must not require diagnostic imaging solely to determine if an injury qualifies as a threshold injury, as imaging is not considered necessary for this purpose.
(c)    A diagnosis for a threshold injury decision must be based on a clinical assessment by a medical practitioner or suitably qualified person independent of the insurer.
(d)    The assessment must include evidence derived from:
(i)a comprehensive and accurate medical history, including pre-accident conditions;
(i)a review of all relevant records available at the time of the assessment.
(i)a detailed account of the injured person’s symptoms;
(i)a thorough physical and/or psychological examination, and
(i)diagnostic tests provided these correspond with symptoms and findings on examination.
The Guidelines under cls 5.10, 5.11, and 5.12 set out the criteria for assessing whether a psychological or psychiatric injury constitutes a threshold injury. Clause 5.10 requires an assessment of whether the injury involves a recognised psychiatric illness. Clause 5.11 mandates that this assessment must adhere to the diagnostic criteria established in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Fifth Edition. Clause 5.12 further provides that if the symptoms associated with the injury do not meet the DSM-5 criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury is to be classified as a threshold injury. These provisions form the basis for determining whether a psychological or psychiatric injury meets the statutory threshold for non-minor classification under the relevant legal framework.
Clause 4 of the Motor Accident Injuries Regulation 2017 provides specific classification of acute stress disorder and adjustment disorder as threshold injuries as “threshold injuries” under s 1.6(4) of Act. These conditions are defined in accordance with the DSM-5.
The medical assessment matter as to whether her claimed psychological injury (psychiatric condition – aggravation of pre-existing psychological/psychiatric condition) was a non-threshold injury was initially referred to a medical assessor.

MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW

In certificate and reasons dated 25 January 2023 (the MAC), Medical Assessor Alexey Sidorov (the Medical Assessor) determined whether the psychological injury the claimant claims was caused by the motor accident constituted a minor or non-minor injury under the Act.
The claimant reported that she had been involved in a nine-car collision on the M4 motorway, during which her car was rear-ended and pushed into the vehicle in front. She described feeling anxious and shaken immediately following the accident, as it was her first motor vehicle accident.
The claimant had a significant pre-existing psychological history arising from a workplace assault in October 2020, during which she was violently attacked by a client. This event left her with physical injuries and profound psychological effects, including anxiety and depression, for which she received ongoing treatment.
Following the motor vehicle accident, the claimant reported an aggravation of her symptoms, including persistent low mood, disturbed sleep and appetite, fatigue, feelings of worthlessness, and low self-esteem. She denied suicidal ideations or thoughts of self-harm but stated that her psychological condition had worsened. She had been unable to return to work since the workplace assault and described her psychological symptoms as being exacerbated by the motor accident.
During the clinical examination, the Medical Assessor observed that the claimant appeared well-presented and cooperative. Her mood was described as sad, with a mildly dysphoric but reactive affect. She exhibited no psychomotor disturbance, abnormal movements, or formal thought disorder. There was no evidence of psychosis, delusions, or hallucinations, and she denied suicidal thoughts or intent. The claimant was oriented to time, place, and person, demonstrating good insight and judgement. She described her daily living activities as independent but noted anxiety when driving on highways or encountering large vehicles, which triggered memories of the collision.
The Medical Assessor reviewed the claimant’s medical history, clinical presentation, and the documents provided. He diagnosed her with Persistent Depressive Disorder with Anxious Distress under the criteria of the DSM-5. However, he attributed the disorder entirely to the workplace assault in October 2020, concluding that the motor accident did not materially contribute to the claimant’s psychological condition. The Medical Assessor reasoned that the motor accident was relatively minor and insufficient to meet the required threshold for causation.
The Medical Assessor concluded that the claimant’s psychological condition was not caused by the motor accident. As a result, he determined that it was unnecessary to assess whether the injury constituted a minor or non-minor injury under the Act.

APPLICATION FOR REVIEW OF THE MEDICAL ASSESSMENT

The claimant applied for a review of the MAC submitting that the Medical Assessor had failed to consider whether the claimant’s psychological/psychiatric injury, specifically the aggravation of her pre-existing condition, was causally linked to the motor accident. The claimant contended that this omission resulted in the Medical Assessor failing to determine whether the aggravation constituted a threshold injury, which was central to the dispute.
The Medical Assessor identified the referred injury as a psychiatric condition aggravated by a pre-existing psychological/psychiatric disorder. Despite this, the Medical Assessor concluded that the claimant’s persistent depressive disorder with anxious distress was caused by a prior workplace assault in October 2020 and was not materially contributed to by the motor accident, described as “relatively minor.” However, the claimant contended, the accident involved multiple vehicles, and the claimant had reported ongoing symptoms and a significant impact on her life, including psychological distress and a need for therapy.
The claimant argued that the Medical Assessor failed to apply the appropriate test of causation, which required determining whether the accident was a contributing cause that was more than negligible. Additionally, the claimant contended that the Medical Assessor had not provided a clear path of reasoning to justify his conclusions.
The insurer maintained that the claimant’s psychological injury arising from the motor accident constituted a “minor injury”. The insurer relied on the findings of the Medical Assessor, who concluded that the claimant’s Persistent Depressive Disorder with Anxious Distress was caused by a prior workplace assault in October 2020 and was not materially contributed to by the motor accident.
The insurer argued that the Medical Assessor adhered to the statutory framework, providing adequate reasons to explain the causation analysis. The Medical Assessor reviewed the claimant’s medical history, including her pre-existing psychological condition, and concluded that the motor accident was insufficient to cause or aggravate her psychological injury. The insurer also noted that the claimant’s reported symptoms of anxiety, depression, and hopelessness were consistent with her ongoing psychological condition predating the motor accident.
The insurer submitted that the evidence provided did not support the claimant’s contention that the motor accident materially aggravated her psychological injury. It maintained that the findings of the Medical Assessor should be upheld, as the conclusions were consistent with the statutory criteria and medical evidence presented.
The President’s Delegate determined that there was reasonable cause to suspect the MAC was incorrect in a material respect. Consequently, the application for review was accepted, and the matter was referred to the Review Panel, presently constituted (the Panel) under s 7.26 of the Act.

REVIEW PROCEDURE

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Section 7.26(5A) of the Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess.
Section 41(2) of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
By directions issued on 23 November 2023, the parties were directed to provide the Panel a joint bundle of material on which they relied upon the Review. That direction was complied with. A summary of the relevant material provided is located under the heading “Review of Documentation”, below.

RE-EXAMINATION

The Panel determined that a re-examination of the claimant was required.
The claimant attended the assessment on her own. She was seen on 4 June 2024 and 26 June 2024 by Member Nolan and Medical Assessors Canaris and Hong in an examination conducted by MS Teams.

HISTORY

Psychosocial history and pre-accident history

The claimant is a 43-year-old divorced disability support worker who had undergone a serious assault by a client at work in 2020. She had not been back to work at the time of the motor accident.
When asked about impact of the 2020 assault, she said she had been overseas to take care of her uncle until he died. While overseas, the client she had worked with contacted her overseas. When she come back, she was invited to keep working and was asked to work with the client. The client was said to have changed in character. She learnt then that the client had attacked a support worker and that she was in hospital. She was told she needed to be careful because she was very aggressive. When she came back, the client insisted on having MacDonald’s fast food. She then wanted orange juice. The client wanted to hit her. She had been warned not to have her come too close. She came up to the claimant and pulled her by the hair and bashed her. The claimant could not call for help because she could not access her phone. She was able to run to her car and lock herself in.
The claimant called the Chief Executive Officer (CEO) while the client kept bashing on her window. The CEO told her to call the ambulance or the police. Six or eight police attended. She was shaking and nervous and called her daughter who tried to get her to calm down.
The next day, she had pain in her neck and her wrist. She had painkillers for a couple of days. She saw her doctor.
Some weeks later she started psychological treatment and had seen a couple of psychologists and then found one with whom she was comfortable – the same clinician she now sees.
She had been started on an antidepressant which she still took after the workplace assault.
She tried to get back to work “but when I got there, it made me more panic - I couldn’t do it”. She continued to contend with pain through her shoulders and back.
She did not go back to work in any capacity. She admitted that she tried getting back to work after her incident with the client but felt too distressed and worried that she would be again attacked. She did apply for work in other areas, but no one accepted her. She had applied for jobs at a bank and with the railways. She was of the view that she could have worked in a setting other than disability. However, she also received knockbacks because (she believes) of her worker’s compensation history.
Her sleep had been “on and off” since the assault but “it got worse and worse and worse” after about two years “because there’s too many things on my head - life - my pain - finances - my health - life - you think about the future when you can’t do anything”.
She described a recent nightmare in which she saw herself in a room surrounded by “people with disability - people that were not normal”. This seems to be currently the main theme of her nightmares.
She denied any other history of psychiatric illness before the workplace assault describing herself as a very active person who went to gym at least five days a week. She was a very sociable person who worked two jobs in the Mountie Club as a concierge as well as her job in disability.
Before the motor accident, she was still able to partake in exercise physiology and she could drive without difficulty. She saw her limitations before the accident as “more mental than physical”. Subsequent to the accident, she said, “I can’t walk” and “I’m half paralysed”.
She had been hitherto physically well.
She does not drink alcohol. She does not smoke. She does not use drugs. She does not gamble.
She denied any history of problems with the law. She had no other claims history.
She knew of no family history of psychiatric illness.
She hailed from a large city in Cambodia. She has two brothers and two sisters. She was the second youngest. Her parents are alive. Her mother is back in Cambodia while her dad is in Brisbane. She left Cambodia in the setting of civil war – her parents had been separated by the war. Her parents were farmers. Her father worked as a handyman in Australia and grew vegetables which were sold at the markets.

