Shales v AAI Ltd t/as GIO
[2025] NSWPICMP 460
•27 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Shales v AAI Ltd t/as GIO [2025] NSWPICMP 460 |
CLAIMANT: | Glen Shales |
INSURER: | AAI Ltd t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Dr Gerald Chew |
MEDICAL ASSESSOR: | Dr Christopher Rikard-Bell |
DATE OF DECISION: | 27 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); review of Medical Assessment Certificate (MAC); the claimant was injured in a motor vehicle accident; a medical dispute arose as to whether the psychiatric injuries sustained were threshold injuries; a dispute also arose as to total whole person impairment (WPI); the claimant sought a review of the Medical Assessment under section 7.26 of the MAI Act; the Review Panel conducted an examination and considered the factors contributing to the injury according to section 6.6 of the Motor Accidents Guidelines; Held – MAC revoked; the Review Panel determined that the claimant had sustained a psychiatric condition arising from the injuries sustained in the accident; WPI due to the psychiatric injury caused by the accident resulted in 6% WPI. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Friend of (a) nil psychiatric condition arising from the injuries sustained in the motor vehicle accident, and (b) the determination as to whether these injuries were threshold was not required for the purposes of the Motor Accident Injuries Act 2017. 2. The Medical Review Panel revokes the certificate of Medical Assessor Friend of 3. The Review Panel determines that Mr Shales sustained whole person impairment as a result of the accident of 6%. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Glen Shales (Mr Shales), was injured in a motor vehicle accident (the accident) on 21 November 2018.
The third-party insurer of the vehicle which is alleged to have caused the accident is AAI Limited T/As GIO Insurance (GIO).
Two disputes have been referred to the Panel:
(a) a threshold injury dispute, and
(b) a whole person impairment (WPI) dispute.
Under the provision of the Motor Accident Injuries Act 2017 (MAI Act) in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Mr Shales submitted an Application for Personal Injury Benefits on 17 December 2018.
Threshold injury dispute
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident was a threshold injury.
A medical assessment matter was determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The insurer has consistently taken the view that Mr Shales’ psychiatric symptoms were as a result of a pre-existing condition.
Further, GIO considers that the psychiatric consequences of this accident were threshold in nature.
Threshold injury- statutory provisions
Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) 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” was 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.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
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 was a threshold injury for the purposes of the MAI Act. Version 9.2 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 was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim was a threshold injury. Diagnostic imaging was 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 was 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.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was 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 was related to the accident in question was 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 claims assessor) in considering such issues.
6.6 Causation was 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 was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”
ASSESSMENT UNDER REVIEW
Medical Assessor Paul Friend examined Mr Shales on 18 January 2024 and issued a certificate in respect to threshold injury on 29 January 2024 and WPI on
2 February 2024.The Panel sets out the Reasons for the Certificates by reference to paragraph numbers, noting that both certificates are similar in nature and have the same paragraph numbering:
[2] The injury referred to Medical Assessor Friend for assessment was persistent depressive order.
[6] Medical Assessor Friend lists the additional late documents he considered in his certificate.
[8] Medical Assessor Friend sets out the psychosocial and pre-accident history of Mr Shales:
“Mr Shales was born in Sydney and grew up in Oyster Bay. He is the eldest of six siblings.
Mr Shales married in 1997. He has a son and daughter aged 25 and 24 years, respectively.
The marriage ended when his children were aged 1 and 2 years. His ex-wife died in 2019 and he has not subsequently remarried.
Mr Shales was asked about his previous medical history. He struggled to provide this until he was prompted.
After some prompting, he remembered that he was involved in a motor accident in 1995. This was a rearend collision. He was probably off work for about six weeks as outlined in his statement but did fully recover and returned to his usual employment.
In August 1999 he suffered a twisting injury to his right knee and subsequently had an arthroscopy. He gradually recovered and returned to full time work.
Mr Shales, when prompted, agreed that he had been depressed in 2014. He was prescribed Desvenlafaxine 50mg daily and was referred to a psychologist which according to his statement in paragraph 28 was Peter Cowell.
He believes that he saw Mr Cowell for at least several sessions and became euthymic.
He believes that he subsequently remained free of depression and continued to take Desvenlafaxine.
Mr Shales consulted Dr Kwok Y Yan on the first occasion in 2001 who diagnosed recurrent stuffiness and occasionally posterior nasal drip. He also was diagnosed as having sleep apnoea and commenced on a CPAP machine which he continues to use each night to the present day and which significantly improves his treatment.”
[9] Medical Assessor Friend sets out the history of the accident:
“The motor accident occurred late in the evening. He was walking around the back of his vehicle and just reached the right rear corner when he was struck by a passing motor vehicle and thrown into the back of his van. He believes that if he had not been thrown, that he would very likely have been crushed between the oncoming vehicle and his vehicle. He can remember the collision and the next thing he remembers is he was standing on the footpath feeling confused. He does remember the driver of the other vehicle stopping. His son drove him to the Sutherland Hospital where he was admitted overnight.”
[10] The Medical Assessor notes that after investigations at Sutherland Hospital, very few if any injuries were found.
Medical Assessor Friend’s review of the medical evidence
Discharge referral from Sutherland Hospital for the admission 21-22 November 2018:
“Mr Shales was involved in the motor accident described and had pain in the right wrist and left ear.
Mr Shales states that he was confused and struggling at the time and also that he was lucky to be alive. He also had pain in both shoulders and had pain in both wrists.
Within less than a week, perhaps as short as 3-5 days, he became aware that his memory was impaired.
Prior to the motor accident he had worked setting up equipment for stage productions. He had always been able to remember the jobs, the locations and the times without recording it.
He could not remember being offered a job, let alone the details of it, after the motor accident.
He only remembered a job, if someone reminded him about it.
He could forget where he parked his vehicle, for example on one occasion he had caught the train to a nearby railway station and walked home. He thought that his vehicle had been stolen from outside of his house, whereas he had parked it in the railway station carpark.
His children complained that he would repeatedly tell them something but would have no memory of doing so. He would forget what others, including his children, told him.
He struggled to complete the documentation required to deal with the insurer following the accident.”
