Our firm is proud to share a recent win before the Personal Injury Commission (PIC) where we achieved a positive outcome for our client by overturning a Medical Assessment Certificate (MAC) at Review Panel.
Under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) (MAI Act), an injured person is not entitled to weekly statutory payments for any period of loss of earnings or earning capacity beyond 52 weeks after a motor vehicle accident unless:
- The injured person, over the age of 16 at the time of the accident, was not wholly or mostly at fault for the accident, and
- The injuries sustained as a result of the motor vehicle accident are not classified as a ‘threshold injury’.
Section 1.6 of the MAI Act defines a ‘threshold injury’ as a soft tissue injury or a psychological or psychiatric injury that is not a recognised psychiatric illness.
Background
Our client was involved in a rear-end collision while exiting her vehicle. She witnessed the impact and its aftermath involving her husband and young child, who were still inside the vehicle. Although the client did not sustain any physical injuries, she developed a range of psychological symptoms in the months following the accident. These symptoms were ultimately diagnosed as a psychiatric injury arising from the accident.
The insurer’s decision
The insurer accepted liability to pay the claimant statutory benefits for the first 52 weeks. However, despite the ongoing and significant nature of our client’s symptoms, the insurer found that our client’s condition was a threshold injury and ceased her statutory benefits after 52 weeks.
At first instance, the MAC determined that our client suffered from an adjustment disorder and did not meet the criteria for a recognised psychiatric illness. As a result, the insurer maintained its position that the client was not entitled to ongoing statutory benefits or damages due to her threshold injury.
However, the correspondence and medical evidence told a different story.
The dispute
Our client was dissatisfied with the insurer’s decision. This led our team to lodge a Review Application under s 7.26 of the MAI Act, carefully identifying material errors in the original assessment. The PIC accepted that there was reasonable cause to suspect the assessment was incorrect, and the matter was referred to a Review Panel consisting of two specialist Medical Assessors and a Member of the PIC.
The Review Panel conducted a comprehensive reassessment of all correspondence and medical material, including clinical records, psychological reports, psychiatric reports and a re-examination of the claimant.
The Review Panel found that our client did not suffer from Post-Traumatic Stress Disorder (PTSD), as the accident was objectively not severe. Importantly, the Panel found that our client suffered from Major Depressive Disorder (MDD) which was not classified as a threshold injury.
The Review Panel had accepted that the accident was the primary cause of our client’s psychological condition, noting symptoms including a persistently depressed mood, sleep disturbance, significant weight gain, impaired concentration and loss of motivation. As a result, the Review Panel revoked the original MAC and issued a replacement certificate confirming our client’s condition was a non-threshold injury.
Why this matters?
This decision resulted in a positive outcome for our client. By overturning the threshold injury decision, our client was able to continue receiving statutory benefits beyond the first 52 weeks and pursue common law damages.
Beyond its immediate impact, the case illustrates the importance of closely examining medical assessment’s, particularly in matters involving psychiatric injury. Psychological conditions do not always fit neatly within a single diagnostic label, and an overly narrow approach can fail to capture the true extent of an injured person’s condition.
Medical Assessment Reviews sit at the intersection of complex legal and medical considerations. When an assessment does not properly reflect the lived reality of a person, it should be challenged.
If you or someone you know has had a threshold injury that you believe has been evaluated incorrectly, please contact our firm on 02 8046 9700 for legal assistance.