She came to Australia around 16 years of age. She did not recall too much of growing up with the war in Cambodia but had come here sponsored by the St Vincent de Paul Society.
She had little opportunity to study when in Cambodia. She tried to study in Australia. She has subsequently tried to motivate her children to study.

History of the motor accident

On the day of the motor accident, the claimant was on the M4 driving towards Parramatta. It was raining on the day, and she was trying to limit her speed. She saw a motor vehicle accident in front of her and tried to brake. She said she was involved in a nine-car pileup – she hit a car in front of her and another vehicle hit her car from behind.
She felt “nervous and shock” saying she was “shocked and shaking”. The person ahead of her asked her if she was “OK”. Airbags did not deploy. She had not got out of her car. She remained at the scene “for a while” and declined to have an ambulance called. She then saw a tow truck - the other vehicles had left the scene.
She tried to drive off the M4 onto a quiet street. It seems no one called the police. She sat in her car for a time and called her daughter and friend (in one of the documents, she was said to have called her solicitor). She asked her daughter and friend if they could pick her up – they could not come for some time and advised to stay in her car and drive home after she had calmed down.
She repaired her car out of her own funds (the insurer wanted to write it off).

History of symptoms and treatment following the motor accident

She said she felt she “can’t go to work, I worry about my finances, I worry about my daily routine‚… I can’t even vacuum the house - I can’t make my bed - my daughter has to come and clean for me‚… I can’t cook‚…”.
Her mood “is very bad - sometimes I cry for no reason - I was an athletic person - I can’t go to gym - I feel like a useless person”.
She acknowledged feeling helpless, hopeless, and worthless. She feels sometimes as though life was not worth living. She took an overdose of medication in 2023 (she was not sure of the date). Her daughter was with her and interrupted her taking her medication away from her.
She has considerable difficulty sleeping and would take an hour to get to sleep and then wake after a couple of hours. She often has nightmares. She finds it hard to get back to sleep. Her daughter has got her Chinese herbs to help with sleep “but it doesn’t help”. She said she felt better before the accident saying she did not take as long to get off to sleep and she now feels “like my head is going to blow up soon from all that stuff”.
She says her energy levels are low rating them as “three and a half out of 10”. However, if she does not take her medications, she does not sleep at all. She does not have naps during the day. She sees her energy levels as considerably lower since the accident recalling that she would go with the exercise physiologist and exercise regularly “but after the accident I can’t do that”.
She felt her “hip was locked” and “my [right] leg is numb”. She saw her doctor the next day. She asked for some medication and was given a pain killer - she thought it may have been Panadeine and Voltaren cream.
She has had ongoing physiotherapy, acupuncture, massage, and chiropractic. She finds the treatment helpful.
She is also on an antidepressant – Endep (amitriptyline) 25mg at night and Lexapro (escitalopram) 20mg daily. She had not found her medication particularly helpful finding that she feels drowsy the next day with no energy or motivation. She continues to see a psychologist, Rosanna Genua, once a week.

