Seke v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 269
•2 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Seke v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 269 |
| CLAIMANT: | Sanja Seke |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Samson Roberts |
| MEDICAL ASSESSOR: | Christopher Rickard-Bell |
| DATE OF DECISION: | 2 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; substantial pre-existing psychological; aggravation of a psychological injury constitutes an injury within the meaning of the MAI Act; AAI Ltd v Hoblos and Todev v AAI Ltd applied; claimant re-examined; clinical expertise of the Medical Assessors; Panel satisfied that motor accident aggravated major depressive disorder with anxious distress; Held – Medical Assessment Certificate revoked; claimant suffered non threshold psychological injury. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 1 December 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Sandra Seke (the claimant) suffered injury in a motor vehicle accident on 22 February 2021. The claimant was a passenger in a vehicle struck by a truck on her side (the motor accident).
Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Ms Seke any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Ms Seke’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Chew who issued a Medical Assessment Certificate dated 28 September 2022 (the medical assessment).[2]
[2] Insurer’s bundle, p 5.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
Statutory amendment
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
REASONS OF MEDICAL ASSESSOR
The Medical Assessor concluded that the motor accident caused an adjustment disorder with mixed anxiety and depressed mood which was a minor injury.[5]
[5] Claimant’s bundle, p 15.
The Medical Assessor noted there was a pre-existing adjustment disorder caused by the work injury in 2020 which had been exacerbated by the motor accident.
MEDICAL ASSESSMENT – PHYSICAL INJURIES
A differently constituted Review Panel upheld a medical assessment that the motor accident only caused threshold physical injuries.[6] Relevantly that Panel noted the prior right shoulder symptoms and found that the motor accident did not cause injury to the right shoulder. The Panel stated:[7]
“It is not medically plausible that the right shoulder could be injured in the circumstances described by the claimant where she was a front seat passenger with no internal trauma onto the right shoulder. As a front seat passenger there were no indirect forces through the seatbelt on the right shoulder.
The claimant did not report in the claim form that she injured her right shoulder in the motor accident and noted that this body part was a pre-existing condition. The statement in the claim form only supports the Panel’s view that there was no plausible medical basis that the motor accident caused a right shoulder injury.”
[6] Seke v Insurance Australia Ltd t/asNRMA [2023] NSWPICMP 360 (Seke).
[7] Seke at [78]-[79].
The other Review Panel held that the claimant suffered soft tissue injuries to the neck, back, left shoulder and leg.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[8]
[8] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[9] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[9] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[10]
[10] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11]
[11] Rule 128 of the PIC Rules.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6(1) of the MAI Act:[12]
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
[12] This sub-section was amended by Amendment Act, Schedule 1[5].
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13] In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
SUBMISSIONS
Claimant’s submissions dated 21 December 2022[15]
[13] See s 3B(2) of the Civil Liability Act 2002.
[14] [2021] NSWSC 13 (Raina) at [65].
[15] Claimant’s bundle, p 8.
These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor had failed to consider relevant documents that show that the claimant had counselling sessions with Dr Kuljic. These records were inconsistent with the Medical Assessor’s conclusion that the claimant was not having any treatment.
Insurer’s submissions dated 23 September 2021[16]
[16] Insurer’s bundle, p 107.
The insurer referred to the records of Bathurst Street Medical Centre which indicated that the claimant suffered from pre-existing conditions including anxiety and depression in 2020. The insurer referred to the opinion of Dr Blagoje Kuljic, psychiatrist, dated 19 April 2020 which referred two significant symptoms of anxiety, insomnia, and mood disturbance as a consequence of the work-related injury. The doctor noted significant impairments regarding social and recreational activities, social interaction and self-care and opined that the claimant suffered from an adjustment disorder with anxiety and depressed mood.
The insurer noted that in the application for personal injury benefits the claimant declared a number of pre-existing injuries including a psychological injury from the work incident. It was noted that the claimant has a current workers compensation claim at the time of the motor accident.