Report of Dr Dennis Cordato of 4 February 2019:
“[Dr Cordato] states he has a mild head injury with residual cognitive symptoms which is probably a post traumatic concussion syndrome and he should recover.
The symptoms persisted as noted in Dr Cordato's various letters and Dr Cordato referred him to Dr Jeanette Stewart, clinical neuropsychologist.”
Report of Dr Jeanette Stewart of 21 January 2020:
“[Dr Stewart] states he performed in the extremely low ranges on
tests for auditory memory but there were inconsistencies in test performance.
He had extremely low range on immediate delayed prose recall but in the high average range in recognition performance.
He was in the extremely low range for word lists recognition.
His immediate recall for memory tasks was in the average range and delayed recall was in the borderline range. His immediate and delayed recall on other visual memory tasks fell within the average ranges.
It states that overall his performance on validity tests was inconsistent which raised concerns about the degree to which he had maintained effort on the assessment.
It states that he has a history of depression and he endorsed severe ranges of depression and moderate ranges of stress apparently on the Depression Anxiety and Stress Scale. The scores on the scale are not provided.
Mr Shales became aware of pins and needles and pain in both wrists and was referred to Dr Mark Nabarro, hand surgeon.
Dr Nabarro diagnosed him as carpal tunnel syndrome and performed bilateral carpal tunnel decompression surgery in 2022.
The insurer declined to pay for the surgery despite Dr Nabarro stating it was caused by the motor accident.”
Report of Ms Jackie Joukhador of 11 June 2023:
“Mr Shales was referred to Ms Jackie Joukhador, clinical psychologist. He attended for six sessions but was unable to say whether it had been helpful.
[Ms Joukhador] states his DASS results were consistent with high levels of stress but normal mood.
He was provided with cognitive behavioural strategies to help with times of stress.
The DASS scores were all in the normal range at the end of the six sessions.
Mr Shales was subsequently referred to Ms Kathryn Newbury, clinical psychologist, whom he found helpful.
The DASS 21 Scores on 1 June 2021, which were at the beginning of treatment, appeared to be in the Extremely Severe range for Depression, Anxiety and Stress.
Ms Newbury recommended that he consult a clinical psychologist specialising in the treatment of head injuries.
Mr Shales was unable to find such a psychologist and has had no further psychological treatment.
Mr Shales was referred to Dr Susan Van Den Berg, neuropsychologist, because for some reason Dr Jeannette Stewart was unavailable.”
Medical Assessor Friend sets out the current symptoms of Mr Shales:
“Mr Shales' most distressing symptom is the problem with his memory. He can forget where he parks his vehicle. He forgets what he is told and needs to write down everything in his phone with reminder. When given a reminder or several reminders, he was often able to remember more details.
Mr Shales described ongoing pins and needles in his hands and feet, pain in both shoulders, pain in his back and neck.
His most distressing symptom was his poor memory. He forgets what he has been told, what he has told others, where he has parked his motor vehicle, appointments and other day to day activities to which he needs to attend.
He believes he has become more blunt and direct in his interaction with others which he feels is probably alienating at least his children, if not others.
Mr Shales did not describe any specific psychiatric/psychological symptoms. He stated that the preexisting depression was controlled by taking desvenlafaxine prior to the motor accident and has not been exacerbated by the motor accident.”
Medical Assessor Friend’s clinical examination:
“Mr Shales was on time and alert but not fully orientated. He believed that today was Friday rather than Thursday. He did understand the purpose of the examination but he only remembered it because he had a reminder in his mobile telephone with an alarm.
Mr Shales struggled to provide an account of his past history, the treatment that he had received, the health professionals that he had consulted, and various important events as described in the preceding account.
He was not in a relationship at the time of the motor accident and is not in a current relationship.
Mr Shales continues to have the same problems with memory in that he forgets all of his day-to-day activities and needs reminders in his mobile phone. He needs to use a GPS device to find his way when driving.
Prior to the motor accident he would watch television but now only watches sport occasionally. He describes having less tolerance and being more irritated about what is on television and states that he is disappointed with the world.
Mr Shales as stated has been on Centrelink Jobseeker payment from some time after the accident. He is no longer offered jobs in the live music industry which he believes is as a consequence of his poor work performance. He forgot to attend one job which was very embarrassing. He repeatedly made obvious mistakes when he did set up jobs which he did not do prior to the motor accident. Centrelink have advised him to apply for the Disability Support Pension.”
Medical Assessor Friend noted that Mr Shales was consistent throughout the examination.
Submissions of the insurer dated 14 September 2023:
“The insurer's submissions dated 14 September 2023 state that the report of Dr Graham Vickery finds that there is no diagnosable DSM-5 psychiatric disorder or injury caused by the subject accident.”
“Associate Professor Robertson noted that claimant had a previous episode of Major Depression in 2015 treated with antidepressant medication. He continued to take his prescribed antidepressant medication and took it indefinitely and was taking desvenlafaxine at the time of the motor accident.
Associate Professor Robertson was not apprised of the extent of the claimant's pre-existing psychiatric disorders as disclosed in the Centrelink records.”
“The insurer submits the psychiatric condition is pre-existing and/or unrelated to the motor accident.
His parents divorced in 1971 and his father relocated to Broken Hill. He lived with his father in Broken Hill and attended school in Broken Hill until completing Year 10.
He returned in 1977 to Sydney, living with his mother in Oyster Bay and obtaining an apprenticeship as a chef.
He left the employment as a chef at Sydney Airport about a month before he would have completed it.
He subsequently worked for several electrical wholesalers and had various other jobs.
He lived in Jindabyne and worked in the Snowfields, mostly in Perisher Valley, as a labourer for about six years.
He worked as a self-employed landscaper from 1990 for 2-3 years.
He commenced working for QANTAS Airways Limited at Sydney Airport as a baggage handler in 1993 and remained in that job until he was made redundant in 2003.
Mr Shales started working casually for Oztag running football events at night, whilst working for QANTAS Airways Limited. It appears that he was employed as a part time or casual employee by Oztag.
He continued working for Oztag for varying periods of time, more after he was retrenched from QANTAS Airways Limited, until about 2014.