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

She admitted that her brother passed away some time after the accident. She said of this event, “What can I do - it’s the circle of life”.

Current symptoms

As detailed above.
She continues to have anxiety and depressive symptoms, sleep problems with nightmares, and depressive cognitions.

Current and proposed treatment

She continues to see a psychologist and to take antidepressant medication as detailed above.

CLINICAL EXAMINATION

Mental state examination

The claimant was interviewed on both occasions by Microsoft Teams. She was at her home and a good audiovisual connection was established. Her head and shoulders were visible. She presented as a bespectacled woman of southeast Asian appearance with long hair who appeared well-groomed. She provided the history documented above. Her narrative was coherent, but some inconsistencies emerged as detailed below.
She was highly pain focused during her narrative. Towards the end of the first assessment, she complained that she felt severe pain in her hip and that she needed to take a break in order to stretch. At the second consultation, she still complained of pain, but pain behaviours were not apparent.
When asked to separate injuries emanating from the workplace assault and from the accident, she said that after her accident, “Half of my body and my hip is worse”. She reiterated that she had become very anxious driving, particularly in a high-speed situation.
She perceived “both” physical and psychological problems contributing to her current impairment saying, “When your [physical] health is not like it used to be, your mental health is going to go and make your mental health get worse”.
Her overall affect was restricted.
There was no evidence of psychosis or cognitive impairment.

Current functioning

She said that now she could not stand or sit for a couple of hours at a time. She felt as though she was paralysed.
She showers daily using a shower chair. She changes her clothes daily. She says she eats a lot of junk food saying it makes her feel better and she has gained 17kg. Before the accident, she said she ate healthy meals and cooked regularly.
She sees no point in going out socially but blames this on her pain saying that even now she had several pillows behind her back. Her psychologist tries to encourage her to go out, but she does not enjoy it saying, “I feel I can’t do what I used to do - what’s the point if I feel the pain - people ask me why my mood is so low - that makes me more anxious‚…”. Before the accident, she would have still gone out to cafes or to dinner with friend though not often. She had gone out less after her workplace injury but even less after the accident.
She has resumed driving but again limits herself to local journeys. She said that her legs felt very numb and cold. She avoids going on freeways because of her anxiety particularly if she saw trucks saying, “I feel totally panicked”. She would sometimes have her daughter drive in these settings because of her anxiety.
She had a partner at the time of the motor accident. However, he left after the motor accident because there were intimacy issues which led to arguments. The Panel understood this to relate to her physical symptoms. She had been with him for many years, and this added to her sadness. She has three daughters. All three have moved out. One is in Europe. The other two visit and help with cooking, cleaning, washing, and preparing food for the week. She gets on well with her daughters.
She said, “Sometimes I don’t feel like doing anything - that’s most of the time”. She does not watch TV because she finds items on the news anxiety provoking such as the Bondi incident “and if I see that it makes me more nervous, or I panic”. She does read and can get through 10 or 15 pages which might take her 10 or 15 minutes. She tends not to remember what she reads saying, “My brain doesn’t absorb it‚...talking about that and I nearly burnt my frying pan... I smelled smoke... I was boiling an egg… my neighbour came…”. Her daughters now tell her not to cook on the stove but to use an air fryer or microwave.
She is not working saying this made her feel sad saying, “most of the time I’m going to physio, acupuncture, doctor, watch TV”. She felt that she had deteriorated mentally after the accident. She said, “Before my daughter was living with me - I can’t find work - no one give me job two or three hours a day two three days a week”. She eventually gave up looking. She is still receiving workers compensation payments. Her current work capacity is “nothing at all” because of her leg and her limitations with driving. When asked why she had not gone back to work, she said, “I feel like my body is paralysed - when I stand, I feel like I have electric feeling in my feet”. She acknowledged tearfully that her physical issues were the main obstacle to getting back to work and she was distressed by the loss of her once active life.

