AAI Limited t/as AAMI v Dhungel

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Dhungel [2025] NSWPICMP 309
CLAIMANT:	Rajan Prasad Dhungel
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Christopher Rikard-BelL
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	6 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26 of a further assessment of a threshold injury dispute; issue of credibility and reliability of claimant’s histories and evidence with surveillance film, social media and internet searches and evidence from the claimant’s treating psychiatrists; issue of causation with insurer relying on evidence to suggest mechanism of accident was minor; Held – claimant did not have post-traumatic stress disorder (PTSD) due to accident not being severe (DSM-5-TR criterion A not satisfied); claimant did have major depressive disorder (MDD) relating to the claimant’s relationship with his mother triggered by the accident; motor accident a more than negligible contribution to the development of the disorder; MDD is not a threshold injury; MAC confirmed; Allianz Australia Insurance Limited v MacKenzie & Ors cited.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Nagesh dated 10 November 2023. 2. Certifies that the claimant’s psychological or psychiatric injury caused by the motor accident on 15 March 2018 is not a threshold injury for the purposes of the Act. A statement setting out the Review Panel’s reasons for this decision is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

General matters

Rajan Prasad Dhungel was involved in a motor accident on 15 March 2018.
Mr Dhungel says he injured his neck, back and shoulders in the accident. Mr Dhungel also says he developed a psychological or psychiatric injury as a result of the accident.
Mr Dhungel made a claim for statutory benefits with AAMI, the “relevant insurer” and the insurer of the vehicle that he says caused the accident. As it is now more than five years since the accident, Lifetime Care and Support Authority (the Authority) is the relevant insurer in the statutory benefits claim[1].
[1] AAMI will be referred to as the insurer for the remainder of these reasons.
In time, Mr Dhungel made a claim for damages against AAMI on the basis that the driver of the AAMI insured car was negligent.
A medical dispute about whether the claimant’s injuries are threshold injuries or not has arisen between AAMI and Mr Dhungel. The outcome of that dispute is relevant to both the statutory benefits claim (and therefore concerns the Authority) and the damages claim (which concerns AAMI).
The claimant first referred the dispute about threshold injury to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA)[2] for assessment. On

30 June 2020, Medical Assessor Jones determined the claimant had a non-threshold injury. While the insurer applied for a review of that decision, that application was not successful.
[2] At that time the DRS of SIRA was the tribunal that determined disputes arising in motor accident claims.
On 24 March 2021 the insurer applied to the Personal Injury Commission (the Commission) for further assessment of the threshold injury dispute and was permitted by a delegate of the President of the Commission to do so. On 10 November 2023, Medical Assessor Nagesh determined that the claimant’s psychological or psychiatric injury was not a threshold injury. It is that determination that is the subject of the current proceedings.
The insurer applied for a review of Medical Assessor Nagesh’s assessment and on

24 January 2024, Ms Brittliff, a delegate of the President of the Commission, determined that there was reasonable cause to suspect an error in the assessment and allowed the Review to proceed.

Background to the dispute

On 30 June 2020 Medical Assessor Jones determined the claimant had a chronic

posttraumatic stress disorder in partial remission. He found this was a non-minor (now termed a non-threshold injury).
On 6 June 2023, Medical Assessor Nagesh determined the degree of the claimant’s whole person impairment (WPI) and not the dispute about threshold injury. On 5 September 2023 Principal Member Harris determined the certificate of Medical Assessor Nagesh was incomplete and referred the matter back to the Assessor to complete.
On 10 November 2023 Medical Assessor Nagesh determined that the claimant had a Major Depressive Disorder which was a non-threshold injury and on 20 November 2023 his decision was issued to the parties. On 23 November 2023 the insurer lodged an application for Review of that decision with the Commission.
On 24 January 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on

2 October 2024 the President’s delegate convened this Panel to conduct the Review.
The Panel notes that Medical Assessor Hong determined the claimant had a chronic

posttraumatic stress disorder in the course of a WPI assessment on 31 March 2022. The Panel is unaware of any application for review made in respect of that decision

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Dhungel’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the claimant’s only injuries are “threshold” injuries, the injured person cannot receive ongoing statutory benefits and they cannot recover damages.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[3] provide:
“[5.10] In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11]The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[3] The current version of the Guidelines is version 9.3, effective April 2025.
A Medical Assessor or Panel is therefore required to determine whether there is or is not a psychological or psychiatric injury which is done by examining the claimant and exercising clinical judgment and diagnosing the disorder or condition affecting the claimant.
The Guidelines provides the method for determining whether a psychiatric illness is a recognised psychiatric illness or not (thereby excluding unrecognised psychiatric illnesses from the recovery of certain benefits and damages under 1.6(3) of the MAI Act). This method would also include the means of determining whether an adjustment disorder or acute stress disorder was present (both of which are recognised psychiatric illnesses, but which are threshold injuries in accordance with cl 4(2) of the Regulation).