He completed the Certificate in Business at Sydney YMCA in 2013.
He had four Certificates through Sydney TAFE, in the period 2014 to 2016. These included a Certificate IV in Music Business, Technical Sound Production, Certificate IV in Live Production, Certificate IV in Social Media and Marketing and Production and a Diploma of Music Business.
He commenced working casually in several businesses involving staging musical events, in 2015.
He referred to these casual or gig economy employment. They generally occurred at night. He was required to set up the stage lighting and other equipment.
In 2018 prior to the motor accident, Mr Shales commenced the Certificate IV in Screen and Media at Sydney TAFE. The purpose of this course was to learn how to operate consoles to be used at music events. This would enable him to work at such events at a higher level whereas previously he was more involved in the physical setting up for musical events. ,
He registered a business name in August 2018. He was hoping to run a business setting up for live musical events and controlling the audio and visual content for those productions which would require him to operate one or more consoles.
This employment in the music industry is always casual. It can be organised in short time frames close to time of the events. He might have no work on Thursday before a weekend and then be offered ten events over the weekend.”
“The report of Graham Vickery, psychiatrist, dated 9 June 2022, states that Mr Shales is currently unemployed.
He worked in the 1980s for a company named Lawrence and Hansen and for Qantas in the 1990s.
He is subsequently receiving Centrelink benefits by working casually setting up audiovisual equipment on stage which ceased with the onset of COVID-19 but there has been some work this year.
His current symptoms were pain and stiffness in the neck, shoulders and upper back.
He had memory problems which was frustrating because he forgets why he is going somewhere or where he has parked his car or the names of people.
He has taken antidepressant medication for 5-10 years but cannot remember why he commenced on them.
He is having psychological counselling every two to four weeks.
He has a previous history of sleep apnoea and uses a CPAP machine.
Dr Vickery states that there is no diagnosable DSM-5 psychiatric disorder arising from the injuries sustained in the motor accident.”
“The Centrelink Assessment by a registered psychologist dated 20 March 2015 states the condition is Depression. The onset is listed as 14 August 2014. The symptoms are low mood reduced motivation, lack of energy, poor concentration and poor sleep. He was commenced on medication in April 2014 and has had counselling since October 2014. He is currently living in his vehicle which increases his symptoms.
It states he is fit to do light less skilled work such as porter, stage management and sports administration and is expected to return to full time work. His current work capacity is 30+ hours per week. Temporary work capacity is 8 to 14 hours per week. This should upgrade up to 20 September 2015.
It states he completed Year 10 at high school and then worked in stage management, as a porter at the airport and was self-employed in sports administration.
He ceased working in December 2014 as no work was available in sports administration. He would like to return to work in stage management. He states he wants to be upgraded to full time work capacity but the symptoms of low mood and reduced concentration so he can be fully eligible participant with his employment service provider. It also states he has been investigated for sleep apnoea.”
“The Centrelink Assessment on 19 May 2017 states that he was diagnosed with Depression in 2014 and has been taking antidepressant medication which has stabilised his symptoms.
Dr Loxley, his general practitioner, noted poor mood, poor concentration, sleep disturbance, anxiety and chronic tiredness. He stated he can work up to 16 hours per week.
He experiences anger and frustration when dealing with government departments.
He is being investigated regarding the sleep apnoea. It states that he has been diagnosed as having sleep apnoea and is having a trial of a CPAP machine which he has found useful.
It states his baseline work capacity is 8 to 14 hours per week and his capacity for work within two years with intervention is 15 to 22 hours per week.”
“The statement by Carly Shales, daughter of Glen Shales dated 7 August 2023, states that after the accident he didn't work as much on concerts. He was losing his memory. He was forgetful. He would forget information that she gave him about her mother who had been diagnosed with pancreatic cancer in 2019.”
“The statement by Wade Shales, son of Glen Shales dated 7 August 2023, states in paragraph 30 that he was forgetful, forgetting what he had been told the next day.
He was putting the jobs that he had in his calendar because he couldn't remember them, which he was able to do prior to the accident.
He is unable to do much work following the accident. He would lose his car from time to time.”
The Medical Assessor also referred to the report of a clinical psychologist, Kathryn Newbury, and to her test results, including that her DASS 21 scores on 1 June 2021 appeared to be in the extremely severe range for depression, anxiety, and stress.
Ms Newbury recommended that Mr Shales consult a clinical psychologist specialising in treatment of head injuries.The summary also refers to the CT scan of the brain of 22 November 2018, reported as showing no acute intracranial pathology.
The summary also refers to clinical records of Dr Loxley and various other records and reports at [17], all of which the review panel has referred.
The Medical Assessor also summarised the report of Associate Professor Michael Williamson of 5 July 2023, and he had made a diagnosis of persistent depressive disorder, the causal mechanisms for which were chronic pain and ongoing cognitive impairment. It notes that Professor Williamson had assigned a pre-accident WPI of 1% and a post-accident WPI of 22%, assigning class 2 to self-care, travel, social relationship function, class 3 to social and recreational activities, class 4 to concentration persistence and pace, and class 5 to adaptation, with a total WPI attributed to the accident of 21%.
After completing his assessment of Mr Shales, the Medical Assessor at [18] concluded that he did not describe symptoms which would reach the criteria for a DSM 5 diagnosis. He noted that the records of Dr Loxley before the accident referred to
Mr Shales as being depressed, and has described desvenlafaxine, at least up until the end of 2017. He noted the only reference in the clinical records to depression and prescription of desvenlafaxine post-accident was on 21 December 2019. The dose was the same before the accident.The Medical Assessor then referred to the findings of associate Professor Williamson, noting that DASS was a symptom measure and not an indication of the diagnosis. He noted that the DASS scores reported were inconsistent with the scored reported by Jackie Joukhador as normal.
He was of the view that the memory impairment since the accident had affected other areas of his life, but it was not associated with psychiatric symptoms, and in the absence of other psychiatric symptoms, it could not be attributed to a DSM-5 psychiatric condition.
According to his conclusion that the new psychiatric condition arising from the accident and whether or not he had a threshold injury was therefore not applicable.