The insurer noted that the workers compensation file from Allianz included certificates of capacity which referred to depression and post-traumatic stress disorder.
The insurer noted that the Allied Health Recovery Request dated 7 April 2021 referred to the claimant seeing a psychiatrist for psychological factors.
The insurer referred to the initial certificate of capacity of Dr Tomka dated 26 April 2021 which included a diagnosis for a number of physical injuries and “PTSD”. The certificate did not note any pre-existing injuries or conditions.
The insurer disputed that the claimant sustained a non-minor psychological injury from the motor accident. The insurer noted the following evidence which established a pre-existing psychological condition:
(a) declaration in the application for personal injury benefits;
(b) report of Dr Kuljic dated 19 April 2020;
(c) clinical notes of Bathurst Street Medical Centre which noted that the claimant had anxiety and was depressed prior to the motor accident;
(d) certificate of capacity dated 26 April 2020;
(e) lack of clinical significant symptomatology and functional presentation to support a diagnosis of depression or post-traumatic stress disorder resulting from the motor accident, and
(f) lack of evidence or request for treatment relating to the psychological injury (if any).
Insurer’s submissions dated 11 January 2023[17]
[17] Insurer’s bundle, p 2.
These submissions addressed and disputed the nature of the physical injuries allegedly caused by the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The pre-accident clinical records of Dr Tomka (GP) refer to the claimant being depressed and suffering from anxiety.[18]
[18] Insurer’s bundle, pp 132-134.
Dr Blagoje Kuljic, psychiatrist, provided a report dated 19 April 2020.[19] The doctor referred to several symptoms including inability to sleep, tearfulness, lack of motivation, inability to engage in social and recreational activities and poor attention. The claimant reported that the symptoms commenced after the work-related injury on 21 January 2020. Current medications included escitalopram and diazepam.
[19] Insurer’s bundle, p 143.
Dr Kuljic opined that the claimant reported significant symptoms of anxiety, insomnia and mood disturbance as a consequence of the work-related injury with significant impairments regarding social recreational activities, attention, social interaction and self-care. The doctor opined that the symptoms at that time were consistent with a diagnosis of adjustment disorder with anxiety and depressed mood.
Dr Kuljic recommended that the claimant receive assertive psychiatric treatment to prevent further deterioration of her condition.
Dr Kuljic’s clinical records show frequent pre-motor accident attendances for psychiatric treatment.[20]
[20] Claimant’s bundle, pp 266-271.
Clinical records refer to a pre-existing right shoulder condition.[21]
[21] Claimant’s bundle, pp 74-82; pp 146-221.
Medical evidence
On 16 February 2021, Dr Kuljic noted that the claimant was engaging in psychiatric treatment and reported good compliance with the medication.[22]
[22] Claimant’s bundle, p 105.
The clinical note of Dr Kuljic dated 27 April 2021 referred to the motor accident with recorded complaints of “anxiety related to traffic especially when driven by others” and that the claimant “gets intrusive upsetting memories and nightmares”.[23]
[23] Claimant’s bundle, p 272.
The application for personal injury benefits dated 1 May 2021 referred to the accident causing pain in a number of body parts. The claimant also stated that “as a result of accident I have major anxiety”.[24] The application noted that the claimant had a pre-existing psychological injury.
[24] Insurer’s bundle, p 120.
On 25 May 2021 Dr Kuljic recorded the following:[25]
“Not worried about the recent car accident, ‘doesn’t bother me anymore’.”
[25] Claimant’s bundle, p 273.
Dr Blagoje Kuljic, psychiatrist provided a report dated 23 June 2021 which noted a recent change of medication to mirtazapine ODT 30 mg.[26]
[26] Insurer’s bundle, p 142.
On 24 February 2022 Dr Kuljic noted that the claimant continued to ruminate about problems at work.[27]
[27] Claimant’s bundle, p 279.
