1. The Medical Assessor provided a medical assessment certificate determining that the motor accident caused a generalised anxiety disorder and panic disorder.
2. Assessments of Class 3 were made for "social and recreational activities", "concentration" and for "adaptation". The Medical Assessor noted that the back pain was a limiting feature in relation to work.
3. The Medical Assessor noted that the claimant presented at times before the motor accident as likely to be well and at other times as likely to have a condition of moderate severity. It was noted that the claimant was working part-time and looking after her children. The Medical Assessor assigned Class 1 or Class 2 across various PIRS categories which provided an assessment of 5%. This percentage was attributed to pre-accident conditions and post-accident/non-accident related aggravations. A further allowance of 1% was made for the effects of treatment. The Medical Assessor observed:[9]

"[D]iscerning impairment specifically attributable to pre-existing conditions and subsequent aggravation is challenging because of fluctuation of her condition and because impairment attributable to aggravations arising from post-accident difficulties with her ex-husband is impossible to separate from aggravation attributable to the motor vehicle accident."

1. The parties provided separate bundle of documents.

1. In a letter dated 12 August 2014, the psychologist noted psychological symptoms present since birth of the second child with marital conflict.[10]
2. The pre-accident clinical records of the general practitioner (GP) in 2014 refer to postnatal depression[11] and referral to psychologist in early 2015.[12] Subsequent clinical records refer to an anxiety disorder/depression and prescription of Valdoxan[13] with referral for psychological treatment.[14]
3. A GP's record dated 19 March 2019 referred to two panic attacks this week, known anxiety disorder and that claimant was on Valdoxan 50 mg.[15] That clinical note recorded that the claimant was not on Lexapro at that time.

1. The claimant attended her GP on 11 June 2019 referring to the motor accident and reporting low back and left lower rib pain.[16]
2. The claim form dated 11 June 2019[17] referred to the motor accident causing back strain and "psychological damage" with reference to the claimant not sleeping and on medication.
3. On 3 July 2019 the claimant attended hospital for acute back pain with radiation down both legs. [18]
4. An Allied Health Recovery Request (AHRR) dated 10 August 2019 referred the claimant for psychological treatment noting symptoms including avoidance of memories and associations with motor accident, separate startle response, sensitivity to loud noises, concentration difficulties, anxiety whilst driving, upset thinking about the accident and tearfulness.[19]
5. Reports from the treating psychologist in August and September 2019 noted difficulties in concentration and attention could be anxiety related[20] and difficulties travelling by car due to anxiety and loss of concentration.[21]
6. A further AHRR dated 30 November 2019 referred the claimant for treatment due to symptoms following the motor accident.[22]
7. On 25 March 2020 the GP noted the claimant was suffering from anxiety and mild[23] depression and was referred for assessment and management noting the motor vehicle accident in June 2019 and stress associated with ongoing custody mediation.
8. Dr Deborah Arguedas, clinical neuropsychologist, provided a report dated 9 June 2020.[24] Based on self-reporting, the doctor opined that the claimant did not meet clinical level of symptoms for anxiety, depression or post-traumatic stress disorder.
9. A further AHRR dated 23 June 2020 referred the claimant for further clinical assessment noting "PTSD symptoms" have continue to reduce and general anxiety level quite reduced.[25]
10. On 25 July 2020 and 30 November 2020, the GP noted problems with the ex-husband and the claimant was advised to continue psychological therapy.[26]
11. In September 2020 the claimant sustained an injury to the left hand after a fall at work.[27] Subsequent certificates up to September 2021 refer to the incident causing injury to the lumbar and cervical spine.[28]
12. On 30 November 2020 the GP referred the claimant to Reid Clinical Psychology for assessment and management noting the claimant was suffering from increased symptoms relating to difficulty dealing with her ex-husband.[29] Subsequent referral for psychological treatment relate to issues associated with the claimant's ex-husband and the care of the children.[30]
13. Psychological assessment in January 2021 referred to ongoing issues with the ex-husband associated with custody matters and an accident at the claimant's new employment.[31]

