Waldron v Allianz Australia Insurance Limited
[2025] NSWPICMP 764
•3 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Waldron v Allianz Australia Insurance Limited [2025] NSWPICMP 764 |
CLAIMANT: | Julie Waldron |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Terence O'Riain |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Himanshu Singh |
DATE OF DECISION: | 3 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold psychological injury under section 1.6(3); claimant suffered injury as a bus passenger; psychological condition existing since accident; Medical Assessor found the accident caused adjustment disorder; claimant sought review; Held – claimant had experienced psychological symptoms for more than six months; sustained phobia from accident; certificate revoked; not a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Hong dated · specific phobia. |
REASONS
BACKGROUND
The claimant was injured on 17 April 2022 in a bus accident where she reports that she was ejected from her seat and fell on the floor of the bus.
There is a dispute between the parties as to whether the injury caused by the motor accident is a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant applied to the Personal Injury Commission (Commission) to determine this dispute.
The Commission referred the injury psychiatric condition–specific phobia disorder.
Medical Assessor Hong issued a certificate dated 5 July 2024 determining that the psychological injury caused by the accident is a threshold injury for the purposes of the MAI Act, being an adjustment disorder.
The claimant applied to the President of the Commission under s 7.26 of the MAI Act to refer this assessment to a Review Panel (Panel) submitting that the medical assessment was incorrect in a material respect.
The grounds for review and particulars in the application were in respect to the Medical Assessor failing to properly diagnose adjustment disorder and provide adequate reasons. This was particularly in circumstances where the Medical Assessor determined that criterion F of the DSM – 5 diagnostic criteria for specific phobia was not met and there was an alleged error in respect to criterion E of specific phobia.
The President’s delegate constituted and referred the dispute to this Panel.
The Panel met on 21 May 2025. The Panel noted that the claimant’s reliability in recounting her condition, circumstances of the accident and the claimant’s symptoms following the accident were uncontroversial.
The controversy was whether the claimant’s symptoms could satisfy the criteria for a specific phobia disorder.
The Panel decided re-examination was required and Medical Assessors Canaris and Singh would conduct this examination on behalf of the Panel via MS Teams on 16 July 2025.
Statutory framework
Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Commission to make rules about the practice and procedure before the Commission including proceedings before a Panel that will review a decision of a Merit Reviewer or a Medical Assessor.[1]
[1] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the 2020 Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[2]
[2] Rule 128 of the PIC Rules.
The term “threshold injury” is defined in s 1.6 of the MAI Act and includes a “threshold psychological or psychiatric injury.” A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(3).
Section 1.6 provides the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further define threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder.
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 an accident is a threshold injury for the purposes of the MAI Act. Version 10 of the Guidelines applies to accidents occurring on or after 1 December 2017. In respect of assessing whether an injury is a threshold injury, the Guidelines provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the 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 assessment of threshold psychological or psychiatric injury. These clauses provide:
“Minor 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.”
The Guidelines deal with causation of injury as follows:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Commission’s decision makers consider the Guidelines above as applicable to any aspect of assessing causation, despite the above relating specifically to permanent impairment.
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
Assessment under review
The Commission’s psychiatric Medical Assessor Michael Kong examined the claimant and issued a certificate dated 5 July 2024 – more than two years after the accident – in which he concluded the claimant’s psychiatric condition was an adjustment disorder, which is a threshold injury under s 1.6 of the MAI Act.
The claimant provided a history of the accident, where she was seated, the bus jolted and she was thrown to the floor. She described feeling shocked and in that her body was “misaligned”. Before the accident she was active, but her physical injuries affected her buttocks, hip and lower back. Despite treatment that condition has persisted.
The accident changed her life fundamentally and she was worrying about things that did not worry her before. When Dr Hong examined her, she had only taken the bus once since the accident. That was one of two months after the accident and she was “freaked out” sweating and gripping the handles.
Medical Assessor Hong recorded the claimant would not use buses because there are no seat belts and it was not safe. He noted the claimant’s sleep problems including vivid dreams, with anxiety related to driving being a passenger and buses. She experienced anxiety in a few other situations.
