Tufuga v Allianz Australia Insurance Limited
[2025] NSWPICMP 334
•13 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Tufuga v Allianz Australia Insurance Limited [2025] NSWPICMP 334 |
CLAIMANT: | Mareta Tufuga |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Surabhi Verma |
MEDICAL ASSESSOR: | Thomas Newlyn |
DATE OF DECISION: | 13 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant claimed to have sustained a psychological injury in a motor accident; whether psychological injury was a threshold injury; where the Medical Assessor at first instance found that a psychological injury (adjustment disorder with depressed mood) was caused by the motor accident; Held – MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury. Determination 1. The Review Panel confirms the certificate of Medical Assessor Samson Roberts dated A statement of the Panel’s reasons for the assessment is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 26 June 2021, the claimant, Mareta Tufuga, was involved in a motor accident when a vehicle insured by Allianz collided with the passenger side of the vehicle in which she was travelling as a front-seat passenger.
As a result of the accident, the claimant claimed that she sustained physical injuries as well as a psychological injury.
The insurer accepted liability to pay the claimant statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) for the first 26 weeks. 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”.[1] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
[2] Section 4.4 of the MAI Act.
The insurer then decided (a decision which was confirmed on internal review) that at the expiration of 26 weeks, it would cease to make any further payments of statutory benefits on the basis that the claimant’s psychological injury caused by the accident, was a threshold injury for the purposes of s 1.6 of the MAI Act.[3]
[3] At the time that the review decision was made, the term “threshold injury” was expressed as “minor injury” in s 1.6 of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
According to Schedule 2, cl 2 of the MAI Act, the issue of whether an injury caused by the motor accident is a threshold injury for the purposes of the Act is declared to be a medical assessment matter.
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,[4] and pursuant to s 7.26 of the MAI Act, on review, by a review panel.
[4] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Samson Roberts who issued a Medical Assessment Certificate dated 17 April 2023.
On assessment, the Medical Assessor found that the history presented by the claimant reflected her distress in the context of enduring physical symptoms and the extent of her limitations arising from them. Mood symptoms were apparent which was consistent with the diagnosis of chronic adjustment disorder with depressed mood.
The Medical Assessor found that the diagnosed condition was caused by the accident and was a threshold injury for the for the purposes of s 1.6 of the MAI Act.
THE REVIEW APPLICATION
On 18 May 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was accepted by the Commission as made within the time prescribed by
s 7.26(10) of the MAI Act.The President referred the application to a review panel for review, being 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.[5]
[5] Section 7.26(5) of the MAI Act
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act, the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Verma, Medical Assessor Newlyn and Member Castagnet (the Panel).
Part 5 of the Personal Injury Commission Act 2020 (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.[6]
[6] 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, the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[8]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[8] Section 7.26(6) of the MAI Act.
MAI Act
A threshold injury is defined in s 1.6(1) of the MAI Act:[9]
“(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.”
[9] This sub-section was amended by Motor Accident Injuries Amendment Act 2022, Schedule 1[5].
Section 1.6(4) of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury for the purposes of the Act.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further provides that the following injuries are included as a threshold injury for the purposes of the MAI Act:
(a) acute stress disorder, and
(b) adjustment disorder.
Part 1, cl 4(3) of the Regulations provide that “acute stress disorder” and “adjustment disorder” have the same meanings as in DSM-5.[10]
The Motor Accident Guidelines
[10] DSM-5 is the document entitled Diagnostic and Statistical Manual of Mental Disorder, Text Revision (DSM-5-TR), published by the American Psychiatric Association in March 2022.
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 9.3[11] of the Guidelines relevantly provide:
[11] The Guidelines were updated on 6 December 2024.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
Causation of injury
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12]
[12] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[13] 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.”
MATERIAL BEFORE THE PANEL
[13] [2021] NSWSC 13 (Raina) at [65].
The claimant filed an indexed and paginated bundle of documents comprising 45 pages and the insurer filed an indexed and paginated bundle of documents comprising 116 pages.