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
[4] Schedule 2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Jones’, further medical assessments such as Medical Assessor Nagesh’s and the review of medical assessments by this Panel[5].
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Nagesh examined the claimant on 23 March 2023. The examination was by video conference and no interpreter was present either in person or by phone or video.
The Medical Assessor took the following history (from [8] onwards[6]):
[6] The references in square brackets are to the paragraph numbers or sections of the Assessor’s decision.
(a)    the claimant was 54, married and the father of two adult children;
(b)    he was unemployed;
(c)    he denied any pre-accident history of mental illness or related medical conditions although he did have diabetes and high bloody pressure;
(d)    he sustained physical injuries to his shoulder, back, neck and knee as a result of the accident;
(e)    he had been prescribed mirtazapine, lithium, prazosin, quetiapine, atenol and metformin as well as pain relief (but no further details were given);
(f)    he attended school to year 12, then university and started working as a diplomat which he did for 26 years serving in Australia from 2007. He returned to Nepal in 2010 and then migrated to Australia in 2012 working as a nursing assistant before the accident;
(g)    Medical Assessor Nagesh records the claimant “found it anxiety provoking to talk about the accident”. Mr Dhungel says he was stationary at a traffic light when the car he was in was rear-ended and described “his mother screaming”;
(h)    he said he did not lose consciousness and his head did not hit the steering wheel. He self-extricated and an ambulance arrived. He said his wife refused to go to hospital;
(i)    the next morning, he went to his GP and had x-rays and was provided with pain relief then referred for physiotherapy;
(j)    his psychological symptoms emerged within 15 – 20 days due to lack of sleep, feelings of depression and anxiety and he was referred to a psychologist;
(k)    he became irritable and fearful, developed memory problems, has nightmares, flashbacks and he stopped driving for a while, and
(l)    he has been seeing a psychologist for a while.
Mr Dhungel’s current state was said to be similar to that since the accident with depressed mood, anxiety and insomnia. It was noted that the claimant had however returned to driving.
The Medical Assessor noted that the claimant had been diagnosed by two medical examiners and his own treating psychologist as having a posttraumatic stress disorder. Medical Assessor Nagesh on the other hand thought he did not meet the criteria because the accident was low impact, with no loss of consciousness and no serious physical injuries. In his opinion the claimant “was not exposed to death or threatened death.”
He did however consider the claimant met the criteria for a major depressive disorder, which is not a threshold injury. While the Medical Assessor certified the posttraumatic stress disorder was not caused by the accident, his reasons suggest what he actually found was that the claimant did not have such a disorder in accordance with the DSM-5 criteria.
The Panel notes Medical Assessor Nagesh’s found the claimant’s WPI was 15%.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant noted the previous assessment of Medical Assessor Jones dated 30 June 2020 [1.3] and that since then the claimant has been assessed by Medical Assessors Hong and Nagesh [1.4] who have also confirmed the claimant has a non-threshold injury. The claimant submits in [1.5] that Dr Morris has also expressed the view that the claimant has a non-threshold injury.
The claimant then notes that the insurer does not rely on evidence from any Health Practitioner authorised to give evidence under the MAI Act [1.6] and at [1.7] that the opinion of Mr Levi, a psychologist is inadmissible.
The claimant then argued that there was no “medical dispute” because of this absence of evidence [1.12]. The claimant submits the referral to Medical Assessor Nagesh was ultra vires [1.17] and that the opinion of Dr McIntosh (accident engineering expert) is “grossly prejudicial and inadmissible.” The claimant called for the proceedings to be dismissed [1.20].
The claimant’s submissions raise at [2] an issue of jurisdiction on the basis that the decision the claimant has a non-threshold injury (made by Medical Assessor Jones) has created a right to pursue a claim for damages which cannot be “retrospectively abolished.” The insurer submits, amongst other things that the purpose of a threshold injury assessment is to determine entitlement to claim damages which, save for fraud, is not open for review [2.10].
The claimant also submitted at [3] that there is an administrative estoppel preventing the Commission from departing from a previous representation that the claimant has a non-threshold injury and a right to claim damages. The claimant says he has acted to his detriment in commencing the claim and so on

Insurer’s submissions

The insurer submits at [11] – [16] that the Medical Assessor was provided with documents that the President’s Delegate determined should not be shared with the Medical Assessor conducting the further assessment. Despite that ruling, the Medical Assessor had referred to these documents which suggests he was provided with them.
The insurer also submits at [17] that the Medical Assessor failed to consider the documents in the insurer’s application to admit late documents. While the insurer notes the Medical Assessor has referred to the insurer’s application, the insurer says that nowhere in his certificate does he mention any of the material that was submitted. The insurer submits that the Medical Assessor has denied the insurer procedural fairness by not properly considering all of the material lodged [35].
Finally, the insurer says that the Medical Assessor failed to apply to test of consistency provided for in cl 6.41 of the Guidelines.

Procedural matters

On 3 October 2024, noting that there was some controversy about the documents, the Panel issued directions for a joint bundle of documents. On 15 November 2024 the insurer lodged a joint bundle of more than 1,600 pages.
The Panel met for the first time on 12 December 2024 and reported to the parties noting:
(a)    the Panel is assessing threshold injury which, unlike a permanent impairment assessment, focusses on the injury caused by the accident as opposed to the condition at the time of assessment;
(b)    that the claimant has been examined by Medical Assessor Jones and Hong who both diagnosed a posttraumatic stress disorder. The question is not whether their decisions are binding or not but whether their decisions are evidence at that time of a non-threshold injury caused by the accident, and
(c)    the claimant bears the onus of proof in satisfying the Panel that the claimant has a non-threshold injury caused by the accident.

Responses

The claimant responded with submissions concerning the validity or otherwise of the insurer’s application for review; why the further medical assessment should not have been allowed and why the current proceedings are “lacking in substance and [an] abuse of the Commission’s process.”
The claimant submitted that it had been determined that the claimant has a non-threshold injury and that the “jurisdiction” to determine a threshold injury has been “spent and any further adjudication [is] precluded by a res judicata.”
The claimant noted at [35] – [39] that the words of s 4.4 require a consideration of the injuries “resulting from” the accident which is not the same as “caused by” and that this is a “broader common-sense evaluation” than the test of causation.
The claimant submitted at [40] – [50] relying on Lynch v AAI Limited t/as AAMI[7] that a psychiatric illness does not have to be present at the time of the assessment by the Panel but that historically there was a psychiatric injury present at some stage after the accident, resulting from the accident.
[7] [2022] NSWPICMP 6 (Lynch).
The claimant also submits at [51] that there is a “conclusive finding of a non-threshold injury” by Medical Assessor Jones which is valid until “set aside”. The claimant relies on the evidence of Medical Assessor Jones and his diagnosis and examination findings.
The claimant submits at [54] – [60] that Medical Assessor Jones’ certificate is conclusive evidence of a non-threshold injury and that it remains “unrebutted” by the insurer and that the insurer bears the onus of proving its assertion.
The claimant notes the medical evidence and provides a 27-page summary of it.
The insurer responded noting:
(a)
that the expert, Dr Levi has been an authorised health practitioner (AHP) since

21 February 2020 [5];
(b)    the determinations of Medical Assessors Jones and Hong were based on the claimant’s self-reporting of symptoms to his clinicians [11];
(c)
the claimant relies on a diagnosis from Ms Khan who the insurer says on

