DETERMINATION OF REVIEW PANEL	
	
CITATION:	BHQ v AAI Limited t/as GIO [2023] NSWPICMP 298

CLAIMANT:	BHQ	
		
INSURER:	AAI Limited t/as GIO	
		
REVIEW Panel	 	
		
SENIOR MEMBER:	Williams	
		
MEDICAL ASSESSOR:	Hong	
		
MEDICAL ASSESSOR:	Smith	
		
DATE OF DECISION:	27 June 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment about threshold psychological injury in accordance with section 7.26; where a Medical Assessor (MA) certified that persistent depressive disorder was not caused by the accident and that psychological treatment was not reasonable and necessary in the circumstances; Briggs v IAG Limited t/a NRMA Insurance applied; Held – the claimant’s pre-existing persistent depressive disorder was not materially contributed to by the accident; the claimant suffers adjustment disorder with anxiety as a result of the accident; a threshold injury; eight sessions of psychological treatment is reasonable and necessary in the circumstances and relates to the adjustment disorder; MA’s certificates revoked and new certificates issued.     
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
1.	The Review Panel revokes the certificates of Medical Assessor Sidorov dated 22 April 2022 and issues new certificates determining that:
(a)	The following injury caused by the motor accident is a threshold injury for the purposes of the Motor Accident Injuries Act 2017:
•	adjustment disorder with anxiety.
(b)	Eight sessions of psychological treatment are reasonable and necessary in the circumstances and the treatment relates to the adjustment disorder with anxiety caused by the accident.

	

BACKGROUND
1.	BHQ (claimant) was involved in a motor vehicle accident on 28 January 2021 (accident). The claimant subsequently made a claim for statutory benefits on AAI Limited t/as GIO (insurer). She claimed that she suffered psychological injury as a result of the accident. 
2.	A dispute has arisen between the claimant and the insurer as to whether for the purposes of the Motor Accident Injuries Act 2017 (MAI Act) her psychological injury caused by the accident was a threshold injury, and whether psychological treatment provided or to be provided to her is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24. 
3.	Each of the disputes is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(b) & (e) of the MAI Act.
4.	The medical disputes were assessed by Medical Assessor Sidorov (Medical Assessor). The Medical Assessor gave a certificate dated 22 April 2022 wherein he certified that persistent depressive disorder was not caused by the accident and that psychological treatment, including counselling, is not reasonable and necessary in the circumstances (Medical Assessment). To be clear, the treatment in dispute is the eight sessions of psychological treatment declined by the insurer on 21 July 2021.
5.	The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The review
6.	The claimant sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (Review). On 29 June 2022 the President’s Delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to this Review Panel (Panel). 
7.	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 cl 14A(1) of Schedule 1 of the PIC Act. As the Medical Assessment was made after 1 March 2021, the new review provisions apply. 
8.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
9.	The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the Medical Assessment is concerned: s 7.26(6).
10.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules. 
11.	On 28 February 2023 the claimant and the insurer were directed by the Panel to lodge with the Commission a joint agreed indexed and paginated bundle that contained all material relied on by the parties for the purposes of the Review, and submissions relied on for the purposes of the Review.
12.	On 4 April 2023 the Panel informed the parties that it considered a re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined by Medical Assessors Hong and Smith on 26 May 2023. The re-examination did not proceed on 26 May 2023 and was re-scheduled to 9 June 2023.
13.	In its report and directions dated 4 April 2023, the Panel confirmed that a joint bundle (AD3) had been lodged by the parties, and that the joint bundle contains all the evidence relied on by the parties for the purposes of the Review. The Panel also confirmed that no submissions had been provided to it for the purposes of the Review, as directed on 28 February 2023. In this regard, the Panel noted that although the parties had provided the submissions they relied on with respect to the assessment undertaken by the Medical Assessor and the submissions they provided to the Delegate of the President for the purposes of s 7.26 of the MAI Act, they had not provided submissions for the purposes of the Review being conducted by the Panel,  as directed by the Panel. The Panel directed the claimant to provide it with her submissions for the purposes of the Review being conducted by the Panel by 13 April 2023. The insurer was directed to provide its submissions by 27 April 2023. 
14.	Despite having been followed up by the Commission, neither party provided submissions in response to the directions made on 4 April 2023. The parties were advised on 5 June 2023 that the Panel would proceed on the basis that the submissions contained in the joint bundle are the only submissions relied on by the parties in the Review. 
15.	The parties are reminded of their obligations in accordance with s 42(3) of the PIC Act. The parties are also reminded that a review panel is not concerned with whether a medical assessment was incorrect in a material respect; that is a matter to be addressed by the Delegate of the President when making a determination about whether a medical assessment is to be referred to a review panel under s 7.26(5) of the MAI Act. Accordingly, submissions that address that question are of limited assistance to the Panel. A review conducted by a panel is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6). It is for this reason that submissions were sought by the Panel from the parties. 