The Panel considered all the above material.
SUBMISSIONS
The claimant’s primary submission was that the Medical Assessor made his conclusions without considering the report of Dr Nagesh dated 14 November 2022. In the opinion of
Dr Nagesh, the claimant met the DSM-V criteria for a diagnosis of post-traumatic stress disorder and major depressive disorder with anxious distress which are not threshold injuries.
The insurer noted that Dr Nagesh listed a number of psychological symptoms in his report including insomnia, flashbacks and nightmares, that formed the basis for his conclusion that the claimant met diagnostic criteria for non-threshold psychological injuries. The insurer submitted the same symptomatic history however, was not provided to the Medical Assessor at the subsequent medical assessment nor were those complaints supported by the treating records.
THE EVIDENCE BEFORE THE PANEL
The evidence relating to the injury being assessed may be conveniently summarised as follows.
Pre-accident medical evidence
According to the clinical records of the general medical practice, The Practice Blacktown NSW, (the general practitioner (GP) records) the claimant consulted GP, Dr Paniani Patu on 9 December 2019 complaining of stress and poor sleep. She reported that she was heavily affected by her son having been involved in a motor accident on 5 May 2019 when he drove off the road and hit a tree. A diagnosis of reactive depression - stress, was made and counselling was recommended.[14]
[14] Pages 69-70 of the insurer’s bundle.
There is no medical evidence before the Panel of any further treatment regarding this condition.
Post- accident evidence
Campbelltown Hospital
According to the clinical records of Campbelltown Hospital, the claimant was admitted for treatment in the emergency department on the day of the accident. It was recorded that the claimant was a passenger in a car being driven by her husband at 45kmph when another car came from the side and hit the passenger side of the claimant’s vehicle. Her vehicle was hit two times. Airbags were not deployed.[15] The claimant complained of pain in the left shoulder, lower chest, neck and back. X-ray investigations of the left shoulder and the chest were performed which showed no acute injuries. The claimant was treated with analgesics and discharged on the same day into the care of her GP.[16]
General practitioner’s records
[15] Pages 31-32 of the claimant’s bundle
[16] Page 33 of the claimant’s bundle.
According to the GP records, the claimant consulted Dr Patu on 28 June 2021, complaining of sternal pain, neck pain and thoracic spine. The claimant was prescribed Panamax for pain and advised to undergo massage treatment and rest.[17]
[17] Page 70 of the insurer’s bundle.
In further consultations with Dr Patu in July, August, September, October, November, December 2021 and January 2022, the claimant complained of pain in the chest wall, shoulders, lower back and upper back. She was referred for physiotherapy treatment.[18]
[18] Pages 70-74 of the insurer’s bundle.
In a consultation with Dr Patu on 5 August 2021, the claimant was diagnosed with “Reactive Depression, Stress”.[19] In a consultation on 13 December 2021, the claimant reported “disturbed sleep from chronic pain and depression”.[20] She was referred to a psychologist for counselling and cognitive behavioural therapy (CBT).[21]
[19] Page 71 of the insurer’s bundle.
[20] Page 72 of the insurer’s bundle.
[21] Page 76 of the insurer’s bundle.
The claimant’s description of her injuries
In her application for personal injury benefits dated 25 September 2021, the claimant described her injuries at the time of the accident in the following terms:
“I was in shock. I felt chest pains because the seat belt was tightened and felt back pain as well.”[22]
Mr Wiggins
[22] Page 92 of the insurer’s bundle.
In a letter dated 21 January 2022, consultant psychologist, Mr Howard Wiggins reported to Dr Patu that the claimant had attended her first session of treatment on that day. Mr Wiggins said that the claimant reported she was injured in the subject motor accident, that she has had three physiotherapy sessions to date and she was using pain medication for her injury. Mr Wiggins said that the claimant reported disrupted sleep, loss of memory, being forgetful, difficulty breathing, having a twitch in her eye, having high levels of chronic pain in her back and feeling that little to no change has occurred since the accident.[23]
[23] Page 28 of the insurer’s bundle.
