Vella v Allianz Australia Insurance Ltd
[2025] NSWPICMP 449
•25 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Vella v Allianz Australia Insurance Ltd [2025] NSWPICMP 449 |
CLAIMANT: | Vella |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Dr Alan Doris |
MEDICAL ASSESSOR: | Dr Wayne Mason |
DATE OF DECISION: | 25 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s review of Medical Assessment Certificate (MAC) under section 7.26; threshold injury dispute; psychiatric injury; claimant involved in rear-end collision; physical injuries assessed as soft tissue; claimant had pre-existing anxiety disorder and developed some post-traumatic symptoms; Medical Assessor diagnoses adjustment disorder which was a threshold injury.; Review Panel considered diagnoses of adjustment disorder, post-traumatic stress disorder (PTSD) and major depressive disorder; Held – claimant sustained an adjustment disorder and did not satisfy criteria for other possible diagnoses raised by health practitioners; adjustment disorder is a threshold injury; MAC confirmed. |
DETERMINATIONS MADE: | 1. Confirms the certificate of Medical Assessor Verma dated 24 December 2023. 2. Confirms that the psychological or psychiatric injury sustained by the claimant in the motor accident on 7 February 2023 is a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Brendon Vella was involved in a motor accident on 7 February 2023. The claimant was at work on his way to see a client (of his cleaning business) when his vehicle was hit from behind by another vehicle.
Mr Vella says he injured his neck, left shoulder, left arm and hand in the accident and developed psychiatric or psychological injuries as a result of the accident. He made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with Allianz, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about whether the claimant’s injuries were threshold injuries for the purposes of the MAI Act arose in connection with the claim and Mr Vella referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 24 December 2023 Medical Assessor Verma assessed the claimant’s psychological or psychiatric injuries and diagnosed Mr Vella with an adjustment disorder with anxious mood sustained as a result of the accident, which was a threshold injury.
On 21 February 2024 the claimant lodged an application with the Commission seeking a review of Medical Assessor Verma’s decision. On 19 March 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 3 February 2025 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
The Panel notes that on 8 February 2024, Medical Assessor Home determined the claimant’s physical injuries were threshold injuries. The Panel understands no application for review has been lodged in respect of Medical Assessor Home’s assessment.
LEGISLATIVE FRAMEWORK
General
Mr Vella’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits payable by the insurer. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26[1] weeks after the accident.
[1] Mr Vella’s accident occurred before 1 April 2023. On that day amendments to the MAI Act came into effect extending statutory benefits to 52 weeks (for injuries occurring before 1 April 2023) and changing the previous terminology of “minor injury” to threshold injury.
In a claim for damages, s 4.4 provides that the injured person cannot recover damages if their only injuries sustained in the accident are “threshold” injuries.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as:
(a) a “soft tissue injury” for physical injuries, and
(b) “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a particular injury from being a threshold injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says (in terms of psychiatric or psychological injuries) that an acute stress disorder and an adjustment disorder are both threshold injuries.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[2] provide:
“[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, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[2] The current version of the Guidelines is version 9, effective January 2023.
The Guidelines therefore provide the method of determining whether an illness is a recognised psychiatric illness or not. If an injured person has a disorder not recognised in the DSM-5-TR illnesses they cannot recover ongoing benefits and damages under s 1.6(3) of the MAI Act. The Guidelines also provided the method of diagnosing an adjustment disorder or acute stress disorder. While these are both recognised psychiatric illnesses, they are threshold injuries as a result of cl 4(2) of the Regulation.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Verma’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Verma examined the claimant on 24 November 2023 and issued her certificate one month later. The Medical Assessor confirms at [2][5] that she was asked to assess, “Depression, shock, anxiety and adjustment disorder”.
[5] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
The Medical Assessor summarised the submissions from the parties at [3] and [4] and documented the claimant’s history as follows:
(a) he attended school to year 12 then worked as an electrician before working in his parent’s cleaning company. He was married with a child and played in three bands before the accident;
(b) the claimant was hit from behind on his way to work, details were exchanged, and police and ambulance did not attend;
(c) the claimant said he developed pain in his chest, neck and left shoulder and experienced pins and needles. He reported flashbacks and anxiety and disturbed sleep;
(d) he was upset and frustrated because he had to get rid of his employees and has a substantially reduced the number of jobs he could accept;
(e) the claimant confirmed he had attended a psychologist in 2018 due to his wife’s diagnosis with cancer, and
(f) he documents four members of the claimant’s family who had mental health issues some of whom took their own lives.
In terms of his current state the claimant said his mental health had improved but he is frustrated that he cannot return to work. He has back pain and pain in his shoulders and hands. He reported low mood.
The claimant said he had been seeing a psychologist since April – May 2023 and sees his general practitioner (GP) and takes cannabis oil for shoulder pain. He was seeing a chiropractor and exercise physiologist.
Medical Assessor Verma reports the claimant showers every day and looks after himself, drives, plays in the community bands, socialises frequently and has good relationships with his family and the band members.
