Vuong v Insurance Australia Ltd t/as NRMA
[2022] NSWPICMP 55
•22 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Vuong v Insurance Australia Ltd t/as NRMA [2022] NSWPICMP 55 |
| CLAIMANT: | Rosa Vuong |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL: | Principal Member John Harris |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a non-minor psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the DSM-5 criteria for Persistent Depressive Disorder was satisfied; the Panel did not consider that Ms Vuong suffered from post-traumatic stress disorder (PTSD) at any time because there was no threat of serious injury or death in the motor accident which was an element for diagnosing PTSD under DSM-5; the Panel applied the principles in Lynch v AAI Ltd noting the insurer implicitly accepted that a minor injury could occur at any time; findings made that 8 sessions of psychological treatment were reasonable and necessary and would improve the recovery of the claimant; discussion of reasonable and necessary; principles in Diab v NRMA Ltd referred to; discussion of test for treatment arising from the motor accident only required a material contribution; AAI Ltd v Phillips applied; Held- findings made that the claimant suffered from Persistent Depressive Disorder which was a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 Act. |
DETERMINATIONS MADE: | The Review Panel revokes the certificate dated 7 April 2021 and issues a new certificate determining that: The claimant suffers from a Persistent Depressive Disorder which is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017. |
Review Panel Assessment of Treatment and Care
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 7 April 2021 and issues a new certificate determining that:
The following treatment and care:
Eight psychological sessions suggested by Robbie Matek,
Is Reasonable and Necessary in the circumstances.
The following treatment and care:
Eight psychological sessions suggested by Robbie Matek,
Relates to the Injury caused by the Motor Accident.
The following treatment and care:
Eight psychological sessions suggested by Robbie Matek,
Will improve the recovery of the injured person.
BACKGROUND
Ms Rosa Vuong (the claimant) suffered injury in a motor accident on 10 September 2019 when another vehicle collided with the claimant’s vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Ms Lynch any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether the claimant’s injury is classified as a “minor injury” within the meaning of the MAI Act and whether eight psychological sessions will improve the recovery. Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act” and whether the treatment “will improve the recovery of the injured person”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to section 7.26 of the Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Jones who issued a Medical Assessment Certificate dated 7 April 2021. Medical Assessor Jones concluded that Ms Vuong had no active psychiatric disorder which is a minor injury for the purposes of the MAI Act and did not require any further psychological treatment.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. However, pursuant to s 3.28(3), further expenses are allowed “if the treatment or care will improve the recovery of the injured person”. An injured person otherwise cannot recover damages under the Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Ms Vuong within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4][4] Section 7.26(10) of the MAI Act.
On 5 August 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were subsequently advised that
Ms Vuong would be examined by the Medical Assessors on the Panel and asked to address the decision of Lynch v AAI Ltd[10] “in relation to the issue of the timing when a minor injury may occur (see at [69] – [74])”.[10] [2022] NSWPICMP 6 (Lynch) at [69] – [74].
STATUTORY PROVISIONS
A minor injury is defined in section 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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:
“Minor psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a minor 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 minor injury.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[12] apply. This is because Part 6 is specified as applying only to the assessment of permanent impairment.[13]
[11] See section 3B(2) of the Civil Liability Act 2002.
[12] See clauses 6.5 - 6.7 of the Guidelines.
[13] See clause 6.3 of the Guidelines.
ASSESSMENT UNDER REVIEW
Medical Assessor Jones certified that Ms Vuong had no active psychiatric disorder and concluded that the eight psychological sessions were not reasonable and necessary and would not improve recovery.
The Medical Assessor stated:[14]
“Ms Vuong reported a narrative and presented at assessment as consistent with having
no ongoing, active psychiatric disorder caused by the motor vehicle accident. She reported ongoing physical difficulties and pain which limit her in day-to-day functioning and particularly limit her with respect to her ability to work longer hours. She reported emotional and psychological symptoms proportional to, and consistent with, this ongoing pain and limitations on her functioning. She also reported high levels of worry and concern (as well as teariness and depression) related to her mother’s health, especially her recent cancer diagnosis and treatment.”
[14] Claimant’s bundle, page 12.
In respect of diagnosis, the Medical Assessor concluded that the previous diagnosis of acute stress disorder has not resolved.
SUBMISSIONS
Claimant’s submissions
The claimant submitted that the Medical Assessor noted various psychiatric symptoms. The clinical records of the general practitioner and Dr Kumagaya reported that Ms Vuong had post-traumatic stress disorder (PTSD). No explanation is provided by the Medical Assessor as to why the claimant had no psychiatric illness in light of the recorded symptoms.