Statutory provisions
16.	The term ‘threshold injury’ is defined in s 1.6 of the MAI Act and includes 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(1)(a).
17.	Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) further defines threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder. For the purposes of cl 4. ‘acute stress disorder’ and ‘adjustment disorder’ have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl4(3) of the Regulations.
18.	Part 5 of the Motor Accidents Guidelines (Guidelines) contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
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 motor accident.
5.4 	Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
19.	Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 	In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 	The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), 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.”
20.	Causation is dealt with in Part 6 of the Guidelines at [6.5]-[6.7]. Those clauses state:
“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 motor 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 motor accident. The motor 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.”
21.	In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J held at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There 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 injuries.”
22.	It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Further, s 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act. 
Assessment under review
23.	The Medical Assessor gave a certificate dated 22 April 2022. He certified that persistent depressive disorder was not caused by the accident and that psychological treatment (including counselling) is not reasonable and necessary in the circumstances. 
24.	The Medical Assessor recorded a history of the claimant being born in Iran, migrating to Australia in 2008. She had not worked since coming to Australia. A history of depression prior to the accident was recorded. The Medical Assessor recorded that the claimant started seeing a psychologist as she was having issues with her neighbour. 
25.	The Medical Assessor recorded a history that about one week after the accident the claimant started dreaming about the accident and would wake up in a sweat in the middle of the night, and that the dreams became more frequent, occurring most nights, from about six months before the examination. He recorded that she worried about being involved in another accident. She described low mood, and stated that she cries without reason. She has been more irritable, and has complained of poor memory and poor motivation. She has developed fear of being in cars or buses as a passenger, and does not leave her home often.
26.	The Medical Assessor took a history that the claimant had not had any psychiatric treatment after the accident “as there has been no evidence of manic or psychotic symptoms”. She sees her psychologist every week.
27.	Based on the account provided by the claimant, her presentation and review of the material provided to him, the Medical Assessor determined that the claimant met the diagnostic criteria for persistent depressive disorder with anxious distress under the DSM-5. His reasons record that the diagnosis was based on a history of around ten years of the claimant experiencing depressed mood most of the day for more days than not associated with appetite disturbance and sleep disturbance, low energy and fatigue, low motivation, low self-esteem and difficulty concentrating and feelings of hopelessness. She had also been feeling keyed up and tense, restless, finding it difficult to concentrate because of the worry and fearing that something awful may happen. The Medical Assessor determined that the claimant’s persistent depressive disorder was multifactorial in nature and had been caused likely by relative social isolation after she moved from her home country, relationship issues with her ex-husband, long-term pain issues, unresolved grief associated with the death of her mother, with whom she was very close, and symptoms of menopause. He determined that there was no evidence that the claimant’s depressive illness was related to the accident. The Medical Assessor determined that the psychological treatment (including counselling) was not reasonable and necessary in the circumstances.
28.	In his opinion, “the paucity of clinical documentation relating to [trauma related symptoms] and the inconsistency between different treatment providers means that the voracity of [the claimant’s] subjective report cannot be verified.” In his opinion, even though she may have experienced certain symptoms of post-traumatic stress disorder following the accident, the claimant did not meet the full criteria for the diagnosis.
Material before the Review Panel
29.	As already recorded, the Panel requested, and was provided with, a bundle of documents relied on by the parties in the Review. 
SUBMISSIONS
Claimant’s submissions
30.	The claimant’s submissions dated 5 November 2021 record that she previously suffered from anxiety and depression when her mother had passed away in around 2017, and was under the care of Farangis Houshmand, psychologist, prior to the accident for treatment of her anxiety and depression.
31.	The claimant argues that the insurer's decision that she suffered a ‘minor injury’ is “contrary to the overwhelming preponderance of the available medical evidence, which diagnoses the claimant as suffering from PTSD as a consequence of the [accident]”. The submissions record that post-traumatic stress disorder is a “non-minor injury”.
32.	The submissions refer to the claimant’s psychological symptoms, together with Dr Lim’s diagnosis of post-traumatic stress disorder and his referral of the claimant to a psychologist. It is argued that the claimant’s reported symptoms are consistent with a diagnosis of post-traumatic stress disorder and are distinct from the symptoms she suffered prior to the accident that are related to the diagnosed anxiety and depression.
33.	The claimant argues that “the onset of symptoms and [her] seeking treatment for those symptoms, is not sufficiently remote from the index accident so as to conclude that those symptoms are not causally related to the [accident]”.
34.	It is also argued that the onset of psychological/psychiatric symptoms, and the claimant seeking treatment with respect to those symptoms, is sufficiently contemporaneous to the accident to establish a causal connection between the accident and the claimant's psychological/psychiatric injury.
35.	The submissions refer to DSM V, and argue that the onset of the claimant’s symptoms, as recorded in the clinical notes of Dr Lim, support a diagnosis of post-traumatic stress disorder.