At that time, she had had no psychological treatment apart from consulting her general practitioner (GP). She had moved to the Sunshine Coast to be closer to family. This required her ending her romantic partnership. She does not need to use the bus in Queensland; there are no local buses.
Before the accident she had worked providing aged care to clients at home. She had to reduce her hours to 20 hours per week due to pain from the accident. She tried a three month break to properly heal but that did not work.
The Medical Assessor considered that Ms Waldron’s psychological condition matched five of the seven criteria to diagnose specific phobia. However, because she described fear, anxiety and avoidance only persisting one to two months after the accident she did not satisfy symptom E, which classifies the condition as being persistent if it lasts for six months or more.
Further, under criteria F the fear, anxiety or avoidance had to cause clinically significant distress or impairment in social, occupational or other important areas of function. This was not happening in both criteria, because she decided she would not use a bus again, thus mitigating her condition.
Accordingly, Medical Assessor Hong found the accident caused an adjustment disorder, which is a threshold condition.
EVIDENCE
Treatment providers’ records medicolegal reports
Records received from Myhealth Cremorne for the period 29 August 2022 to 25 July 2023
Dr Stephanie Teoh examined the claimant on 12 occasions for review in respect of her hip and back complaints. The GP did not record any psychological symptoms related to the accident nor did she report any travel phobia.Dr Teoh recorded on 27 June 2023 that the claimant reported that she had just returned from a five week overseas holiday.
Pain Specialist, Dr Timothy Hucker reviewed the claimant on 4 July 2023. Dr Hucker noted the physical aspects arising from the accident and how the claimant described some mood disturbance and that she was due to see a psychologist.
Exercise Physiologist Mr Ryan Welsh completed 3 AHRRs for exercise physiology with the claimant and did not note any psychological symptoms.
Medicolegal reports
Medicolegal psychiatrist Dr Richa Rastogi examined the claimant and produced a report dated 27 September 2023.
Dr Rastogi considered that Ms Waldron’s psychological condition matched all of the seven criteria to diagnose specific phobia.
Specifically, the claimant satisfied symptom E because as the claimant described her fear, anxiety and avoidance to Dr Rastogi was satisfied this had persisted up to the date of the examination, which was 18 months.
Further, under criteria F Dr Rastogi was satisfied that the fear, anxiety or avoidance was causing clinically significant distress or impairment in social, occupational or other important areas of function.
Dr Rastogi also considered the psychological condition was materially impacting the claimant’s ability to work as she had before the accident.
Other evidence
The claimant provided a statement dated 21 November 2023, which addressed the psychological symptoms she was experiencing since the accident.
That statement addresses the time the claimant has been experiencing the conditions and the impact on important areas of function:
“3. As Dr Rastogi recorded in her report, I used to catch public transport regularly before the accident. Since the accident, however, I have been unable to do so because I experience overwhelming stress, anxiety, and panic due to the accident. I have caught the bus on one occasion since the accident and found that I was overcome with fear and anxiety. I could not sit in the aisle seat. I was hypervigilant throughout the trip and was sweating. I could not focus or concentrate. I experience similar symptoms whenever I pass by the site where the accident occurred. Because of this, I avoid travelling on the bus and I try to avoid driving past the scene of the accident when possible.
4.I know these fears are not rational, but I have no control over them and I find these episodes overwhelming whenever they occur.
5.These symptoms commenced very shortly after the accident and have occurred every time I have passed the scene of the accident. As I mentioned, they also occurred on the occasion I caught the bus after the accident. I have continued to avoid public transport since.
6. This phobia caused by the accident significantly interferes with my life, as I routinely caught public transport before the accident, and I also now spend a lot more money on Ubers. I also have to rely on lifts from people which is often not convenient. It can take me longer to go places when I avoid the site of the accident.
7. I know that the only way I will be able to deal with this phobia is by some kind of exposure therapy and for this reason, I have avoided seeking professional help as this scares me. I prefer to avoid reminders of the accident rather than confronting them and stirring up these feelings.”
Submissions
Claimant’s submissions
The claimant’s solicitors relied on brief submissions dated 29 July 2024 and 16 April 2025.