Comments on consistency

The Panel noted several inconsistencies beginning with her description of the motor accident and the number of cars involved (see “Review of Documentation”) but accepted that she had clearly been involved in a multicar collision. Much more importantly, the Panel noted inconsistencies in relation to her prior history of depression. She had denied any history of psychiatric illness before the subject assault. When it was pointed out to her that there was evidence in her clinical file that she had been on antidepressants since 2014, she admitted that she had had some symptoms but that they were “very mild - that time my kids is very young - I’m alone”. She admitted seeing a psychologist and to having been on antidepressants although she could not recall when she had been taking these other than “I didn’t take them for long”. The Panel brought her attention to the Work Focus Australia assessment dated 28 April 2021 in which she was found to have no capacity. She reiterated that she had been certified fit to work three hours a day for two to three days per week and that she had wanted to stay home and study, and confirmed she was certified unfit for work before the subject accident. She said that her physical problems had worsened after the accident particularly in her hips saying, “From late last year to this year - I couldn’t even get up - if I sat down, I couldn’t get up - the rehab people had to carry me [the Panel understood her to mean lift her up] to see a doctor”.

REVIEW OF DOCUMENTATION

Summary of relevant documentation

The Panel noted a range of documents pertaining to the claimant’s physical injuries prior to the motor accident.
An ultrasound of her right shoulder dated 12 February 2021 demonstrating an intact rotator cuff.
Sundry vocational assessment reports by Work Focus Australia (initial dated 28 April 2021) were noted. She was noted to have no work capacity and symptoms included of pain in the back of her head, her right shoulder with referred pain to her right hand, and right knee pain with referred pins and needles in her right foot when walking for long periods.
A report to the workers compensation insurer dated 6 May 2021 notes that in addition to physical issues, she is “still psychologically affected by her injury and will need to be slowly integrated back into the workforce”.
A Certificate of capacity/fitness dated 16 June 2021 diagnoses “shock with increased anxiety, lower back strain with right leg radiation” and “injury to right hand” while noting pre-existing anxiety. She is noted to have no current capacity for work.
Her Application for Personal Injury Benefits dated 17 July 2021 describes the motor accident stating that the car travelling two cars behind her vehicle collided with the rear of the car behind her is which in turn collided with the rear of her car which was then pushed into the rear of the car in front of her. She records the presence of her earlier physical and psychological injury.
Comment: from this description, it would appear that the number of cars involved was five rather than “seven to nine”.
A referral from her general practitioner (GP) to Dr Andrew Jordan, treating rheumatologist, dated 8 September 2021 in relation to her workplace injury noted a prior diagnosis of depression in December 2015 and notes her to be on Lexapro (escitalopram – an antidepressant) 20mg daily. It makes no mention of the motor accident.
In a subsequent report dated 4 February 2022, Dr Jordan concluded that the claimant suffered from fibromyalgia, central pain sensitisation, and plantar fasciitis.
A report of Jenny Vong, exercise physiologist, dated 20 July 2021 refers to the workplace assault and attendant physical injuries, notes that she reported feeling highly anxious around crowded areas or in response to loud noises as it “tends to trigger her PTSD” with “major difficulties with sleeping” adding that “hearing the slightest noise during the night can keep up until the morning”. She was reported to be able to drive for only short distances and to be using her left hand to drive (it appears from this that her limitations in driving related more to physical rather than psychological problems).
Allied Health Recovery Requests to physiotherapy dated 15 September 2021, 29 October 2021 were noted.
A report of Rehab Management Pty Ltd dated 11 November 2021 was noted listing diagnoses of “Shock with increased anxiety, lower back strain with right leg radiation” and “injury to right hand”. It was noted that the claimant had not provided consent to contact her workplace in relation to her WorkCover claim with closure of involvement following cessation of the claim.
The patient health summary of Myhealth Edensor Park as printed on 10 October 2023 was noted. Active past history included depression diagnosed in December 2015, multinodular goitre in 2016 with thyroidectomy in February 2020, hypercholesterolaemia diagnosed in September 2020, and fibrous dysplasia diagnosed in September 2023. Medications listed included Lexapro 20mg daily, Endep 25mg at night, as well as medication for her thyroid and cholesterol. She was noted to have a positive pregnancy test on 20 April 2009 and referred to Marie Stopes International.
On 17 June 2009, she presented feeling stressed at work and not sleeping well.
In October 2009, she presented with concerns about her thyroid, but subsequent pathology was normal.
On 4 November 2009, she presented with headaches and occasional dizziness requesting a CT of her head.
On 4 March 2010, she is noted to have persisting tiredness but not to be depressed or anxious.
On 29 July 2011, fatigue and dizziness again emerge as concerns. Similar concerns emerge on 8 March 2012 relating to fatigue and lack of energy.
On 11 April 2014, she presents feeling stressed and down with chest pains coupled in the setting of work and family problems with poor sleep for which she requested a psychology referral with a tentative diagnosis of anxiety/depression.