36.	In the alternative, it is argued that if it is found that the psychological/psychiatric symptoms were “late onset”, such a finding does not preclude a finding that the psychological/psychiatric injuries are causally related to the accident. 
37.	It is argued that “a medical assessor undertaking an assessment of the claimant's psychological/psychiatric injury would be persuaded that [her] treating GP and psychologist have accurately diagnosed her PTSD condition and would affirm that diagnosis.”
38.	The claimant argues that it is significant that, despite her history of anxiety and depression in 2017, there is an absence of recorded psychological/psychiatric symptoms recorded in the clinical notes of Dr Perveen, her treating doctor, in the period immediately preceding the accident.
39.	The claimant submits that she was either in remission or had recovered from her pre-existing psychological conditions, and that the psychological/psychiatric symptoms of which she now complains are the consequence of the accident and not any other cause.
40.	In the alternative, it is submitted that should it be found that she suffered the differential diagnosis of an aggravation of her pre-existing depression, that is also a non-minor injury.
41.	The claimant’s submissions dated 20 May 2022 were lodged in support of her application for review of the Medical Assessment, and address matters said to support a finding that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect, for the purposes of s 7.26(2) and (5). As already recorded, this is not a matter to be addressed by the Panel, that is conducting the Review by way of a new assessment of all the matters with which the Medical Assessment was concerned. The submissions argue that the Medical Assessor did not refer to the claimant’s submissions, and that this was a failure to take into account relevant material. The claimant also argued that the Medical Assessor failed to put to her that there was any inconsistency between different treatment providers with respect to her recorded symptoms in the post-accident period. 
42.	The claimant also submitted that the Medical Assessor failed to consider the material before him that evidenced a worsening of her depressive symptoms in the post-accident period, and that he failed to adequately deal with the issue of causation. In this context, and among other matters, the claimant submitted that in order to establish that her depressive illness is causally related to the accident, “it is sufficient for her to prove that the negligence of the Defendant caused or materially contributed to the injury’”. Carangelo v State of New South Wales [2016] NSWCA 16 (72) is referred to in this regard. The claimant submits that the Medical Assessor failed to consider whether the accident contributed to the worsening of any pre-existing impairment/condition.
Insurer’s submissions
43.	In submissions dated 10 December 2021, the insurer sets out a range of issues that are said to be in dispute, including whether the claimant has developed a psychological condition as a result of the accident, if so, whether the condition fulfils the criteria for post-traumatic stress disorder, the relevance of her pre-existing psychological complaints, and the significance of the lack of contemporaneous complaints of psychological symptoms as a result of the accident, both in terms of the development of a psychological condition or the exacerbation of a pre-existing psychological condition. 
44.	The insurer also relies on undated submissions that address the application for review of the Medical Assessment. In this regard, the insurer submits that there is “no reasonable cause to suspect an error in the assessment, and that it has not been established how the alleged error is incorrect in a material respect.” It is argued that the findings of the Medical Assessor were open to him, and that his path of reasoning is clear and concise.
45.	The insurer argues that the records from Gold Cross Medical Centre speak for themselves, in that there are no complaints of psychological symptoms as a result of the accident. Nor, it is argued, is there any evidence that the claimant’s alleged depressive symptoms have worsened post-accident. In the insurer’s submission, the claimant had failed to identify where in the records the worsening of psychological symptoms is demonstrated.
RE-EXAMINATION
46.	Medical Assessors Hong and Smith (Medical Assessors) re-examined the claimant by MS teams on 9 June 2023. The claimant attended the assessment by MS Teams from the rooms of her solicitor. An interpreter attended the assessment via three-way video conference.
History
Psychosocial history and pre-accident history 
Identifying Details
47.	The claimant is a 58-year-old woman, living alone in a two-bedroom unit rented from the Department of Housing in North Parramatta. She is not currently in a relationship. She has three children, a daughter living in Australia and two sons, living in Iran. She has two grandchildren living in Iran. She is not currently working, and has received the Disability Support Pension (DSP) since 2010 for “depression” and “pain in the neck”. She said that she also receives financial assistance from her daughter and sons.
Background
48.	The claimant said that she was born in Iran. She reported that her childhood was “very good”. She denied a history of traumatic events during childhood. She completed school in Iran and then studied for a degree in naturopathy in Iran. She said that her mother was also a naturopath. Her father worked as a watch repairer. The claimant said that she also completed a photography diploma and worked in her own photography shop. She said that she was married for around 25 years until separating from her husband before she came to Australia. She has not been in a relationship since then. She noted, “I don’t trust men”. The claimant said that she came to Australia in 2008 as her brother was living here and she came to support him. She said that her brother suffered from depression because her sister and brother were killed in the war in Iran.
 Medical history
49.	The claimant reported that she had been diagnosed with Hashimoto’s thyroiditis but her most recent thyroid function tests in Iran were in the normal range. She has a history of asthma but has not been hospitalised for that condition which is currently stable. She denied a history of other major medical conditions, such as diabetes mellitus and epilepsy. She denied recent surgery. 