The Medical Assessor did not determine if the claimant had PTSD at any time. The minor injury test is a threshold test, and the Medical Assessor was required to determine whether the claimant had a non-minor psychiatric injury at any time. He incorrectly limited his assessment to the time of the examination.
In its further submissions dated 18 February 2022, the claimant noted that the insurer’s further submissions did not address the Panel’s direction.
The claimant adopted the reasoning in Lynch. It referred to the records of the treating doctor, the treating general practitioner’s, psychologist’s and psychiatrist’s diagnosis of PTSD and the Panel’s assessment as to whether PTSD or any other psychiatric diagnosis under DSM-5 was present at any time.
The claimant emphasised the opinion of Dr Kumagaya in his report dated 23 July 2020 and the various clinical records which justify a diagnosis of PTSD. It was submitted that the treating psychologist diagnosis of acute stress disorder was incorrect because the symptoms had lasted more than three months since the date of the stressor which was the date of the motor accident.
The claimant submitted that the Panel was required to refer to the various past symptoms in determining whether there was any previous PTSD or any other DSM-5 diagnosable condition.
Insurer’s submissions
The insurer’s submissions dated 10 July 2020 concentrated on the physical injuries. However, the insurer referred to the psychology AHRR dated 19 May 2020 which provided a diagnosis of Acute Stress Disorder.[15]
[15] Insurer’s bundle, page 22.
In response to the Panel’s further direction the insurer noted that the original Medical Assessor reviewed all available documentation and based on the material and clinical examination provided a clear explanation regarding how he arrived at the claimant’s past and present psychological diagnosis.
The original Medical Assessor concluded that any previous diagnosis of acute stress disorder had resolved. As the claimant had Acute Stress Disorder in the past this is considered a minor injury for the purposes of the MAI Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.
Dr David Kumagaya, psychiatrist, provided a report dated 23 July 2020 when he diagnosed PTSD due to the reporting of various symptoms including intrusion symptoms, avoidance symptoms, negative alterations in mood and arousal symptoms.[16]
[16] Claimant’s bundle, page15.
Dr Kumagaya reviewed the claimant on 23 September 2020.[17] The doctor then noted that the claimant continued to experience prominent flashbacks, nightmares, avoidance symptoms, low mood, diminished interest, hypervigilance, irritability and other symptoms. Ms Vuong trailed mirtazapine on one occasion and ceased it due to nausea. The doctor again diagnosed PTSD.
[17] Claimant’s bundle, page 140.
Dr Kumagaya reviewed the claimant on 4 January 2001 and confirmed the previous diagnosis.[18]
[18] Claimant’s bundle, page 142.
The treating psychologist, Carl Neilsen, provided a series of certificates diagnosing Acute Stress Disorder.[19]
RE-EXAMINATION
[19] Claimant’s bundle, pages 97 – 104, 110 - 113.
The Panel determined that Ms Vuong be re-examined by both Medical Assessors on 11 March 2022 given the factual issues of psychological diagnosis in dispute.[20]
[20] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
The re-examination report is as follows:
“Past psychiatric history
Ms Vuong has no past psychiatric history.
History of symptoms and treatment following the motor accident
Ms Vuong had a car accident on 10 September 2019. She recalled it was 4 to 4:30 pm. She was driving her mother from the family restaurant to home, they were stationary at a traffic light when she felt a bump from the rear. She recalled that her mother said she could not breathe. Ms Vuong was panicking and did not know what to do. She said she could not get through to a friend, so decided to call the repair shop who told her to call the ambulance.
The ambulance came with the police. Ms Vuong said that her mother was fine, so they went home. She recalled may be 10 to 20 minutes after the collision, she started shaking. She said she was not worried about being badly injured but she was upset in herself.
On the same night, Ms Vuong said she started having pain affecting her neck and hands. She had pre-existing hand problems and said that pain became worse. The next day, she consulted her GP and then she was referred to Dr Eric Lim’s practice. She started physiotherapy and not long after that she started psychological treatment. She said that physiotherapy helped her hand before the accident but not since the accident. Her car has been repaired and she recalled the airbag was not deployed.
She stated she still has pain affecting her neck, right leg, hands, and waist. She spoke about having significant guilt feelings and explained that after her father passed away, she promised him that she would look after her mother well. She said after the accident, her mother had increasing physical problems. Normally, her mother was independent. Having had a hip replacement in 2017 she could go on holiday and had been out all the time.