Subsequent records continued to associate the right shoulder condition to the work injury.[28]
[28] Claimant’s bundle, pp 226-235.
RE-EXAMINATION
Ms Seke was examined by both Medical Assessors on 28 March 2024.
The medical examination findings of the Medical Assessors are:
“Who attended the assessment
Assessor Rikard-Bell and Assessor Roberts undertook the assessment using Microsoft Teams. Ms Seke participated in the interview from her home. The interview was assisted by interpreter engaged by the Commission, Rajka Topic, National Accreditation Authority for Translators and Interpreters number xxxx, was present for the duration of the assessment.
HISTORY
Psychosocial history and pre-accident history
Ms Seke is a 32-year-old woman. She and her de facto husband of seven years live in Hillsdale. She has no children.
Ms Seke was born in Sed, Serbia. She is the younger of two sisters. She stated that her relationship with her sister while they were growing up was “perfect” and then remained very close. She referred to her relationship with her parents “the best”. She completed high school in Serbia and was intending to study psychology. Her grandmother however invited her to travel with her to Australia for a holiday. She met a man and considered staying in Australia, but she missed her family and therefore returned to Serbia. Ultimately, in 2014, she returned to Australia to live with her grandmother and aunt.
When she came to Australia, she initially volunteered at the Serbian Club, and she had other work roles. She obtained a position in a coffee shop. She worked weekends at the airport and worked with a friend in her catering business. She ceased both roles at the same time and although she attempted to re-engage with the workforce, this proved unsuccessful. She met her partner in Australia. She is now an Australian citizen.
Ms Seke stated that she sustained a work injury in 2020. She was employed full time as a catering attendant at the airport. She had been in the role for three to three and a half years. She was preparing trays when a metal-framed whiteboard fell on her. She sustained a laceration to her left shoulder. She required injections and physiotherapy, and she was prescribed analgesia. She continues to take Panadol and Panadeine Forte for this injury. She has not returned to any form of work since that time although it was her intention to do so.
Ms Seke stated that she was diagnosed with Hashimoto's disease. She reported a tendency to constipation and fluid retention which she attributed to her thyroid disorder. She is unable to wear rings or shoes. She therefore wears thongs because closed shoes are too tight on her feet.
Ms Seke smokes two packets of cigarettes a day. She does not drink, and she has never used illicit drugs.
Ms Seke stated that she has been under the monthly care of psychiatrist, Dr Kuljic since the work accident in 2020. She stated that she suffered anxiety following the work accident. She was anxious that she had done something wrong to contribute to the injury because she works fast and was continuously rushing. Dr Kuljic prescribed the antidepressant escitalopram.
Ms Seke stated that she was in physical pain after the work accident which affected her left shoulder. She experienced physical pain, but she was well supported by Dr Kuljic and she saw herself progressing. She acknowledged that she was depressed but not as depressed as she is currently. She remains in receipt of workers compensation payments.
Ms Seke recalled that she was involved in a motor vehicle accident in 2018 but she has no ongoing injuries as a result of this accident.
History of the motor accident
Ms Seke was the front seat passenger in a Land Rover driven by her aunt on the way to a doctor’s appointment in Liverpool. She recalled that out of the corner of her eye she saw a truck coming close to their vehicle. She recalled that her aunt screamed. Ms Seke heard the scrape of the truck against their vehicle. The mirror and the passenger door were damaged. She recalled that she thought she was going to die. She stated that her aunt stopped the car. Ms Seke remained in the vehicle. Neither police nor ambulance attended. They subsequently went to the prearranged appointment with Ms Seke’s general practitioner, Dr Tomka. Her aunt then called the police. Following the appointment, they drove home.