Drug and alcohol history
50.	The claimant denied a history of drug or alcohol problems. She said that she does not consume alcohol at all and she denied previous problems associated with alcohol use. She has been prescribed tramadol (analgesic medication) but denied taking more than prescribed. She denied illicit substance use. She is a non-smoker. She denied excessive caffeine consumption and problematic gambling.
Psychiatric history
51.	The claimant reported a history of longstanding “depression” in the relationship with her husband and she suffered from further depressive symptoms after her mother passed away in around 2016. She said that she saw a psychologist, Somiya, and a psychiatrist, Dr Pishyar, but could not recall the details of treatment. She said that she was not prescribed antidepressant medication and has never been admitted to a psychiatric hospital. There was no history of episodes of hypomania or mania.
Pre-accident functioning
52.	The claimant reported that prior to the motor accident, she had suffered from significant depressive symptoms for three or four years after her mother passed away. She said that her depressive symptoms improved and she was planning to study acupuncture, naturopathy and medical science at the time of the accident. She said that her daughter visited her every week or two. She said that she had not seen a psychologist since around 2016. She said that before the accident she was very social and she went out with friends, for example, to the park or to catch a ferry to the city. The claimant said that prior to the accident, she had not driven in Australia but had a learner driver licence from 2016 and planned to learn to drive. 
History of the motor accident
53.	The claimant said that on 28 January 2021, she was travelling in the left rear passenger seat of her neighbour’s car. She does not know what make of car it was. She could not recall the time of the accident but thought that it was around 10.00am. She could not recall what the weather was like. She said that they were travelling on a road (she does not know the name of the road) and the car was stationary at traffic lights when suddenly, a small truck hit the vehicle and she was thrown forward, restrained by the seatbelt. Her head moved forward and she hit her head on the back of the front seat but did not lose consciousness. She said that she was then thrown back in her seat. She said that she felt “shocked and scared and [she] didn’t know what happened”. She said that she suffered from neck pain and stiffness and could not get out of the car. She said that the ambulance arrived and the paramedics assisted her from the vehicle and then took her to Westmead Hospital.
History of symptoms and treatment following the motor accident
54.	The claimant said that she could not recall the treatment that she received at the hospital but thought that she was prescribed an analgesic medication and had scans. She was discharged from the hospital on the day of the accident.
55.	From a physical perspective, the claimant reported that she has experienced persistent neck pain after the accident and has been prescribed analgesic medications. She said that she travelled to Iran and saw an osteopath and a chiropractor. She said that she has not had regular physiotherapy treatment noting, “it doesn’t help me”. She has not required surgery.
56.	From a psychological perspective, the claimant said that she has been “very scared” about travelling in a motor vehicle. She said that she has not proceeded learning to drive because of her anxiety about driving. She said that she has anxiety with panic attacks (palpitations) when travelling on a bus, “I’m scared that someone will hit us, or we will be in an accident”. She said that she started to have dreams about the accident a few days after it occurred. She said that she has lost hope and she has lost contact with friends. She described poor memory and concentration and finds it difficult to read due to poor concentration. She said that she has become confused and lost in the shopping centre. She feels less interested in activities, such as painting and reading books regarding acupuncture. She said that she feels anxious in social settings and after the accident she avoided socialising. The claimant said that she feels anxious and avoids sitting in a car. She said that she walks most of the time unless she absolutely has to go somewhere quickly and she then endures car travel with anxiety.
57.	The claimant said that after the accident, she saw her general practitioner via telehealth but she could not recall seeing Carl Nielsen, psychologist, in mid-2021. She later saw a psychologist, Dr Chi, but ceased treatment with the psychologist prior to travelling to Iran in 2022. She has not seen a psychiatrist for treatment in Australia since the accident.
58.	The claimant said that she travelled to Iran in August 2022 and returned in March 2023. She said that in Iran, she saw a psychiatrist who prescribed “morphine” for neck pain and she noted, “he said it would help with sleep”. She said that she was prescribed amitriptyline or imipramine (tricyclic antidepressant medications, which may also be used for sleep management or pain management). She said that the medications did not assist and so they were ceased and then she was prescribed tramadol for the pain. She said that the dreams of the accident ceased after prescription of tramadol.
Details of any relevant injuries or conditions sustained since the motor accident
59.	The claimant denied further motor accidents or other injuries. 
Current symptoms
60.	The claimant reported ongoing anxious and depressed mood. She sleeps with medications from around 6.00pm or 7.00pm and wakes up at around midnight feeling confused and then returns to sleep, and sometimes sleeps through the day until around lunchtime. She said that since taking the medications she has not experienced any dreams of the accident. She continues to have reduced interest and enjoyment of activities. She described feelings of worthlessness, hopelessness and suicidal ideation daily, “because I could not do the things I wanted to do” such as acupuncture. She denied deliberate self-harm or suicide attempts. She said that she has ongoing neck and low back pain.