3 July 2019 no longer provides treatment on the basis of inconsistencies in his presentation (versus her observations) regarding his driving [12];
(d)    Dr Ali, psychiatrist diagnosed posttraumatic stress disorder in his report of 27 November 2019 stating that the claimant was non-functional and totally dependent on his wife for transport and is socially isolated [13];
(e)    the insurer says that since Medical Assessor Jones’ certificate there has been additional evidence presented which calls into question the validity of the claimant’s self-reported histories [14];
(f)    the insurer says any opinion written without all of the evidence now presented in this matter is not to be relied on and the insurer sets out at [16] a summary of the evidence from Dr Levi (who found malingering or exaggeration); Medical Assessor Hong (who found inconsistencies and could not continue with cognitive testing) and a report from Procare (suggesting the claimant was involved with the Himalayan Business Group) [16], and
(g)    the insurer also points to further desktop reports and surveillance and material from Ms Khan and Ms Jafri, treating psychologists.
The insurer says at [18]:
“In summary and as previously submitted, the insurer says the claimant has exaggerated the severity of the motor accident, deceived his treating personnel in respect to the extent of his incapacities including in relation to driving, suggested to Ms Khan that she not submit her records with all relevant material included, has been employed or working with the Himalayan Business Group despite telling multiple personnel that he has never returned to work since the accident and has tested positively for malingering and exaggeration.”
The insurer submits at [19] that as Medical Assessor Jones did not have all the evidence and that his diagnosis of a posttraumatic stress disorder cannot be considered accurate. The insurer also submits at [20] that as Medical Assessor Hong noted inconsistencies but gave no reasoning as to how the claimant met the criteria of a posttraumatic stress disorder, his diagnosis cannot be considered accurate.
The insurer finally submits that any previous determines have been made when all relevant information was not available [21] and as the claimant’s credibility is in issue, all of the evidence needs to be properly considered before diagnosing any condition.

Second teleconference

The Panel met again on 11 February 2025 and reported to the parties on 14 February 2025.
The Panel advised it had considered the submissions from the parties and acknowledged the claimant’s submissions concerning the application for review and the submissions requesting the delegate revisit her decision to allow the review. The Panel stated it had been convened to conduct the review and must proceed with the Review.
The Panel advised it would consider how the claimant presents now and all of the evidence in the matter to determine whether the claimant had or has a non-threshold injury caused by the accident.
The Panel asked for documents concerning the mechanism of the accident and for the surveillance footage to be uploaded and invited the parties to provide any final submissions.

Final responses

The claimant provided no further documents or response.
The insurer provided additional documents and summarised those documents including the claim form, the police report, the insured’s statement, the property damage files and the report of Dr McIntosh. The insurer says at [12] the accident was minor, neither vehicle required towing from the scene. The insurer says at [13] the claimant gave an incorrect history to Medical Assessor Jones that the car was towed from the scene.
The insurer says the claimant would not satisfy criterion A of a posttraumatic stress disorder and cites the decision of QBE Insurance (Australia) Limited v Joyan[8].
[8] [2024] NSWPICMP 881.
The insurer submits the claimant would not satisfy the criteria for a Major Depressive Disorder on the basis of his subjective reporting which “cannot be accepted at face value.”

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claim form was dated 25 March 2018. The claimant describes the accident as follows:
“I was driving towards Sydney from Canberra. When I reached on about Liverpool, NSW a car behind us failed to brake, collided with my vehicle. The car was badly damaged and soon was not driveable. The collision was severe injurying us.”
The claimant says his injuries were severe neck pain and injury to back, leg and shock. He listed his employer as BUPA Care services and that he was an assistant in nursing but had not worked since the date of the accident.
The police report dated 23 March 2018:
(a)    records the insured vehicle was driven at 30kms per hour, sustained damage to the front and was not towed;
(b)    states the claimant’s vehicle sustained damage to the rear and boot lid but there is no speed stated;
(c)    the claimant’s vehicle had come to a complete stop when the insured vehicle collided with the rear;
(d)    both drivers got out and exchanged particulars, and
(e)    ambulance attended the scene but as there were no injuries, ambulance left as did both vehicles.

Material relied on by the insurer in relation to reliability and credibility

Circumstances of accident

A report from Procare dated 2 November 2020 was commissioned by the insurer[9]. The investigator obtained a signed statement from the insured driver.
[9] Page 24 of the additional bundle from the insurer.
He says that before the accident he was travelling at about 65kms and that the speed limit was 70kms per hour. He saw traffic ahead and was going to change lanes but checked his mirrors and saw there was a lot of traffic coming so changed his mind. When he looked back there were cars ahead of him stopped. He “held the brake fully with my foot” but his wife screamed so I took his foot off the brake and then applied it again and hit the back of the car in front.
He says there was no damage to his car and a dent in the back of the other car “and the boot was opened up a little bit.” He says the claimant got out of the car and closed the boot after the accident.
He gave the claimant his license and the claimant took a photo of it. The claimant wanted to call the police and “police and fire services came about five minutes later”. They asked after the claimant’s mother who complained of a sore back.
He says the police encouraged the claimant to exchange his details and then they left. He says the claimant’s car was driven off by the claimant and was not towed. He said his car was not damaged and had no repairs done to it. He says his airbags did not deploy.
The property damage records show that the claimant’s vehicle was repaired at a cost of $5,971 of which about half was labour and the other half, parts and paint.
Photographs provided show the dent in the bumper, the deformation of the right side of the boot/bumper area and the boot is partially open.
The driver said the claimant “did not seem to have any injuries, he was walking around without kind of difficulty with the female passenger.”

Surveillance

The insurer placed the claimant under surveillance.
In the first report 17 September 2020, nine minutes of video was recorded with the claimant taking rubbish bins out and chatting to someone in his driveway.
The second period records on 31 March 2021 the claimant spent the whole day at the Himalayan Business Group (HBG) office. During the third period on 13 May 2021 the claimant drove two males in his car and on 14 May 2021 the claimant’s wife drove the claimant to Belconnen and the claimant drove back to their home.

Desktop investigations

The insurer relies on three reports from Procare Investigators.
The first is dated 1 February 2022:
(a)    the claimant’s property ownership details are noted;
(b)    the claimant was listed on the HBG website as the Manager of the Canberra office[10];
(c)    the claimant had reactivated his Facebook profile and had shared a post from the HBG, and
(d)    there were four google reviews written by the claimant including one for the HBG.
[10] Page 536 of the joint bundle.
The second was dated 10 March 2022 and refers to a number of posts and photos on the HBG Facebook page suggesting the claimant had a level of involvement during 2021 and 2022. A third report is dated 26 April 2022 and again suggests continued involvement with the HBG and the claimant’s engagement with Facebook.