She is noted on 3 June 2014 to have started to see a psychologist but wanting to change clinicians while stating that she was not keen to try antidepressants.
On 28 August 2016, she again presented complaining of not sleeping and feeling depressed and of being tired - she also had a sore throat. She was prescribed Pristiq (desvenlafaxine – an antidepressant) 50mg daily.
On 7 May 2015, she was noted to have “ongoing depression and anxiety” and to be known to psychologist Rosanna Genua.
On 17 December 2015, she again presents with chest pain, dyspnoea, and depression and was continued on Pristiq.
On 29 December 2015, she again presented with depression and anxiety and was started on Lexam (escitalopram) 10mg daily (presumably instead of Pristiq).
On 30 May 2016, she was noted not to be taking her antidepressants. She received a further prescription for escitalopram on 2 September 2016 and on 14 March 2017 presented with anxiety and depression for which a mental health plan with psychologist referral was instituted.
On 24 October 2017, she is noted to be “becoming more & more depressed” and her escitalopram was increased to 20mg daily. She is noted to be seeing Rosanna Genua and to be very happy with her although scoring 41 on the K10 (according to the test, patients with scores of 30 and over are said to be likely to have a severe psychiatric disorder).
On 27 May 2019, she again presented with anxiety while on 9 October 2019, her depression is said to be coming back.
On 30 January 2020, she is noted to be “better on Lexapro [escitalopram]”.
On 7 May 2020, her thyroid stimulating hormone is noted to be abnormal, and she is noted to have symptoms of hyperthyroidism with adjustment in her thyroxine dose (her thyroid is the focus of several subsequent consultations).
Anxiety again emergence as a concern on 9 July 2020 with a “fear of something seriously wrong with her”.
On 9 September 2020, she is noted to have poor sleep coupled with a recent bereavement but otherwise not to endorse a range of symptoms.
Insomnia again emerges as a concern on 23 September 2020, and she was prescribed temazepam.
On 8 October 2020, she reports her workplace assault and was given time off work and on 12 October 2020 was noted to be still in pain and frightened of working with the same client.
Subsequent consultations relate to physical and psychological symptoms with continuing pain and increasing anxiety.
Interestingly, the motor accident seems not to figure in these notes and on 9 June 2021 she is noted to have been receiving only $99 per week in workers compensation payments because she had only worked two days per week prior to her injury and she was noted to be “severely depressed and anxious because of her financial situation” and it seems that the workers compensation insurer wanted her to look for alternative employment.
A note on 20 June 2022 notes “arthritis pain all over” and “back pain” as well as dizziness with blurred vision and “severe anxiety & depression”. Her GP suggests that most of her symptoms are related to her anxiety.
On 15 December 2022, she was certified as fit for selective duties with restrictions four hours per day three days per week was noted to be “getting worse rather than better”, to be finding remedial massage and acupuncture helpful for which the insurer was not paying, and to be finding regular counselling helpful.
Comment: the claimant’s general practice file suggests that psychological symptoms have been a recurring presence in her life well before the workplace assault although they clearly increase in severity becoming persistent and pervasive in its aftermath. However, it was difficult to identify symptoms specific to or aggravated by the motor accident.
The Panel noted a report of Rosanna Genua, psychologist, dated 20 July 2022 provided to the claimant’s solicitor. She was initially referred by her GP in March 2021 for counselling for anxiety/depression following her workplace injury. She was seen on 41 occasions from 2 March 2021 until 19 July 2022.
Ms Genua described a workplace assault, physical injuries, and subsequent psychological symptoms noting her following the attack to experience “a high level of stress, anxiety, and fear” as well as “intense sadness” with times when she was “unable to breathe” and feeling “agitated most of the time”. She was unable to manage to return to work because of her anxiety levels subsequently avoiding situations and contexts triggering anxiety and fear. Ms Genua appears to have diagnosed posttraumatic stress disorder.
She subsequently documents the motor accident which is described as “a [car] pileup” in which the claimant’s vehicle was “the 5th car in the line that got hit”. She was said to have frozen and to be in shock upon impact remaining in her vehicle for approximately 10 minutes subsequently exchanging details. Her vehicle was driveable, and she drove away but then pulled over apparently feeling “extreme panic, anxiety, and weakness” and “waited some time until she felt she was able to slowly drive back home”. Following the accident, she had high levels of pain in her knees, feet, and in her hand and is the pain in her back and shoulders worsened. She also reported “extremely elevated symptoms associated with panic, fear and avoidance in relation to driving a vehicle” and with “going out into public places”. She was uncomfortable leaving home. She also preferred not to drive because of heightened anxiety though she would push herself to drive short distances. She was noted to have difficulty sleeping and nightmares of the attack and “other frightening things” and flashbacks of the incident approximately twice a week and to be fearful that she would again be attacked experiencing fear and panic when exposed to individuals in the community who had disabilities.