History of symptoms and treatment following the motor accident
Ms Seke did not ascribe immediate physical symptoms to the motor accident. She stated that she did not talk for two hours following the accident and she spent the remainder of the day crying. She stated her recollection that she thought that someone would have had to call her parents to inform them that she had died if the accident had been more serious. She recalled that she began to feel scared on the evening of the motor accident as if waiting for something to happen. She stated that she came to the realisation that one day can change an entire life.
Details of any relevant injuries or conditions sustained since the motor accident
No history was obtained to indicate subsequent accidents or injuries.
Current symptoms
In terms of her physical condition, Ms Seke attributed an exacerbation of her left shoulder injury that was caused by work to the effects of the motor vehicle accident. She also acknowledged that her right shoulder causes pain. Later when reviewing the documents with her, she corrected the Assessors’ misimpression stating that the right shoulder was in fact injured at work and the left shoulder was injured in the motor vehicle accident.
Ms Seke stated that since the time of the motor accident, she has been an anxious passenger. She worries about other people when she knows they are driving somewhere. She prefers to drive rather than to be a passenger because she perceives that she has more control. She stated that she is able to drive to her medical appointments, but she prefers not to and she will not use the same road as that on which the motor accident happened. She stated that she has bad dreams of the motor accident and of emergency services. She stated that she wakes crying with increased heart rate at 2:00am or 2:30am unable to return to sleep. She stated that she never feels rested in the morning.
Ms Seke stated that she is a watchful passenger. When she is travelling with her partner, she sometimes grabs him when she perceives danger and warns him. She acknowledged that her behaviour as a passenger is distracting for him.
Ms Seke did not report a tendency to anxiety in other circumstances only related to travel by car. She reported changeable moods. Sometimes she laughs and she does not know why. She reported that other say of her that she appears distant and preoccupied and she is not the same person that she was before. She stated that she finds nothing enjoyable. When she is sitting at the beach however she experiences a sense of relief.
Ms Seke stated that after the motor vehicle accident, Dr Kuljic suggested that she see a psychologist. Although she had been seeing him regularly prior to the motor accident, she had not been under the care of a psychologist. She stated that she last consulted with Dr Kuljic two weeks prior to the assessment.
When asked regarding her progress, Ms Seke replied that she feels a bit more in control and more at peace. She does not experience shortness of breath. She stated that everything feels “flat” and she confirmed that she meant she feels calmer. She added that sometimes she does not react emotionally when she perceives that she should, her most prominent emotion is fear. She stated that she has never been suicidal. She frequently asks herself, “What is next?” She added that she dreams about being pregnant and having a child, but she is aware that her condition is currently not conducive to parenthood. She added that she is forgetful.
On being asked further regarding the course of her symptoms, Ms Seke stated her recollection that she was improving gradually following the work accident, but after the motor vehicle accident her condition deteriorated and since that time there has been no appreciable improvement. She stated that she is wary of taking medications long‑term.
Current and proposed treatment
Ms Seke stated that twice a day she takes either Panadol or Panadeine Forte. She has been on venlafaxine 150mg in the morning for the past year and she stated that at the time of the assessment she was awaiting a prescription with a view to increasing the dose to 75mg in the morning and 150mg at night. She was previously on quetiapine 25mg at night as required but she has ceased taking this medication. In addition to prescribed medication, she takes selenium and zinc.
CLINICAL EXAMINATION
Mental state examination
As stated above, the assessment was undertaken using audiovisual technology. The quality of the connection was satisfactory. Ms Seke appeared casually attired. Her hair was unruly and tied up. She wore a T-shirt. She appeared overweight, consistent with her account of weight gain following the motor accident in 2021. The Assessors noted that she had also attributed weight gain to her thyroid condition. She exhibited a flat affect and became briefly teary during the interview. Her account reflected a depressed mood. She described anxiety arising when travelling in a motor vehicle as a passenger and she reported experiencing nightmares. She also described avoidance of the accident scene. Her speech was normal in terms of rate, tone and volume. Much of the assessment was undertaken in English which Ms Seke spoke with a strong accent. On occasion she sought the assistance of the interpreter. No features of a psychotic nature were apparent.