Whole person impairment
Necessarily, Medical Assessor Friend, having concluded that there was no DSM-5 psychiatric injury, there was no occasion for determination of resultant WPI.
Review procedure
Mr Shales lodged an application for review of the assessment of the Medical Assessor.
On 16 April 2024, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
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.
The review was by way of a new assessment of all matters with which the medical assessment was concerned.
RE-EXAMINATION BY THE PANEL
Examination findings – Medical Assessors Rikard-Bell and Chew
Mr Shales was examined by Medical Assessors Rikard-Bell and Chew on behalf of the Panel on 7 May 2025. The Panel sets out the report below by reference to paragraph numbers:
History
Pre-accident functioning
Before the motor vehicle accident, Mr Shales was able to care for himself well and there was no impairment of self-care and personal hygiene.
In terms of social functioning, Mr Shales was residing alone and there was some estrangement from his ex-wife. He was not involved in any close relationships. There was mild impairment of social functioning.
In terms of concentration, there were no concerns and he stated he was a “troubleshooter.” There was no impairment of concentration, persistence and pace.
In terms of social and recreational activities, Mr Shales was socially active and he enjoyed interacting with others. There was no impairment of social and recreational activities.
In terms of adaptation, Mr Shales was attempting to reinvent himself and was planning to start a music equipment business; however, he needed to complete the final steps for the business to commence. There was mild impairment of adaptation.
In terms of travel, there were no restrictions and no impairment of travel.
Personal history
Mr Shales previously functioned at a high level. He worked for Qantas in the baggage section and held an important role within the Union. Qantas became upset with him and wanted him sacked, however, he negotiated a redundancy. Mr Shales was quite adept at problem solving and after leaving Qantas, he moved into the music industry. He completed several certificates and planned to work setting up equipment and start a business. In addition, he was involved in Oztag; however, this ended mutually.
Past psychiatric history
There was a brief period of depression in 2014, possibly after retrenchment from Oztag, however, it appeared that he fully recovered, even though it was mentioned in the Centrelink assessment dated 19 May 2017. Mr Shales denied any significant ongoing depression after 2014. He has been treated for obstructive sleep apnoea.
Past forensic history
There was a brief accident in 1995 and he returned to work after six weeks. In 1999, there was a sore knee, then he returned to work a short time later. There are no other motor vehicle accidents, Workers’ Compensation claims, insurance claims or legal issues.
History of the accident
On 21 November 2018, Mr Shales was involved in a motor vehicle accident. On the day of the accident, both his and his son’s cars were parked when a vehicle veered across 6 lanes and collided with Mr Shales. The vehicle was travelling at approximately 60 kmph. Mr Shales believed that if a pedestrian is struck by a vehicle at 60 kmph, there would be a 90% chance of fatality and it was miraculous that he was not killed. There was some loss of consciousness, he believes and he woke up on the footpath with his son present. He was transported to the hospital by his son, where he underwent testing then released the next day.
History of symptoms and treatment after the accident
Following the accident, Mr Shales became concerned about his memory, which has continued. He expressed a lot of concern that he was suffering from a “punch drunk” or football-like injury with significant head damage. Mr Shales outlined several concerns. He believed that he had a poor memory and could not recall his medical history unless prompted. He could not remember where he had parked his car occasionally and would need to photograph the parking spot. He believed there would be a 90% chance of dying when he was struck by a vehicle as a pedestrian travelling at 60 kmph. There was depression in 2014 and he received psychological treatment with Peter Cowell over two to three months. He responded well to treatment and stated he had fully recovered before the motor vehicle accident. He cannot remember his medications and he cannot remember telephone calls requiring emails for reference. He is now frustrated as he is out of pocket over $11,000 in relation to various specialist fees. Mr Shales stated he was walking around the back of his vehicle one evening when a passing vehicle struck him and threw him back into his van. He could not precisely recall the collision or when he was hit by the other vehicle; however, he believes this was a near-death experience.
Current routine
Mr Shales will go to bed between 10.00pm and 12.00am, then wake up at 6.00am or 9.00am. He uses a mask while sleeping for obstructive sleep apnoea. In the morning, he gets up and goes to Cronulla beach where he interacts and socialises. He enjoys being in nature as he finds this relaxing. He will go home, then he will usually have lunch and he stays home during the afternoon and evening. He will often order take-away for the evening meal as he does not like to prepare food. There is no change on the weekend.
Current symptoms
Mr Shales’ appetite is normal and his weight is stable. His mood is up and down and he stated he feels somewhat despondent with a low feeling. He recognised that his daughter is worried whether he has suicidal tendencies, although he denied that he had ever thought about or planned to harm himself. Mr Shales enjoys nature and the beach, and sometimes he will go to the country. There are no hallucinations, although he has had occasional panic attacks when in the car. He is hypervigilant about accidents and he worries when going too close to the road, as vehicles could potentially head towards him. Mr Shales feels frustrated with banks and Centrelink as he is asked to remember passwords and he prefers communicating via email. He is avoidant of situations where he may be humiliated, as he will not remember something and he does not like talking on the phone, as he will be asked to remember things.
Work history
Mr Shales worked in Jindabyne for six years as a landscaper. He worked for Qantas at Sydney Airport from 1977 for 10 years before he was made redundant and he worked with Oztag. From 2013 to 2016 Mr Shales completed several certificates to develop a career and start a business in the music industry.
Mental state examination
Mr Shales presented as a serious looking man who seemed very concerned about the assessment. He was relatively intense in manner and appeared quite defensive with concerns about being misjudged. His speech was normal in tone and volume. There was no abnormality of perception. Mr Shales’ affect was irritable and anxious with some depression. His cognitive function appeared within normal limits, and he was orientated in time, place and person. Mr Shales stated the date was 5 May, whereas it was 7 May. He was able to recall 1 out of 3 items and gave up fairly quickly when trying to recall the various items; otherwise, his orientation was good. He could manage Serial-7s accurately. His general knowledge was good with naming the opposition leader, the prime minister of Australia and the President of the United States. He was able to interpret a proverb well. Despite slightly poor performance with some recall, his overall cognitive function appeared to be reasonably satisfactory. His insight and judgement seemed within normal limits, and he was quite convinced that he had suffered a brain injury, which was the cause of his problems.