Medical Assessor Verma diagnosed an adjustment disorder and was of the view the claimant satisfied the criteria set out in DSM-5. She also gave reasons as to why he did not meet the criteria for a major depressive disorder or a post-traumatic stress disorder.
Having made that diagnosis she determined in accordance with the legislation that the injury caused by the accident was a threshold injury.
ISSUES FOR DETERMINATION
Claimant’s submissions[6]
[6] The numbers in square brackets are a reference to the paragraph number in the submissions.
The claimant says the Medical Assessor has failed to apply the Guidelines and “should have considered the diagnosis of major depressive disorder separately and not in comparison to another diagnosis.”
Alternatively, the claimant submits that the reasons for dismissing the major depressive disorder diagnosis were insufficient and she should have “worked through the criteria for such a diagnosis as recorded in the DSM V.”
Insurer’s submissions
The insurer sets out the criteria from DSM-5 as to a major depressive disorder and sets out the evidence and findings from the assessment. The insurer then submits why the claimant does not satisfy the criteria.
The insurer says at [23] that:
“While the Assessor considered the differential diagnoses of major depressive disorder and posttraumatic disorder, it is clear that the claimant did not meet the criteria and thus, those diagnoses were not appropriate.”
The insurer submits that the Medical Assessor’s reasons were adequate, that she explained the reasons why she diagnosed the adjustment disorder and gave reasons for why the claimant did not satisfy the other disorders. The insurer says the Medical Assessor is not required to address “each and every opinion and / or explain why particular conclusions were not adopted.”
Procedural matters
The Panel issued directions to the parties on 5 February 2025. The Panel noted only submissions had been provided and that the Panel did not have access to the material that was lodged with the original application. The Panel directed the parties to upload a bundle of all relevant documents and to provide updated records from the claimant’s treating psychologist or psychiatrist noting the time that had elapsed since the original application was made.
The Panel met on 11 April 2025 and reported to the parties.
The Panel confirmed receipt of the bundles of document including GP notes from My Doctor Medical, Centre Macquarie Fields. The Panel noted that Medical Assessor Home had a history of the claimant being prescribed Venlafaxine (Effexor) but that the Panel could find no record of such a script in the GP records. The Panel also noted there were no Centrelink medical certificates despite references to them in the medical records and the Panel requested updated records or records from any other GP the claimant may have consulted before or after the accident. The claimant was directed to upload an updated bundle of clinical notes.
The claimant lodged an additional bundle of updated clinical notes on 8 May 2025 which the Panel has determined should be allowed into evidence.
REVIEW OF THE EVIDENCE
General
The claimant’s original bundle of documents comprised 47 pages and the insurer’s bundle comprised 98 pages. The claimant’s additional bundle of 758 pages of documents was received on 8 May 2025.
Claim form and claim documents
The claim form was signed and dated 7 February 2023.[7] The claimant denied any previous claims. He describes the accident and indicates his injuries were “sore/bruised ribs” and “sore/swollen left shoulder.” He denied any illnesses or injuries affecting the same parts of his body at the time of the accident. No mental health issues were identified at this time.
[7] Page 16 of the insurer’s bundle.
Mr Vella listed his occupation as a cleaner for Joyce and John Enterprises and relied on an accountant’s report in terms of his rate of pay.
The initial certificate of capacity completed by Dr Keriaqos dated 11 February 2023[8] diagnoses “left shoulder pain, neck pain under investigation” and states that this was the first time the claimant had been seen after the accident. The management plan was “rest, pain relief, x-ray, ultrasound and CT neck.” Physiotherapy was also suggested. The claimant was certified unfit for work from 11 February to 25 February 2023. On 20 February 2023 Mr Vella was certified fit for two hours of work a day, five days a week.
[8] Page 41 of the claimant’s initial bundle.
The insurer’s internal review decision with respect to the psychological injury noted the claimant’s psychologist had diagnosed an adjustment disorder on 29 June 2023 which the insurer noted was a threshold injury.
Medical reports and records
The insurer relies on a report from Ms Nagraj, physiotherapist with Greenlight dated
15 February 2023 commissioned by the insurer to assist with the claimant’s rehabilitation and return to work.[9] The claimant reported to Ms Nagraj that his family was helping with activities of daily living and he said he did not require assistance from the insurer.
[9] Page 31 of the insurer’s bundle.
Ms Nagraj obtained a history of:
(a) reflux in 2004;
(b) irritable bowel syndrome in 2009,
(c) lactose and gluten intolerance in 2011;
(d) anxiety in 2014 (treated by Dr Harris, Wesley Mission);
(e) dizzy spells in 2018;
(f) balance test and review with a neurologist in May 2019;
(g) colonoscopy and endoscopy regarding irritable bowel syndrome in August 2022, and
(h) treatment for ongoing anxiety since 11 February 2023.
The claimant complained to Ms Nagraj of neck and left shoulder pain and said, “he experiences symptoms consistent with anxiety, for which he is being reviewed by a psychologist privately.”
Ms Nagraj documents the radiology indicated bursitis in the left shoulder, disc bulges at multiple levels but no impingement. The claimant was said to be taking Voltaren for pain.