Psychologists

The insurer has provided notes from the claimant’s treating psychologist, Ms Khan. She had been helping Mr Dhungel with gradual exposure to driving in order to overcome his alleged fear of driving. On 21 June 2019 she consulted with the claimant and he said his brother was visiting from Nepal. She asked, and Mr Dhungel said he did not look like his brother. Ms Khan reports that Mr Dhungel told her he only sits in the back seat of a car and he does not drive and that his rehabilitation advisor is arranging bus transport for him. She asked him if he had been driving and he said the last time he drove was on the day of the accident 15 March 2018.
Ms Khan then confronted the claimant saying she had seen him driving and parking his car near an Indian grocery store. She says she saw him get out of the driver’s seat and was 100% certain it was him. She said that as a result she could no longer continue to treat him. The claimant had asked her for proof, and she said, “I know what and who I saw” and then said she had video recorded of him.
Ms Khan provided a report in answer to questions from the insurer dated 3 July 2019[11] saying:
(a)    the claimant does not need any psychological treatment;
(b)    he has no incapacity to perform driving tasks;
(c)    he is not suffering from any form of psychological illness;
(d)    he may have had symptoms of anxiety and posttraumatic stress, but he is no longer displaying those symptoms, and
(e)    he can return to work.
[11] Page 640 of the joint bundle.
Ms Jafri also provided counselling to the claimant. She provided a report to the insurer’s solicitors dated 29 August 2022. She had been provided with a copy of the Procare and surveillance reports and possibly the film. She was surprised at the material saying she had never seen the claimant look like that (well dressed in the precincts of the HBG and not unkempt). She says:
“it should be noted that my role is to assist with the perceived and actual mental health of the patient. My role is not an investigatory role, so I do not police them.”
She wanted the opportunity to put the material to the claimant before expressing her professional opinion but had doubts about the accuracy and severity of the diagnosis.
In a letter to the claimant’s GP on 29 September 2022, Ms Jafri said that she had obtained information from Dr Ali who was of the “firm opinion that Mr Dhungel was malingering” and she said “Mr Dhungel’s presentation and responses … have been exaggerated.” The Panel does not have any report from Dr Ali expressing this opinion.

Claimant’s statement

The claimant provided a statement signed and dated 13 September 2022[12]. It is in English and does not appear to have been translated for him before he signed it as it does not bear the usual interpreter attestation clause.
[12] Page 1133 and 1542 of the insurer’s bundle.
The claimant says in that statement he has been provided with the photographs and reports from what appears to be Procare and the surveillance. The claimant says he has set out his responses in Nepalese “as he is not proficient in English”.
He says:
(a)    he has been advised by his treating practitioners to do small chores about the house, he takes painkilling medication and applies Voltaren gel and heat packs before doing anything. He was in a better mood, so he took the bins out and there were only light things in it;
(b)    he loves children and had become a grandfather and was “hanging out [with] my granddaughter”;
(c)    he took the dog for a walk because the weather and traffic were good, and the dog is trained to “make sure that I am OK”;
(d)    he is scared and anxious and is extra cautious when he opens the front door;
(e)    he has been fearful of driving, but he sometimes sits in the passenger seat or drives himself to overcome that fear;
(f)    he has been trying to get back to work and he attends the HBG office “as part of the recovery process” where his son also works but he does nothing while he is there;
(g)    his mind is not stable, and he cannot learn anything, so he goes outside and has a cigarette – he says he was talking to his family at the time of the observed phone calls;
(h)    the dog bed he was seen lifting was light and he was struggling to carry it, and
(i)    his family always makes sure he has pain killers, Voltaren and heat packs before he goes out and they try to engage him in social activities on his days off.
The claimant has also provided a statement from Prabin Bhandari dated 23 August 2022 who is the owner of the HBG[13]. He is also the nephew of the claimant.
[13] Page 1545 of the insurer’s bundle.
He says his uncle is well known and well respected throughout Australia as he has helped many people from the Nepalese Community. He says the claimant’s son works for him and was involved in setting up the Canberra Office and the claimant is often asked to attend promotional events.
Mr Bhandari says he has encouraged the claimant to get involved “to assist him recovering from the MVA”. He says the inclusion of Mr Dhungel on the website and naming him as the manager of the Canberra Office was a mistake and this would be removed which it has. Mr Bhandari denies the claimant has ever been remunerated by HBG and that his motivation is to help his family.
Mr Bhandari also adds that the claimant could not perform the role of office manager because of his poor English skills.

Treating medical records and reports

The claimant attended Rouse Hill Medical Centre on 16 March 2018. The history recorded by Dr Pathak is as follows:
“involved in MVA – yesterday
Was stopping on traffic light
Hit by back
Jerked neck
No [Loss of Consciousness] and vomiting
Police involved and paramedics involved
[Complains of] weak [left] leg and neck pain, worse today.”
The claimant was examined there was tenderness in the cervical spine but no visible bruises or swelling and the limb function was good.
Dr Ali provided his notes[14] and they start with a consultation on 23 November 2018. He has a consistent history of the car and notes Mr Dhungel’s mother was in the car. Dr Ali records that neither the claimant nor any of the other occupants of the car were taken to hospital.
[14] Page 950 of the insurer’s bundle.
The claimant reported the accident and said he developed pain the next day. The claimant was said to be the “vice president of the Nepali Association” however he was not enjoying meetings. He was having nightmares (about an intentional hit), flashbacks (to the accident), avoiding crowds and he was not driving but sitting in the back seat while his wife drives. He had been thinking a lot about his father who had passed away 25 years ago. His libido was low. His impression was of a Major Depression and posttraumatic stress disorder as well as “grief and loss issues about loss of role working as a diplomat to an assistant in nursing.”
On 2 February 2019 the claimant was still ruminating about the accident and feeling depressed mostly at night. He felt better during the day. He had a good diet and a low sex drive and continued having nightmares and flashbacks.
On 22 February 2019 the claimant was having bad dreams involving his father and grandfather with plane crashes. He denied anxiety but reported poor concentration, poor memory and low libido.
On 8 March 2019 the claimant was said to be improving but there was ongoing depression and posttraumatic stress disorder. He was not sleeping much “he was not sleeping much before.”
On 12 April 2019 the claimant was more concerned about his physical problems including his prostate and low blood pressure.
On 14 July 2019 the claimant reported forgetting things (including instructions concerning his medication). On 27 July 2019 the claimant was seen and was stressed because the insurer had stopped paying him on the basis that his psychologist had said he did not have posttraumatic stress disorder.
Dr Ali records “he reported gradually getting better, mood has been improving, nightmares are much less, sleeping 4 – 5 hours now, appetite has improved … more enjoyment watching TV.”
Dr Ali requested a copy of the psychologist’s report and the insurer’s letter and wanted to see the claimant in 4 weeks’ time. There are no further records from Dr Ali and the report of Ms Jafrit suggests Dr Ali has died.
In a report to the claimant’s solicitor dated 27 November 2019[15], Dr Ali addresses the criteria for a posttraumatic stress disorder saying the experience of the accident was “very traumatic” as he was scared for his safety (criterion A), he had intrusive and distressing memories and flashbacks of the accident (criterion B). The claimant was driving but only for 15 minutes and in familiar locations (criterion C). The claimant was said to be forgetful, and angry and depressed, he had disturbed sleep, and the claimant had become “non-functional in his life” he totally depended on his wife for transport and was isolated (Criterion G).