Current functioning
Mr Shales is able to dress, feed and manage his self-care reasonably well, but does not pay a lot of attention to his self-care. He will often eat take-away food and he appeared a little unkempt at the interview. There is mild impairment of self-care and personal hygiene.
In terms of social functioning, Mr Shales is close to his children, however, his daughter does not visit a great deal and he sees his son occasionally, although their relationship is reasonably solid. He is not involved in any other close relationships. There is mild impairment of social functioning.
In terms of concentration, Mr Shales finds it difficult to focus. He says he cannot remember, then begins a task and returns three hours later, realising he has not completed the job. He is preoccupied with the lack of memory and that he has a brain injury. He is concerned that he will forget where he has parked the car and he will take a photo of where it is parked. Nevertheless, he was able to concentrate for an hour and 30 minutes at the interview and he was focused and coherent. On balance, there was mild impairment of concentration, persistence and pace.
In terms of social and recreational activities, Ms Shales socialises at the beach and occasionally sees friends, however, he is not very socially active. There is mild impairment of social and recreational activities.
In terms of adaptation, Mr Shales does not believe he is able to work. He stated he was only partially employed before the accident and after the accident, he applied for the Disability Support Pension. He does not believe he would be able to remember items well enough to be able to function in a work environment. His belief that he would be unable to work appears to be significant and his belief of cognitive damage is strong. On balance, there is moderate impairment of adaptation.
In terms of travel, Mr Shales is hypervigilant in the car. He is frightened near the road and worried about further injury or damage. There is mild impairment of travel.
Diagnosis and reasons
The Panel formed the view that Mr Shales’ presentation, history and psychological condition were best diagnosed as post-traumatic stress disorder (309.81, F43.10).Mr Shales’ son interpreted the accident and traumatic details to him, which Mr Shales interpreted as being a near-death experience. Mr Shales believes he was on the cusp of developing a successful business when the accident occurred. He was not fully engaged in any other employment and his business had not yet had an opportunity to start. There was possibly mild relationship and social difficulties before the accident; however, after the accident, Mr Shales became convinced that he had developed brain damage. There are dissociative reactions when he cannot remember and he feels that he is in danger. There is a persistent belief that he has suffered a brain injury. The Panel considered the possibility of persistent depressive disorder, however, it was believed that the dysphoric mood and irritability could well be explained by posttraumatic stress disorder. The criteria according to DSM-5-TR are outlined below:
A. A traumatic event (the motor vehicle accident)
B. Re-experiencing phenomena with intrusive recollections about dangerous situations, being killed and being near the roadway
C. Avoidance behaviours avoiding situations similar to the motor vehicle accident, avoidance of situations of perceived threat, such as going near the road where there are vehicles, avoidance of distressing memories associated with the accident
D. Negative cognitions related to episodes of poor memory and amnesia, where he cannot remember, persistent negative emotional state in relation to cognitive distortion and having a brain injury even though assessments have been unclear
E. Marked alterations in arousal with irritability, hypervigilance, increased startle response
F. Duration of more than one month
G. Significant impairment of functioning in social, occupational or other important areas of functioning
H. Not due to substance use or other medical condition
Causation
From the history obtained, Mr Shales indicated he was functioning well prior to the accident with no mental health issues. There was no concern about memory, trauma or hypervigilance. Following the accident, his symptoms are consistent and persistent, and he believes he has suffered brain damage. There was significant deterioration in his functioning after the accident and he has been unable to continue with the plan to start a new career and commence a business in the music industry. It is the Panel’s view that the post-traumatic stress disorder is causally related to the accident.
Apportionment
There is 1% apportionment for pre-existing psychological injuries.
THRESHOLD INJURY DISPUTE
The Review Panel considered that Mr Shales presentation, history and psychological condition was best diagnosed as a post-traumatic stress disorder. It did consider the possibility of a persistent depressive disorder, but the Panel believes a dysphoric mood and irritability could well be explained by a post-traumatic stress disorder. It considered the DSM-5-TR Trauma at page 8. It considered that the post-traumatic stress disorder was causally related to the accident.
Having dealt with whether or not there was a relevant psychiatric condition post-traumatic stress disorder caused by the accident, it was able to arrive at the conclusion that the Medical Assessor was incorrect in his determination, that there was no need to consider whether or not this was a threshold injury, a determination not arrived at by the Medical Assessor as he considered there was no psychiatric condition caused by the accident.
Whole person impairment
The Panel then went on to consider the degree of permanent impairment applying the psychiatric impairment rating scale (PIRS).