Current and proposed treatment
61.	The claimant said that she stopped seeing the psychologist, “Dr Chi”, because “I’m not interested in anything”. She was planning to have video sessions with Dr Chi whilst in Iran but she noted “it did not work”. She said that she plans to see Dr Chi again.

Current Medications
(a)	Pregabalin 75mg in the afternoon (neuropathic pain).
(b)	Tramadol 100mg nightly (analgesic medication).
(c)	Thyroxine 50 micrograms daily (thyroid replacement).
(d)	Panadol Osteo two three times per day (simple analgesic medications).
(e)	A medication for hypercholesterolaemia.
(f)	Nexium (gastro-oesophageal reflux).
62.	On specific enquiry regarding her treatment, she stated that she believes she needs years of psychological therapy as a result of the accident. 
Clinical examination 
Mental state examination
63.	The claimant was assessed by video conference from her solicitor’s office. There were no technological difficulties. The Medical Assessors were in their Sydney offices.
64.	The claimant appeared well groomed. She wore a hoodie and mauve framed glasses. Her speech was accented, of normal volume and spontaneity. She reported depressed and anxious mood and her affect was restricted to this range with minimal appropriate reactivity. She reported feelings of worthlessness, hopelessness and suicidal ideation but denied plans to act on suicidal ideation. She said that she recognises the need for treatment of her anxiety and depressive symptoms and she plans to see the psychologist again.
Current functioning
65.	The claimant reported that she spends most of her time in bed. She sees her daughter around once every one to two weeks. She avoids going out by public transport and car and she mostly walks to nearby shops.
Employment history
66.	The claimant said that she has received the DSP for some years.
Comments on consistency
67.	The Medical Assessors noted that despite the claimant reporting that her mood had improved three to four years after her mother passed away in 2016, and prior to the accident in January 2021, she has never been able to return to work and has continued to receive the DSP. She responded that her persistent neck pain would have continued to impact on her functioning and so she was unable to return to work even though her depressive symptoms were improved.
68.	The Medical Assessors discussed with the claimant that in the months after the accident in January 2021, she saw her GP, Dr Perveen, but there was no documentation of psychological symptoms. There were documented reviews with Dr Perveen on 29 January 2021, 6 February 2021, 19 February 2021, 26 March 2021, 7 April 2021 and 26 May 2021, with no mention of psychological symptoms. The reviews were focussed on physical symptoms. There was also a review by Dr Zhao on 23 February 2021 which was a review of blood test results. The claimant responded that she had mentioned her psychological symptoms to Dr Perveen in the months after the accident but noted that “Dr Perveen was very racist, she said I was lying about my neck pain, she said, ‘I am working you can work as well’”. In Dr Perveen’s review on 7 June 2021 the following was recorded in her notes: “suffering from anxiety depression since her Mother died in 2017, was very emotionally attached to her mother…not in workforce for 5 years…did some training for work in the past…a letter of referral given to psychologist as patient requested…”. 
69.	The Medical Assessors discussed with the claimant that Dr Perveen had in fact documented her depressive symptoms in June 2021 but there was no mention of any relationship to the motor accident and the contributing factor was noted to be grief after her mother passed away. The claimant did not have anything further to add in relation to this, except to reiterate that she had informed Dr Perveen of a worsening of her depressive symptoms after the accident and that Dr Perveen must have not documented these symptoms because she was racist.
70.	The Medical Assessors also discussed the reports from her new GP and psychologist after Dr Perveen’s last consult. Three weeks after Dr Perveen’s review, Dr Lim wrote she had depression in 2016 and the subject accident. He referred her to a psychologist. The Allied health recovery request form from Carl Nielsen, psychologist, noted the subject accident and that her past psychiatric history was “unremarkable”. Both Dr Lim and Mr Nielsen concluded she only has a psychological injury arising from the subject accident. The Medical Assessors raised with the claimant that the recorded history after a change in her clinicians is significantly different within a short space of time. She had no specific response to this inconsistency.
71.	The claimant did not spontaneously report a history of conflict with her neighbour, as noted in the certificate of the Medical Assessor. When asked directly about this, she noted that her neighbour was “racist”. She said that before she moved to North Parramatta in around 2019, she was living in Merrylands but there was a fire and she was moved to North Parramatta. She said that after she arrived there, she offered to assist her neighbour who then made a racist comment towards her and took all of her rubbish out of the rubbish bin. This occurred in around 2019 and police were involved because her neighbour “always put complaints into the Police” about her. The claimant then submitted a complaint to the police about her neighbour. She described feeling very angry and upset about the conflict with her neighbour.