Ms Vuong recalled that her mother suddenly became weak after the accident. About a month after the accident she then fell and sustained a fractured knee. She became more and more reliant on Ms Vuong.
Ms Vuong said that she had to spend an increasing amount of time looking after her mother, and at the same time, she was feeling stressed because she had to continue working at the restaurant. She was also experiencing increased pain from the accident. Her mother became upset and then depressed and this also impacted Ms Vuong’s mental health. She said she feels like she has not been a good carer because she is stressed and depressed.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Vuong’s mother’s health continued to decline. In September 2020, she was diagnosed having an aggressive lymphoma. With chemotherapy, she has now reached early remission and active treatment finished in March 2021.
Ms Vuong said she is stressed looking after her mother because nobody else can help her. She keeps thinking why did this happen to her mother, why did not she take her mother home earlier or later on the day of the accident. She is responsible and her mother’s health became so poor because of her.
Her mother cannot do things on her own anymore and this has impacted Ms Vuong’s mental health. She said she has been having more stress headaches and depression. In January 2022, her mother was very ill from an infection. In the last two months, she has to use a walker and if she has to go out, she had to be in a wheelchair.
Ms Vuong found herself being more irritable and having a “breakdown” in the last few weeks. She is very annoyed with having to look after her mother all the time and having no support. They applied to Gateway, but have not yet received an Age Care package. She also stated that she feels boring having to look after her mother and stay home all the time and cannot live her life on herself.
Current symptoms
Ms Vuong said she usually is not a negative person and she is quite bubbly, but after the subject accident she is now very stressed and easily irritated. Her anxiety and depression started within a few weeks after the accident and she said it is not better over time. There has been further worsening in her mother’s health issues. She also said that her mother sometimes became aggressive, which impacts her and she does not feel appreciated. Ms Vuong said she knows that her mother complains about her behind her back, even though she is already doing her best.
She said she felt anxious because she has no time for herself. She is doing her best but feels like her life is getting nowhere.
She has no enjoyment and has not engaged in her usual recreational activities for a long time.
She was 46 or 47 kg before the subject accident, and is now 45 kg. She has no appetite from feeling stressed.
She described depressive cognitions characterised by guilty rumination and being “not good enough”.
She described being forgetful and distracted.
She reported having low energy levels.
She has thoughts that she does not want to live without active suicidal ideation.
She reported having sleep problems, especially if she had to attend an appointment the next day.
She feels anxious and easily stressed.
She has been irritable. She screams, throws a pillow and pushes a chair when angry.
She has recurring distressing dreams which started a few days after the subject accident. Recently the dreams were a few times a week. She described that in her dreams people were not helping her. She asked for help in the dreams and tried to help her mother. She also dreamed of being assaulted.
Ms Vuong denied having self-harmed, having alcohol or drug problems, or other health issues.
Current and proposed treatment
Ms Vuong took Mirtazapine 15 mg, 1 tablet after the accident and could not tolerate the nausea side effect.
She took a medication for insomnia management, 3 times without benefit and does not want any other psychotropic medications. Her GP has discussed other medications with her.
She takes Panadol taken on an as-needed basis for pain.
She consulted Robbie Matek, a psychologist for maybe 10 sessions. She said he
stopped calling her and she does not know why. She saw another psychologist in
Auburn for a few sessions and the last consultation was 12 months ago. She consulted
Dr David Kumagaya, a psychiatrist for 2-3 sessions and the last consultation was 12
months ago.
She has an appointment to see "Dr Betty”, a new psychologist next week.
Clinical Examination
Mental State examination
Ms Vuong was assessed by videolink on 11/3/2022. She was on her own during
the assessment. I assessed her from my Sydney office. Dr Newlyn was in his
Sydney office. The Panel completed a full psychiatric assessment with consent.
The assessment took 60 minutes.
Ms Vuong was casually attired and had dark hair. She gestured regularly and smiled briefly. She cried as she described her mother’s health issues. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her affect range and reactivity. She spoke spontaneously and fluently. She initially spoke for more than 10 minutes without interruption. She was not thought disordered.
After the assessment, I asked Ms Vuong for additional information that she thought may be relevant and she had no specific comments to make.
Current functioning
Ms Rose Vuong is 56 years old, living with her husband and her mother who is 82. Her son and daughter had moved out of home as they wanted to be more independent.