| Psychiatric diagnoses | 1. Posttraumatic stress disorder | 2. pre-existing depressive disorder now resolved |
| Psychiatric treatment description | Psychological counselling, now ceased. | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 2 | Mr Shales is able to dress, feed and manage his self-care reasonably well, but does not pay a lot of attention to his self-care. He will often eat take-away food and he appeared a little unkempt at the interview. There is mild impairment of self-care and personal hygiene. |
| 2. Social and Recreational Activities | 3 | In terms of social and recreational activities, Mr Shales is avoidant and does not like to socialise. There is moderate impairment of social and recreational activities. |
| 3. Travel | 2 | In terms of travel, Mr Shales is hypervigilant in the car. He is frightened near the road and worried about further injury or damage. There is mild impairment of travel. |
| 4. Social Functioning | 2 | In terms of social functioning, Mr Shales is close to his children, however, his daughter does not visit a great deal and he sees his son occasionally, although their relationship is reasonably solid. He is not involved in any other close relationships. There is mild impairment of social functioning. |
| 5. Concentration, Persistence and Pace | 2 | In terms of concentration, Mr Shales finds it difficult to focus. He says he cannot remember, then begins a task and returns 3 hours later, realising he has not completed the job. He is preoccupied with the lack of memory and that he has a brain injury. He is concerned that he will forget where he has parked the car and he will take a photo of where it is parked. Nevertheless, he was able to concentrate for an hour and 30 minutes at the interview and he was focused and coherent. On balance, there was mild impairment of concentration, persistence and pace. |
| 6. Adaptation | 3 | In terms of adaptation, Mr Shales does not believe he is able to work. He stated he was only partially employed before the accident and after the accident, he applied for the Disability Support Pension. He does not believe he would be able to remember items well enough to be able to function in a work environment. His belief that he would be unable to work appears to be significant and his belief of cognitive damage is strong. On balance, there is moderate impairment of adaptation. |
| List classes in ascending order: 2,2,2,2,2,3 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 13 | ||
| % Whole Person Impairment: 7% | ||
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale – Pre-existing/subsequent impairment
| Psychiatric diagnoses | 1. Depressive disorder | |
| Psychiatric treatment description | Nil recorded | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 1 | Before the motor vehicle accident, Mr Shales was able to care for himself well and there was no impairment of self-care and personal hygiene. |
| 2. Social and Recreational Activities | 1 | In terms of social and recreational activities, Mr Shales was socially active and he enjoyed interacting with others. There was no impairment of social and recreational activities. |
| 3. Travel | 1 | In terms of travel, there were no restrictions and no impairment of travel. |
| 4. Social Functioning | 2 | In terms of social functioning, Mr Shales was residing alone and there was some estrangement from his ex-wife. He was not involved in any close relationships. On balance, there was mild impairment of social functioning. |
| 5. Concentration, Persistence and Pace | 1 | In terms of concentration, there were no concerns and he stated he was a “troubleshooter.” There was no impairment of concentration, persistence and pace. |
| 6. Adaptation | 2 | In terms of adaptation, Mr Shales was attempting to reinvent himself and was planning to start a music equipment business; however, he needed to complete the final steps for the business to commence. There was mild impairment of adaptation. |
| List classes in ascending order: 1,1,1,1,2,2 | ||
| Median Class Value: 1 | ||
| Aggregate Score: 8 | ||
| % Whole Person Impairment: 1% | ||
*%WPI = Percentage Whole Person Impairment
The Review Panel concluded that there was a 6% WPI caused by the accident.
The Review Panel met again for a post-examination conference on 23 May 2025 at 3.00pm, discussed all the issues, and arrived at the conclusions set out.
Forming the Review Panel’s medical examination, findings, and the subsequent discussion at the second review panel meeting, the Panel addressed the following submissions that it had received.
SUBMISSIONS
Claimant’s submissions dated 28 February 2024
The Panel summarises the submissions of Mr Shales of 28 February 2024 by reference to paragraph numbers:
[4]In both certificates, Medical Assessor Friend found Mr Shales did not suffer a psychiatric condition from the motor accident, and therefore did not assess threshold injury or permanent impairment.
[5]Mr Shales submits the assessment was materially incorrect.
[6]Mr Shales submits both matters should be dealt with together due to the shared examination and findings.
[7]Mr Shales submits that both matters raise the same essential issue, whether he suffered a psychiatric condition from the motor accident.
Background
[8]The assessment relates to injuries Mr Shales claims from a motor accident on
21 November 2018.[9]Mr Shales describes being struck on the arm and thrown against his parked car.
[10]Mr Shales notes he was transported to hospital and treated for injuries.
[11]Mr Shales acknowledges the injuries included physical trauma and a traumatic brain injury.
[12]Mr Shales submits that his injuries gave rise to cognitive impairment and he has been under treatment since February 2019.
[13]Mr Shales notes a history of pre-existing depression for which he was medicated but had not sought treatment since 2015.
[14]Mr Shales submits the accident exacerbated his depression due to chronic pain, cognitive issues, and other impacts.
[15]Mr Shales submits the Medical Assessor relied on his alleged statement that he was not depressed and that the accident did not worsen his condition.
[16]Mr Shales denies making these statements and struggles to recall the assessment due to his cognitive impairment.
Error
[17]Mr Shales submits the assessment was materially incorrect due to three errors:
(a) failure to properly record history;
(b) failure to address inconsistencies, and
(c) failure to explain reasons for rejecting evidence.
Legislation
[18]Mr Shales refers to Parts 5 and 6 of the Guidelines as containing relevant procedural requirements and sets out the legislation relied upon from [18]-[25] of his submissions.
Ground (a)
[26]Mr Shales submits that the MedicalAssessor recorded that he denied specific psychological symptoms or exacerbation of depression.
[27]Mr Shales submits these are conclusory statements with no detail of actual symptoms described.
[28]Mr Shales submits the certificate lacks any account of what he actually said during assessment.
[29]Mr Shales submits the Medical Assessor failed to comply with the Guidelines by not recording an actual history or comprehensive symptoms of Mr Shales.
[30]Mr Shales submits that for the Medical Assessor to say he “did not describe any specific psychiatric/psychological symptoms” is not sufficient to discharge his obligation to take a comprehensive and accurate history.
[31]Mr Shales refers to page 27 of the Medical Assessor’s determination that: “He did describe feeling depressed or having any other psychiatric symptoms.”
[32]Mr Shales submits the sentence appears erroneous and likely meant the opposite but is ambiguous.
[33]Mr Shales submits that this finding is central to the determination but the lack of precise recorded language makes it impossible to assess the correctness of the Medical Assessor’s conclusion.
[34]Mr Shales submits the history recorded is inconsistent with those given to prior treating doctors.
[35]Mr Shales denies ever saying he was not depressed or that his condition was not exacerbated.
Ground (b)
[36]Mr Shales notes he has consistently reported cognitive and memory issues to practitioners since the accident.
[37]Mr Shales submits the Medical Assessor failed to question him about contrary medical histories despite these cognitive impairments.
[38]Mr Shales submits the Medical Assessor failed to explore the divergence between Mr Shales claiming that the accident had not exacerbated his psychological condition, and that he did not describe feeling depressed or having any other psychiatric symptoms.
[39]Mr Shales highlights that the Medical Assessor acknowledged that he had memory issues and needed prompting in other parts of the history.
[40]Mr Shales submits the Medical Assessor failed to ask him about prior psychiatric histories recorded by other practitioners.
[41]Mr Shales relies on Dr Stewart's report of 25 January 2020, noting severe ranges of depression and stress symptoms.