Expert reports

[15] Page 157 of the insurer’s bundle.

Claimant’s reports

The claimant relies on a report from Dr Dryson, occupational physician dated 7 August 2020. There is no indication in that report of the claimant having or requiring an interpreter.
Dr Dryson has a history of the claimant’s vehicle being struck from behind, towed away and a replacement car provided. An ambulance attended but the claimant denied transport and he went to his relative’s home instead. He saw a GP in Sydney the next day and returned to Canberra and saw Dr Tausif.
Dr Dryson has a history of the claimant being a diplomat in the Nepalese foreign ministry for 25 years and that he trained as a nursing assistant when he came to Australia. The claimant said he had not worked since the accident.
The claimant complained of neck and back pain, left thigh numbness, hearing loss in the left ear and “significant psychiatric impairment.”
Dr Dryson diagnosed a whiplash associated disorder, possible radiculopathy in the left hand, restricted shoulder motion, low back pain with possible radiculopathy and psychological injuries. In a separate report he assessed WPI at possibly 34%. A supplementary report dated 19 September 2022 was provided commenting on the determination of Medical Assessor Herald (WPI assessment of physical injuries).
The claimant relies on a report from Dr Morris, psychiatrist dated 18 September 2020. No interpreter is mentioned in this report. He has a history of a “very hard” hit from behind and that police did not come to the accident although ambulance and the fire brigade did come.
The claimant reported the onset of “severe” pain in his head and neck and saw his GP and that he still has pain in his back, neck and left knee.
He reports becoming very depressed and socially withdrawn. He said he used to be a leader in the Nepali community but has lost interest in community activities. He reports gaining 4kgs in weight. His sleep is poor with “frequent nightmares” although these have depressed due to medication. He reported intrusive traumatic memories of the accident triggered by news items and motor accidents. His wife is said to do “most of the driving” and he is anxious, has poor concentration and is very forgetful. He feels hopeless but has no suicidal thoughts. He felt he was being punished by God.
The claimant had been referred to Dr Ali and was seeing him monthly. He had also been referred to two psychologists, the first he had not got on with and the other, Mr Jafri he saw fortnightly.
He has a history of the claimant growing up in Nepal where is mother is living and that he spent 26 years in the Nepali Diplomatic corps working in India and Australia.
The claimant reported social isolation, his wife does all the household chores, and he has lost interest in gardening. He had impaired memory and could only recall two out of three items and could not spell the word world backwards.
Dr Morris diagnosed a Major Depressive disorder but did not think the accident was severe enough to fulfil criterion A of a posttraumatic stress disorder. He noted no pre-accident condition and expressed the opinion the claimant’s current presentation was due to the accident. In a separate report he assessed WPI at 25%.

Insurer’s reports

Dr Levi, psychologist provided a report to the insurer dated 12 December 2020. He appears to have interviewed the claimant twice and separately interviewed the claimant’s wife. There is no mention of an interpreter.
The claimant reported an average day involved him getting up before 5.00am with neck and shoulder pain and praying. His wife would often help him shower and dress and he would sit with his dog and sometimes watch TV or go outside. He reported it was difficult for him to get into a car and drive. He had difficulty going to sleep and would often have bad dreams.
The claimant reported a rear end collision with the second car “travelling at speed” and there was a loud bang. Police and fire brigade attended. The claimant reported striking his head and injuring his left leg and knee, his neck and back. Dr Levi has a report of the claimant’s wife and daughter in law being in the ca. There is no mention of the claimant’s mother.
The claimant’s wife said the car was not driveable after the accident and they caught a taxi to where they were going. The claimant’ wife supported the claimant’s description of his daily activities.
The claimant reported he had been a diplomat for 26 years with the Nepalese diplomat and his condition was getting worse.
Dr Levi administered the following tests:
(a)    a Memory Malingering test which could not be completed by the claimant;
(b)    the Depression Anxiety and Stress test and the claimant’s responses produced a 71% result which suggested a Very severe depression, and
(c)    an anxiety test – the claimant rated this as moderate.
Dr Levi noted the claimant’s behaviour and his complaints of memory problems. The claimant could not remember his own phone number.
Dr Levi considered the documents and expressed the opinion that the claimant had signs of depression which ameliorated during 2019 but relapsed and his mood declined which Dr Levi related to the claimant’s inability to be involved with the Nepalese Community Association. Dr Levi considered the claimant was catastrophising or attempting to portray himself as more impaired than he was. Dr Levi compared the claimant’s presentation to the way the claimant presented to Medical Assessor Jones six months earlier and that the claimant appeared “much more impaired in terms of his level of attention and concentration and vagueness which was quite pronounced.”

He advised that any future treatment should involve “reality therapy” to gently challenge the claimant’s irrational views of his impairment.
In a second report dated 28 February 2021 after a further zoom session with the claimant and his wife, Dr Levi restates much of what was contained in the earlier report. He administered a new test, the word memory test which the claimant failed and the results “were so low that the program issued a ‘warning’” which indicated poor effort. The claimant’s depression scores remained at the very severe level and his anxiety level had risen to “severe”. The posttraumatic stress disorder self-report was completed with the claimant self-reporting a “very severe” rating for 80% of the items on the test.
Dr Levi noted the claimant’s involvement in the gardening, he looked after the dog feeding it and taking it for walks and that he regularly went shopping with his wife and he visited friends with her.
Dr Levi expressed the view the claimant was malingering or exaggerating his symptoms and catastrophising. He expressed the opinion the claimant did not have a diagnosable psychiatric condition but had “catastrophising pain” which is not listed in DSM 5.
Dr Keller, occupational physician provided a report dated 16 November 2020 to assess the claimant’s physical injuries. Dr Keller has a history of the rear end collision, no loss of consciousness, no airbag deployment and the car was repaired.
The claimant reported no previous history of physical or psychological complaints. The claimant complained of severe neck pain, constant lower back pain and that he last drove the week before. He says his wife helps him shower and dress but does not help around the house. He said he stays inside the house and does not go to the shops but socialises once a month with his wife.
After a physical examination the claimant said he had poor memory, low energy and reduced motivation. Dr Keller expressed concern about the high levels of pain reported and the high level of disability which he though were not consistent with the mechanism of injury and effluxion of time. There was a full range of neck and lower back movements without radiculopathy.
Dr Keller was of the view the claimant could have sustained soft tissue injuries. He considered the claimant “appears elderly and deconditioned” and was unfit for work as a nursing assistant for those reasons and possibly the accident. The claimant had a 0% WPI.
In a supplementary report dated 16 March 2023, Dr Keller had watched the video, read the report of Dr Dryson and the determination of Medical Assessor Herald and considered the claimant would be fit for work on lighter duties and upgrading to work as an assistant in nursing was possible.
The insurer obtained a report from Dr McIntosh, biomechanical expert dated 23 April 2021.
Dr McIntosh had many documents including a photograph of the two vehicles after the accident and a photograph of the insured vehicle. He described some collision damage to the front, but no gross deformation, undamaged grille and headlights and no airbags deployed. The photographs of the claimant’s vehicle shows collision damage including a partially detached and deformed rear bumper cover, boot lid damage and minor damage to the quarter panels.
He says the absence of airbags provided a maximum speed as airbags are supposed to “fire” at an impact speed of more than 30kms and may fire at 20 – 30kms. Dr McIntosh expressed the view at [40] that the likely speed of the insured vehicle was 15 – 25kms per hour. He says at [85] the closing speed was not 70 kms as both vehicles would have had greater damage and the insured’s airbags would have deployed.
Dr McIntosh suggests at [89] that the claimant would have had external forces applied from the seat, floor, steering wheel and seatbelt, weight forces due to gravity and internal force which would have been low to moderate. He notes no intrusion into the vehicle and at [98] that the claimant’s injuries “are not consistent with what I consider to be the likely biomechanical forces”. While he considered it plausible a whiplash injury could have occurred, he considered it unlikely injuries beyond six months would have occurred or thoraco-lumbar injuries or shoulder injuries would have occurred.

