Is anxiety, which leads to urinary urgency, an above-threshold injury?

In Brief

• A threshold injury is defined under section 1.6 of the Motor Accidents Injuries Act 2017 (MAIA).
• Section 1.6(1) of MAIA states a threshold injury is a soft tissue injury or a psychological or psychiatric injury that is not a recognised psychiatric illness.
• In respect to assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present, is essential.
• If the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, the injury will be considered a threshold injury.
• If a Claimant’s injuries are only threshold injuries, they are not entitled to recover either statutory benefits beyond 52 weeks or common law damages.

Facts

On 12 April 2024, the Personal Injury Commission published its decision in Khoder v AAI Limited t/as GIO [2024] NSWPICMP 177.

The Claimant was involved in three motor vehicle accidents over a short period of time. The motor accidents occurred on 19 December 2020 (twice) and on 3 January 2021.

This dispute arose from the second motor accident which occurred on 19 December 2020.

The Claimant asserted the accident caused a psychological injury which was an above-threshold injury.

The original medical assessor diagnosed an adjustment disorder and enuresis and certified the Claimant’s psychological injury was not an above-threshold injury for the purposes of the Act.

The Claimant lodged a review application.

The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was referred to the Review Panel.

The Review Panel

The Review Panel affirmed the reasoning in Lynch v AAI Ltd [2022] NSWPICMP 6 that:

• The psychological condition can be present at any time to establish that the injury is not threshold for purposes of the Act.
• The Claimant bears the onus of proof in establishing that any injury is not a threshold injury for purposes of the Act.

The Review Panel concluded that the accident only caused threshold psychiatric injuries for the following reasons:

• The contemporaneous evidence, which included the St George Hospital Emergency Department notes, corroborated the Claimant frequently visited the toilet to urinate and after the accident, episodic symptoms of urinary frequency which still occurred into 2022.
• The Claimant’s treating paediatrician diagnosed urinary urgency and frequency.
• Anxiety can lead to urinary urgency and frequency and although the Claimant’s anxiety symptoms resolved, the Claimant’s mother’s history and the medical evidence demonstrated the Claimant’s persistent urgency and frequency were a behavioural outcome of the subject accident.
• Urinary urgency and frequency is not a diagnosable clinical psychiatric disorder but, rather, is attributable to the physiological effects of a substance or another medical condition.
• The subject accident caused the Claimant to develop an adjustment disorder with anxiety, which is now in remission.
• The diagnosis of enuresis was incorrect.

On these bases, the Review Panel issued a new certificate diagnosing adjustment disorder with anxiety, now in remission, therefore certifying the psychological injury is a threshold injury for the purposes of the Act.

Key Learnings

This decision demonstrates a behavioural outcome, such as urinary urgency arising from anxiety, does not in itself constitute a recognisable psychological or psychiatric illness and therefore any behavioural outcome will not be determined an above threshold injury for the purposes of the Act.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner