Peter Hunt
Principal
CTP Insurance, Insurance
Mandoukos Sidestepped? Review Panel Selects own Psychiatric Diagnosis
14 April, 2025
In Brief
- The ambit of a threshold psychological injury dispute is whether the Claimant suffered a psychological injury as a result of the accident and, if so, whether that injury was a threshold injury.
- It is the role of the Medical Assessor / Review Panel to decide whether the accident caused a recognised psychiatric illness by reference to DSM-V.
- The Medical Assessor / Review Panel is not restricted to the list of psychiatric diagnoses provided by the parties.
Facts
The Personal Injury Commission (PIC) published its decision in Insurance Australia Limited t/as NRMA Insurance v Kavakci [2025] NSWPICMP 227 on 11 April 2025.
The Claimant was injured in a motor accident on 21 October 2022.
The Insurer alleged that the only injuries the claimant sustained in the accident were minor (now “threshold”) injuries.
The Insurer’s determination was confirmed on Internal Review and the Claimant proceeded to lodge a dispute in the Commission. In addition to some physical injuries, the Claimant alleged that the accident caused a “psychiatric condition” or “psychological injury”. The Claimant listed no specific psychiatric diagnosis in her application.
A PIC Medical Assessor subsequently certified that the accident caused a Panic Disorder, which is a non-threshold injury (which entitled the Claimant to pursue a claim for ongoing statutory benefits and common law damages).
The Insurer made a successful application for the dispute to be referred to the Review Panel.
The Review Panel’s Decision
The Insurer argued that neither “psychiatric condition” nor “psychiatric injury” were psychiatric conditions recognised by DSM-V and, as such, it follows that the Claimant had failed to discharge her onus of proving a non-threshold psychiatric injury.
The Review Panel rejected the Insurer’s argument for the following reasons:
- The ambit of the dispute between the parties was whether the Claimant suffered a psychological injury as a result of the accident and, if so, whether that injury was a threshold injury.
- It was for the Panel to decide whether any psychological injury caused by the accident was a recognised psychiatric illness (by reference to DSM-V).
- There was no requirement for the Claimant to refer a psychological injury for assessment by reference to a particular psychological diagnosis.
- Even if the Claimant’s application did include a reference to a specific diagnosis, the Review Panel was not limited to considering whether the accident caused that specific psychiatric injury. It was incumbent on the Review Panel to exercise its clinical judgment and make its own diagnosis.
The Insurer also argued that it was procedurally unfair for the PIC Medical Assessor to select a diagnosis from the hundreds of conditions contained in DSM-V and not provide the Insurer with an opportunity to respond.
The Review Panel also rejected that argument for the following reasons:
- The Insurer had already secured a referral to the Review Panel so any denial of procedural fairness by the PIC Medical Assessor was no longer relevant.
- The Insurer was on notice that the Claimant alleged a psychiatric injury.
- The Insurer had taken up the opportunity to make submissions before the Review Panel on the medical evidence and the PIC Medical Assessor’s diagnosis.
Why This Case is Important
It is important to note that no particular Review Panel decision holds any greater precedent value than another Review Panel decision.
We note, however, that the decision in Kavakci runs somewhat counter to a prior decision by a differently constituted Review Panel in Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280. In that dispute, the Review Panel diagnosed an Opioid Abuse Disorder but declined to certify a non-threshold psychiatric disorder because the Claimant did not list an Opioid Abuse Disorder in the list of conditions he wanted assessed.
In doing so, the Review Panel in Elammar applied the Court of Appeal decision in Mandoukos where the Court of Appeal held that the PIC is only permitted to assess the injuries the parties place in dispute.
The Court of Appeal in Mandoukos found that the scope of any medical dispute referred to a PIC Medical Assessor is circumscribed, not by the Act, but by the arguments made by the parties. The Court of Appeal stated at [73] that:
“The phrase “about a medical assessment matter” in s 7.17 does not mean that the medical dispute necessarily encompasses the whole of the medical assessment matter. Rather, a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of “medical dispute” in s 7.17, that dispute must relate to the subject matter of a medical assessment matter.”
At [74], the Court of Appeal specifically stated that a PIC Medical Assessor should not be expected “to trawl though all material provided to identify whether there is any matter which, albeit not complained of or identified as such by a claimant, could fall within the ambit of personal or bodily injury as defined by the Act“.
Our case note on the Court of Appeal’s decision in Mandoukos can be found here.
Our case note on the prior Review Panel decision in Elammar can be found here.
If you have a query relating to any of the information in this case note please don’t hesitate to get in touch with CTP Insurance Principal Peter Hunt today.