The claimant said he usually worked 60 – 80 hours a week and that before the accident he used to mow his lawns, play in a band, practice four days a week, jog and go hiking.
Ms Nagraj administered the post-traumatic stress disorder checklist, and the claimant scored 32 out of a possible 80 which she says is, “suggesting [his] reported symptoms do not meet the cut-off threshold warranting further assessment for a PTSD diagnosis.” She again records that “Mr Vella reported pre-existing anxiety and is seeing the psychologist for the same.” She has a history of him losing his best friend in November and Mr Vella was reported as “emotional” when speaking about this.
A case conference was held with the claimant and the claimant’s treating GP on 16 February 2023 and a further one scheduled for 13 March 2023.
On 13 March 2023 Dr Keriaqos signed a certificate of capacity noting the claimant was fit for five hours of work a day for two days a week (supervision only). In his diagnosis he reports “started to have nightmares and flashbacks.” Similar certificates were given on 1 May (fit for three hours a day, five days a week) and on 29 May 2023.
On 4 June 2023, Dr Obeid, chiropractor and exercise physiologist wrote to the insurer supporting continued treatment and review 12 weeks later to reassess the claimant’s functional capacity and determine his progress.
On 29 June 2023 Ms Nazim, psychologist wrote a letter of support for ongoing psychological therapy after seven sessions. He diagnosed an adjustment disorder with mixed symptoms of anxiety and depression noting the claimant’s current emotional disturbance was directly related to the injuries sustained in the accident.
GP records from My Doctors Medical Centre Macquarie Fields
The claimant’s GP records[10] include at page one an “active history” which includes anxiety and depression in 2014 and the claimant was said to be seeing psychologist Dr Harris of the Wesley Mission.
[10] The first set of records is found at page 48 of the insurer’s bundle.
The records provided commence on 15 April 2019[11] and include several attendances thereafter for tenosynovitis and De Quervain’s syndrome in the left wrist requiring injections and medication in November and December 2021 and further treatment in March 2022.
[11] At page 86 of the additional bundle is a new practice registration form dated 15 April 2019 which indicates the claimant had a previous GP.
On 20 February 2020 the claimant attended for right foot pain saying he was working in a cleaning job and was on his feet all day. Ultrasound and X-rays were done. On 30 July 2020 the claimant was referred to a chiropractor (Back Balance) although the records do not explain further.
There is also ongoing concern about high cholesterol and potential diabetes, and ongoing diet and exercise advice was given.
The claimant attended the doctor on 12 September 2020 having had a car accident the night before and he complained of neck pain mainly on the left side and the left hand. Radiology was requested and pain killers were prescribed. On 16 September 2020 the pain was on the left side “going down to left hip.” A specialist referral was given and a medical certificate given. The claimant was still having shoulder pain on 6 January 2021, and an ultrasound was requested. The diagnoses stated was bursitis.
The claimant requested a medical certificate on 29 October 2021 having not slept well the night before.
On 2 September 2022 is a reference to a Centrelink medical certificate being given and again on 4 January 2023, 20 February 2023, 2 March 2023 and 25 May 2023.
On 13 March 2023 the claimant reported “flashbacks and nightmares of the accident, wakes up with panic attacks.” A referral to Elite Psychology Services given.
On 3 April 2023 the claimant wanted a disability parking permit due to his irritable bowel syndrome and faecal urgency. There are several attendances on Dr Keriaqos for physical complaints and unrelated medical matters after that and on 29 May 2023 Mr Vella reported seeing the psychologist and finding it helpful.
On 4 June 2023, Dr Obeid, chiropractor and exercise physiologist wrote to the insurer[12] concerning the claimant’s physical symptoms in his shoulder, neck and left hand and advising the claimant was unfit to work.
[12] Page 25 of the claimant’s initial bundle.
On 29 June 2023, Mr Nazim, psychologist wrote a “letter of support”[13]noting the claimant had been receiving psychological therapy and he presented with an adjustment disorder with mixed symptoms of anxiety and depression. Mr Nazim recommended further therapy.
[13] Page 28 of the claimant’s initial bundle.
At a case conference on 24 July 2023 the claimant’s treatment was noted to include psychology, chiropractic services and physiotherapy and he was “slowly improving.” On
21 August 2023 the claimant reported to Dr Keriaqos he was still getting flashbacks and had disturbed sleep.
In September and October 2023 there are two attendances which suggest the claimant was still seeing a psychologist and paying for it himself. On 19 October 2023 the claimant reported he had suicidal thoughts a couple of times. He was frustrated from the pain and sleep disturbance and said he was having financial stress as he had cancelled many jobs because of his pain.
On 29 November 2023 Dr Keriaqos prescribed Valdoxan. The claimant wanted to try medicinal cannabis for his pain, but the doctor would not prescribe it. On 12 and
15 January 2024 Mr Vella attended for his physical symptoms and reported anxiety and depression. On 30 January 2024 the claimant said his psychologist recommended he see a psychiatrist and a referral to Dr Kuljic was provided although on 14 February 2024 the claimant declined to see the psychiatrist.
The claimant reported low mood to Dr Keriaqos on 8 May 2024 and on 5 June 2024 the claimant sought a mental health care plan. In November 2024 and February 2025, the claimant mentioned depression and anxiety in the context of a Centrelink medical certificate request.
Medical certificates
Mr Vella sent an email to Dr Keriaqos on 1 September 2022[14] requesting he fill in his Centrelink Medical Certificate as a matter of urgency. He says:
“If you can fill it out with my medical conditions as follows:
1.Gallbladder inflammation;
2.Problems with both my right and left hands;
3.IBS, and
4.Growth in my oesophagus …”
[14] Page 122 of the additional bundle.
The Centrelink medical certificate which was completed by Dr Keriaqos[15] identifies tenosynovitis of both wrists and ulcerative oesophagitis with hiatus hernia all of which were said to be preventing the claimant from working more than eight hours a week from
2 September to 25 November 2022.
[15] Page 120 of the additional bundle.
A Centrelink medical certificate dated 20 February 2023[16] completed by Dr Keriaqos certifies that the claimant was unable to work from 20 February 2023 to 15 May 2023 due to tenosynovitis in both wrists. There is another Centrelink certificate dated 2 March 2023[17] which references the car accident and shoulder and neck conditions as temporary conditions.
[16] Page 433 of the additional bundle.
[17] Page 435 of the additional bundle.
On 3 April 2023 Dr Keriaqos certified that the claimant had irritable bowel syndrome and required a mobility parking sticker due to faecal urgency. Dr Keriaqos indicated on this form:[18]
(a) the claimant had no mental health or nervous disorder (anxiety and depression were both options he could have selected), and
(b) Mr Vella had no musculoskeletal disorder (chronic pain was an option).
[18] Page 169 of the claimant’s additional bundle.
Other assessments
Neither Mr Vella nor Allianz have qualified an expert psychologist or psychiatrist to provide an opinion or if they have, no report from such an expert has been put before the Panel.
Medical Assessor Home examined the claimant on 5 February 2024 and on 8 February 2024 certified that the claimant’s physical injuries were threshold injuries.
He confirms at [2] that he was asked to assess injuries to the cervical spine, ribs, left shoulder and left hand.
The claimant reported a past history of a left shoulder complaint in January 2021 from which he recovered. He said he helped with some domestic chores but had an external provider undertaking the gardening duties. He had returned to playing in a band but had reduced the number of hours he was playing.
The claimant gave a history of the accident and recalled rear side damage, and that the car was driveable and after exchanging details he drove on to work.
He reported the onset of neck, chest and left shoulder pain later that day. He reported his chest pain settled within a few months but that he had ongoing pain in the neck and left shoulder and intermittent paraesthesia in the left arm.
He reported at [10] taking Venlafaxine (Effexor) for depression and at [13] disturbed sleep due to nightmares.
Medical Assessor Homes notes at [14] the claimant is a managing director of a cleaning company performing some physical duties but otherwise supervising staff.
While there was some restriction of neck movement (asymmetrical in rotation and lateral flexion), there were no neurological signs of radiculopathy. There was tenderness in the left shoulder and a restricted range of motion. The right shoulder was normal.
At [22], Medical Assessor Home diagnosed a whiplash disorder of the cervical spine with associated left shoulder injury due to jarring of his hands on the steering wheel. He considered the chest injury was a seat-belt contusion injury which has resolved. He considered the left arm and hand injuries as referred symptoms from the cervical spine injury.
At [23] the Medical Assessor found the cervical and left shoulder injuries were soft tissue in nature and that the rib cage injury had resolved.
At [25] the Medical Assessor determined the cervical spine injury was a threshold injury because there was no evidence of injury to the nerves or the complete or partial rupture of tendons, ligaments menisci or cartilage. The claimant did not meet the criteria for radiculopathy. He found the seat belt chest injury also a threshold injury as was the left shoulder injury there being no evidence of the complete or partial rupture of tissues in the shoulder.
RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS DORIS AND MASON
The claimant attended the re-examination with the Medical Assessors on 10 June 2025. The re-examination was conducted by MS Teams with good internet connectivity throughout.
History from the claimant
Brief personal details
Mr Vella is a 39-year-old man who lives with his wife and 8-year-old daughter. He said he is the owner and director of a cleaning company.
Family history
Mr Vella said he grew up with his parents and two sisters. He was close to his immediate and extended family and continues to be so. He describes a good upbringing in his family though he is aware of significant mental health problems in his family. He is aware of one first degree relative who has had problems with anxiety and depression, and two second-degree relatives who have died by suicide.
Personal history
Mr Vella describes a positive upbringing. He developed an interest in music during his childhood, initially the cornet, then keyboard at high school and the trumpet. He started playing in bands when at school and this has continued to be a major interest of his during his adult life.
After leaving school Mr Vella states he completed an apprenticeship as an auto electrician. He worked in this area from 2004 until 2010 when he joined his parents’ cleaning company. He is now the owner and director of that company. He continues to have a close relationship with his parents and sisters.
