Recovered Pre-Accident? Let’s Look at the Pre-Accident Clinical Records, Shall We?

In Brief

• A threshold injury is defined under s 1.6  of theMotor Accident 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.
• A “soft tissue injury” is defined in section 1.6(2) to be an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial members), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
• Part 5 of the Motor Accident Guidelines (MAGs) are made pursuant to section 10.2 of the MAIA and contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAIA.
• If a Claimant’s only injuries are threshold injuries, they are not entitled to recover either statutory benefits beyond 52 weeks or common law damages.

Facts

On 14 June 2024, the Personal Injury Commission (PIC) published its decision in Mahroei v QBE Insurance (Australia) Limited [2024] NSWPICMP 339.

The Claimant was involved an earlier motor vehicle accident in September 2017. In that earlier motor vehicle accident, the Claimant alleges sustaining injuries to his cervical spine, lumbar spine and developing post-traumatic stress disorder.

The Claimant was involved in the subject motor vehicle accident on 8 June 2019.

The Claimant also alleged developing post-traumatic stress disorder as a result of the subject accident.

The matter proceeded to the Commission for a threshold injury dispute.

The primary issue in dispute was whether the Claimant’s PTSD was pre-existing or whether it was caused by the subject motor accident.

The original Medical Assessor concluded the subject accident did not cause any recognised psychiatric illness (including post-traumatic stress disorder). As such, the Claimant was not entitled to statutory benefits after 26 weeks.

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 referred to clauses 5.10, 5.11 and 5.12 of the Motor Accident Guidelines which refer to the diagnosis of a psychological injury, which we have extracted below:

• 5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
• 5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
• 5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

The Review Panel referred to the extensive pre-accident material before them, which concluded:

• The Claimant was diagnosed with somatic symptom disorder with predominant pain and adjustment disorder with depressed and anxious mood by his treating psychologist.
• Two months prior to the subject accident, the treating psychologist recorded the Claimant had a depressed mood, disturbed sleep, low mood and was hypervigilant.

The Review Panel referred to the extensive contemporaneous evidence arising from the subject accident, which concluded:

• The first GP entry in July 2019, one month post-accident, reported the Claimant having flashbacks, was anxious and was cautious to drive.
• The treating psychiatrist prepared a report dated 3 December 2019, which diagnosed post-traumatic stress disorder and chronic pain disorder.
• The Insurer’s expert psychiatrist report dated 27 October 2020 did not believe the Claimant developed a psychiatric injury from the subject accident.
• The Insurer’s expert psychologist report dated 1 December 2020 diagnosed the Claimant with adjustment disorder with depressed and anxious mood and reported the Claimant was malingering.
• The Claimant’s expert psychiatrist report dated 22 June 2022 accepted the subject accident caused an aggravation of the pre-existing post-traumatic stress disorder and the development of major depressive disorder.
• The Police report demonstrated the accident was minor.

The Review Panel made the following findings:

• The Panel accepted there were a number of inconsistencies at the re-examination of the Claimant particularly:
  • The Claimant’s assertion that he was going to die in the subject accident is inconsistent with the Police records and the report of the accident being a minor accident.
  • The Panel preferred the evidence of the NSW Police over the Claimant.
• The Panel accepted the Claimant had a pre-existing diagnosis of adjustment disorder rather than post-traumatic stress disorder as diagnosed by the Claimant’s expert.
• The Panel conducted a thorough exploration of post-traumatic stress disorder symptoms and the Claimant did not report sufficient symptoms to satisfy the criteria for that diagnosis.
• The Panel accepted the Claimant’s pre-existing adjustment disorder was symptomatic leading up to the time of the accident given the treating psychologist’s entry, two months before the subject accident, which confirmed psychological symptoms.
• In respect to causation, the Panel determined the minor low speed collision did not cause a primary psychiatric injury which would impact work capacity or cause an emotionally traumatic nature.
• The Panel determined the subject accident did not cause a second psychiatric injury.

The Review Panel confirmed the original Medical Assessor’s Certificate that the accident did not cause a recognisable psychiatric illness or aggravate a psychiatric injury.

This means the Claimant has a threshold injury for the purposes of the Act.

Key Learnings

This decision demonstrates the need to have all pre-accident contemporaneous evidence to assist in demonstrating whether a pre-existing injury was symptomatic or asymptomatic leading up to the subject accident which is crucial to any finding on causation.

This decision also demonstrates a Medical Assessor may give more weight to documented evidence such as expert reports, treating reports and Police reports and less weight to the Claimant’s own account, when inconsistencies arise.

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