DETERMINATION OF REVIEW PANEL	
	
CITATION:	Carlyon v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 161	
		
CLAIMANT:	Steven Carlyon	
		
INSURER:	Insurance Australia Ltd t/as NRMA	
		
REVIEW Panel	 	
		
PRINCIPAL MEMBER:	John Harris	
		
MEDICAL ASSESSOR:	Gerald Chew	
		
MEDICAL ASSESSOR:	Wayne Mason	
		
DATE OF DECISION:	18 March 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 8 March 2021 in head-on collision; original Medical Assessor (MA) found no psychiatric condition; claimant re-examined by MA’s; claimant diagnosed with an adjustment disorder with mixed anxiety and depressed mood which is an adjustment disorder under DSM-5; Panel not satisfied that the claimant suffered from either a major depressive disorder or post-traumatic stress disorder following the motor accident; Held – medical assessment revoked; claimant diagnosed with a threshold psychiatric injury.

DETERMINATIONS MADE:  	Medical Assessment – Threshold injury
Review Panel Assessment of Threshold Injury 
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 
The Review Panel revokes the certificate dated 28 September 2022 and certifies that the psychological injury caused by the motor accident is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. 

REASONS
BACKGROUND 
1.	Mr Steven Carlyon (the claimant) suffered injury in a motor vehicle accident on 8 March 2021 following a front on collision (the motor accident).
2.	Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Mr Carlyon any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
3.	The issues presently in dispute are whether Mr Carlyon’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act. 
4.	Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
5.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
6.	The disputes were referred to Medical Assessor Sidorov who issued a Medical Assessment Certificate dated 28 September 2022 (the medical assessment). Medical Assessor Sidorov concluded that the motor accident did not cause a psychological injury. 
7.	Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. 
8.	Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.
Statutory amendment 
9.	The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. 
10.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. 
11.	The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
12.	For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
13.	Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
REASONS OF MEDICAL ASSESSOR 
14.	The Medical Assessor concluded that the claimant suffered mood symptoms which did not amount to a psychological injury caused by the motor accident. The mental state examination findings were:
“His affect was mildly dysphoric but reactive. He described his mood as “annoyed” as he did not get much sleep the last two nights prior to the assessment. There was no evidence of a formal thought disorder. He denied any thoughts of self-harm or harm to others. There were no psychotic features present such as delusions or hallucinations. He was oriented to time, place, and person. He had good insight and a good degree of rational judgement.”
15.	In respect of consistency, the Medical Assessor stated:
“There were several inconsistencies noted in Mr Carlyon’s history. Notably he denied any previous injuries or significant health problems prior to the subject accident however as per the general practitioner’s notes he was involved in two previous motor vehicle accidents, one in December 2018 and one in January 2021. It was documented in the general practitioner’s notes that he was experiencing flashbacks secondary to the first accident as well as back and neck pain. It was also noted that he was experiencing poor sleep, flashbacks and anxiety when driving subsequent to the accident in January 2021. When I asked Mr Carlyon about these accidents, he stated that they were minor accidents, compared to the subject accident, and that he did not sustain any psychological or physical injuries as a result of the two accidents. He was unable to explain the discrepancy between his account and the medical documentation.”
16.	The diagnosis by the Medical Assessor was:
“Based on the account presented by Mr Carlyon, his presentation and review of provided documentation, he does not meet the diagnostic criteria for a psychiatric disorder as per DSM-5. He describes mood symptoms particularly that of feeling upset and frustrated secondary to the pain and physical impairment related to the subject accident. Furthermore, given the inconsistencies in Mr Carlyon’s account in relation to the previous motor vehicle accidents, the veracity of his account cannot be relied on.”
THE REVIEW
17.	The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
18.	The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
19.	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 the subject of the review was made on or after 1 March 2021, the new
review provisions apply. 
20.	The 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).
21.	Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
22.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
23.	The parties filed bundles of documents for the Panel’s consideration. 
STATUTORY PROVISIONS 
24.	A threshold injury is defined in s 1.6(1) of the MAI Act:
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— 
(a) a soft tissue injury, 
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
25.	Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
26.	Part 1, cl 4(3) of the Regulations provide that any assessment must be made under DSM-5.
27.	Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 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:
“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 	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.”
28.	Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment 
5.10 	In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential. 
5.11 	The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
 5.12 	Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
29.	Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. In Raina v CIC Allianz Insurance Ltd Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

SUBMISSIONS
Claimant’s submissions dated 24 October 2022
30.	These submissions sought leave to review the medical assessment. 
31.	The claimant submitted that the Medical Assessor had failed to consider various reports such as the Allied health recovery reports dated 26 April 2021 and 23 August 2021.
Insurer’s submissions dated 22 December 2021	
32.	The insurer noted that in the referral to Ms Goergis dated 3 January 2019, Dr Benjamin Touma reported that the claimant had a whiplash injury and recorded a previous medical history which included HIV, chronic fatigue syndrome, depression and post-traumatic stress disorder.
33.	The insurer referred to various parts of the clinical records from My Family Health from 
26 December 2018 to 25 February 2021.
34.	The insurer referenced the ambulance report, Westmead Hospital discharge summary, various clinical records from My Family Health, certificates of capacity and AHRR reports from Mr Virgara.
35.	Insurer noted a history of depression and post-traumatic stress disorder in 2018 and further symptoms following a car accident on 25 January 2021. It otherwise submitted that the various clinical records do not include clinical symptoms that do not indicate that the claimant has been diagnosed under DSM-5.
36.	The insurer made the alternative submission that any psychological injury caused by the motor accident was a minor injury.
Insurer’s submissions dated 9 November 2022
37.	These submissions opposed leave to review the medical assessment. The Medical Assessor stated that he had considered the documents contained in the application and the reply and there was no requirement to summarise each and every document.
38.	The insurer noted that the diagnosis made by the counsellor of “severe anxiety and depression, PTSD and adjustment disorder” do not include signs and symptoms documented by Mr Vigara which would satisfy DSM-V. Furthermore, the diagnosis of “severe anxiety and depression” is not a recognised psychiatric disorder or diagnosis in accordance with DSM-V.
39.	The insurer otherwise submitted that the Medical Assessor adhere to the requirements of 
cl 5.6 of the Guidelines in the assessment of minor injury.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
40.	The claimant was involved in a motor accident in December 2018. A medical certificate in December 2018 referred to neck, shoulder and lower back pain.
41.	A referral from Dr Touma, general practitioner, (GP) dated 3 January 2019 noted a viral illness in 2017, chronic fatigue syndrome, depression and post-traumatic stress disorder in 2018. The clinical note of the GP recorded that the claimant was “not sleeping well at night having flashback from MVA”.
42.	On 7 January 2019 the GP noted that the claimant was “feeling anxious in the car”.
43.	On 25 January 2021 the GP noted a further motor vehicle accident with symptoms including that the claimant was not sleeping and had a flashback from speeding car.
Medical evidence
44.	The ambulance report noted a two-car head-on motor accident at moderate speed with moderate damage. The claimant was reported as being in the back seat of the car and reported having pain in the chest and neck and denied loss of consciousness.
45.	The hospital discharge summary dated 13 March 2021 noted right sided neck tenderness, bilateral upper limb weakness and abdominal tenderness.
46.	A clinical note of the GP dated 10 March 2021 recorded that the claimant was a passenger in a car which was T-boned at speed and suffering from various physical symptoms. On 
15 March 2021 the GP noted that the claimant was affected by anxiety.
47.	A certificate of capacity dated 1 April 2021 referred to the motor accident causing “neck pain, lower back pain, wrist pain, anxiety”. This diagnosis was repeated in a certificate dated 
4 May 2021.
48.	An Allied health recovery request dated 27 April 2021 referred to the claimant suffering from “severe anxiety and depression, PTSD and adjustment disorder”. The request noted that the claimant had “a very negative view of the future, feel said most of the time, has no motivation to do everyday tasks … is afraid to travel in a motor vehicle , intrusive recurring nightmares, cold sweats flashbacks to the accident”.
49.	A further request dated 23 August 2021 noted the same diagnosis with the following comment:
“Client has made some progress but still has flashbacks to the MVA.
Intrusive thoughts and nightmares are still occurring but have decreasing frequency.
Client reports inability to sleep more than two hours and wakes in a cold sweat.
Feels he will never be the same again.
Client reports that whilst he’s been able to resume driving, he can only drive a short distance. Client reports heightened anxiety levels when in heavy traffic which causes him to have to pull over.”
50.	The claim form dated 19 March 2021 referred to the motor accident causing various physical injuries as well as “psychological”.
Qualified opinion
51.	Dr Richa Rastogi, psychiatrist, was qualified by the claimant and provided a report dated 