Other assessments

Medical Assessor Jones

Medical Assessor Jones examined the claimant on 10 June 2020 by video and there is no mention of an interpreter being present. At [15] he is described as having an accent and that “English was clearly his second language.” The Medical Assessor summarised the submissions from the parties and the medical evidence.
Medical Assessor Jones has a history of the claimant living in Canberra with his wife and two sons and with his daughter in law and mother living in Nepal. The claimant said he had worked in the diplomatic corps in Nepal, worked as an assistant in Nursing in Australia and last worked when the accident occurred. The claimant denied any previous psychiatric or psychological issues and pre-existing conditions of diabetes and high blood pressure.
The claimant denied consuming drugs, alcohol or smoking cigarettes.
The claimant reported his mother was 83 years of age and in “very good” health, living in Nepal. He has not visited Nepal since 2017.
The claimant gave a history of the accident:
(a)    he was driving from Canberra to Sydney with his 82-year-old mother, his wife and his daughter-in-law;
(b)    he said he was stopping his car when he was hit from behind;
(c)    he says he was “so shocked”
(d)    the police arrived;
(e)    he was worried for his mother and “felt afraid talking about it now”;
(f)    it was “a very black day”
(g)    his back bumper was crushed, and they left the car there as it was not able to be driven;
(h)    the car took two months to be repaired;
(i)    the claimant then reported that they lived nearby, and he did not drive the car from the scene, but his wife drove him, and a tow truck came to where they were and collected the car;
(j)    he went to the doctor with head, leg and back pain. He could not sleep took pain killers and had physiotherapy in water (hydrotherapy), and
(k)    he felt isolated and frightened.
Medical Assessor Jones has a history of the claimant’s treatment including seeing a psychologist and psychiatrist and that he takes Venlaxafine, Lithium, Minipress, Quetiapine and Mirtazapine for his psychiatric symptoms and that his wife manages this for him.
The claimant reported poor sleep (better but not fully recovered), problems with driving (for more than 15 minutes) and social isolation.
The claimant reported low mood, social avoidance, general hopelessness and helplessness, anxiety (related to driving). He reported poor memory and concentration.
He said his wife helps him shower because of his shoulder and back pain. He did not cook. He said he “maintains strong and supportive relationships with his family.”
Medical Assessor Jones noted there “was a significant physical component to his reported level of dysfunction.”
Medical Assessor Jones noted “the accident did not appear to be major” but that the claimant reported shock and “significant concern for his elderly mother”. He refers to the claimant’s fluctuating condition and that his current symptoms are “low grade” as he is able to drive, read, exercise and so on.
Medical Assessor Jones diagnosed a chronic posttraumatic stress disorder in partial remission which was caused by the accident. The Medical Assessor noted no previous or subsequent accidents.

Medical Assessor Hong

On 31 March 2022 Medical Assessor Hong diagnosed a chronic posttraumatic stress disorder which he assessed at 8% WPI.
Medical Assessor Hong takes a history of no previous car accidents, no previous medical issues and no previous psychiatric illnesses.
Medical Assessor Hong takes a history of the accident as follows:
(a)    he was with his wife, his mother and his son’s wife driving from Canberra to Sydney;
(b)    they were stopped at an intersection when they were rear ended;
(c)    he heard a loud bang and “noted the other car was driving at 70 kmph”;
(d)    his mother started crying;
(e)    he hit his head;
(f)    airbags did not deploy
(g)    he did not lose consciousness
(h)    they did not go to hospital and continued with their travel;
(i)    he had headaches and shoulder pain and went to the GP;
(j)    his car was repaired, and
(k)    he has headaches, shoulder pain and back pain. Psychologically he reported “becoming bad” and that he could not sleep because of “constant nightmares.” The claimant said he drank to excess but has stopped drinking at his family’s insistence. He said he had stopped driving because of anxiety.
The claimant said he “recalled thinking that he was going to die or be seriously injured during the accident”.
The claimant was reported by the Medical Assessor as giving a coherent history. The Medical Assessor attempted cognitive assessment but did not continue this as the test results were invalid.
The claimant reported living with his wife but that he cannot do much because of his back problem. He reported difficulty with catching busses because he sees cars coming too close and thinks he could be killed. He has no problem with catching a train and goes to the library or the gallery.
The claimant said he walked but sometimes forgets the direction. Before the accident he said he used to fly back to Nepal every year, but he has not been overseas at all since the accident. He lives in Canberra and goes to the city and sometimes to Sydney.
He reports forgetting the names of his family members.
He described his routine and says he can spend time in the garden, vacuum and cook but not much. He has contact with his mother in Nepal but had not seen friends for months.
The claimant said he went back to work after the accident but was forced to resign and was terminated. He says he has not worked since.
He said he is not social and not a leader anymore whereas before he liked to socialise and was a community leader and active within the Nepalese community.
Medical Assessor Hong considered the claimant was an “unusual historian”. While he noted Dr Morris’ cognitive testing and the claimant’s inability to spell the word “world” backwards, Dr Hong noted the claimant could not spell it forwards either. He said “overall my view is that he has suffered PTSD, but I do not find him as impaired as Dr Morris has.” He was of the view the claimant no longer had an alcohol use disorder.
Medical Assessor Hong did not list the criteria according to the DSM or otherwise provide reasons for his diagnosis. He attributed the claimant’s current state to the accident noting there were no previous or subsequent accidents or injuries.
The claimant’s WPI was assessed as follows:
(a)    self-care and personal hygiene – class 2 - capable of independent living but does not eat regularly;
(b)    social and recreational activities – class 3 – he used to have an active social life but has stopped attending social gatherings;
(c)    travel – class 2 – anxious when leaving home and can get lost but goes out on his own;
(d)    social functioning – class 2 – the claimant’s relationship with his wife is strained, he no longer has contact with all his friends;
(e)    concentration – class 2 – he reports poor concentration and memory, reads for 30 minutes at a time for 60 minutes a day;
(f)    adaptation – class 4 – he has not worked since the accident and performs some duties at home but says he can only work in a low stress role.
This scores of 2, 2, 2, 2, 3, 4, translated to an 8% WPI.
The claimant’s physical injuries were the subject of an assessment by Medical Assessor Herald who on 1 July 2022 determined the claimant had a WPI of 15%. A Review Panel on