Before the subject accident Ms Vuong stated that she enjoyed going out with her friends to go shopping. She liked having high- tea, lunch with her friends and having wine and dinner with her friends. She cannot remember the last time she did these activities or the last time she could enjoy such activities.
She described anxiety with her driving and said she hardly drives now. She does the shopping weekly. A friend comes to take her as she is prone to become stressed and does not drive. The longest she can drive on her own is to Cabramatta, 10 minutes away. She cannot drive on the highway at all because she is too scared. When she drives, she often had to check the rear as she worries there will be another collision.
She can catch a train to go to Parramatta to the HCF store.
She said that her home has been very messy and she tries to do a bit of housework every day. She would get up at 8 a.m. to cook breakfast for her mother, then do some washing and cook lunch slowly to make sure it does not aggravate her wrist pain. She cleans the room and toilet every day, because her mother had a recent infection and she wants to make sure the house is clean and there is less chance of an infection. Then, she prepares dinner and does some more tidying up.
She goes out weekly for grocery shopping with her friend or to a medical appointment. She started going back to the church in the last couple of weeks and went once a week.
Even though she had a lot of friends normally, she only has contact with one friend now. She hardly has a phone call with other people, because everything is all about her mother now in her life.
Before the accident, Ms Vuong would go to the restaurant six days a week, usually about 12 mid-day, until 10 pm. Wednesday was the day off and she would do some shopping, have dinner with friends or go out on her own. She had a restaurant that she operated with her husband and they closed the business by 21 February 2021. Her husband has since taken on other jobs. After the accident, she spent less time in the restaurant. When COVID started to affect the business there was not much work but somebody had to be there so she would spend more time at the restaurant.
She does not spend much time with her husband and said that he works seven days a week for Australian Post and Amazon as a courier. He leaves home usually at 5 am and comes home at 7 pm and works on the weekend too. The relationship has deteriorated after the subject accident.
Comments of consistency
There was no inconsistency identified.
Determinations
Causation and reasons
Ms Vuong had no prior psychiatric difficulties and had pre-existing hand injuries. She described having developed anxiety symptoms during the accident but no major worrying thoughts about being severely injured from the subject MVA. Her depression and anxiety became more pronounced within weeks of the accident. Her anxiety and depressive symptoms have never resolved since the accident. Initially, her anxiety related to the shock from the accident and continues to manifest as driving anxiety. Subsequently, her depression and guilty thoughts seem to be driven by her mother’s deteriorated physical health and dependency on her.
Her mother’s health further deteriorated with the cancer diagnosis and this also has an additional impact on her psychological health.
Ms Vuong’s mother’s cancer diagnosis, is a causally unrelated event that has not severed the chain of causation and the subject MVA remains a significant causal factor in her current psychological injury.
Diagnosis and reasons
The diagnosis is Persistent Depressive Disorder.
Ms Vuong’s depressive symptoms began shortly after the subject accident, and it has been more than 2 years since then so she meets Persistent Depressive Disorder diagnostic criteria. She has depressed mood for most of the day, for more days than not indicated by her subjective account. She has poor appetite, insomnia, fatigue, poor concentration and feelings of hopelessness.
During the identified period, she has never been without the described psychological symptoms for more than 2 months at a time.
There has never been a manic episode and her symptoms are not consistent with cyclothymic disorder.
Her symptoms are not better explained by schizophrenia, delusional disorder or other psychotic disorders.
Her psychological symptoms are not attributable to the physiological effects of a substance or another medical condition.
Ms Vuong’s symptoms cause clinically significant distress or impairment in social and occupational areas of functioning.
Her symptoms do not fulfil the DSM-5 criteria for Major Depressive Disorder (MDD) as her symptoms are not at the severity of MDD.
She does not have PTSD. The subject MVA was not a threat of serious injury or death and she did not experience fear or the type of psychological reaction seen in PTSD, and therefore it does not fulfil the DSM-5 description of a criterion A event.
Summary of injuries
The following injuries WERE caused by the motor accident:
Persistent depressive disorder
The following injuries WERE NOT caused by the motor accident:
Nil
Summary of injuries NOT listed by the parties but caused by the motor accident
The following injuries WERE NOT listed by the parties but WERE caused by the motor accident:
Nil
Determinations – Treatment
Treatment and Care – causation
Mrs Vuong developed a Persistent Depressive Disorder because of the subject accident.
Treatment and Care – reasonable and necessary
Reasonable and necessary care included the prescription of an antidepressant medicine, the provision of psychological counselling and psychiatric consultation.