Past medical history
At the age of 3, Mr Vella had surgery for a cyst in his brain. Mr Vella has surgery for a pilonidal cyst in 2004. Mr Vella has had problems with dizziness assessed by a neurologist in the past.
Mr Vella has had recurrent problems with irritable bowel syndrome during his adult life. He has had the condition investigated by colonoscopy. He said that last year an abnormality was found, and he was informed that he has grade one bowel cancer. Currently this is being monitored. Mr Vella describes this as increasing his general level of anxiety. He occasionally will have bleeding from his bowels.
Mr Vella has had recurrent problems with tenosynovitis in his wrists which he attributed to the physical nature of his cleaning work. He said that he had cortisone injections for this in 2019 and 2021.
Past psychiatric history
Mr Vella says he has had treatment from psychologist Mr Harris based at the Wesley Mission for approximately five years from 2009. He said this was to assist with gambling problems and persistent problems with anxiety.
In 2015 or 2016 Mr Vella returned for further treatment with Mr Harris due to more problems with anxiety. He was meeting with Mr Harris twice weekly for some time. He found this treatment helpful. He was prescribed the antidepressant/anti-anxiety, Venlafaxine by his previous GP Dr Cleophas which he ceased after some time because of the sedative effect of the medication.
Substance use history
Mr Vella is a non-smoker. He rarely has any alcohol and does not use any illicit substances. He has previously had a gambling disorder though this was successfully treated, and he has been in remission for the last 13 years.
Pre-accident functioning
Mr Vella describes being in good health before the motor accident with no difficulties in function. He was asked about the period from September 2022 when he was diagnosed as having tenosynovitis of both wrists and certified as unfit for any work by his GP, Dr Keriaqos. He explained that he had requested this certification principally to manage the decrease in income during a period of reduced work over the summer holidays. He said he returned to his usual work duties in mid-January.
History of the motor accident
Mr Vella said that he was on his way to the first client on the morning of 7 February 2023. He was stationary in a line of traffic when he saw another vehicle approaching from behind. He said the other vehicle tried to avoid him by switching lanes though struck the rear passenger side of Mr Vella’s vehicle. He said the impact of the other vehicle twisted him in his seat and he felt discomfort in his left arm and shoulder. Airbags did not deploy in his car. Mr Vella and the other driver were able to pull into a side street and exchange details. Mr Vella was able to drive his vehicle to his destination and then after completing the job went to a panel beater having contacted the insurance company. Mr Vella’s vehicle was repaired though he continued to have some problems with it and so eventually sold it and found a replacement.
History of symptoms and treatment following the accident
Mr Vella said that by the end of the day of the accident he had noticed pain in his left shoulder, neck and chest. He consulted with a doctor at a GP practice and was advised to take anti-inflammatory medication. He subsequently saw his own doctor, Dr Keriaqos, on
11 February 2023 and imaging investigations were arranged. Mr Vella started to use a shoulder strap to ease discomfort.
Mr Vella said that following the motor accident he had sleep disturbance which he attributed mainly to discomfort when lying in bed due to physical pain. He experienced unpleasant dreams related to the motor accident for a time. He would also have periods of increased anxiety when wakening which would affect his breathing and make him feel nauseous. He said that it could take up to an hour for his anxiety to settle after such an incident.
Mr Vella noticed that he was excessively anxious when driving and hypervigilant for approaching vehicles from behind. He had physiological symptoms of anxiety such as an increased heart rate or palpitations at times during the day.
Mr Vella said that due to physical pain and discomfort he had to cancel some of his work. His parents assisted him at times, and he subcontracted some work. He said that having to tell customers that he could not work as usual for them made him feel frustrated, sad, and worried for his financial situation.
Mr Vella has had physiotherapy and chiropractic treatment. He was referred by his GP,
Dr Nevin Keriaqos, to psychologist, Ms Nazim, in March 2023 and they met for treatment over the following months.
Injuries or conditions since the motor accident
Mr Vella has been found to have an abnormality on colonoscopy and been informed that he has grade one bowel cancer. This is currently being monitored rather than actively treated.
Current state
Current symptoms
Mr Vella continues to have pain in his left shoulder and significant reduction in range of movement. He takes medication for pain in the form of anti-inflammatories and cannabidiol. He regularly visits a chiropractor.
Mr Vella’s sleep continues to be affected by physical discomfort from his bodily injuries and he reports that he no longer has anxiety attacks during the night as he did in the weeks following the accident. His appetite for food is good. He is able to drive, though he notices his level of anxiety when driving is still elevated. There are no significant avoidance symptoms, and he frequently will drive past the site of the accident with no increased anxiety. Mr Vella no longer has dreams relating to the motor accident, or other re-experiencing phenomena. He finds that his concentration is good, and he is able to do administrative tasks for his business, and when learning and performing musically. He is able to enjoy his family life and his usual interests. He plays in a band each week and performs in competitions. He travelled to New Zealand last year for this purpose. Though he can feel sad at work due to some limitations arising from his physical difficulties, he says he has no significant abnormality of mood outside of the work environment.