1. Dr Mark Kneebone, psychiatrist, was qualified by the insurer and provided a report dated

13 July 2021.[32] The doctor recorded a past psychiatric history of a generalised anxiety disorder and panic anxiety in the context of domestic violence and emotional abuse perpetrated by her ex-husband and postnatal depression after the birth of the second child in 2013. 2. The doctor noted a history that the court subsequently granted the claimant's 70% custody of the children although the ex-husband continued to threaten to call the police when he did not in his own way regarding access. 3. Dr Kneebone opined that the claimant presented with a two- year history of symptoms of post-traumatic stress disorder, hyperarousal and avoidance of stimuli associated with the accident in a worsening of her pre-injury generalised anxiety disorder and panic disorder following the motor accident. The doctor concluded that the accident and its consequences gave rise to an exacerbation of a long-standing generalised anxiety disorder and panic disorder. 4. Dr Kneebone assessed the claimant as Class 3 for the social and recreational activities and concentration psychiatric impairment rating scale (PIRS) categories. A deduction of 1% for the pre-existing psychiatric illness was made resulting in an assessable impairment of 6%. 5. Dr Andrew Keller, physician, was qualified by the insurer and provided a report dated

19 July 2021.[33] The doctor recorded a history of low back pain since 2013, and depression first diagnosed in February 2015. 6. Dr Keller opined that the motor accident exacerbated a pre-existing lumbar spine condition which had resolved. 7. Dr Ben Teoh, psychiatrist, was qualified by the claimant and provided a report dated

20 June 2020.[34] The doctor obtained a history of chronic pain, physical disability and acute anxiety attacks characterised by breathlessness, dizziness and palpitation. 8. Dr Teoh assessed Class 3 PIRS ratings across a number of categories and assessed impairment at 15% with no deduction for any pre-existing impairment.

1. Medical Assessor Wijetunga issued a medical assessment certificate dated 23 August 2023 assessed the claimant at 10% whole person impairment for injury to the cervical spine and lumbar spine.[35]
2. The Medical Assessor noted:[36]

"She also had generalised anxiety disorder in relation to personal issues in 2015. She was taking medication and consulted a counsellor for 5 years. She separated in 2015. She continues to experience generalised anxiety disorder symptoms and panic. She continues to consult a counsellor."

1. The claimant reported constant left-sided lower back pain and left leg pain and intermittent neck pain extending into the shoulder.

Claimant's submissions dated 16 December 2021[37]

1. The claimant acknowledged that she has a history of psychological symptoms including anxiety and postnatal depression. In 2019 and prior to the motor accident the claimant was attending upon a psychologist at Reid Clinical Psychology in Campbelltown and Camden.
2. The claimant submitted that the opinions of the doctors qualified on her behalf or to be preferred as their opinions were "analogous to the treating medical evidence."

Claimant's submissions dated 18 December 2023[38]

1. These submissions opposed leave to review the medical assessment.
2. The claimant submitted that the Medical Assessor correctly apply cl 6.34 of the Guidelines in use his clinical judgement as provided by cl 6.217 of the Guidelines.
3. In respect of the effects of treatment the claimant submitted that the Medical Assessor provided an extensive reasoning on the claimant's prescribed by cl 6.222 of the Guidelines.
4. The claimant submitted that based on the conclusion of diagnosis and the careful and considered application of each class to the PIRS categories, together with the other opinions in the case, the insurer's submission on this ground was without foundation.

1. The insurer noted that the claimant has a history of generalised anxiety disorder and suffers from panic anxiety in the context of domestic violence and that since the accident, according to a history provided to Dr Kneebone, the claimant was involved in a family law dispute. This stressor continued for at least a further year post-accident.
2. The insurer noted that the claimant commenced on amitriptyline in 2010 and had been regularly seeing a psychologist, Briallen Redi, since 2015.
3. The insurer relied on the report of Dr Kneebone dated 13 June 2021 who assessed impairment at 6% and diagnosed an aggravation of the pre-accident condition.
4. The insurer noted that the largest divergences between Dr Teoh and Dr Kneebone was with respect to adaptation. It observed that the claimant had been able to continue her pre-accident hours of work other than when they were interrupted by an unrelated work-related incident and submitted that in these circumstances the claimant was, at most, a Class 2 impairment.