Mr Wiggins expressed his opinion as follows:
“While psychological counselling may have some value, using a translator, it is recommended that PRIOR ATTENTION be directed to referring [the claimant] to have a (sic) IME for her injury. A further report will be written after the sixth session to advise the progress.”[24]
[24] Page 28 of the insurer’s bundle.
There is no evidence before the Panel of any further treatment of the claimant by
Mr Wiggins.
Dr Nagesh
The claimant was assessed by psychiatrist, Dr Abhishek Nagesh on 14 November 2022 at the request of her lawyers.
In a report of the same date Dr Nagesh said the following:
“Ms Tufuga alleged as a consequence of the motor vehicle accident, she has alleged to have developed the following symptoms which include recurrent panic attacks, nightmares of the accident, she was not able to sleep, she started to get flashbacks of the accident, she became anxious, the very thought of travelling would make her anxious, she developed mood swings and irritability, she also complained of feeling tired, not able to do her household chores, she could not leave the house anymore, she became socially withdrawn and housebound. Her attention, concentration, and memory declined. She was anxious all the time. She was worried as to what the future held for her and used to worry as to what would happen to her children and grandchildren in the future. She started to worry that similar thing might happen to them and it might result in their death. Ms Tufuga also is in pain which in turn affects her mood, she becomes depressed and cannot sleep because of the pain. She also is not active as before, and has lost her interest because of her hobbies.
For the above alleged symptoms, Ms Tufuga has seen her GP who she says referred her to a psychologist, whom she has seen only for one session. However, with the treatment received so far, there has not been any change in her symptomatology. She continues to have mood swings, she remains irritable, the panic attacks persist, she is anxious, worried all the time, on edge, she gets frustrated easily, the nightmares and flashbacks continue to persist, she cannot travel anymore, the very thought of travelling makes her anxious, she cannot sit in the car on her own, she has to go out with a support person, she is quite hypervigilant when she is in the car, every time she sits in a car it makes her anxious, and she tries to avoid it as much as possible. Her attention and concentration remains very poor.”[25]
[25] Page 5 of the claimant’s bundle.
Following his assessment, Dr Nagesh expressed the following opinion:
“As a consequence of the motor vehicle accident, she has alleged to have developed the following symptoms, which include mood swings, irritability, insomnia, nightmares, flashbacks, recurrent panic attacks, excessive inappropriate worry, anxious all the time, and feeling on edge. Has become socially withdrawn, lacks energy and motivation, has no drive to do anything, her attention and concentration remained poor, and she is hypervigilant when she does leave the house. Has been avoiding driving and travelling, sitting in a car makes her anxious. She is also depressed and cannot sleep due to the pain.
Because of the above alleged symptoms, I am of the opinion [the claimant] meets the criteria for Post-Traumatic Stress Disorder and Major depressive disorder of moderate degree with anxious distress. under DSM-V criteria.”[26]
RE-EXAMINATION
[26] Page 6 of the claimant’s bundle.
Medical Assessors Verma and Newlyn assessed the claimant on 11 February 2025 at 9.00am at her home in Harrington Park via Microsoft Teams.
A Samoan interpreter engaged by the Commission, Ms Pelise Faaeteete, was present during the assessment. There were problems with the interpreter’s audio feed but the Medical Assessors were satisfied that these did not interfere with the assessment because Ms Faaeteete could respond and repeat her interpretation.
The report of the Medical Assessors now follows.
The claimant was 59 years old and unaccompanied. Her daughter took her children to school and, upon returning, did not take part in the assessment. Her husband was attending his aunt-in-law’s funeral in Samoa. The claimant had returned home four weeks ago from her sister’s funeral in Samoa.
Medical history
The claimant was unsure of her height. She said she weighed between 65 and 70kg. In June 2021, she was a dress size 22 and was now a size 12. She is right-handed.
She denied significant medical problems before the motor accident.
She did not recall any surgical procedures.
Education history
The claimant attended school until the equivalent of year 10 in her village in Fiji.