1 June 2023 revoked that certificate finding instead the claimant had a 7% impairment due to neck and right shoulder injury.
Medical Assessor Assem undertook the re-examination on behalf of the Panel noted a history of the accident which included a backwards then forwards motion and then a lateral motion causing the claimant’s right shoulder to hit the driver’s door.
Medical Assessor Assem asked the claimant about the surveillance and Facebook material and the claimant said he helps his wife and son with their businesses.
In relation to consistency Medical Assessor Assem stated:
“His movements were slow, purposeful and accompanied by pain behaviour. The marked restrictions observed were disproportionate with the nature of the injury or the pathology identified on radiological imaging and inconsistent with the range observed by other medical examiners. Some of Waddell’s signs were positive with pain on simulated rotation, inconsistencies in straight leg raising and global weakness.”
Although he was inconsistent in his movements, the Panel gave the claimant the benefit of the doubt and awarded him DRE Category II (5%) on the basis of asymmetry of cervical spine movement.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS RIKARD-BELL AND BAKER

The claimant attended the re-examination on 4 April 2025. The examination was conducted by MS teams. The connection was good throughout the re-examination which took approximately one and a half hours.
The claimant was asked whether he required assistance with English. He said he did not require an interpreter. Mr Dhungel spoke English well, although with an accent. At no stage during the re-examination did the Panel have any communication difficulties with him.

History provided by the claimant

Psychosocial History and Pre-Accident Functioning

Mr Rajan Dhungel is a 57-year-old man who resides with his wife, who is aged 52, and works in community care. He is one of eight siblings. He has two adult sons, both married and his eldest son has two children, aged six and two.
Mr Dhungel said he had worked for the Nepalese government as a “foreign diplomat” and immediately before the accident worked with BUPA as an assistant in nursing in Canberra. He further explained that before the accident, he had worked in a clerical role at the Nepalese embassy in Canberra processing applications from Australians for Nepalese visas from 2007 to 2010. He had to leave Australia before returning in 2011 having been sponsored by his wife who remained here. He considered purchasing a bakery franchise, and worked at Bakers Delight from his return to Australia until 2013. He then started work as an assistant in nursing from 2013 until the motor vehicle accident. He was not clear about why he left the embassy, but we understood his contract came to an end and he led us to believe he was disappointed to have not found a role in keeping with his prior role in the embassy. He did however remain involved with the Nepalese community becoming an office bearer in a Nepalese Association according to reports made to Dr Ali.
Mr Dhungel said before the accident the enjoyed playing football, handball and spending time with his dog.

Past Medical History

Mr Dhungel denied any serious physical illnesses, injuries or conditions before the accident. His records indicated diabetes, high blood pressure and prostate issues. He denied any family history of psychiatric illnesses and no drug or alcohol issues.
Mr Dhungel listed his current medication as Nurofen, Panadol (for pain), Lithium (for his depressive disorder), Prazosin (for high blood pressure), Atenolol (also for high blood pressure), Metformin (for diabetes) and Quetiapine (for his depressive disorder). He said he may also take Mobic for stomach symptoms. We note that Meloxicam (Mobic) is an anti-inflammatory drug usually prescribed for pain.

Past Psychiatric History

Mr Dhungel denied any pre-accident history of anxiety or depression or any need for treatment (including medication) from mental health care providers. We note there are no records suggesting any pre-accident mental health issues.

Past Forensic History

Mr Dhungel denied any history of motor vehicle accidents, Workers’ Compensation claims, insurance claims or legal issues before the accident. We note there are no records to suggest any such claims or issues in the material before us.

History of the Accident

On 15 March 2018 Mr Dhungel was involved in a motor vehicle accident travelling from Canberra to Sydney as the driver of a 2015 Nissan with his wife in the front passenger seat and his elderly, in the rear seat behind him. His daughter-in-law was in the rear passenger side seat.
Mr Dhungel said he was stopped at the traffic lights when he heard a loud thud and felt an impact which he described as being “forcefully rear-ended”. He had no warning of the collision and did not see the approaching vehicle. His mother screamed out including the words “Oh no, kill me.” Mr Dhungel was particularly concerned about his mother as she was in her 80s, and they were both very anxious and scared. His wife was less scared, and his daughter-in-law was not affected.
He described the damage saying that the boot and boot lid were damaged, as well as the rear bumper bar and a taillight. We suggested to him that the damage was approximately $6,000 and he said the insurance company paid for repairs.
Mr Dhungel no longer has the vehicle as his son now uses it, and his wife drives a red Toyota Yaris.
Mr Dhungel explained he was extremely shocked, and an ambulance arrived, however they all declined treatment and drove to a nephew’s home who lived nearby. Mr Dhungel said he was so shocked he was unable to exchange details with the other driver and his wife took control of the situation. He said his wife did not want anyone to go to hospital. She directed him to stay with his mother and they caught a taxi to his nephew’s home. His wife and daughter drove the car there later.
Mr Dhungel thought he may have suffered a brief loss of consciousness and said, “My head hit the steering wheel.” We note that there have been a variety of histories provided but that the claimant told the first doctor he saw (at Rouse Hill) that he had not loss of consciousness. Mr Dhungel was vague and said he could not recall whether the airbags deployed, and he could not estimate how fast the other vehicle was travelling, but he felt the impact was “forceful”. After his wife drove a few kilometres to his nephew’s house she arranged for a tow truck to collect it for repairs which occurred either later that day or the following day. He was vague and he could not recall which. We note it is now seven years since the accident.