Insurer's submissions dated September 2023[40]

1. These submissions sought leave to review the medical assessment.
2. The insurer submitted that the Medical Assessor failed to correctly apply cl 6.34 of the Guidelines. It noted that the Medical Assessor made a deduction for the claimant's pre-accident psychiatric symptoms but made no deduction for post-accident symptomatology unrelated to the motor accident.
3. The insurer noted that the claimant developed a psychiatric reaction to various matters including post-accident stressors in relation to Family Court proceedings, related apprehended domestic violence orders, her daughter's autism diagnosis and a recent miscarriage.
4. The insurer submitted there was objective evidence of impairment from other causes through a comparison of the DASS 21 scores and noting that the claimant was referred for psychological counselling in November 2020 due to an increase in symptoms associated with family violence.
5. The insurer submitted that there was error with respect to allowing 1% and the effects of treatment as the claimant was receiving psychological treatment prior to the accident. Furthermore, the current treatment with the psychologist focused on the difficulties with the claimant's ex-husband and not the effects of the accident.
6. The insurer made a general submission that the Medical Assessor erred in the assessment of the claimant's impairment of the PIRS scales with particular reference to the category of adaptation. The insurer noted that the deterioration capacity since the assessment of

Dr Kneebone in 2021 reflected a deterioration capacity not attributable to the accident, but to other causes referenced earlier.

1. The Panel determined that the claimant be re-examined by both Medical Assessors. The examination report is as follows:

Ms Losurdo was injured in a motor vehicle accident on 02 June 2019. She says that she was alone in the car, a 2011 Holden Barina. She was stationary in a merging lane, waiting for the car in front to merge into the oncoming traffic, when her car was rear-ended. She says that she had not seen the car coming up behind her. She says that she was unable to get out of the car and remembers 'just freezing'. Her airbags were not deployed. She says that she did not suffer any injury to her head or any loss of consciousness. Her car was moved forward but did not hit the vehicle in front. Her car was written off. She came out of the car on her own. She says that she thought that her older daughter was in the car and had a panic attack. She says that the police attended because the person who hit her 'tried to take off'. She says that she was found to have whiplash and a disc bulge. She says that she still has pain, but her physical injuries have improved.

Ms Losurdo was born in Sydney and raised there until the age of twelve and then moved to Coffs Harbour at the age of 12. She suffered sexual abuse from the age of seven to twelve by a schoolteacher. She says that she had disclosed it to her sister, but it only went to court when she was 23. She did not testify and only reported it to the police after the birth of her second child. She says that there was other trauma in her teenage years, but she did not want to talk about it. She has four siblings, with one older brother and four younger sisters. Her siblings are doing well. Her father has developed chronic depression since the diagnosis of cancer. Her maternal grandfather suffered from PTSD related to World War II. She is unaware of any history of mental illness in her family.

Ms Losurdo says that she was a 'cutter' in her teenage years and had taken an overdose 'countless times' from the age of thirteen to fifteen. She says that she saw a psychologist once but did not receive much treatment.

She married in 2009, but the relationship broke down in 2015. She has two daughters from her marriage, aged 13 and 12, respectively.

She says that she was well until she developed emotional symptoms in 2014 after the birth of her second daughter in 2013. In 2015, she had to stay in Waratah House psychiatric facility for three weeks for suicidal ideation, chronic depression and anxiety. She had taken an overdose as well. She says that her marriage had also broken down. She was treated with Escitalopram and Quetiapine. She was transferred to the care of the community mental health service at Coffs Harbour, where she was switched from Quetiapine to Agomelatine. She says that she has been under the care of a psychologist since 2015. She was on Escitalopram 20mg and Agomelatine 25mg. She says that she was 'in a good place' and was working up to 20 hours per week. She thinks that she stopped seeing the psychologist in 2018.

She used to drink excessively in her teenage years, but now only drinks socially. She used to smoke marijuana in her teenage years but has not used it since she was fifteen years old.

Ms Losurdo was working in a creche in a gym. She was on a casual contract. She used to work twelve to fifteen hours per week. She had been in the job for almost two years when she suffered the accident.

Ms Losurdo was single at the time of the injury. She says that she has remained single. However, she decided to have a third baby through IVF (in Vitro Fertilisation). She gave birth to a daughter on 09 August 2024. However, she has not suffered post-natal depression. She says that she had started the process just before the car accident but had to pause it while she recovered from the back injury. She had eight failed trials, all after the accident, before the ninth one was successful. Her baby is healthy. She celebrated her baby's birthday at home with her parents. She cooked for the family. She is breastfeeding and bonding well with the baby.