Ms Genua stated that her reported anxieties appeared to have worsened following the motor vehicle accident. Following the 2021 accident, she reported having intense fear of getting back into a vehicle as well as worsening physical symptoms.
On the Depression, Anxiety and Stress Scale (DASS) 21, taken on 2 March 2021 she was noted to score in the extremely severe range for depression, anxiety, and stress with severe or extremely severe scores on three subsequent dates and 19 July 2022 to score in the severe range across all three scales. Similarly, she had strongly elevated scores on the Post-traumatic Stress Disorder Checklist (PCL-5) on five occasions from 2 March 2021 to 19 July 2022.
Ms Genua considered that she met criteria for a diagnosis of major depressive disorder, generalised anxiety disorder, panic disorder, and post-traumatic stress disorder and noted her work capacity to be highly restricted. Her incapacity was seen as arising because of her workplace injuries but with aggravation following the motor accident. Ms Genua noted that prior to her injury (presumably the workplace injury), she had been socially active and enjoying life going out to gym several times a week and enjoying being active and healthy.
Ms Genua’s clinical notes document an initial consultation on 2 March 2021 and essentially document pain, anxiety, depression, low energy sleep disturbance, and nightmares noting that she has been off work since the workplace assault. Specific references to the motor vehicle accident were scarce although it is mentioned on 12 May 2021, and it was noted that she had been on her way to her lawyers and had had to cancel the appointment because she was shaking and highly anxious. She was noted to have increased anxiety driving following the motor accident.
On 16 June 2021 there is a reference to desensitisation in relation to driving with psychoeducation and motivational interviewing.
On 28 February 2023, she complains of poor concentration recounting that she had left a pot on the stove for six hours filling the house with smoke (the claimant had reported this incident to the Panel).
Comment: Ms Genua’s notes do not on the face of it support her contention that the claimant’s symptoms were considerably worse after the motor accident although Ms Genua does document the emergence of anxiety driving. Furthermore, while Ms Genua has supplied documents going back to 2 March 2021, the clinical notes of Myhealth Edensor Park suggest that the claimant was known to Ms Genua as far back as 2015.

DETERMINATIONS

Diagnosis and reasons

Despite the number of cars involved in the motor accident, the motor accident would not have qualified as a Criterion A event as described in the DSM-5-TR diagnosis of post-traumatic stress disorder. The Panel noted that the claimant had a long-standing disorder of mood and anxiety diagnosed as persistent depressive disorder (dysthymia) with anxious distress. Overall, the Panel considered that there was little if any evidence from the claimant’s history and from the documentation on hand that this had been measurably aggravated by the motor accident.
The Panel noted the emergence of anxiety driving following the event. The claimant’s anxiety driving impressed as a condition separate from her pre-existing persistent depressive disorder and was considered to be consistent with a diagnosis of Adjustment Disorder with anxiety.
The Panel noted that Medical Assessor Assem had determined the claimant’s physical injuries not to have been caused by the motor accident but was aware that this issue had been referred to a review panel. Consequently, the Panel felt constrained in relation to any consideration of the significance of her physical symptoms.
In relation to DSM-5-TR criteria for an adjustment disorder diagnosis, the Panel noted the emergence of emotional and behavioural symptoms in response to an identifiable stressor (the motor accident) coming on in the aftermath of the event (Criterion A). These symptoms were clinically significant in that there was evidence of marked distress out of proportion to the severity and intensity of the stressor together with significant impairment in social functioning (Criterion B). The stress related disturbance did not meet criteria for another mental disorder and was not merely an exacerbation of a pre-existing condition – in this case persistent depressive disorder (Criterion C). Her symptoms did not represent normal bereavement (Criterion D). Finally, while her symptoms had persisted beyond six months, the Panel was of the view that the consequences of the stressor had not dissipated as the claimant was embroiled in a disputed medical assessment matter claim with all the stress that this entails (Criterion E).