Treatment or Care – improve recovery
Further psychological counselling will improve recovery by improving resilience and providing psychological strategies to improve day-to-day functioning.
Conclusion – Treatment
The following treatment and care relates to the injuries caused by the motor accident
Psychological counselling, psychiatric consultation and prescription of an antidepressant medicine provided at Worker’s Doctors followed by psychological counselling provided by an unnamed psychologist in Auburn.
The following treatment and care does not relate to the injury caused by the motor accident
Nil.
The following treatment and care is reasonable and necessary in the circumstances:
The request for 8 Psychological sessions made by Robbie Matek is reasonable and necessary. Psychiatric consultation and prescription of an antidepressant medicine provided at Worker’s Doctors followed by psychological counselling provided by an unnamed psychologist in Auburn is reasonable and necessary.
The following treatment and care is not reasonable and necessary in the circumstances:
Nil.
The following treatment or care will improve recovery
The request for 8 Psychological sessions made by Robbie Matek will improve the recovery.
The following treatment or care will not improve recovery
Nil.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. The insurer’s further submissions to the Panel that the original Medical Assessor was correct misconceives our function that the Panel must undertake a new assessment.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[21] and Insurance Australia Ltd v Marsh.[22]
[21] [2021] NSWCA 287 at [40], [41] and [45].
[22] [2022] NSWCA 31 at [11], [21] and [64].
We expressly adopt the observations on the timing of non-minor injury as discussed in Lynch. The decision was brought to the insurer’s attention, and it implicitly acknowledged it when it submitted that the original Medical Assessor looked at “past and present diagnosis”. However, in the present matter the principle discussed in Lynch as to when a non-minor injury can occur does not arise because the Panel accepts that Ms Vuong presently suffers from a non-minor injury.
The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on the thorough examination and specific findings pertaining to diagnosis. We observe that this examination report complies with the requirements of the Guidelines set out earlier herein, and particularly clause 5.6. The Panel adds the following further reasons.
The Panel is not satisfied that Ms Vuong has or ever had PTSD. That is because the subject motor accident was not a threat of serious injury or death. That essential element is not satisfied for the purposes of diagnosing PTSD under DSM-5. For that reason, we do not accept the diagnosis provided by Dr Kumagaya.
We acknowledge that the diagnosis provided by the Panel differs from that provided by other doctors and psychologists provided at an earlier time. That difference is explained in part on the duration of the symptoms. Further, the previous opinions were provided at a time which is not current to the diagnosis that the Panel now makes. It is not unexpected that a psychiatric diagnosis may change overtime.
The Panel has diagnosed Ms Vuong with Persistent Depressive Disorder which is a diagnosable psychiatric injury under DSM-5. As we stated, the diagnosis was made by both Psychiatrists on the Panel having reviewed the material filed in the matter and examined Ms Vuong. That psychiatric diagnosis is not an acute stress disorder, or an adjustment disorder as defined by DSM-5.
Ms Vuong is required to establish that the treatment of eight psychological sessions is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[23], Grove J stated:[24]
“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”
[23] [2003] NSWCA 52 (Clampett).
[24] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[25]
[25] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[26] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[26] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
We consider the eight sessions as particularly appropriate treatment for Ms Vuong and acceptable by medical experts as being appropriate and likely to be effective.
The nature of the past psychological treatment is set out in the joint examination report of the Medical Assessors. Ms Vuong has not been overtreated and we consider that it is both reasonable and necessary that the further treatment occurs.
The cost of eight sessions of psychological treatment is not large. We also do not believe that there is any alternative treatment for Ms Vuong at this time.
The Panel accepts that the proposed treatment is reasonable and necessary in the circumstances.
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[27] We are satisfied that the psychological injury is caused by the accident. The ongoing need for psychological treatment is also partly due to the poor health of Ms Vuong’s mother. However, we are satisfied that the motor accident is at least a material contribution to the need for psychological treatment.
[27] [2018] NSWSC 1710 (Phillips) at [29].
The issue of recovery requires a prognosis of what may occur. The panel can only provide an opinion of expected outcomes in the circumstances. Ms Vuong requires further treatment, and she has not been over-treated to date. In these circumstances, we accept that the proposed psychological treatment will improve Ms Vuong’s recovery.
Conclusion
The Panel concludes that the psychological injury is a non-minor injury for the purposes of the MAI Act. The proposed eight psychological sessions are reasonable and necessary in the circumstances and caused by the motor accident. The treatment will improve the recovery of Ms Vuong.
The replacement certificate is contained at the commencement of the Reasons.
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