[42]Mr Shales notes Dr Stewart recommended further psychological treatment based on current mood.
[43]Mr Shales refers to psychologist Kathryn Newbury's notes following an examination on 1 June 2021 which record symptoms of low mood and hopelessness.
[44]Mr Shales notes continued symptoms of anxiety and depression on
18 June 2021.[45]Mr Shales submits similar symptoms were recorded through to March 2022.
[46]Mr Shales notes that on 1 March 2022, Kathryn Newbury recorded that
Mr Shales reported increased depression and reduced daily activity.[47]Mr Shales notes that the DASS-21 results on 1 June 2021 showed extremely severe depression, anxiety, and stress.
[48]Mr Shales refers to Dr van den Burg’s 2023 report noting ongoing depression since the accident.
[49]Mr Shales highlights that Dr van den Burg notes the DASS scores showed severe depression, stress, and extreme anxiety.
[50]Mr Shales notes Dr van den Burg recommended ongoing psychological therapy due to ongoing mental health issues.
[51]Mr Shales refers to Dr Robertson’s report of 5 July 2023 describing chronic depression and anxiety symptoms.
[52]Mr Shales submits that Dr Robertson also recorded significant functional impairments in in respect to self-care, social/recreational activities, travel, social adaptive measures, concentration, persistence and pace, and employment/adaption.
[53]Mr Shales refers to his statement declaring post-accident depression and need for counselling.
[54]Mr Shales submits the Medical Assessor did not address these parts of his statement in the certificate.
[55]Mr Shales submits the Medical Assessor erred by failing to question him as to the inconsistency between his alleged denial and prior consistent medical evidence.
[56]Mr Shales submits the Medical Assessor should have questioned him about his historical psychiatric reports and changes in symptom reporting.
[57]Mr Shales submits this was particularly necessary given his memory deficits.
[58]Mr Shales notes that he had to be prompted about prior history in other parts of the assessment.
[59]Mr Shales submits the Medical Assessor did not prompt him about his past psychiatric symptoms.
Ground (c)
[60]Mr Shales submits the Medical Assessor failed to explain why he gave no weight to consistent prior psychiatric histories.
[61]Mr Shales submits that the Medical Assessor dismissed multiple psychological sessions without explanation.
[62]Mr Shales notes the Medical Assessor failed to address Dr Stewart and Dr van den Burg’s findings.
[63]Mr Shales submits the Medical Assessor relied on an outdated history of resolved depression and ignored subsequent developments.
[64]Mr Shales submits the Medical Assessor did not address the inconsistency between the documented psychiatric treatment and the claimant’s alleged statements.
Insurer’s submissions dated 18 March 2024
The Panel summarises the submissions of the insurer of 18 March 2024 by reference to paragraph numbers:
[2]The insurer submits both review applications (threshold dispute and WPI) raise the same core complaints and are addressed together.
[3]The insurer notes Medical Assessor Friend issued two certificates: one on
29 January 2024 and another on 2 February 2024.[4]In both of the certificates, Medical Assessor Friend found Mr Shales did not sustain a psychiatric injury from the accident and thus did not assess threshold or permanent impairment.
[5]Mr Shales seeks review under s 7.26 of the MAI Act on grounds of material error.
[6]-[7] The insurer submits that Mr Shales has failed to demonstrate any material error in either certificate and that both applications for review should be dismissed.
[8]The insurer summarises Mr Shales’ three alleged grounds of error:
(a) failure to comply with the Guidelines by not recording a full and accurate psychiatric history of psychiatric symptoms;
(b) failure to question inconsistencies between recorded statements and other medical evidence, and
(c) failure to explain why the extensive psychiatric history was not given weight.
[10]Ground (a) – The insurer submits:
(e–f) The insurer submits the Medical Assessor documented history in detail, referencing multiple parts of the certificate (pages 2–10).
(g) Clause 5.6 of the Guidelines notes the assessment of whether an injury was caused by an accident is based on the evidence available and does not require recording every word said.
(h) The insurer submits the history recorded was comprehensive and compliant with the Guidelines.
(i–j) Recording the actual words of Mr Shales would be burdensome, the Medical Assessor is entitled to summarise clinical conclusions.
(k–l) Mr Shales submits that he denies having stated that he was depressed or that his condition had not been exacerbated by the accident; the insurer submits that Mr Shales misinterprets the certificate and the statement about lack of symptoms is the Medical Assessor’s conclusion, not a representation of what Mr Shales had said.
(m–n) The insurer clarifies that the sentence about Desvenlafaxine control and no exacerbation reflects both Mr Shales’ reported history and the Medical Assessor’s conclusion, respectively.
(o) The insurer submits the Medical Assessor's decision on causation was properly based on history, symptoms, and available evidence.
[11]Ground (b) – The insurer submits:
(a) Clause 6.41 of the Guidelines requires inconsistencies between clinical findings and observed behaviours to be raised with the claimant.
(b–c) The insurer submits that Mr Shales misunderstands this rule; the inconsistencies he refers to are from the assessor’s clinical findings and observations or clinical records.
(d) The Medical Assessor found Mr Shales’ performance consistent with prior reports.
(e) The insurer submits the inconsistencies complained of by Mr Shales do not fall under cl 6.41.
(f–g) Relying on AAI Ltd v Boga [2020] NSWSC 1903 and Dominice v Allianz Australia Ltd [2017] NSWCA 171, the insurer submits that an assessor is not required to address or resolve differences in third-party reports unless a clinical inconsistency is identified.
(h) The insurer notes no inconsistencies were observed by the Medical Assessor.
(i–j) The insurer refers to Insurance Australia Group Limited v Saraceni [2020] NSWSC 1045 to submit that the requirement to put inconsistencies to the claimant does not extend to addressing every factual discrepancy from past records.
(k) The insurer submits the Medical Assessor appropriately found Mr Shales’ presentation consistent with his clinical history.
[12]Ground (c) – The insurer submits:
(a) The Medical Assessor’s certificate includes a clear reasoning process, particularly at pages 26–27 under “Diagnosis and reasons”:
(i–vi) the Insurer lists the Medical Assessor’s rationale, including lack of qualifying DSM-5 symptoms, consistent medication use, and distinction between symptoms and diagnosis.