The claimant’s statement establishes that she has satisfied the diagnostic criteria for specific phobia, because she demonstrated phobia of travelling on public transport and travelling past the site of the accident, which have caused her to avoid both situations altogether so as to avoid the distress she experienced when she did expose herself to travel on a bus after the accident.
For a person of the claimant’s limited means to avoid public transport and to take Ubers at significantly greater expense was plainly a significant impairment upon her life and her functioning.
The claimant regularly used public transport before the accident while she lived in Sydney, and now avoids this altogether, which limited her means of access in the community.
In respect to the original medical assessment the claimant submitted the Medical Assessor did not accept the diagnosis of specific phobia on several flawed bases, including finding that because the claimant had avoided exposing herself to the phobic event, she no longer suffered from the phobia. DSM-5-TR diagnostic criteria for specific phobia contradicts that proposition, where avoidance is the primary symptom described under the criteria.
Medical Assessor Hong also considered only one of the claimant’s two phobias: her avoidance of bus travel; but ignored her second phobia: her avoidance of travelling past the scene of the accident. He wrongly characterised her phobia as a fear of travelling on buses, when she had a fear of travelling on public transport.
Medical Assessor Hong diagnosed adjustment disorder but he provided no reasons in support of that diagnosis, nor did he address the diagnostic criteria of that condition under DSM-5-TR.
The claimant says her statement, Dr Rastogi’s report, and in Medical Assessor Hong’s recorded symptoms, support finding she has a specific phobia, and that the Medical Assessor determined otherwise because he failed to correctly apply the DSM-5 criteria for this condition.
Medical Assessor Hong falsely assumed that avoiding the phobic situations was insufficient to meet the diagnosis.
This Review Panel must consider that this evidence discloses that the claimant has at some point in time since the accident satisfied the diagnostic criteria for specific phobia under DSM-5.
This Panel does not need to consider the claimant’s symptoms only as they are at the time of the assessment.
The Panel must find the claimant did not suffer threshold injuries in the accident if the Panel forms the view that the claimant has satisfied the diagnostic criteria for specific phobia at any time since the accident even if she does not presently fulfil the criteria: David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227. (See also Lynch v AAI Limited trading as AAMI [2022] NSWPICMP 6 and Baldedara v QBE Insurance (Australia) Limited [2023] NSWPICMP 604.)
Insurer’s submissions
The insurer submitted that the histories contained within the claimant’s statement and
Dr Rastogi’s report are relatively consistent with the history recorded by Medical Assessor Hong.The insurer referred to the decision of Merhi v Insurance Australia t/as NRMA Insurance [2024] NSWPICMP 316, which did not accept the findings in David and concluded that the threshold injury dispute must be resolved by a Medical Assessor or Review Panel suggesting that the criteria for demonstrating a non-threshold injury must be present on the day of the assessment.
The insurer submitted that the claimant’s contention that she has developed a specific phobia disorder in this accident is not consistent with:
(a) the circumstances of the accident;
(b) the claimant not reporting any psychological complaints to her GP Dr Teoh after the accident;
(c) the claimant did not seek psychological treatment after the accident;
(d) the claimant returning to her pre-injury duties soon after the accident and only reduced her duties due to back pain;
(e) the claimant travelled overseas for a period of five weeks;
(f) Mr Welsh recording that the claimant claimed she was independent with respect to transport and driving, and
(g) the only psychological symptoms noted within the treating records being limited to Dr Hucker’s record of some mood disturbance on 4 July 2023, more than one year after the accident.
REVIEW PANEL FINDINGS
Who attended the assessment
Panel members, Medical Assessor Christopher Canaris and Medical Assessor Himanshu Singh examined Ms Waldron over a video conference on 16 July 2025. Ms Waldron attended the appointment by herself.
Background
Ms Waldron stated that she currently lives by herself, she is currently not working and not studying. She has moved to Queensland after she sold her house in Sydney, and she is currently living on her savings.
The last time she worked was on 10 May 2024 at RSL Life Care as a support worker and AIN in community nursing. She stopped working as physically she was not up to it due to the pain in her body.
She later decided that she wanted to be away from Sydney and wanted to be away from the area where the accident happened. While she was working, she had clients when she required to pass the accident site while she was driving them and she did not want to be reminded of the accident. It was also a financial decision to move as she was finding it difficult to afford her living in Sydney when she stopped working.