Causation and reasons

The claimant's Adjustment Disorder with Anxiety was determined to have been materially contributed to by the motor accident. The Panel carefully evaluated the circumstances of the motor accident and concluded that it was medically plausible for the motor accident to have led to the development of this condition. The claimant’s reported symptoms, which included heightened anxiety specifically related to driving and avoidance behaviours in public settings, were found to have emerged in direct response to the motor accident.
The Panel placed significant weight on the evidence provided, which consistently supported the motor accident as a substantial contributing factor to the claimant's Adjustment Disorder. These symptoms were distinct from her pre-existing psychological condition and were characterised by clinically significant distress and impairment in social functioning. The Panel further noted that these symptoms satisfied the DSM-5-TR criteria for Adjustment Disorder with Anxiety, including evidence of an identifiable stressor (the motor accident), distress disproportionate to the severity of the event, and functional impairment. Accordingly, this condition was attributed to the motor accident and classified as a threshold injury under the Act.
The Panel is not satisfied that the motor accident aggravated the claimant’s pre-existing depressive disorder. While causation does not require the motor accident to be the sole cause, it must be demonstrated as a contributing cause that is more than negligible. The medical evidence overwhelmingly attributes the claimant’s persistent depressive disorder and anxious distress to the workplace assault in 2020. The evidence does not establish a clear aggravation of the claimant’s psychological condition attributable to the motor accident.
Despite the claimant’s subjective reports of increased anxiety and psychological symptoms post-accident, objective documentation, including the GP’s records and psychologist’s notes, does not substantiate a material change in her condition. Pre-existing symptoms of depression and anxiety, which were severe and persistent since the workplace assault, continued to dominate her clinical presentation. Notably, there is no significant deviation in her psychological trajectory post-accident that could be attributed to the motor accident beyond minor and temporary symptoms of “shock and anxiety.”
The GP’s records, predating the motor accident, document that the claimant was already experiencing significant functional limitations, including an inability to return to work and recurrent severe depressive symptoms. The claimant’s psychological condition before the accident was already at a level that precludes attributing her post-accident symptoms to the motor accident, particularly given the absence of new or distinct symptoms.
The Panel noted that while the claimant experienced transient shock and anxiety immediately following the accident, these symptoms did not constitute an aggravation of her pre-existing psychiatric condition. The absence of substantive references to the motor accident in her GP and psychologist records further undermines any causal link. For example, the claimant’s own psychologist, Ms Genua, provided limited evidence directly tying a worsening of symptoms to the motor accident, with most references in the clinical notes focused on pre-existing conditions and ongoing symptoms related to the workplace assault.
The claimant’s reported functional limitations, physical mobility, and social engagement were consistent with her pre-accident condition. The claimant’s statement that her physical issues significantly contributed to her psychological state further dilutes any claim that the motor accident independently aggravated her pre-existing condition. The absence of evidence showing a discernible decline in functionality or symptoms after the motor accident reinforces the conclusion that the claimant’s pre-existing psychological injury remained unchanged.
The Panel is not satisfied that the motor accident materially aggravated her pre-existing depressive disorder. Consequently, as an aggravation of the claimant’s pre-existing psychological condition was not caused by the motor accident, the referred injury does not meet the statutory criteria for classification as a threshold injury under the Act.

Summary of injuries referred by the parties

The following injuries were caused by the motor accident:
(a) adjustment disorder with anxiety. This is a threshold injury.
The following injuries were not caused by the motor accident:
(a) exacerbation of persistent depressive disorder with anxious distress.

[2025] NSWPICMP 27

13 January 2025