Current functioning
As stated above, Ms Seke last worked in 2020 prior to a workplace injury. She continues to receive weekly payments from the workers compensation insurer. Her partner receives a carer’s pension for his role supporting his mother. He manages the household undertaking vacuuming, laundry and shopping. Her family helps. Ms Seke does the cooking. She may accompany her partner shopping. She cannot engage in further household tasks because she lacks energy, and she cannot undertake any heavy work because of her shoulder and back symptoms.
Ms Seke went on to describe her routine, stating that she has a coffee on waking in the morning and then she takes her medication. She tends to cook only simple meals. She may go out to buy bread. She waits for family overseas to wake up and she talks to them. She goes for a walk on the beach, or she sits alone which allows her to feel relaxed.
Ms Seke confirmed that she has a good relationship with family overseas who have been supportive of her, especially her father. Her partner has been very supportive, but she stated that she can see that he is “tired of it”. Ms Seke maintains contact with her aunt in Melbourne. She visited her two months ago flying to Melbourne alone. In 2023, she travelled to Serbia with her sister where she spent four months. She flew back to Australia on her own. Ms Seke’s sister visited Australia for six months in 2023.
On being asked regarding her personal care, Ms Seke stated that she engages in no exercise and she only eats lunch because she has a diminished appetite. She reiterated that she was diagnosed with Hashimoto's disease and gained weight. She has been under the care of an endocrinologist, but she has declined to take medication because she is scared to commence it. She acknowledged that if she decides to fall pregnant, she will have to take medication.
Ms Seke acknowledged that she has been consistent with showering and dressing. Her partner reminds her attend to her personal care.
When asked further how she spends her time, Ms Seke replied that she reads the news. She talks with her partner. She added that her concentration undermines her ability to read. Previously, she would read material of a psychological nature. She generally attends appointments by phone. She prefers to walk and generally does not have to go far. She catches the bus to the beach. She has a car which she will drive if necessary. She prefers driving alone. She prefers not to be a passenger.
Ms Seke’s friends maintain contact with her by phone. They sometimes visit her. They live in the Liverpool area some distance away.
Comments on consistency
No overt inconsistencies were identified with respect to Ms Seke’s account or her presentation at interview.
REVIEW OF DOCUMENTATION
Summary of relevant documentation
The Application for Personal Injury Benefits documents that absence of hospital treatment following the motor accident consistent with the account presented by Ms Seke at interview. It also notes that she was on workers compensation benefits at the time of the accident.
An extensive review of Bathurst Street Medical Practice clinical notes has been undertaken. The first entry is that of 15 November 2017 at which Ms Seke is documented as suffering anxiety while awaiting permanent residency and she was prescribed Antenex (diazepam). The subsequent entry of 23 May 2018 documents the back injury. The entry of 23 January 2020 refers to the workplace injury and documents that a heavy board fell and hit her on the right side of her neck, right shoulder, elbow and the right forearm. Escitalopram was prescribed on 5 May 2020 and increased on 4 June 2020. Antenex had also been prescribed at that time. Subsequent entries during 2020 document continuation of escitalopram. The entry of 23 February 2021 refers to a motor accident on the preceding day. Contrary to the account presented by Ms Seke at interview, the entry documents that police and ambulance were at the scene. Physical symptoms are documented. Mirtazapine was prescribed on 1 March 2021 in the context of anxiety and panic attacks. Lexotan (bromazepam) was prescribed on 13 April 2021. This represents a treatment for anxiety.
Correspondence of Dr Kuljic dated 23 June 2021 documents Ms Seke’s continued participation in treatment and the change to mirtazapine. What appears to be an initial letter from Dr Kuljic is dated 19 April 2020. It includes an account reflective of the presence of anxiety symptoms and mood symptoms ascribed to the work injury.