Employment history
The claimant had never worked before the accident. After leaving school, she worked at home looking after her aged parents and cared for her family after marriage.
Economic status
The claimant began receiving a Jobseeker allowance six years before the accident and continues to receive it. She said she filled out a form for 20 jobs monthly with the help of her daughter. She had not found work in the 10 years she had received the allowance. Her husband cannot work because of gout.
Family history
She is the youngest of 12. She had nine sisters and two brothers. Her parents died in 2007. She last visited Samoa with her husband in 2025 for a sister’s funeral. They spent two weeks there for the funeral and wake. For that fortnight, the family gathered every evening for prayers.
Developmental history
Born in Samoa, the claimant did not remember any childhood problems.
Relationship history
She and her husband married 41 years ago in Samoa. Her husband was a machine operator before his gout stopped him from working. She has four children, three sons and a daughter. Her three older children were born in Samoa. The family emigrated from Samoa to New Zealand for two years before emigrating to Australia in 1998. She became an Australian citizen in 2000.
Chemical dependency history
No use of alcohol, recreational drugs or cigarettes reported. She does not vape.
Forensic history
Since the accident, the claimant has become impatient and angry when things do not go well or her grandchildren make too much noise.
There is no history of legal difficulties.
There is no history of problem gambling.
The claimant said she had not applied for compensation before the accident.
Psychiatric history before the motor accident
When asked, the claimant said she had no mental health problems before the accident. When asked about GP entries about reactive depression, she said that when her parents died, that was the first time she felt the sadness she currently experienced. She said she was sad for a year after her parents died. After a son’s motor accident in May 2019, she became sad but felt better when she saw him improving. She said that she had recovered from the sadness before the accident.
Pre-accident functioning
The claimant reported that she had no problem with housework before the accident. She showered twice daily, ate three meals daily and focused on household tasks.
She said she and her husband did not socialise much but went out to dine. She and her children took turns to host family get-togethers.
There were no problems within the family and she enjoyed visiting friends.
There were no travel problems. She had no driver's licence and travelled with her family or by public transport.
Before the accident she read her Bible for an hour a day when fasting. She did not read magazines or newspapers.
She was a homemaker and carer. She had received a Jobseeker allowance for six years before the accident.
History of the motor accident
The claimant was a passenger in a Toyota LandCruiser driven by her husband. Her son’s daughter, who was 9 or 10, was in the car. A car came from a side street, crashed into the passenger side, spun twice, and hit the LandCruiser again in the same spot. The LandCruiser was written off. Her husband was uninjured but was shocked. Her granddaughter felt she had lost her earrings. She had a sore neck. The claimant reported being “out” for five minutes because she hit her head on the side of the door. She could not get out of her side of the LandCruiser when she regained consciousness. Bystanders attempted to open the passenger door. The claimant exited the LandCruiser through the driver’s door. She felt she had to get out to comfort her granddaughter. The police came but the ambulance did not.
The police advised the family to go to the hospital, and her daughter and son-in-law drove them there. They were checked and discharged home. They were not prescribed any painkillers. The claimant recalled being out of breath a few days later.
History of symptoms following the motor accident
The claimant said:
“I didn’t see the car coming. I passed out and knew nothing. I was scared, confused, and did not think straight when I woke up. I think my husband called our daughter. When I was out of the car, I saw my granddaughter out of the car. People had helped her out of the car. I thought I should check my granddaughter. I didn’t do anything for her. I was scared all night after coming out of the hospital. I am not scared at the moment but I am not 100%. The pain stops me doing things. Right from the start, I felt pain, and then I got the feeling of not being able to perform. I am agitated and can’t do what I used to do when I was well. I feel better when I have less pain. My sleep was affected by the pain. I find it difficult to breathe and the pain is worse when I try to sleep. When I feel I can’t breathe in bed, I sit up.
I sometimes have dreams at night. I dream of seeing people appearing and disappearing.