Summary of relevant documentation
72.	In an eDischarge Summary of Westmead Hospital dated 28 January 2021, the following was recorded:
“States that when rear ended her head went forward and then backwards into the head rest
No LOC
No head impact to the seat in front
States felt pain immediately in her neck
States has had some numbness over the back or her right trapezius m
BIBA in hard collar
PHx -1) has a chronic C spine disc issues and sees Dr Wayne Gard (Chiropractor…)…
Pt prefers to be discharged from the ED now without any CT spine or Xray – she has declined collar use
She would like to see her LMO today for an MRI…”
73.	In the application for personal injury benefits dated 9 February 2021 the claimant recorded that she suffered neck pain, back pain, leg pain, headaches and a little bit of numbness in her hand. She also recorded that:
“I had neck pain and back pain for several years…I was not in pain until the day of the accident…my pain started again due to the acceleration of the accident…”
74.	The clinical notes of Gold Cross Medical Centre have been reviewed and considered. The notes include the following entries:
(a)	On 29 January 2021, Dr Perveen noted:
“MVA
Passenger
Rear ended
Yesterday 11 am
Was presented to Westmead ED
they provided her with Out patient C spine MRI…
C spine Paraspinal tenderness...”
(b)	On 6 February 2021, Dr Perveen noted:
“Brought CTP Form
Ongoing Neck pain
Rf caff [sic] pain and swelling
feels tight…
Dopplar [sic]…”
(c)	On 19 February 2021, Dr Perveen noted:
“Hot flushes
feels tired…
would like to see endocrinologist…”
(d)	On 26 March 2021, Dr Perveen noted:
“ptient having leg pain and numbness
MRI C spine already done
Result pending
Having ongoing hip and leg pain
feels numbness to leg at night…”
(e)	On 7 April 2021, Dr Perveen noted:
“MRI – No acute injury noted
Degenerative changes…
Neck care
Relaxation exercise
physio…”
(f)	On 26 May 2021, Dr Perveen noted:
“MRI
Disc Degenerative disease and end plate arthropathy
No acute Injury or Nerve Root Compression
adv
Back care
avoid Trigger
Regular Exercise…”
(g)	On 7 June 2021, Dr Perveen noted:
“Endocrinologist…
recommended effexor but patient said he called her back and said given her age she should not start it…
suffering from anxiety depression since her Mother died in 2017, was very emotionally attached to her mother…
a letter of referral given to psychologist as patient requested”
(h)	On 16 August 2021 the notes record that the claimant “was happy to see a [p]sychologist [p]rivately”.
(i)	On 2 September 2021 it is recorded that the claimant needed a referral to psychologist. 
75.	A referral to Dr Chi Morris dated 2 September 2021 records that the claimant was suffering from anxiety and depression.
76.	In a report dated 24 February 2021, Dr Ramy Bishay, Endocrinologist, suggested Effexor “for systemic symptoms of menopause”.
77.	In a report dated 2 July 2021, Dr Bashay noted that he had asked the claimant to commence Effexor 75mg daily “as previously she ha[d] not commenced this as requested and this will help with her anxiety, her sleep and mild depressive symptoms…”
78.	A certificate of capacity/certificate of fitness dated 6 February 2021 recorded a diagnosis of whiplash, neck pain, back and leg pain. A certificate dated 26 March 2021 documented whiplash, back pain with radiation to leg and bilateral hip pain.
79.	A report of Dr Eric Lim dated 1 July 2021, records that the claimant experienced disturbed sleeping with nightmares and has flashbacks. She was going to study naturopathy but had deferred due to the accident. The report records that the claimant suffered depression after her mother passed away in 2016. Symptomatology included feeling stressed, nightmares, trouble sleeping, was depressed, jumpy, lack of motivation. She was referred to a psychologist to “manage PTSD symptoms”. 
80.	The contents of the post-traumatic stress disorder checklists were noted, as were the referrals from Dr Lim to Insightful mind and Dr Khong.
81.	The report of Dr Peter Khong, neurosurgeon and spine surgeon, dated 27 August 2021 was noted. Among other matters, the doctor recorded as follows:
“Previously naturopath in Iran
Not working, was carer for brother
Was studying, but stopped after accident due to pain and depression
Lives alone
Previously had chiropractic treatment for back pain which helped, but pain started again with MVA”
82.	Dr Khong diagnosed neck pain due to musculoligamentous strain and exacerbation of pre-existing degenerative changes in the cervical spine and lower back pain and bilateral leg pain due to exacerbation of pre-existing degenerative changes in the lumbar spine.
83.	A certificate of capacity/fitness of Dr Lim dated 1 July 2021 documented “? Head Trauma; Cervical spine radiculopathy, C5/6 disc osteophyte complex with L) foraminal narrowing and probable compressing L) C6 nerve root (MRI 25/3/2021); Bilateral shoulder strain; Lumbar spine strain; Bilateral hip strain; PTSD (PCL-5 : 72)” after the motor accident.