(b) The insurer submits the Medical Assessor’s pathway of reasoning is more than adequate.
(c) Relying on Wingfoot v Kocak [2013], the insurer argues that detailed reasons are not required beyond showing the decision-maker’s actual reasoning path.
(d) Relying on Ali v AAI Limited [2016] NSWCA 110 and Insurance Australia v Milton [2016] NSWCA 156, the Insurer submits these cases demonstrate the ongoing trend to construe the obligations of medical assessors to provide reasons very narrowly, consistent with Wingfoot. In both cases, it was held that if the reasoning shows the assessor considered the relevant issues, the Court can infer they exercised professional judgment without requiring further explanation.
(e) The insurer submits the Medical Assessor clearly considered both pre- and post-accident psychological material.
[13]The insurer submits a review can only occur if the certificate is incorrect in a material respect.
[14]The insurer submits that since there was no error, the assessment cannot have been incorrect in a material respect.
[15]The insurer further submits Mr Shales has not explained how any alleged error would materially affect the outcome.
[16]The insurer submits dissatisfaction with the outcome is not a valid ground for review. Section 7.26 of the MAI Act requires a demonstrated material error.
[17]The insurer cites Insurance Australia Group Limited v Saraceni [2020] NSWSC 1045 to argue that procedural issues not affecting the outcome do not justify review.
[18]The insurer submits that even if alleged inconsistencies were addressed, it would not alter the finding that Mr Shales did not meet DSM-5 criteria for psychiatric injury.
Insurer’s submissions dated 27 March 2024
The Panel summarises the submissions of the insurer of 27 March 2024 by reference to paragraph numbers:
[2]The insurer submits that these submissions are being made due to the NSW Court of Appeal decision in AAI Ltd t/as GIO v Amos [2024] NSWCA 65, delivered on 26 March 2024, which is relevant to the review applications.
[3]The insurer notes that Mr Shales claims the Medical Assessor failed to record symptoms he allegedly suffers from, and that he would have confirmed those symptoms if asked.
[4]The insurer refers to its earlier submissions (dated 18 March 2024) submitting that the Assessor took a history of symptoms as described by Mr Shales, and was not required to list potential symptoms for confirmation.
[5]The insurer submits that in Amos, the Court considered whether procedural fairness was denied by a Review Panel that had not identified its diagnostic reasoning or symptom criteria during the medical assessment. That argument was rejected by the Court of Appeal.
[6]The insurer submits that the Court held procedural fairness requirements for medical assessments differ from contested hearings. The Review Panel was not obliged to disclose its thought process or diagnostic reasoning to the claimant and was entitled to rely on the claimant’s symptom descriptions.
[7]The insurer submits that the Amos decision supports its position: that the Medical Assessor, having taken Mr Shales’ symptom history, was entitled to rely on those symptoms in forming his diagnosis. The insurer submits that the Medical Assessor was not required to explain possible psychiatric symptoms for Mr Shales to confirm or deny.
Insurer’s submissions dated 14 October 2024
The Panel summarises the submissions of the insurer of 14 October 2024 by reference to paragraph numbers:
[2]The insurer submits that on 4 October 2024, Mr Shales applied to admit late documents, including a report from treating psychologist Mr Malcolm Desland dated 23 September 2024.
[3]The insurer submits it objects to the inclusion of Mr Desland’s report on the basis that it is of a medico-legal nature and could have been obtained and lodged earlier given the long duration of proceedings.
[4]The insurer submits that if the report is admitted, little weight should be given to its findings for the following reasons:
(a) the insurer notes Mr Desland describes Mr Shales’ presentation as atypical due to memory and cognitive issues allegedly arising from acquired brain injury (ABI), depression, anxiety, and chronic sleep issues;
(b) the insurer submits that it has not been established that Mr Shales sustained a brain injury, citing Medical Assessor Wan’s certificate of
14 July 2024, which found no brain injury with post-concussive syndrome;(c) further, the insurer submits Mr Desland appears unaware of the full extent of Mr Shales’ pre-existing psychiatric issues, noting he refers only to depressive episodes in 2014–2015 with improvement following antidepressant use;
(d) the insurer submits this is inconsistent with other clinical and Centrelink records, which show ongoing depressive symptoms well beyond the period acknowledged by Mr Desland, and
(e) the insurer refers to a Centrelink assessment dated 24 May 2017, which recorded continuing symptoms of depression and sleep apnoea causing cognitive and functional limitations. The insurer notes these records are not listed in the “sources of information” in Mr Desland’s report, indicating he was unaware of them.
[5]The insurer submits that it objects to the inclusion of Mr Desland’s report, and if admitted, the findings should be given little weight due to his lack of awareness of Mr Shales’ significant pre-accident psychiatric history.
Consideration of the submissions
The Panel carefully considered the insurer’s submissions of 18 March 2024.
The insurer has submitted at [10](i) that the Medical Assessor reached his conclusions after conducting his mental examination of Mr Shales at (l)-(o).
The Panel had the history to which the submission refers and took its own careful examination of Mr Shales and formed its own judgement as to his symptoms and what they meant in terms of DSM-5 and the development of post-traumatic stress disorder caused by the accident, and it has given a full description of its reasons and the process whereby it reached the conclusion that there had been post-traumatic stress disorder caused by the accident and it set out the relevant DSM-5 TR criteria at [45] of its re-examination reasons set out above. Further, it gave its reasons for causation at [46] and [48] to [51] of its examination report.
CONCLUSIONS
The Review Panel revokes the certificate of Medical Assessor Friend of
29 January 2024 (threshold dispute) that:(a) nil psychiatric condition arising from the injuries sustained in the motor vehicle accident, and
(b) further, the determination in the same certificate that a decision as to whether these injuries were threshold was not required for the purposes of the MAI Act.
Whole person impairment dispute
The Medical Review Panel revokes the certificate of Medical Assessor Friend of
2 February 2024 in which the Medical Assessor determined that Mr Shales had not sustained a psychiatric injury.The Review Panel determines that Mr Shales sustained WPI as a result of the accident of 6%.
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