Psychosocial history and pre-accident history
Ms Waldron was born and grew up in Sydney. She grew up with both parents and a sister. She had a good childhood growing up and denied any trauma or abuse.
She stated that she had a good, simple childhood, and it was the 70s and denied any childhood issues. She left school at the end of Year 10. Then, she did a few different jobs in hospitality. She owned a restaurant in Manly. She worked at an RSL and David Jones. She later changed her career and completed a Certificate III and IV in aged care, starting work in the industry at the age of 40.
She was in her last job for almost 20 years, working at RSL Life Care as a support worker and AIN in community nursing. Her job mainly involved taking care of the personal needs of the residents, including showering, administering medications, escorting them to medical appointments, booking appointments, participating in community work, and accompanying them on outings. She was often driving to see clients all over the northern beaches.
Ms Waldron reported a medical history of hysterectomy, tonsillectomy and had three children. She denied any other medical or psychiatric issues.
Ms Waldron stated that she was in her first relationship for around eight years and has her son from the relationship who is currently 38. She got married at the age of 36 and has two twin daughters from her marriage and her husband passed away when she was 46. She lived alone for around six years.
She started another relationship, which lasted for 10 years, and it ended when she moved out of Sydney in May 2024. While in Sydney following the accident, she continued to live with her partner and one of her daughters and they lived together for almost two years. Her two daughters continue to live in Sydney, and her son lives in the same area where she has relocated in Queensland.
Ms Waldron denied any previous motor vehicle accident-related personal injury claims. She denied any previous work-related psychological/psychiatric injury. She denied any previous work-related physical injury claims.
Ms Waldron denied any significant drug and alcohol history.
Ms Waldron denied any significant forensic history.
Ms Waldron denied any family history of mental illness.
History of the accident
When asked about the accident, Ms Waldron stated that her account of the accident is the true version, and it differs from what has been written by the insurance company. She stated that it was Easter Sunday. The accident was on 17 April 2022. She was heading home with her daughter on a bus, and the bus hit the kerb, causing the wheel to bounce. Probably the back wheel hit the kerb, and she was ejected from her seat.
She was ejected into the air and thrown onto the right side and landed on the aisle. She was sitting on the aisle side, and her daughter was sitting on the window seat. She was up in the air and then landed on the floor. Her daughter started to laugh at her.
Ms Waldron was on the floor of the bus and composed herself and got back up and sat there in shock. She did not hit her head in the accident. She landed on her elbow and her hip in the accident. Though her elbow was fine, she stated “it has put my whole body out of alignment.”
She was told she had soft tissue damage and started to have pain in the lower body on the right side. The pain affected her buttocks and lower back. It is mainly on the right side and was stabbing, aching and a sense of being tired and in discomfort. She was not the same person as she was before the accident.
Ms Waldron stated that she did not slip off the seat as the driver claimed. Rather, she was ejected from her seat and then landed on the floor.
Ms Waldron went home and was in shock. As it was a public holiday, she waited till Tuesday when she saw her GP. She rang the bus commission and reported it and asked the company not to delete the footage of the incident. However, she never got the footage. She was the only other passenger apart from her daughter in the bus at the time of the incident, and there were no injuries sustained by her daughter.
History of symptoms and treatment following the accident
Ms Waldron stated that she saw her GP, who did not take her seriously. She had to see few doctors before she saw Dr Stephanie Teo who took her concerns seriously. She was referred to an exercise physiologist, and the insurance company paid for it. The sessions continued over six months, and as she did not get any better, the sessions were stopped. Her GP also referred her for pain management, where she got some nerve blockers, which gave her some relief. She did not have any surgeries.
Ms Waldron stated that following the accident, she became quite anxious. She did not like driving. She did not like the lack of control if someone else was driving. She mentioned the incident when few months after the accident, she caught a bus along with her partner to go to Manly. However, she freaked out and she had to get off the bus.
She was sweating, highly anxious and had heart palpitations. She did not want to hop in a car with anyone and was fearful of someone else driving or herself driving following the accident. She was worried about the unpredictability of all and often shocked by it.
