Decision
Allianz Australia Insurance Limited v Meilak [2025] NSWPICMP 980
Sixty-Second-Or-Less Read
A Claimant alleges he sustained PTSD as a consequence of a motor accident. On a threshold injury dispute, the primary Medical Assessor agrees. The Review Panel, however, diagnoses a Persistent Depressive Illness.
Is the Review Panel permitted to find a diagnosis not listed by the parties?
In Allianz v Meilak, a Review Panel found that the Court of Appeal’s decision in Mandoukos did not prevent it from selecting its own psychiatric diagnosis, even if that diagnosis fell outside the list of diagnoses advanced by the parties to the dispute.
Principles
✅ The ambit of a threshold psychological injury dispute is whether the Claimant suffered a psychological injury as a result of the accident and, if so, whether that injury was a threshold injury.
✅ It is the role of the Medical Assessor / Review Panel to decide whether the accident caused a recognised psychiatric illness by reference to DSM-V.
✅ The Medical Assessor / Review Panel is not restricted to the list of psychiatric diagnoses provided by the parties.
Facts
The Claimant was injured in a motor accident on 2 June 2023. His vehicle was stationary when the Insured ran into the rear of his vehicle. The Claimant alleged injuries to his neck and lower back, together with a psychiatric injury.
The Insurer denied liability on the grounds that the only injuries the Claimant sustained in the accident were threshold injuries. The primary Medical Assessor diagnosed PTSD, which is a non-threshold injury, entitling the Claimant to ongoing statutory benefits and common law damages.
The Insurer sought a review of the Medical Assessor’s psychiatric diagnosis.
The Review Panel Decision
The Review Panel concluded that:
🟪 The accident did not cause the Claimant PTSD because the minor nature of the impact was not a “traumatic event” resulting in “actual or threatened injury” as required by Criterion A of the DSM-V diagnostic criteria for a PTSD diagnosis.
🟪 The accident most likely caused the Claimant an initial Adjustment Disorder and his symptoms progressed to meet the criteria of Persistent Depressive Disorder.
The Review Panel made the following observations regarding the scope of the dispute before it:
🟪 The Court of Appeal found in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 that “…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.”
🟪 In this claim, the dispute referred for assessment was whether the accident caused the Claimant PTSD.
🟪 It is the Review Panel’s experience, however that “psychiatric diagnoses may not remain static throughout the lifecycle of the claim and may change depending on various factors including treatment received, the claimant’s fortitude/ vulnerabilities or the general progression of the initial illness”.
🟪 The Review Panel may, therefore, diagnose a condition that is the same as, or different to, the diagnoses made by the primary Medical Assessor and/or the treating experts and/or the medico-legal experts.
🟪 For the same reason, the Review Panel may make a diagnosis which is the same as, or different from, the injuries listed in the PIC application and reply forms.
On this basis, the Review Panel revoked the primary Medical Assessor’s Certificate before proceeding to issue a new Certificate which confirmed the Claimant sustained a non-threshold psychiatric injury in the accident, albeit with a different psychiatric diagnosis.
My Perspective
The decision in Meilak is interesting because the Review Panel sidestepped what the Court of Appeal said in Mandoukos about the scope of a medical dispute and resolved the threshold injury dispute by selecting a psychiatric diagnosis which differed from that advanced by the Claimant (not to mention the diagnosis found by the primary Medical Assessor).
The Review Panel justified its departure from Mandoukos by noting that psychiatric diagnoses may change over time with treatment and as a consequence of the general progression of the condition. That justification is problematic, however, because the Claimant advanced PTSD as his non-threshold psychiatric injury and the Review Panel concluded that he never suffered from that specific psychiatric condition because the nature of the accident did not satisfy Criterion A. This was not a case where the Claimant initially suffered from PTSD but the Claimant’s psychiatric illness progressed to a different psychiatric condition over time.
The Review Panel in this case took a similar approach to the Review Panel in IAG v Kavakci.
Compare, however, the decision of a differently constituted Review Panel in Elammar v AAMI. In that dispute, the Review Panel diagnosed an Opioid Abuse Disorder but 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.
PJH