I feel people are suffering. Usually when I feel the pain and get anxious, my mind goes back to the accident. I try to not think about it, but when I have the pain, it brings back memories of the accident. When my husband drives, he is very cautious, but I feel nervous and scared. I am on the lookout. I am not doing anything that I enjoyed before. I do small chores depending on how bad the pain is.”
History of treatment following the motor accident
The claimant was not prescribed any medicine for anxiety, depression or sleep.
She was prescribed painkillers.
She has not consulted a psychiatrist.
She recalled seeing a psychologist once. The psychologist was Mr Howard Wiggins.
Physiotherapy was prescribed for whiplash symptoms and back pain.
Details of relevant injuries or conditions suffered since the motor accident
The claimant said she had no other illnesses other than pain problems from the accident. Because of pain, she found it difficult to breathe, and it was hard to do chores. She occasionally hears a buzzing that is mainly in her left ear. She was prescribed no medicines for weight loss and has had no weight loss surgery.
Current symptoms
The claimant said:
“I am still exercising at home. I take pain medicine and I don’t know the name of the medicine. I lost my appetite because of sadness. I don’t know what would make things better, but I still feel the problem is pain in my neck and back. If the pain went away, I would be happy and thank God for taking the pain away. The pain brings back unhappy memories.”
Current and proposed treatment
The claimant takes ‘pain medicine’ but does not remember the name.
She consults her GP.
She receives no psychiatric and psychological care.
She does not attend physiotherapy but continues exercises at home.
The claimant did not expect a change in her current treatment.
Mental state examination
Appearance: the claimant appeared older than 59.
Grooming: her hair was pulled back from her face. Before the accident, she did not trim her hair. Her daughter had trimmed it once since the accident.
Clothes: she wore an ‘at home’ dress and slacks, but she said she wore a long dress to church.
Activity: she sat still during the assessment. She did not show pain behaviours. She often wiped away tears.
No Psychomotor retardation or aggravation observed:
Movements: no tics or vocalisations reported.
Aggression: she reported irritability but did not show this during the assessment.
Interaction: she was cooperative with the Medical Assessors and interpreter during the interview assessment.
Facial expression was appropriate to verbal content.
Eye contact: good.
Facial expression: she was anxious and tearful when asked questions about the accident's effect on her emotions.
Language rate and volume were average.
The interpreter did not report any difficulties in the claimant's understanding of the questions.
Affect: she was anxious and sad. Suicidal ideation is absent.
Phobias: none reported.
Obsessions: None observed or reported.
Dissociative: no behaviour observed or reported.
Preoccupations: none reported. No self-injurious behaviour patterns reported.
Perceptions: no anomalies were reported that suggested psychotic symptoms.
Memory: short-term and long-term memory was as expected.
Concentration: not impaired during this assessment interview.
Abstraction: abstraction not assessed. The claimant's first language is not English.
Attitude: The claimant said, “I feel depressed. There is nothing that can make me feel better. I am down and I wonder what the future will bring.”
Current functioning
The claimant and her husband have lived with one of their sons and daughter for 20 years. At the time of the accident, the family lived in Bow Bowing and moved to Harrington Park because the owner of their rental property wanted the property back. The claimant and her husband, her son, his wife and child, and her daughter and her three children live in a rented property. The family lives together to help each other, and this has continued since the accident.
The claimant showers daily and sometimes twice daily. Before the accident, she ate three times a day but now eats twice daily.
Before the accident, she focused on cleaning, cooking, and organising things around the house. She said she was not doing that now and felt the house was a mess. She had changed from tidying to focusing on herself.
She visited friends before the accident, but now she felt they did not have many friends, only the church community. If invited for a meal, they would go.
The claimant reported that her relationship with her husband was fine. She also reported a good relationship with her children and their partners. She went with her grandchildren to the park with their parents and helped supervise them. She attended family get-togethers.
She went to church with her family. The extended family came to share meals regularly and to have get-togethers.
She reported she was an anxious traveller in a car. She no longer used public transport.
Since the motor vehicle accident, she has read the Bible every second or third day and no longer fasted. She now spends 20 to 30 minutes reading the Bible.