The accident made her life shrink. She used to go out a lot and often catch buses which she stopped to do. She was not too bad if she was just at home. At home, she felt safe and so was not going out much.
Ms Waldron stated that following the accident, she had a bit of time off and then returned part-time work. She then left that previous role and had three months off and then went back casually to work in the same role.
She continued having anxiety driving past the scene of accident. Due to her work commitment and work being time-related, she could not take a different way as it was a longer way to commute to her clients. So, she had to drive past the scene of the accident.
She felt safer when she was driving as she was the one in charge of her vehicle. She felt fine at home though she thought about it more when she was triggered being out in the environment.
Ms Waldron reported no issues in her personal care. She would do less housework. However, otherwise her work was fine with her clients. She denied any issues in attending work. She was doing to the best of her ability and she was only worried about being out on the road. She avoided travelling if not required and was with the same employer at the RSL. She drove to Queensland twice by herself on her own.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Waldron denied any relevant injuries or conditions sustained since the motor accident.
Current symptoms
Ms Waldron currently lives by herself in Tewantin, Queensland inland from Noosa Heads. She moved there as her son lives there and wanted to be close to him. Her son lives 25 minutes away.
She moved out of Sydney as she wanted to avoid the reminders of being around the accident. She had to take public transport at times, and she did not want to take public transport. She stated, “buses are dangerous.”
She does not relive the accident, but she is anxious sitting in a bus. Her mental health is not 100%. She misses her life in Sydney, her family and her job, though her son is there.
Ms Waldron stated that things do not give her joy. She is not as vibrant as she used to be. She is planning to get a part-time job, but she is not motivated to get her resume together.
She would like to work in aged care and there are plenty of jobs, but she needs to apply. She stated that it has been a combination of things. The accident has made her feel fearful and she stopped wanting to socialise. It was too much, and she noted a downward spiral in her mental health, along with the anxiety.
Ms Waldron reported pain in her buttocks between her hip and back. She denied any issues in walking or standing, but she gets fatigued if she stands for a prolonged duration and gets fatigued as the day goes off. She may wake up few times in her sleep in the night but is able to go back to sleep. She may wake up by 5.00am, which is her usual time, and mostly sleeps by 10.00 or 11.00pm and gets good night's sleep. She does not need to nap in the day.
She denied any nightmares or flashbacks. Her appetite is not too bad, though she has gained around 10 kg weight, which she attributes to not exercising. She reported pain as a barrier to exercise and not having the same range of movements. The pain has been less, and it is more generalised sense of whole-body stiffness. She denied any other pain symptoms. She denied any self-harm or suicidal thoughts.
Ms Waldron stated that she had a panic attack once after the accident when she tried to sit in a bus. She is not going to catch a bus. She recommended that every bus should have a seat belt. She has lost her trust in the bus.
The bus driver stated that she slipped off her seat, which is not true, and he never asked her if she was doing okay. She would not hop on the bus as she would be hypervigilant.
She is able to catch an Uber, though she is still hypervigilant with anyone else driving and is not able to relax. She continues to miss her time in Sydney.
She cannot afford psychology due financial reasons. A doctor recommended exercise physiology, which she cannot afford to pay for either.
On being asked about her plans, she stated, “It would be nice if the insurance company helped me or continued helping me, I do not know the answer, and I do not know what I want.”
She was not sure of the way to move forward. She reported being fearful of psychology and a bit scared of what the sessions would involve and whether that would aggravate her fears.
On being asked about travelling by train, she stated that there was no train in the area where she was living. However, she may feel safer in a train.
Current and proposed treatment
Ms Waldron is currently not on any psychological treatment and no treatment is proposed in the future. She continues to take omeprazole for her gastroesophageal reflux disease and takes a small dose of telmisartan for hypertension as she has a family history. She stated her father died of a heart attack.
CLINICAL EXAMINATION
Mental state examination
Ms Waldron was seen over a video conference. She was located at her home and was reviewed by Medical Assessors Christopher Canaris and Himanshu Singh, who were located in their respective offices.
