(a) 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 73];

(b) the medical dispute "about a medical assessment matter" will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made [at 78], and

(c) the medical dispute referred for assessment under s 7.20, or referred again for assessment under s 7.24 of the Act, is the actual medical dispute between the claimant and the insurer about the relevant medical assessment matter [at 94].

1. On the evidence before the Panel, the ambit of the dispute between the parties is whether the claimant suffered a psychological injury as a result of the accident and if so whether that injury was a threshold injury for the purposes of the MAI Act. That is the scope of the dispute the Panel had to determine. In doing so, the Panel was required to consider whether or not any psychological injury caused by the accident is a recognised psychiatric illness: s 1.6(1)(b). The assessment of whether a psychiatric illness is present had to be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association: Guidelines cl 5.11.
2. The Panel rejects the insurer's submission that because no specific psychiatric diagnosis was referred for assessment, the Panel cannot go beyond the description in the application of "psychological injury". There is no requirement that a psychological injury referred for medical assessment be described in the application by reference to a particular psychological diagnosis.
3. Further, even had the application included reference to a specific psychological diagnosis, the Panel would not have been limited to considering whether the claimant suffered a psychological injury solely by reference to that diagnosis. It would have been open to the Panel to make its own diagnosis of the injury, having considered all the evidence, including that obtained from the claimant at the re-examination. This is because, as stated in the preface to the DSM-5-TR, mental disorders do not always fit completely within the boundaries of a single disorder.[2] Diagnostic criteria in the DSM-5-TR are offered as guidelines for making diagnoses, and their use should be informed by clinical judgement[3]. In so far as the exercise of clinical judgement is concerned, the Guidelines say this:

"...It is important that DSM-5 not be applied mechanically by individuals without clinical training. The specific diagnostic criteria included in DSM-5 are meant to serve as guidelines to be informed by clinical judgement and are not meant to be used in a rigid cookbook fashion. For example, the exercise of clinical judgement may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe..."[4]

1. By the time the dispute came before the Panel, the ambit of the dispute between the parties, in so far as a psychological diagnosis was concerned, included the following:

(a) the diagnosis of panic disorder made by Medical Assessor Samuell;

(b) reference to "anxiety "and "generalised anxiety" in the records from Bass Hill Plaza medial practice, and

(c) the "initial clinical impression" recorded in an AHRR for psychological treatment dated 13 September 2024 of adjustment disorder with mixed anxiety and depressed mood.

1. Thus, the ambit or scope of the dispute before the Panel included not only the reference to "psychological injury" contained in the application; it also included references in the evidence to panic disorder, anxiety, generalised anxiety, and adjustment disorder with mixed anxiety and depressed mood. Each of these conditions is a recognised psychiatric illness found in the DSM-5-TR. As stated earlier, it was ultimately for the Panel to make its own diagnosis of any accident caused psychological injury.

Has the insurer been denied procedural fairness?

1. The insurer argues that in circumstances where it has "not been put on notice about the specific injury alleged, nor provided medical evidence to support the same, it was procedurally unfair to select a diagnosis from the hundreds of conditions contained in the DSM-V-TR and not provide an opportunity to respond."
2. Procedural fairness depends, in part, on context. In the context of an assessment undertaken by a review panel, the requirements of procedural fairness are different from those in a contested hearing: AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [53]. In a medical assessment conducted by a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties' attention in order that they can provide material and make submissions about it: AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [55].
3. In these proceedings, the critical issues were whether the claimant suffered a psychological injury as a result of the accident and if so whether that injury was a threshold injury for the purposes of the MAI Act. That the claimant alleges she suffered a psychological injury as a result of the accident has been clear from the time she lodged her application for personal injury benefits in November 2022. That document lists as an injury received as result of the accident "panic/shock".
4. The insurer's "minor injury" decision was communicated to the claimant by letter dated

7 February 2023. The claimant's request for an internal review of that decision, sent by her solicitor by email dated 1 March 2023, refers to her continuing to suffer from "ongoing psychological sequelae". 5. The internal reviewer's reasons dated 22 March 2023 refer to the definition of a "minor psychological and/or psychiatric injury", and record that:

"15 Based on the information available I consider there is insufficient evidence for your psychological condition to meet a diagnosis for a recognised psychiatric illness as outlined in the DSM-V.

1. Consequently, your psychological condition falls within the definition of a minor injury in accordance with Section 1.6(3) of the Act."
2. The medical dispute referred to Medical Assessor Samuell for assessment related to the psychological injury referred to in the application filed by the claimant.
3. The insurer's submissions lodged with its reply to that application addressed the psychological injury. Therein the insurer argued that there was no psychological/psychiatric injury sustained in the accident, and that if there was any such injury sustained, "it would only be considered a threshold injury for the purposes of the Act."
4. The insurer has also had an opportunity to provide submissions, and has provided submissions, for the purposes of the Review. Further, in the review being conducted by the Panel the parties were not limited to the evidence that was before the Medical Assessor. It was open to the insurer to seek to rely on further evidence, including medico-legal evidence.
5. Procedural fairness did not require that the insurer be "put on notice" of a specific psychological diagnosis. It knew that a psychological injury was alleged and has been afforded an opportunity to addresses that issue. The Panel is satisfied the insurer has been afforded procedural fairness in the Review.

Did the accident cause a psychological injury and, if so, is that injury a threshold injury?

1. The Panel has taken into consideration the claimant's pre-accident mental health history, including treatment, and is satisfied that she suffered a psychological injury consistent with an adjustment disorder as a result of the 2017 accident. The Panel is satisfied that she recovered from that condition with treatment.
2. The Emergency Department discharge referral from Bankstown Hospital records the claimant reported that after the subject accident she was "panic" and experienced chest pain.
3. The claim form lodged by the claimant dated 9 November 2022, three weeks after the accident, records that as a result of the accident she suffered injury in the nature of "panic/shock".
4. The claimant reported, and the Panel accepts, that following the accident she developed depression and anxiety symptoms, predominantly due to her pain, together with driving anxiety. The Panel accepts that since the accident she has experienced panic attacks and has bad dreams about the accident. Although her driving anxiety improved with treatment the Panel finds that the claimant has remained phobic and could not drive long distances.
5. The Panel finds that the claimant suffers from anxiety and depression caused by the accident, consistent with an adjustment disorder. This condition has developed in response to the pain experienced by the claimant as a result of physical injuries caused by the accident, including injury to her low back.
6. The Panel agrees with and adopts the reasons given by its medical members in support of their finding that the claimant meets the DSM-5-TR diagnostic criteria for a specific phobia (driving). The Panel finds that the claimant suffers from specific phobia (driving).
7. The Panel finds that the accident was a necessary condition of the occurrence of the specific phobia (driving), and that but for the accident, the claimant would not have developed this condition. She did not experience driving phobia prior to the accident and has experienced symptoms following the accident. No other cause of the condition has been identified.
8. Specific phobia (driving) is not a threshold injury. Accordingly, the Panel finds that specific phobia (driving) caused by the accident is not a threshold injury for the purposes of the MAI Act.
9. The Panel is also satisfied, for the reasons given by its medical members in their re-examination report, that the claimant developed an adjustment disorder as a result of the accident. This injury is a threshold injury for the purposes of the MAI Act: Motor Accident Injuries Regulation 2017 regulation 4.2(b).
10. The Panel has found the claimant suffered both specific phobia (driving) and an adjustment disorder as a result of the accident. These findings differ from those made by Medical Assessor Samuell. Accordingly, the Panel revokes the Medical Assessor's certificate and certifies that:

(a) specific phobia (driving) caused by the accident is not a threshold injury, and

(b) adjustment disorder caused by the accident is a threshold injury.