17 February 2022. Psychological symptoms which had continued since the motor accident including poor sleep, irritability, lack of adaptation and feeling worthless and hopeless.
52.	The mental state examination was conducted through a tele-health session. The doctor noted the claimant’s mood was anxious and depressed and his affect was frustrated and apprehensive.
53.	Dr Rastogi diagnosed the claimant suffering from a major depressive disorder pursuant to DSM-5.
RE-EXAMINATION
54.	Mr Carlyon was examined by both Medical Assessors on 1 March 2024.
55.	The medical examination findings of the Medical Assessors are:
“Brief Personal Details
Mr Carlyon is a 43-year-old man who lives with his father in a South Western Sydney suburb. He receives a carers pension for looking after his father who is wheelchair bound with muscular dystrophy. He said prior to the subject motor accident he was doing a couple of days work per week as a spray painter. He had separated from his ex-partner in approximately 2014; his 18-year-old son and 20-year-old daughter live with his ex-partner but he maintains regular contact.
Psychosocial History
Mr Carlyon was born by Caesarean section in Fairfield Hospital. He said developmental milestones were normally reached. His 65-year-old father worked as a spray painter until the age of approximately 40 years when he became wheelchair-bound due to muscular dystrophy. His 64-year-old mother did not work. He said his parents separated 19 years ago due to his father's psychiatric condition secondary to his physical problems, although said they get along okay now. Mr Carlyon is the oldest of 3 children with a 40-year-old sister and a 38-year-old brother. He described a good early childhood in which he suffered no form of abuse. He said a learning disability was identified in early primary school resulting in a diagnosis of ADHD. This was treated with Ritalin which he stopped taking just prior to completing high school in year 10. He said he found it helpful then but has not needed the medication as an adult.
With regard to work, he said he commenced year 11 of high school but his father obtained an apprenticeship for him at the panel beating workshop where he worked. He left school, went on to complete his spray-painting training and he then worked in the same workshop until his father stopped work when Mr Carlyon was approximately 20 years of age. After that he became a carer for his wheelchair bound father. He said until the subject motor accident he did 2- or 3-days’ work per week with the same spray painting workshop.
When asked about relationships, he became involved with the mother of his children when he was 19. He said the relationship ended when he was 29 or 30. He said it was an unusual relationship in that he had never really left home. He said sometimes she spent time at his place, and he sometimes spent time at her place but they did not live together permanently. He said the relationship with her is civil and he maintains connections with his 2 children.
He said he was involved in a second relationship with Laura who was the driver off the motor vehicle in the subject motor accident. He said that relationship ended subsequent to the motor accident due largely to her psychological problems following the motor accident.
Leisure activities prior to the motor accident consisted of drag racing his VY SS Holden Commodore. He said he has had a turbo charger fitted but it is largely for drag racing and it is mainly kept in the garage. He also has a 2004 SV Holden which he uses as a regular car. He said he wished he still had the Torana.
Past motor accidents consisted of being rear ended while travelling down the hill at Mount Ousley in 2019. He said his partner Laura was driving and they encountered a stationary vehicle ahead of them on the road. She slowed and attempted to go around it and was then hit from behind by a vehicle that failed to see them slow down. He said they were shunted down the hill. He said he did not make a claim for injury. The car was written off because it had an LPG cylinder in the boot and was too expensive to be repaired. He confirmed he had some anxiety that the cylinder may have exploded but said they were somewhat protected by a large wubwoofer speaker he had installed behind the gas cylinder. He said he did not require psychiatric or psychological treatment.
There was a second motor accident in February 2021, only 2 weeks before the subject motor accident. He said he was driving a Toyota Corolla at Charlestown near Newcastle when he developed a passenger side flat tire. He got out to inspect the vehicle and it was hit from behind at high-speed by a heavy four-wheel drive vehicle. He said he jumped back when he saw the vehicle coming but his car hit him on the backside and pushed him into the bushes. He said the car was written off and he sustained a sore backside. He said he was anxious about driving for a few weeks which was the case until immediately prior to the subject motor accident. Again, he said he did not make a claim for injury and denied serious psychiatric symptoms.