Ms Waldron appeared clean and was dressed appropriately. She was well-groomed. She had a spontaneous speech with normal rate, tone and volume. There were no signs of agitation or retardation. She reported her mood as up and down and still being anxious to sit in a bus or the thought of being in a bus. The Medical Assessors found her affect to be reactive and mood congruent.
She denied any issues with her motivation and energy. Her sleep has been fine, and she reported no issues with her appetite, although there was weight gain.
She was worried about the back pain, her inability to exercise and attend the gym regularly, and getting fatigued. She was preoccupied with the pain and some form of stiffness in her body. She denied any flashbacks, nightmares or frequent reminders from the accident.
She reported avoiding sitting in a bus or driving past the accident area. However, she was still able to drive and had driven around the accident site.
She denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts of harming others. She did not describe any grandiosity, racing thoughts or increased energy levels.
There was no delusional pattern of thinking and no perceptual abnormalities and no formal thought disorder. She was well orientated and had an intact judgement and she had reasonable insight into her issues and there was no cognitive dysfunction.
Current functioning
Ms Waldron stated that her world has become a lot smaller. She does not go out much.
She would drive and see her grandchildren. She takes her dog for a walk every day. She gets into the garden and spends some time reading. She is currently living alone and is able to take care of herself. She can take care of her house, and her personal care has been fine.
She is too sore to go to the gym. She used to go five days a week. She did go to the gym after the accident but continued to do different and lighter exercises.
She may go for a walk or take her dog for the walk. She did not see her son as often as she would like to, as he is busy. She will talk to her daughter almost three times a day.
The other daughter does not ring her. She does not talk to her ex-partner as he was upset when she made the decision of moving out of Sydney as he was upset and he wanted to stay back in Sydney.
Ms Waldron stated that she might have a relationship if her partner stayed on his own so that she can do her own thing.
She has her own bathroom and does not need to consult anyone. She currently has a dog, an 11-month-old Labrador which is good company. She is not seeing anyone. She has her family, a daughter-in-law and three little grandchildren, who are her social life at the moment and has a stepsister. She may read occasionally.
She reported trouble with concentration. Her brain is often fleeting from one topic to another however she can focus for one to two hours. She may get up and then does something else. She manages her own finances and is active on Facebook.
She stated that after the accident, she was going out, but she struggled to catch a bus, so she would take Uber, or her partner would often drop her off.
Comments on consistency
Her presentation was consistent with the history given during the clinical interview, documentation received and mental state examination.
Diagnosis and reasons
The Panel noted that Ms Waldron was in a bus accident on 17 April 2022 where she reports that she was ejected from her seat and had a fall on the floor of the bus. She stated that following the accident, she struggled to travel in a bus. She once sat in a bus and had a panic attack.
She continued to work after the accident up until a year ago when she decided to move and left Sydney because of other reasons in addition to her difficulty to catch a bus. She had soft tissue injuries in the accident leading to pain in the lower side of her body. She received some exercise physiology sessions and pain management.
She became quite anxious and did not like driving when it was not in her control. However, the Panel noted that she continued to drive with some anxiety when she had to pass the site of the accident.
She had a panic attack once while in a bus and had to get down. She continued to feel safe at home and resumed her pre-injury duties as a casual worker.
She did not take any psychological or psychiatric treatment and is not keen to try one as she fears what will happen in a psychology session and that may worsen her issues.
She has driven to Queensland from Sydney twice by herself. The Panel noted that there has been no impairment in her personal care, social relationships apart from the end of her relationship with her partner following her decision to move out of Sydney.
She continues to struggle to attend gym due to her physical limitations, however, she desires to go back to gym. She is engaged with her family, which includes her son, her daughter-in-law and her three grandchildren. She is able to catch Uber, and she denied any issues if she had to catch a train. She plans to get back to work but not having the motivation and not able to put together her resume to apply for jobs.
In the opinion of the Panel, Ms Waldron sustained a psychological/psychiatric injury in the accident on 17 April 2022.
Ms Waldron has presented with symptoms consistent with a diagnosis of specific phobia because the evidence in the claimant’s statement and during her examination supported fear, anxiety and avoidance not persisting for only one to two months after the accident, as Medical Assessor Hong recorded, but had persisted for more than two years when he examined her. Accordingly, her condition satisfied symptom E for specific phobia, which classifies the condition as being persistent if it lasts for six months or more.