Current treatment
Mr Vella is not currently prescribed any medication for a mental health problem. He is prescribed Metformin for type II diabetes and Nexium for reflux.
There is no treatment (in terms of counselling) being provided for his mental health issues and none planned.
Mental state examination
Mr Vella joined the telehealth consultation from his home. He confirmed his identity with his driving license. He showed good self-care. He was wearing a strap on his left shoulder and a one-point demonstrated the restricted range of movement of that joint compared to his right upper limb. Mr Vella communicated effectively with normal speech and provided a comprehensive and spontaneous history. His affect was bright and appropriately reactive to the material under discussion. His mood was objectively and subjectively euthymic with good future focus. His thought form was normal. There were no abnormalities in the content of his thought such as delusions or hallucinations, though there was some indication of frustration due to his ongoing left upper limb problems affecting both his work and ability to play in the band. Mr Vella was fully alert and orientated at interview and appeared grossly cognitively normal.
Current functioning
Mr Vella said he is limited in some work tasks due to his physical injury, though not by psychological symptoms. He lives with his wife and daughter and enjoys his family life. He socialises regularly with his colleagues in two bands and gets significant enjoyment from this. He is able to adequately look after himself and travel independently as necessary.
Consistency of presentation
There are no concerns with respect to consistency of presentation. Mr Vella was pleasant and co-operative throughout the re-examination.
Summary
Mr Vella reported problems with anxiety throughout his adult life. He has generally functioned at a good level and been able to have a full family life, take over his parent’s business and now run his own cleaning business, and he plays music in several bands. On 7 February 2023 he was involved in a motor accident when on his way to work which caused some damage which was repairable. He sustained some soft tissue injuries to his left shoulder and neck and some anxiety symptoms including reexperiencing phenomena, hypervigilance for further accidents, frustration and sadness due to the impact on his ability to work as normal following the accident. Mr Vella’s psychological symptoms have generally improved since the time of the accident though he continues to have some somatic symptoms.
CONSIDERATION OF THE ISSUES
Causation and reasons
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance,[19] Walton J in a dispute about “minor” (now threshold) injury said at [40]:
“The second defendant [The Panel] failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[19] [2021] NSWSC 804.
The relevant Guidelines referred to by Walton J are the Motor Accident Guidelines.
Wright J in the later decision of Briggs v IAG Limited t/as NRMA Insurance[20] said:
“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 is 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[21] injuries.”
[20] [2022] NSWSC 372 at [35].
[21] The terminology in the legislation was at the time Briggs was decided that of “minor” injury. The term since 1 April 2023 is that of “threshold” injury.
The Panel is not aware of, and has not been taken to, any other cases suggesting a different test to the usual test of causation should be applied.
Therefore, in answering the statutory question about threshold injury, the Panel will consider the Guidelines relevant to impairment and the twofold test of causation contained therein at cl 6.6:
(a) whether the accident could have caused or contributed to the injury, which is a medical judgment, and
(b) whether the accident did in fact cause or contribute to the injury, which is a factual or legal judgment.
Mr Vella was involved in a motor accident on 7 February 2023. While not a major accident, causing significant physical injuries (there were no broken bones or large lacerations),
Mr Vella did sustain upper body physical injuries which have resulted in symptoms. It is the clinical judgment of the Medical Assessors that the mechanism of the accident which caused the physical injuries could have caused or contributed to the development of the claimant’s psychological or psychiatric symptoms.
The Panel notes that Mr Vella had a pre-existing anxiety disorder which was treated by a psychologist from 2009 to 2014 and again in 2015 or 2016. The Panel does not have records from the claimant’s GP at the time or his psychologist. The records of Dr Keriaqos do not include reports of anxiety symptoms before the accident from 2019 to the time of the car accident. The Panel accepts the claimant’s history that he had no symptoms of a psychiatric disorder at the time of the accident.
Mr Vella reported to his GP the emergence of symptoms in March 2023 and Mr Vella told the Medical Assessor his symptoms have continued but have progressively improved.
The constellation of symptoms and impact on occupational function are consistent with an adjustment disorder with anxiety (which will be discussed below). While the Panel is of the view that the claimant’s pre-accident anxiety issues may have predisposed him to developing an adjustment disorder, the Panel is of the view that the accident did in fact cause or materially contribute to the development of the disorder.
Diagnosis and reasons
The diagnosis of adjustment disorder
The DSM-5-TR is a classification system for mental disorders which is informed by clinical judgment following a thorough examination. Having undertaken such an examination, it is the clinical judgment of the Medical Assessors that as a result of the motor accident on
7 February 2023, Mr Vella developed an adjustment disorder with anxiety.
The diagnostic criteria for an adjustment disorders DSM-5-TR are set out at page 319-320 as follows:
(a) Criterion A - the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s). The stressor of Mr Vella’s motor accident led to the development of emotional symptoms including an increase in anxiety, hypervigilance for further accidents when driving, panic attacks when wakening, unpleasant dreams associated with the accident and lowered mood in some circumstances such as his workplace.