She says that she has also suffered incidents with her ex-husband. On one occasion, her ex left took their children to Queensland and she had to complete a contravention application to get her children back. This occurred in 2021 and 2022. He once turned up at the house unannounced. An AVO had to be put in place against her ex-husband for the older daughter's safety. She has suffered 'verbal and psychological' aggression from her ex. She says that her ex also took out an AVO after she acted 'violently' towards him. Her older daughter has been diagnosed with autism and PTSD. PTSD is considered related to bullying at school and the situation at home. Her older daughter had become violent towards her and had to move in with her father. She says that the last aggressive incident from her daughter was in June 2023, when she was 36 weeks pregnant with her youngest child. Her daughter physically assaulted her and also kicked her in the stomach. She says that her older daughter does not want to talk to her, which is distressing, and she is 'just waiting for her to come back'.

Ms Losurdo says that she is 'doing all right' emotionally and is 'very much better'. She says that her mood is good. She says that her medication helps to keep her stable. She says that she 'feels good and level' with regards to anxiety and she does not experience it much.

She says that she only experiences anxiety while driving when she goes near the site of the accident. She has seen other drivers drive 'dangerously' near that site, which has firmed her belief that that is a 'dangerous' intersection. She has procured a new car and drives it to different places. She says that she tries to avoid taking the route on which the accident occurred. She says that she feels that route is unsafe. She says that she can still drive past if she has to. She does not experience flashbacks while driving past that site. She says that she has to wake up because of the baby. She but does not experience nightmares. She says that her appetite is okay.

She says that she showers regularly and manages her hygiene appropriately. She looks after her baby well. She cooks and keeps her house clean. She says that she cares for her 12-year-old daughter as well. She manages to run her household independently. She shops for groceries independently.

She does not feel overtly irritable or angry. She had an iron infusion after the birth of her baby, which has helped with tiredness. She does not feel overtly tired now.

Ms Losurdo is on Escitalopram 20mg. She had been on Mirtazapine while she was trying IVF but came off it after she became pregnant. She is currently seeing psychologist Ms Michelle Pal. She had seen psychologist Ms Briannan Reid after the accident and was transferred to another psychologist. She says that she had therapy on and off. She had not seen a psychologist for six months when her daughter kicked her. She started seeing Ms Pal at that stage. She has a monthly appointment with Ms Pal.

Ms Losurdo was assessed via videoconferencing. She presented as a casually dressed lady who was helpful in her manner and maintained good eye contact. She was easy to build rapport with and answered all the questions appropriately. She appeared reasonably kempt and adequately nourished. There was no evidence of any psychomotor abnormality or psychic anxiety. Her mood appeared euthymic, and her effect was reactive. Her speech was normal in rate, rhythm, tone, and volume. Her thought content revealed that she remains wary of driving near the site of the accident but is not avoidant. She was not suffering from any perceptual abnormalities. She was able to focus throughout the assessment. She appeared well-orientated to time, place, and person. Her insight and judgement were intact.

Ms Losurdo lives with her 12-year-old daughter and her newborn. She says that there has been a court case regarding the children's custody. She has her younger daughter 60% of the time instead of 75%.

She says that she doesn't get much time for herself but can watch a movie or have coffee with her friends. She says that she visited the Cherry Blossom festival in Auburn with her children last weekend. She was able to enjoy that. She says that she goes out for meals with her children.

She gets along well with her parents and friends. She says that all her relationships have improved since she separated from her ex-husband.

She says that her concentration is still 'up and down', but it has always been like that. She says that her memory feels 'cloudy'. She says that she is slow in remembering things, and she has to think hard to remember them. She says that that too is long-standing. She remembers to take her medication regularly. She manages her finances appropriately.

She says that she returned to work in the childcare sector for over two and a half years. She says that she fell over at work in 2020, which aggravated her physical injury. It did not impact her mental health. She says that she was off for six weeks and then managed to return to work for six months. She says that she changed to support work in 2021 and worked for two years, 12 to 15 hours per week. She has been on maternity leave for a year. She is considering returning to work in January 26.

The panel did not note any inconsistency in Ms Lurosurdo's presentation.

• Psychology session note dated 08/08/2015 noted that she had been admitted to Waratah House for 2.5 weeks, which she found very helpful. She had been diagnosed with anxiety and commenced on Escitalopram 20mg and Quetiapine.