Further, under criteria F for specific phobia the evidence showed her fear, anxiety or avoidance had caused clinically significant distress or impairment in social, occupational or other important areas of function. This was not happening in both criteria, because she decided she would not use a bus again, Although she was mitigating her condition by not riding the bus again after her attempt soon after the accident, she continued to avoid that situation and when she could, she would avoid the accident site.
She did not meet criteria for a diagnosis of adjustment disorder because Criterion C of this diagnosis stipulates inter alia that the disturbance does not meet criteria for another psychiatric disorder.
The Medical Assessors considered that as can happen in a specific phobia, other domains of life may not be much affected unless the person is exposed to the specific trigger that initiates the phobic reaction.
Ms Waldron has developed some emotional and behavioural symptoms because of the bus incident. The symptoms started within three months of the incident.
The symptoms mainly consisted of anxiety about bus travel, which she avoided to the extent that she had a panic attack when she tried to travel in a bus. She also reported marked distress that was out of proportion to the severity and intensity of the stressor. There is a direct temporal relationship between the stress of the incident and her symptoms. There was no significant impairment in social, occupational or other important areas of functioning.
The Panel has noted that in criteria B, the symptoms or behaviours are clinically significant as the prospect of bus travel almost always provokes an immediate fear or anxiety response, and the claimant says in her statement that she understands it is not rational..
The symptoms were not better explained by another mental disorder or pre-existing mental disorder and they do not represent normal bereavement.
The Medical assessors did not find any evidence of post-traumatic stress disorder as there were not enough symptoms to make a diagnosis, and she did not meet particularly criterion A as she was not exposed to a serious injury or actual or threatened death.
The Medical Assessors did not find any evidence of a depressive disorder as there was no pervasive sadness or mood, no pervasive issues with motivation or energy, no reported depressive thoughts such as hopelessness or helplessness and no suicidal thoughts. Her affect was bright and reactive during the re-examination.
The Medical Assessors’ clinical judgment is that her mental state examination findings were not supportive of a diagnosis of a significant primary mood disorder such as a depressive disorder.
However, as the claimant has set out in her statement, although the claimant's apparently lacks current psychosocial impairment, and the Panel suspects Medical Assessor Hong was similarly influenced, the claimant’s condition did last for more than six months and it was causing her enough fear and anxiety to she avoid bus travel and the accident site while she lived in Sydney.
Summary of injuries referred by the parties
The following injuries were caused by the accident
· specific phobia.
Determination
There is a plausible mechanism of injury from the circumstances of this accident and the development of these psychiatric injuries, and there is a temporal and thematic association with the psychiatric symptoms becoming prominent and the accident.
The Panel considered the insurer’s submission on Merhi, which deemed David ‘misplaced’.
The insurer asserted that the Commission investigating the condition can be the only entity to decide whether an injury is threshold or not, rather than a suitably qualified person independent from the insurer, complies with the legislative intention to limit the recovery of substantial damages to cases where there is serious and permanent impairment.
The David’s Panel found at [104] that if an examination which complies with cl 5.5 after the subject accident finds that there are at least two clinical signs of radiculopathy that comply with cl 5.6 of the Guidelines, then the injury falls outside the definition of ‘a threshold injury’. The Lynch decision found the same in respect of psychological conditions.
This Panel considered the insurer’s submissions on David and Merhi. This Panel is of the opinion that David provides more coherent reasoning given that symptoms can vary in each presentation.
The Guidelines provide a rubric for examination by “a medical practitioner or other suitably qualified person independent from the insurer”, which if applied in assessing past examination reports ensures that a decision maker has probative evidence to assess whether the injuries comply with the definition of threshold injury; and it is in comity with other Commission decision-makers.
The Panel agrees with and adopts the reasons given by its medical members in their re-examination report in support of this finding.
Ms Waldron did not sustain a threshold psychiatric injury in the accident.
CONCLUSION
The Review Panel revokes the certificate of Medical Assessor Hong dated 5 July 2024 and certifies that the injury caused by the accident was not a threshold injury:
· specific phobia.
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