Domestic tasks were often not completed because of pain symptoms.
Her pace of work was slower because of pain symptoms.
The claimant continued filing Jobseeker work applications with the help of her daughter, as she had done before the motor vehicle accident.
She did not feel she was living up to her standards.
She attended church at the Emanuel Christian Fellowship every Sunday. She attended the Congregational Church in Samoa.
Comment on consistency
There was consistency between the history of current psychiatric symptoms, presentation at the assessment interview and findings on examination.
DSM-5-TR psychiatric diagnosis and reasons
| F 43.24 Adjustment Disorder with Depressed Mood, Persistent | |
Criteria: | DSM-5-TR Diagnostic Criteria for Adjustment Disorders
· The claimant reported onset of symptoms in the first week after the motor accident.
Specify whether:
|
Comment | On 2022 November 2022 Dr Abhishek Nagesh, consultant psychiatrist, diagnosed Post-traumatic Stress Disorder and Major Depressive Disorder with Anxious Distress caused by the accident. |
Review: | DSM-5-TR criteria for Post-traumatic Stress Disorder Criterion A: Was the Claimant exposed to possible serious injury? · Although this was a serious vehicle collision, she did not receive a serious physical injury. She recalls passing out, waking scared, remaining scared and feeling pain immediately after the accident. Criterion B: Were intrusion symptoms associated with the accident, beginning after the motor accident?
Criterion C: Is persistent avoidance of stimuli associated with the accident?
Criterion D: Are there negative changes in thought and mood associated with the accident? · Her depressed mood is secondary to pain. Criterion E Are there marked changes in arousal and reactivity associated with the motor accident?
Based on the review of criteria, the Medical Assessors of the Panel is satisfied that the claimant had never met DSM-5-TR diagnostic criteria for Posttraumatic Stress Disorder. |
| DSM-5-TR criteria for Major Depressive Disorder. Five of nine symptoms of depression are needed during a 2-week period representing a change from previous functioning to diagnose Major Depressive Disorder. One of the symptoms needs to be either (1) depressed mood or (2) loss of interest or pleasure. Symptoms attributable to another medical condition are not to be included. Symptoms of depressed mood had been present for more than two weeks. The only other symptom relating to depression was significant weight loss when not dieting. Her reactive mood symptoms were related to pain. They did not meet criteria for the diagnosis of a Major Depressive Disorder but did meet criteria for the diagnosis of an Adjustment Disorder with Depressed Mood. The Medical Assessors of the Panel is satisfied that the claimant had never met DSM-5-TR criteria for Major Depressive Disorder. | |
Causation and reasons
The claimant had no diagnosed psychiatric disorder before the accident. She said she was sad for a year after her parents died. After her son’s motor accident in 2019, she reported sadness that lessened as he recovered from his injuries. She said she was no longer sad in June 2021. She described her feelings when the accident occurred as being confused and fearful. She did not fear serious injury or the possibility of death. Pain from her physical injuries was reported to inhibit her functioning and had resulted in a reactive sad mood. When there was less pain, she felt better. She reported her depressed mood felt like the sadness she felt when her parents died and when her son was injured. She said that if the pain went away, then she would be happy.
Her adjustment disorder symptoms, reactive to persistent pain, were caused by the motor accident on 26 June 2021 and have continued to cause distress with mild impairment in social functioning.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were or were not threshold injuries, 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: See Insurance Australia Group Ltd v Keen[27] and Insurance Australia Ltd v Marsh.[28]
[27] [2021] NSWCA 287 at [40], [41] and [45].
[28] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of the Panel’s Medical Assessors.
The Panel finds that the claimant suffers an adjustment disorder with depressed mood, caused by the motor accident and this is a threshold injury for the purposes of the MAI Act.
CONCLUSION
After considering the available evidence and conducting its own examination of the claimant, the Panel has reached the same conclusions and made the same findings stated in the certificate issued by Medical Assessor Roberts on 17 April 2023.
Accordingly, the Panel confirms the certificate issued by Medical Assessor Samson Roberts on 17 April 2023.
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