84.	An Allied health recovery request of Carl Nielsen, psychologist, dated 15 July 2021, records a diagnosis of post-traumatic stress disorder. It is recorded that:
“[The claimant] was involved in a MVA as passenger in the back seat of a motor vehicle which was stationery at a traffic light when it was struck by another vehicle from behind.
[The claimant] noted mood fluctuations characterised by hypervigilance from flashbacks to the MVA as well as anergia
She noted negative thoughts and mood characterised by low mood, anxious and depressive cognitions in relation to recreational activities she can no longer do
She noted avoidance of motor vehicles and does not drive 
She noted considerable distress since the MVA noting the defferal [sic] of her studies, social withdrawal and recreational activities ceassation [sic]
[The claimant's] symptoms were not the result of alcohol or substances use and nor were they the result of any other known medical condition
Her symptoms have lasted for more than one (1) month in duration…”
85.	Mr Nielsen reported that prior to the accident the claimant’s self-care, social and recreational activities, and driving were unrestricted and she was an online student. He noted that after the accident she had been unfit for work/study and receives support from her daughter with domestic duties. She was not driving but was able to travel as a passenger in a motor vehicle. She was socially and recreationally withdrawn.
86.	The certificate and reasons of Medical Assessor Sidorov are referred to earlier in these reasons. His opinion and reasons have been noted and considered.
87.	The claimant’s submissions dated 5 November 2021 record that she saw the psychologist, Farangis Houshmand, prior to the accident for treatment of anxiety and depression. 
Diagnosis and reasons
88.	The claimant reported a history of longstanding depressive symptoms, consistent with the available documentation, initially developing in relation to an abusive relationship with her ex-husband, the traumatic loss of family members and her brother’s depressive condition. In around 2016, her mother passed away and she was further depressed after this. There was also conflict with her neighbour from around 2019 that likely contributed to her depressive symptoms. The claimant’s symptoms fulfilled criteria for the diagnosis of persistent depressive disorder according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, American Psychiatric Association, 2022) because she had suffered from depressed mood for more days than not for over two years (Criterion A). She had associated symptoms, including reduced interest in activities, sleep disturbance, energy changes and difficulties with concentration (Criterion B). There was no period of full remission of the symptoms (Criterion C). It was not clear whether her symptoms fulfilled the criteria for the diagnosis of major depressive disorder at all times (Criterion D). There was no history of a hypomanic or manic episode (Criterion E). The symptoms are not better explained by a psychotic illness (Criterion F). The symptoms are not attributable to substance abuse or a general medical condition (Criterion G). The symptoms caused clinically significant distress and impairment, noting that she had been in receipt of the DSP continuously from around 2009 (Criterion H).
89.	The Medical Assessors considered whether there had been a material aggravation of the claimant’s persistent depressive disorder after the motor accident in January 2021. The claimant had received the DSP for many years and by her account this was for her persistent depressive symptoms and also pre-existing neck pain. She reported that from around 2019 or 2020, three or four years after her mother passed away in 2016, there was an improvement in her depressive symptoms and she had not received psychological therapy for some years prior to the motor accident. Although she did not volunteer the information, on direct questioning she reported conflict with a neighbour after moving from Merrylands to North Parramatta in 2019 and this was likely a contributing factor to her ongoing depressive symptoms. 
90.	Despite her reports of improved depressive symptoms, she acknowledged that there had been no substantial improvement in functioning. For example, she had not been able to return to work. 
91.	The claimant said that after the motor accident, she suffered from an aggravation of neck and back pain and post-traumatic anxiety that resulted in a worsening of her depressive symptoms. She sought treatment from Dr Perveen on several occasions after the accident in early 2021 and the doctor documented her physical symptoms but did not make any note of psychological symptoms until the clinical record in June 2021, in which it was documented that the claimant had been depressed from the time that her mother passed away. The Medical Assessors considered it significant that Dr Perveen had assessed the claimant on several occasions between the time of the accident in January 2021 and June 2021 with no mention of psychological symptoms related to the accident but by June 2021, the claimant’s depressive symptoms were considered to be related to the passing away of her mother, again without any mention of any contribution of the motor accident. The Medical Assessor’s considered that it was more likely than not that had the claimant reported psychological symptoms to her following the accident, and before 7 June 2021, Dr Perveen would have recorded them, as she did on 7 June 2021.
92.	The Medical Assessors determined that, whilst there has been distress caused by the motor accident, the claimant’s persistent depressive disorder had not worsened to the extent that there was a clear deterioration in functioning with impairment or engagement in further treatment immediately after the accident and there was no aggravation of her pre-existing psychiatric injury.