The certificate of Assessor Gerald Chew was reviewed. He diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood. He obtained a history that she had suffered anxiety and depression following the work injury and it was evidently his understanding that her condition had improved but she remained symptomatic at the time of the motor accident.
The Assessors noted thyroid function tests inclusive of only a TSH but no T3 or T4. Elevated thyroglobulin Ab and thyroid peroxidase Ab are included. Dr Kuljic documents in his entry of 28 September 2022 the recommendation to check thyroid function with Ms Seke’s general practitioner.
The Assessors noted reference to thyroid function testing. No results were identified in the file to permit confirmation regarding Ms Seke’s thyroid status. Ms Seke confirmed that she has undergone thyroid tests. As documented above, she has been reluctant to take medication.
Ms Seke was asked regarding an MRI scan referring to her right shoulder and the Assessors’ impressions that both shoulders had been injured. She confirmed that the right shoulder was injured at work and the left shoulder was injured in the motor vehicle accident.
Determinations
Diagnosis and reasons
The Assessors noted the history of symptoms arising subsequent to the work injury for which Ms Seke underwent psychiatric treatment prior to the motor vehicle accident. The available information indicated that whilst there may have been improvement in her pre-existing condition, it persisted at the time of the motor accident, and she remained under the psychiatric care of Dr Kuljic. The Assessors noted the presence of trauma symptoms but having regard for the nature of the motor accident, it was not considered that it represented a trauma characteristic of a Criterion A event as described in DSM-5. DSM-5 cites the following with respect to Criterion A event:
‘Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (eg physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (eg, forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human made disasters, and severe motor vehicle accidents.’
Causation and reasons
Based on the available information, it was apparent that the subject motor accident caused the exacerbation of the pre-existing psychiatric condition.
Having regard for the prominence of mood and anxiety symptoms identified at interview and the history reflecting a deterioration following the motor vehicle accident, it is therefore concluded that Ms Seke had suffered an exacerbation of pre-existing Major Depressive Disorder with Anxious Distress. In the absence of detailed information from Ms Seke’s endocrinologist, the potential contribution of a thyroid disorder to the psychiatric symptoms and the associated impairment could not be excluded.
Summary of injuries
The following injury was and is caused by the motor accident:
· Exacerbation of pre-existing Major Depressive Disorder with anxious distress.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[29] and Insurance Australia Ltd v Marsh.[30]
[29] [2021] NSWCA 287 at [40], [41] and [45].
[30] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[31] that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
[31] [2022] NSWPICMP 6 at [70]-[73] (Lynch).
We also adopt the reasoning in Lynch[32] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[32] Lynch at [44]-[62].
The Panel adopts the joint examination report of the Medical Assessors. We are particularly reliant on the clinical expertise of the Medical Assessors who jointly undertook the recent examination process and concluded that the motor accident aggravated the claimant’s pre-existing psychiatric condition. That conclusion is supported by histories recorded by Dr Kuljic that there was an increase in symptomatology following the motor accident.
These reasons show that we have considered the claimant’s extensive pre-existing psychological history and had regard to post accident records. The subsequent clinical records support the claimant’s case of an exacerbation of symptomatology after the motor accident.
We adopt the reasoning in AAI Ltd v Hoblos[33] that the psychological condition is evaluated in determining whether the motor accident caused or materially contributed to a psychiatric condition, albeit by way of aggravation.
[33] [2023] NSWPICMP 210 at [141] – [181] (Hoblos).
Since the reasons were published in Hoblos, the Supreme Court has held that a psychological injury was established if the motor accident aggravated, accelerated or exacerbated a psychological condition.[34]
[34] Todev v AAI Limited t/as GIO [2023] NSWSC 836 (Todev) at [50]-[53].
The motor accident caused an aggravation of a major depressive disorder with anxious distress. This is not a threshold psychological or psychiatric injury.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Chew is revoked. The new certificate is attached at the commencement of these Reasons.
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