With regard to forensic history, he said he was charged with driving without a license in 2018 and the magistrate gave him a custodial sentence. He said he spent 3 months in prison, 2.5 months of which were spent in the Silverwater maximum security unit. He said during that time he witnessed 9 bashings and the death of another prisoner. He said an immediate cellmate was a notorious Sydney criminal who had been responsible for multiple serious crimes including rape and murder. He said he had not been assaulted himself, except for being pushed against a wall and crushed while a group of men were assaulting another prisoner. Mr Carlyon said he developed PTSD as a consequence of this experience and required the use of hypnotic medication to help him sleep because of nightmares for about 12 months. He also attended counselling through the Liverpool Hospital HIV treatment service in the Department of Immunology.
Medical history consisted of contracting HIV from a former girlfriend in 2014. He received treatment from the HIV clinic at Liverpool Hospital. He described it as a very depressing time, but he said he managed to get through it with the help of the counsellor and did not require psychiatric medication or treatment. In 2018 he developed worsening vision due to a cytomegalovirus (CMV) infection of the retina which was successfully treated at the eye clinic. He was asked about chronic fatigue syndrome which was mentioned in the GP record; he said that was part of the CMV infection. Surgery consisted of the extraction of all his teeth subsequent to the HIV diagnosis. He said there were plans to provide him with replacement teeth, but this did not happen due to the COVID lockdown. He said the teeth have still not been replaced and he has learned to manage without them, saying he can eat a steak at a club or a meal at McDonalds.
Subsequent to the motor accident Mr Carlyon said he was punched in the abdomen by his best friend on 27 January 2023 and sustained a ruptured spleen. This was treated with a coil (presumably endovascular) at Liverpool Hospital but he subsequently developed sepsis and from 30 January 2023 spent 3 months in ICU at St Vincent’s Hospital. This was followed by 1 month in Campbelltown Hospital before he was discharged home.
When asked about past psychiatric history he referred only to the PTSD developed during his period of incarceration at Silverwater maximum security prison. He denied any family history of psychiatric illness. The only current regular medication is Bitkarvy, (bictegravir/emtricitabine/tenofovir alafenamide) dosage unknown, for HIV treatment. He said he does use Panadol and Nurofen for pain and an occasional Panadeine Forte if he can get a prescription. Substance use consists of 10 cigarettes/day. He denied the use of alcohol and recreational drugs and said he does not gamble.
History of the Motor Accident
Mr Carlyon was a rear seat passenger in a vehicle driven by his partner Laura. He said the front passenger seat was wet because they had left the window open and he was seated in the middle of the rear seat wearing a lap/sash seatbelt. They were travelling at approximately 50 kph in the centre of 2 lanes with a green traffic control light ahead of them. There was a line of stationary vehicles in the left lane because of a red left-turn arrow. He said suddenly a vehicle emerged at speed from a gap between 2 cars on their left. The front driver’s side of the other vehicle collided head-on with the middle front of their vehicle. His estimated speed was greater than 40 kph. They said the vehicle had wrongly turned into their oncoming lane rather than continuing to the other side street. Mr Carlyon remarked if the vehicle had continued to the other side of the road there would have been a T-bone collision in any event.
Mr Carlyon said they did not see the vehicle coming and did not understand what had happened. He said he had been talking to his partner and as a result of the collision had hit his head on the front passenger seats. He said he had a graze on his neck from the seatbelt and pain and eventual bruising across the abdomen. There was no loss of consciousness.
History of Symptoms and Treatment
Mr Carlyon said he was shocked and was unable to feel or move his legs. He said an off-duty nurse from Westmead Hospital initially attended to them and then Fire and Rescue and Ambulance attended and he was removed from the vehicle on a board with a neck brace in place. He was transported by ambulance to Westmead Hospital; his partner was transported in another ambulance.
