Peter Hunt
Principal
CTP Insurance, Insurance
Threshold Injuries – Temporary Aggravation and Recovery
30 September, 2024
In Brief
- A Claimant suffers a non-threshold injury if they establish that they suffered from an accident-related non-threshold injury at some point post-accident, even if they have recovered by the day of their formal medical assessment.
- A Claimant suffers from a non-threshold injury even if the accident has only caused a temporary aggravation of a pre-existing non-threshold injury.
Facts
The Personal Injury Commission published its decision in Sims v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 657 on 27 September 2024.
On 4 January 2018, the Claimant was transporting several disabled passengers in a van when he was involved in a motor accident. There were multiple injuries. One passenger did not survive the accident.
The Claimant alleged that the accident caused him to suffer PTSD.
A Medical Assessor diagnosed an Acute Stress Disorder, which is a threshold psychiatric injury. The practical outcome of the Medical Assessor’s Certificate was that the Claimant was entitled to neither ongoing statutory benefits nor common law damages.
The Claimant successfully applied for a Review of the Medical Assessor’s Certificate.
Review Panel Reasons
The medical members of the Review Panel found that the Claimant suffered from a pre-existing Generalised Anxiety Disorder. The accident caused a temporary aggravation of that Disorder which lasted four to six months. Thereafter, the Claimant did not suffer from any psychiatric condition which could be attributed to the motor accident.
The Panel, therefore, found that the Claimant suffered a temporary aggravation of a Generalised Anxiety Disorder and that the aggravation was now in remission.
The Review Panel concluded that the accident caused the Claimant a non-threshold injury for the following reasons:
- A Generalised Anxiety Disorder is a recognised psychiatric illness.
- A Generalised Anxiety Disorder does not fall within the definition of a threshold psychiatric illness in clause 4(2) of the Motor Accident Injuries Regulation 2017.
- At the time of the medical assessment, the Claimant was no longer suffering from a Generalised Anxiety Disorder.
- However, where there is evidence establishes that the accident caused a non-threshold injury, at any time after the accident, a finding must be made that the accident caused a non-threshold injury even if the injury has healed, the Claimant has recovered or the condition is in remission at the time of the medical assessment – see Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6
- Furthermore, an accident causes a non-threshold psychiatric condition if the evidence establishes that the accident caused or materially contributed to the psychiatric condition, albeit only by way of aggravating a pre-existing condition – see Todev v AAI Limited t/as GIO [2023] NSWSC 836 and AAI Limited t/as GIO v Hoblos [2023] NSWPICMP 210.
The Review Panel, therefore, revoked the Medical Assessor’s Certificate and certified a non-threshold psychiatric injury.
Key Learnings
The decision in Sims confirmed, once again, that a Claimant makes their way through the threshold injury gateway where they have recovered from their non-threshold injury by the time they are assessed by a PIC Medical Assessor or the PIC Review Panel. To discharge their onus of proof, the Claimant need only establish, through reliable evidence, that they suffered from an accident-related non-threshold injury at some point post-accident.
The Review Panel also confirmed that a Claimant negotiates the threshold injury gateway even if the accident has only caused a temporary aggravation of a pre-existing non-threshold injury.
Without mentioning them, the Review Panel in Sims applied the same principles as the Review Panel in QBE Insurance (Australia) Limited v Chebat [2024] NSWPICMP 611 and implicitly disagreed with the Review Panel’s reasoning in Merhi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 316.
To read our Case Notes in Chebat and Merhi:
Interestingly, the Review Panel did not appear to be troubled by the shifting diagnostic sands in this dispute.
The injury the Claimant referred for assessment was “PTSD, depression and anxiety”. The Medical Assessor diagnosed an Acute Stress Disorder. The Review Panel diagnosed a temporary aggravation of a pre-existing Generalised Anxiety Disorder.
The Court of Appeal held in Mandoukos that the PIC is only permitted to assess the injuries the parties place in dispute. In Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280, the Review Panel diagnosed an Opioid Abuse Disorder but, applying Mandoukos, 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.
Whilst the Claimant in this dispute did not specifically list a Generalised Anxiety Disorder in his PIC Application, it is possible that his reference to “anxiety” was sufficiently broad to cover all anxiety disorders.
Our Case Notes on Mandoukos and Elammar may be accessed here:
- Sharpen your Pencil – the Scope of Medical Disputes
- The Mandoukos Principle in Practice – Injury excluded from Medical Dispute
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 Principal, Peter Hunt, today.