(b) Criterion B - these symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
(i)“marked distress that is out of proportion to the severity or intensity of the stressor …”, and
(ii)“significant impairment in social, occupational, or other important areas of functioning”.
The Medical Assessors acknowledge the claimant’s physical symptoms but is of the clinical judgment that the psychological symptoms experienced by Mr Vella, certainly in the weeks and months after the accident played a significant role in the impairment in Mr Vella’s occupational functioning in the weeks and months following the motor accident.
(c) Criterion C - the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder. As will be explained below, the stress-related disturbance does not meet criteria for post-traumatic stress disorder or major depressive disorder and it is the clinical judgment of the Medical Assessors that there is no other mental disorder that adequately explains the claimant’s presentation since the accident.
(d) Criterion D – while the claimant reported to Medical Assessor Verma losing his best friend in November 2023, the claimant did not report any ongoing grief and it is the clinical judgment of the Medical Assessors that his symptoms since the accident do not represent bereavement.
(e) Criterion E - once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months. While the motor accident occurred more than six months ago, the claimant reports he is still experiencing physical symptoms arising from that accident.
It is the clinical judgment of the Medical Assessors that it is due to the presence of his nervousness and worry after the accident the specification for his disorder is “With anxiety: Nervousness, worry, jitteriness, or separation anxiety is predominant.”
It is the clinical judgment of the Medical Assessors that the claimant’s disorder is, “Persistent (chronic)” which applies when the duration of the disturbance is longer than six months in response to a chronic stressor (pain from the physical injuries) or to a stressor that has enduring consequences. In Mr Vella’s case, his symptoms continued for more than six months.
The Medical Assessors note that the diagnosis is consistent with the claimant’s treating psychologist Ms Nazim who wrote a report dated 29 June 2023 diagnosing an adjustment disorder with mixed symptoms of anxiety and depression.
It is the clinical judgment of the Medical Assessors that the claimant’s adjustment disorder has resolved or remitted. While the claimant has continued symptoms, primarily elevated anxiety while driving, these symptoms are not clinically significant and the claimant, as he presents to the Medical Assessors would not satisfy the necessary criteria for a current diagnosis of adjustment disorder.
Differential diagnoses
The claimant submitted that Medical Assessor Verma should have considered the diagnosis of a major depressive disorder separately and not in comparison to another diagnosis. The Medical Assessors note that they are required to diagnose the claimant’s mental disorder and in doing so undertake the exercise of a differential diagnosis which involves considering all possible diagnoses before settling on the most appropriate diagnosis.
In Mr Vella’s case, other diagnoses were considered, particularly post-traumatic stress disorder and major depressive disorder. Mr Vella has not met DSM-5TR criteria for either of these disorders due to the motor accident for reasons given below.
Does, or did Mr Vella have a post-traumatic stress order?
The first mention of mental health issues following the accident was on 13 March 2023 when Dr Keriaqos reports that the claimant started to have nightmares and flashbacks and the claimant was referred for psychological treatment which occurred. The Panel notes that the claimant had treatment and his psychologist Ms Nazim did not diagnose a post-traumatic stress disorder.
Criterion A of this disorder requires there to be “exposure to actual or threatened death, serious injury, or sexual violence [by] …Directly experiencing the traumatic event(s).”
While Mr Vella was involved in the motor accident on 7 February 2023 and therefore directly experienced it however the criterion requires exposure to actual or threatened “serious injury” and the commentary in DRE-5-TR requires the accident to be “severe”. Having considered the facts and circumstances of the accident and the claimant’s physical injuries the Medical Assessors are of the view Mr Vella’s accident was not severe and he was not exposed to actual or threatened death or serious injury. Airbags did not deploy and both drivers were able to exchange details and drive away. Mr Vella sustained no broken bones or lacerations and has been diagnosed with soft tissue injuries. It is the clinical judgment of the Medical Assessors that the accident did not and does not meet the requirements of criterion A.
In relation to Criterion B this requires the presence of one (or more) of the following intrusion symptoms associated with the traumatic event (that is the motor accident), beginning after the traumatic event occurred:
(a) recurrent, involuntary, and intrusive distressing memories of the accident or recurrent distressing dreams in which the content or affect of the dream are related to the accident. Dr Keriaqos recorded in March 2023 the claimant was having nightmares and Mr Vella described at the re-examination intrusive dreams about the accident in the weeks following the motor accident though these have now resolved;
(b) dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the motor accident were recurring. Dr Keriaqos recorded in March 2023 the claimant was experiencing flashbacks. In the history given at the re-examination, there was no evidence of dissociative phenomena currently being experienced by Mr Vella after the accident;
(c) intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the accident. There was no evidence of Mr Vella having prolonged psychological distress at exposure to cues resembling an aspect of the motor accident, and
(d) marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the accident. There is no evidence of Mr Vella having a prolonged physiological reaction at exposure to cues resembling an aspect of the motor accident.
Criterion C requires there to be persistent avoidance of stimuli associated with the motor accident, beginning after the accident occurred. In Mr Vella’s case there are no significant avoidance symptoms. Mr Vella is able to drive including driving past the scene of the motor accident on a regular basis.
Criterion D requires there to be negative alteration in cognition and mood associated with the accident, beginning or worsening after the accident occurred. Mr Vella presented with no significant negative alterations in cognitions or mood associated with the motor accident. The clinical records do not indicate significant negative alteration in cognition or mood.
Criterion E requires marked alteration in arousal and reactivity associated with the accident, beginning or worsening after the accident. Mr Vella did have some alteration in arousal and reactivity associated with the motor accident in the weeks following the accident though these have, on his history, resolved over time. For example, Mr Vella had sleep disturbance and nightmares though this was mainly attributed by him to pain.
Criterion F relates to the duration of the disturbance (Criteria B, C, D, and E) which must last longer than one month. Mr Vella was still complaining of symptoms and having treatment from Ms Nazim in June 2023 four months after the accident although there is insufficient detail as to what particular symptoms these were.
It is not clear whether Criterion G is met. The disturbance (Criteria B, C, D and E) must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning and the disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition. While the claimant’s ability to work and undertake activities of daily living were affected after the accident this appears from the clinical notes to be primarily due to the claimant’s medical conditions including the physical injuries sustained in the accident.
Does the claimant have a major depressive disorder?
The Panel notes that Medical Assessor Verma considered (but dismissed) a diagnosis of major depressive disorder. The diagnostic criteria for this condition in DSM-5-TR include Criterion A which requires five (or more) symptoms present during the same two-week period and which represent a change from previous functioning. At least one of the symptoms is either a depressed mood or loss of interest or pleasure.
The DSM-5-TR provides that the depressed mood must be present most of the day, nearly every day, as indicated by either a subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful). It is the clinical judgment of the Medical Assessors that Mr Vella did not and does not have depressed mood most of the day nearly every day. He does describe “sadness” when he has to decline work which he would previously have been able to do, though this feeling does not extend outside of the work environment where his mood is described as normal.
The alternative is that the DSM-5-TR requires a markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation). Mr Vella does not have markedly diminished interest or pleasure in all or almost all activities. He reports that since the accident he has continued to have a full and rewarding family life and enjoys pursuing his musical interests.
Other symptoms specified in the DSM-5-TR include:
(a) significant weight loss - there is no significant weight change attributable to a psychological cause. Mr Vella has been using medication to reduce weight at times over the last year;
(b) insomnia or hypersomnia nearly every day - Mr Vella continues to have some difficulty with his sleep which he attributes to physical pain and discomfort;
(c) psychomotor agitation or retardation nearly every day - there is no agitation or retardation evident at the re-examination or in the records presented to the Panel;
(d) fatigue or loss of energy nearly every day - Mr Vella does not experience fatigue or loss of energy nearly every day and the clinical records presented to the Panel do not report fatigue or loss of energy;
(e) feelings of worthlessness or excessive or inappropriate guilt nearly every day – Mr Vella did not report excessive feelings of guilt or worthlessness nearly every day and the records do not suggest it;
(f)
diminished ability to think or concentrate, or indecisiveness, nearly every day -
Mr Vella describes his concentration at the re-examination as good. He was able to deal with the administrative side of this business without issue and was learning and performing music, and
(g) recurrent thoughts of death; recurrent suicidal ideation without a specific plan; a specific suicide plan; or a suicide attempt - Mr Vella does not have recurrent thoughts of death and has never been suicidal according to his own self-report and the records of his GP.
For a major depressive disorder to be diagnosed, the symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning and the episode must not be attributable to the physiological effects of a substance or another medical condition. The Medical Assessors refer to our findings in paragraph 120 above.
It is the clinical judgment of the Medical Assessors on the Panel that the claimant has not at any time since the accident satisfied the criteria for a diagnosis of major depressive disorder.
CONCLUSION
The two Review Panels in David v Allianz Australia Insurance Ltd[22] and Lynch v AAI Limited t/as AAMI[23] held that whether the claimant has a threshold or non-threshold injury on the day of the Panel’s re-examination is not the question that the Panel is required to ask itself or answer. The Panels found in those two cases that the question to be asked and answered is whether the claimant sustained a threshold injury or not as a result of the accident regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.
[22] 2021 NSWPICMP 227.
[23] 2022 NSWPICMP 6.
The Medical Assessors have expressed the opinion in paragraph 119 above that Mr Vella’s adjustment disorder caused by the accident has resolved or remitted and that the claimant has been left with mild symptoms which do not currently satisfy all the criteria for a diagnosis in accordance with DSM-5-TR.
The Medical Assessors on this Panel have, in their clinical judgment diagnosed an adjustment disorder. In accordance with s 1.6 (4) of the MAI Act and cl 4(2) of Part 1 of the Regulation, an adjustment disorder is a threshold injury.
As the Panel has come to the same conclusion as Medical Assessor Verma, it follows that her certificate should be confirmed.
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