Injuries at that time consisted of being unable to use his legs and he said they were cold. There was abdominal and chest pain plus neck and back pain. He said his hands were tingly and painful. He said he was in a lot of pain throughout his entire body. X-rays and scans were performed and no bony injuries were detected. He was discharged the following day with analgesic medication and advised to follow up with his GP. He said he then returned to hospital a few days later because he was unable to walk. He said his legs would not work and they felt cold and numb, and he was unable to stand up. In addition, he had abdominal pain and sharp lower back pain. He was held in hospital for a few days and then discharged to the care of his GP who referred him for physiotherapy and provided him with analgesics. The latter consisted initially of Endone and then later paracetamol and Nurofen.
His current situation with regard to pain is ongoing sharp pains in his hip. He has pain in both legs from the knee down. He does not have full strength in his hands which continue to have aches and pains. He gets back pain if he is in the wrong position, and he has to be careful about bending or stooping. He continues to use mild analgesics with occasional Panadeine Forte.
When asked to describe psychiatric symptoms he said he had difficulty getting back to driving. He said initially he could only manage driving in the local area such as to the shops or service station. He said he had to make a big effort to get into the car but eventually he learned to go further. This was partly due to physical problems and partly due to anxiety. He said if he hears the sound of a car skidding, he jumps and looks around and he said he is probably a bit more careful. He said he is a little bit paranoid, by which he meant he was much more on the lookout for the possibility of another accident. He went on to say his father has seen many cars which were seriously damaged during his working life and he stated their car was seriously damaged and they were lucky they were not killed. This made him realise how fortunate he was not to have been killed. Mr Carlyon stated he was able to show the panel photographs on his phone, but the offer was refused because it had not been provided by the parties.
When asked about other problems Mr Carlyon said he is unable to drive go-carts because of their rigid frame due to the back pain he experiences. He said he was similarly unable to go on physically challenging rides at the Easter show with his children; he said he was able to manage the Ferris Wheel. He also said for similar reasons he is unable to ride scooters with his son. He complained he gets worn out when he is walking and finds it difficult to go upstairs because of pain.
Mr Carlyon said he had been wanting to gradually increase the number of hours he was able to work as a spray painter in anticipation of his father's demise when he will lose his carers pension. These physical symptoms have prevented him from being able to do this. He said he likes to do small projects to do with painting cars at home, but he said it is difficult to motivate himself because he knows it will be hard and he does not look forward to it now.
He was asked about sleep and said he wakes frequently throughout the night due to physical discomfort. He said it takes him quite a while to get back to sleep. He said as a consequence he often sleeps in throughout the morning and may not wake until 12 midday or 1 PM. He said often he is tired during the day because of the lack of sleep.
He was asked about psychological treatment and said he discussed the impact of the motor accident with counsellor Alex at the Liverpool Hospital HIV clinic at his regular attendances. He made no reference to Mr Martin Virgara, so he was questioned about this. He believes he consulted with him on 6 or 8 occasions but discontinued because he was unhappy with the outcome. He felt he was not getting the assistance he needed to get his feet working during the night. He said if he had to get up at night it took him a long time to get his feet to work in order to be able to walk without falling over. He made no reference to any assistance with psychological symptoms. He did not consult a psychiatrist and did not use psychotropic medication.
Injuries or Conditions since the Motor Accident
Mr Carlyon developed a ruptured spleen and sepsis in January 2023 and was subsequently hospitalised in Liverpool hospital, St Vincents Hospital and Campbelltown Hospital for a period of 3 months. He said there had been no further motor accidents or other conditions.
Current Symptoms
Mr Carlyon described some mild anxiety while driving which does not prevent him from travelling where he wishes. He said he is more careful while driving and does react more to unexpected events on the road. He is also unhappy that his physical conditions continue and restrict his physical activities and his prospects of returning to full-time work. He is mildly depressed about this.
Current and Proposed Treatment
There is no current or proposed treatment.
Mental State Examination
Mr Carlyon is a 43-year-old right-hand dominant man whose appearance is consistent with stated age. He was located alone in his bedroom at home; he was seated upright in his bed. He was interviewed using the Microsoft Teams application with a good internet connection. He was identified from his photograph on NSW driver licence. The interview commenced at 10 AM and concluded at the level 11:15 a.m.