• On 25/09/2015, treating psychiatrist Dr Goran Stevens recommended changing medication from Quetiapine to Agomelatine, while continuing with Escitalopram. Dr Stevens noted a history of childhood sexual abuse (CSA) by a teacher in primary school, and the onset of depression and anxiety in 2012, coinciding with the court case.

• At her session on 27/10/2015, Ms Losurdo spoke about her relationship with her parents, noting it was not close.

• On 04/05/2016, she commenced six sessions with psychologist Briallen Reid for anxiety related to her ex-husband. At the time, Ms Losurdo was working part-time in childcare.

• At her session on 16/12/2016, Ms Losurdo's mood was reported as quite stable, although intrusive memories or associations with her abuse easily triggered anxiety. Eye Movement Desensitisation and Reprocessing (EMDR) was suggested.

• On 28/08/2017, Ms Losurdo was referred for Cognitive Behavioural Therapy (CBT). At the time, she was prescribed Escitalopram 20mg and Agomelatine 50mg.

• On 12/01/2018, she was referred for an additional six sessions. It was noted that she had continued under the care of a psychiatrist and was taking Escitalopram 20mg and Agomelatine 50mg.

• On 09/11/2018, a Mental Health Care Plan (MHCP) was initiated for her to continue treatment, as symptoms had worsened (notably anxiety and agitation).

The panel found that Ms Losurdo developed an adjustment disorder with mixed symptoms of anxiety and depressed mood, as described in DSM 5-TR, as a result of the motor vehicle accident that occurred on 02 June 2019. However, this condition was subsequently superseded by further psychological trauma experienced over the following years, relating to her ex-husband, her eldest daughter, and the emotional and physical impact of repeated IVF treatments.

Ms Losurdo's mental state has since shown improvement, and she no longer meets the diagnostic criteria for any psychiatric condition that can be attributed to the claimed injury. As such, an assessment of permanent psychiatric impairment is not applicable in this case.

She has undergone court proceedings in relation to the custody of her children and has been subjected to several expert assessments. Ms Losurdo says that these assessments have consistently concluded that she is fit to have custody and is capable of providing appropriate care and parenting for her children. This is consistent with the panel's findings.

Despite her documented psychiatric history, the panel found that Ms Losurdo did sustain a psychological injury as a result of the motor vehicle accident on 02 June 2019. Her clinical records support this conclusion which is consistent with the nature and mechanism of the injury."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[41]
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
3. The Panel has met and discussed the examination findings of the Medical Assessors. We adopt the detailed examination findings made by both Medical Assessors with the additional further short observations.
4. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[44] In Raina v CIC Allianz Insurance Ltd[45] Campbell J stated:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

1. Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
2. Clause 6.7 of the Guidelines provides:

"There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible."

1. We are satisfied that the motor accident caused an exacerbation of a pre-existing psychiatric condition. The clinical records pre-existing the accident show treatment over a number of years in the context of an anxiety disorder.
2. The post-accident clinical notes in late 2019 support an exacerbation of the pre-existing psychiatric condition.
3. In 2020 the clinical records refer to treatment in the context of the claimant's difficulties associated with family law issues.[46] The claimant has subsequently improved which is evident from the clinical findings of the Medical Assessors. These findings differ in substance from previous findings in this matter. However, those findings are somewhat outdated, and the claimant has shown that her condition has improved consistent with her providing appropriate care and parenting for her children.
4. The claimant had an underlying psychiatric condition exacerbated by a modest rear end collision. Then effects of the exacerbation caused by the motor accident have ceased. Clinically, the effects of the motor accident were transient given the pre-existing problems, other subsequent causes, modest nature of the accident and resolution of symptomatology. As the Medical Assessors have found during the recent examination, the claimant's current symptoms no longer satisfy the diagnostic criteria for any psychiatric condition.
5. In these circumstances, there is no need to undertake an assessment of permanent impairment.[47]

1. The certificate issued by Medical Assessor Canaris is revoked. The new certificate is attached at the commencement of these Reasons.

[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.

[14] Claimant's bundle, p 189, p 199, p 208, p 209, p 283, p 286.

[42] [2021] NSWCA 287 at [40], [41] and [45].

[43] [2022] NSWCA 31 at [11], [21], [64].

[45] [2021] NSWSC 13 (Raina) at [65].

[47] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.