93.	The Medical Assessors considered the possible diagnosis of post-traumatic stress disorder as this diagnosis had been reported in the letter of Dr Lim in mid 2021, the allied health recovery request of Carl Nielsen, psychologist, from July 2021 and the reasons of the Medical Assessor. After consideration of the provided history and the totality of the available documentation, the Medical Assessors concluded that while the claimant likely suffered from post-traumatic anxiety after the accident, the full DSM-5-TR criteria for the diagnosis of post-traumatic stress disorder were not fulfilled. It was noted that the accident, whilst resulting in the claimant being shocked, was not the kind of accident that could have resulted in death, threatened death, actual or threatened serious injury as required by Criterion A for the diagnosis of post-traumatic stress disorder. She said that she was thrown forward and restrained by the seatbelt, hitting her head on the seat in front but she did not lose consciousness and there was no substantial damage to the vehicle. She was not trapped in the vehicle. She was taken to hospital and discharged on the day, ultimately suffering physical injuries that did not require urgent intervention. 
94.	Furthermore, Dr Perveen did not discuss the claimant’s post-traumatic anxiety in the several reviews in the months after the accident. The accident did not satisfy Criterion A for the diagnosis of post-traumatic stress disorder. The claimant described dreams of the accident and avoidance of travelling in cars if possible after the accident but said that she would travel in cars if absolutely required and so there was no pervasive avoidance. There was no clear description of hypervigilance and no report of an exaggerated startle response. There was no ongoing sleep disturbance after prescription of medication from 2022 in Iran. 
95.	In summary, whilst the claimant presented with some symptoms of post-traumatic anxiety in relation to the accident, the full criteria for the diagnosis of post-traumatic stress disorder were not met. 
96.	The Medical Assessors determined that the most appropriate diagnosis would be of an adjustment disorder with anxiety encapsulating the claimant’s post-traumatic anxiety in relation to the motor accident. The DSM-5-TR criteria for the additional diagnosis of adjustment disorder with anxiety are fulfilled. She developed anxiety about travelling in motor vehicles after the accident (Criterion A). The symptoms were significant as noted by her level of distress and avoiding travelling in a car if possible (Criterion B). The symptoms had not met the full criteria for the diagnosis of post-traumatic stress disorder and the post-traumatic anxiety was not part of her persistent depressive disorder (Criterion C). Her symptoms did not relate to normal bereavement (Criterion D). There had been a reduction of symptoms, particularly dreams of the accident, with medication, but she remains anxious about travelling in a motor vehicle (Criterion E).
Causation and reasons
97.	The claimant reported a longstanding history of depressive symptoms with causative factors including:
•	the relationship with her ex-husband;
•	the death of family members, including her mother in around 2016;
•	longstanding impairment of functioning associated with neck pain, and
•	conflict with her neighbour from 2019.
98.	The Medical Assessors noted she has been distressed by the motor accident but did not consider this to be an aggravation of her pre-existing persistent depressive disorder, given that there was no worsening of functioning after the accident. Whilst she has suffered from post-traumatic anxiety and some symptoms consistent with the diagnosis of post-traumatic stress disorder, full criteria for that condition were not met. She presented with symptoms consistent with the diagnosis of adjustment disorder with anxiety as a result of the accident. 
99.	The Medical Assessors determined that the claimant’s adjustment disorder with anxiety was caused by the motor accident because there was no pre-existing history of anxiety regarding travelling in a motor vehicle prior to the accident, the motor accident was capable of inducing anxiety regarding travelling in a motor vehicle, and has resulted in persistent anxiety about driving. 
Threshold injury
100.	The claimant presented with a new adjustment disorder with anxiety that was caused by the motor accident. The adjustment disorder with anxiety is a threshold injury for the purposes of the MAI Act. 
Conclusion – threshold injury
101.	The following injury caused by the accident is a threshold injury for the purposes of the MAI Act:
•	Adjustment disorder with anxiety.
Treatment and care 
102.	The Medical Assessors determined that eight sessions of psychological treatment is reasonable and necessary in the circumstances and relates to the adjustment disorder with anxiety caused by the accident.
103.	The treatment is reasonable and necessary because it is accepted by medical experts as a potentially effective treatment for anxiety, is not an expensive treatment, and is readily available.

FINDINGS
104.	The Panel, comprised of two specialist medical practitioners and a Member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. 
105.	The Panel adopts the precise examination findings and conclusions of the Medical Assessors based on their examination and specific findings pertaining to diagnosis and causation.
106.	The Panel notes that causation of injury may be established if an injury was materially contributed to by the accident, and that the accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The Panel finds that the claimant’s pre-existing persistent depressive disorder was not materially contributed to by the accident, and was not caused by the accident.
107.	The Panel finds that, on the balance of probabilities, the claimant suffers adjustment disorder with anxiety that was caused by the accident. The Panel is satisfied that the accident was a necessary condition of the occurrence of this injury. The Panel finds that the adjustment disorder with anxiety is a threshold injury as defined by, and for the purposes of, the MAI Act.
108.	The Panel finds that eight sessions of psychological treatment is reasonable and necessary in the circumstances and relates to the adjustment disorder with anxiety caused by the accident. The Panel finds that this treatment is reasonable and necessary because it is accepted by medical experts as a potentially effective treatment for anxiety, is not an expensive treatment, and is readily available.