Mr Carlyon was an appropriate and cooperative interviewee. He initially appeared reluctant to participate but subsequently provided information willingly and without prompting. He was able to give a good description of events in his life without too much difficulty. He described anxiety arising from the subject motor accident which made it difficult for him to return to driving but he was gradually able to do so. He also described some mild depressive symptoms because the accident has interfered with his ability to enjoy his previous activities and eventually be able to return to full-time work when necessary. His range of affective expression was full and appropriate.
Mr Carlyon was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Consistency of Presentation
Mr Carlyon’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis made.
Diagnosis and Reasons
Mr Carlyon described physical injuries which have interfered with his ability to participate in his recreational activities and to function in his employment as a spray painter. He described ongoing pain which he found distressing and which disturbs his sleep. He also described difficulty in getting his feet to work because of numbness, tingling and a cold sensation.
As a consequence of these difficulties, he has become mildly depressed. The depression continues because the physical difficulties continue. He also described mild anxiety symptoms associated with driving and the fear of further accidents. These symptoms do not prevent him from driving.
The panel has diagnosed an adjustment disorder with mixed anxiety and depressed mood.
The panel note Mr Carlyon did not describe symptoms consistent with a diagnosis of post-traumatic stress disorder. While it is acknowledged he was involved in a very serious and potentially life-threatening accident, he did not describe nightmares, flashbacks, intrusion symptoms and negative cognitions. The panel point out claimant had previously suffered from post-traumatic stress disorder after a period of imprisonment and was well situated to describe PTSD symptoms if they were present.
The panel also note Mr Carlyon did not describe symptoms consistent with either major depressive disorder, as suggested by IME psychiatrist Dr Richa Rastogi, or symptoms of a persistent depressive disorder. While he had mild depressive symptoms, he did not describe depressed mood most of the day nearly every day or anhedonia. He did not describe feelings of guilt or worthlessness. He did not describe suicidal ideation or intent and there was no psychomotor retardation or agitation.
The panel disagreed with the diagnosis of PTSD by counsellor Martin Virgara but agreed with the diagnosis of an adjustment disorder.
Causation
Mr Carlyon was involved in a serious head on motor accident with a combined collision speed of at least 80 kph. The panel believe the accident was serious enough to give rise to a psychiatric condition. He suffered physical injuries which continue to limit his life. He developed mild depressive and anxiety symptoms as a consequence which are continuing. The panel is of the opinion the subject motor accident caused an adjustment disorder with mixed anxiety and depressed mood. The panel does not agree with Assessor Sidorov that the symptoms were below the threshold for a psychiatric disorder.”
FINDINGS 
56.	The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
57.	The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. 
58.	The Panel adopts the reasoning in Lynch v AAI Ltd that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act. 
59.	We also adopt the reasoning in Lynch that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
60.	The Panel adopts the joint examination report of the Medical Assessors and adds the following further reasons. Based on the findings of the Medical Assessors the claimant has been assessed as having an adjustment disorder with mixed anxiety and depressed mood. This is an adjustment disorder as defined in DSM-5.
61.	In relation to the issue of whether the claimant ever suffered from a psychiatric diagnosis following the motor accident of a major depressive disorder or post-traumatic stress disorder, the Panel refers to the findings of the Medical Assessors. In that regard the claimant was asked to describe his symptoms at any time. In these circumstances the claimant was unable to describe relevant symptoms and satisfy the Panel that he had ever suffered, following the motor accident, symptoms sufficient to constitute a diagnosis of major depressive disorder and/or post-traumatic stress disorder. Accordingly, we also do not accept that the motor accident either aggravated or caused those psychiatric diagnosis. 
CONCLUSION
62.	For these reasons, the Panel concludes that the certificate issued by Medical Assessor Sidorov is revoked although we have found that the motor accident caused a threshold psychiatric injury. The new certificate is attached at the commencement of these Reasons.