History of symptoms and treatment after the accident

Mr Dhungel said he had no particular pain or obvious injuries immediately after the accident and was able to get out of the car and walk around with his wife. He did not seek immediate medical treatment.
Following the accident, Mr Dhungel was particularly concerned about his mother and became tearful when talking about her potential injuries and possible death. Even though he knows she recovered fully, he still worries about the impact of the accident on her health and his role in this.
The accident occurred at about 11.15am and Mr Dhungel said by the evening, he was experiencing pain in his left knee, neck, right shoulder and lower back. Mr Dhungel says he consulted a GP in Sydney the following day, and then his GP in Canberra who referred him for physiotherapy and hydrotherapy, which continued for several months.
Mr Dhungel says he has suffered significant pain since the motor vehicle accident, with pain in his left knee fluctuating from 6-9/10, where 10 is the maximum pain. Pain in his neck ranges from 8-9/10, right shoulder 7-8/10 and lower back 6-7/10.
He says the pain interferes with sleep and he takes Nurofen and Panadol to relieve pain.
Mr Dhungel says he has been unable to work after the accident as his job involved the heavy lifting of patients. He attempted to return to work six months later but was only able to work for a few hours.
The history indicated psychological treatment with Ms Jafri on a monthly basis, as well as with Dr Ali, psychiatrist.
He said that after the accident, there has been a lot of anger, directed towards his family which has gradually improved and has been replaced with “depression”. He said his sons moved out of the family home largely due to his anger.

Consistency

The claimant has given inconsistent histories concerning his state of consciousness after the accident. The claimant described being very shocked and he did not describe the medical condition of loss of consciousness. He has also given different histories from time to time about whether the car was driven or towed away who drove it and when. The claimant gave a clear history to us of being shocked and confused and that he caught a taxi to his nephew’s home with his mother and his wife followed in the car and it was towed from there.
We asked Mr Dhungel about the private investigation footage of him driving, travelling, walking the dog and taking out the rubbish. Mr Dhungel responded, stating he did not hide anything and that the observations and factual information in the reports were true, however, they did not change how he feels or has felt.
Mr Dhungel admitted that he had not told his psychologist the truth about the extent of his driving in 2019 and that he was able to drive when he told her he was not driving but that he could only drive locally for short distances in the local area.
We also asked him about the Facebook and social media posts, and he accepted he does engage with social media but says it is not often.
We asked Mr Dhungel about his involvement with the HBG and he stated he does not have a major role with HBG, as his nephew and son run it. He stated his name is associated with the group and is used by them as he is a respected elder within the community. Mr Dhungel explained that he went with his son to the premises of the HBG and maintained a connection with that group but that he did not go there every day and was not the manager and did not work there. He participates in some of their events because he wants to maintain his position within the Nepalese community and help his family.
Mr Dhungel’s said he had read the medical and medico-legal reports and did not agree with what had been said about him in some of the reports. He said that his treatment relationship with his psychologist was suddenly stopped when rapport was broken over the driving issue.

Current Status

Current Symptoms

Mr Dhungel stated that, since the accident, he has had increased anxiety with driving and while he concedes he can drive he says he prefers to drive only short distances. In addition, he said he has increased anxiety with perceived danger. He said he was unsure if the other driver intentionally caused the accident, however, he suggested there was some deliberate intention on his part. The Panel asked Mr Dhungel whether he felt threatened by the other driver and whether he felt frightened, however, Mr Dhungel said there was no indication that the other driver would target him. In the seven years since the accident, the claimant has had no further contact from the other driver.
Mr Dhungel said he has difficulty getting to sleep which he attributes to his psychological state, and he also has pain at night that interferes with his sleep. He said he has nightmares about death and car accidents.
Mr Dhungel says his concentration is reduced somewhat but he did not complain about being forgetful. He participated in the one-and-a-half-hour re-examination with no issues. He said his weight has fluctuated a little, however, there has been no major change.
He said he has continued psychological and psychiatric treatment with varying clinicians. He had desensitisation treatment with Ms Khan soon after the accident to increase confidence when driving.
He says he has palpitations and sweating when he is travelling near other vehicles. He says he has panic symptoms when in the car and he is avoidant of travelling generally. He says he does not enjoy socialising and avoids interacting with others and of social events.
Mr Dhungel worries about the future, his health and in particular his mother’s health, who is now 87 years old.
In terms of pain, Mr Dhungel stated that his physical symptoms of pain are often worse in the evenings, and he finds it difficult to stand and use the toilet at night. Physiotherapy and hydrotherapy treatment have been helpful but have not resolved his pain levels. He reports low energy, difficulty enjoying himself and he feels pessimistic about the future. He denied suicidal feelings and denied hallucinations or delusional ideas.

Current Routine

Mr Dhungel says he wakes, showers and gets dressed. His wife helps him if he is in pain. In the evenings, Mr Dhungel tries to relax and listens to music for two hours. He will meditate and visit a Buddhist temple on weekends and is interested in the Sita technique to achieve calmness.
During the day he spends time in the garden which he waters and he does spend time and play with his grandchildren, however, he finds it difficult to enjoy his time with them as they cause him some distress. He could not elaborate further on this.
He says he feels tired during the day and has limited energy, but he will go for a walk with his wife and the dog once or twice per day. His wife drives him to appointments with the psychologist, psychiatrist and general practitioner, or there are telehealth consultations to be attended. He goes shopping with his wife regularly and will sometimes accompany her on outings.
He is able to drive for short distances but has lost a lot of confidence with long distance driving.
Mr Dhungel eats Indian food such as dhal and he helps his wife cut vegetables and prepare the evening meal. In the evening, he stays at home with his wife, and they watch videos or television together.

Clinical examination - Mental State Examination

Mr Dhungel was at home on video and presented as a man of stated age who was balding, unshaven and wearing glasses. He was casually dressed in a flannel shirt and appeared a little unkempt. At times through the re-examination, he stood and moved around due to pain, however, he engaged with the interview process throughout. He was pleasant and cooperative, although at times he was unclear in his speech mumbling his words slightly.
His tone was normal in volume. There was no abnormality of perception. Mr Dhungel’s affect was depressed and there was little reactivity. On testing, his cognitive function was normal, and his thoughts were logical. There was no evidence of psychosis or thought disorder. He appeared to have normal insight and judgment.
Mr Dhungel said he still had intrusive depressive ruminations about hearing his mother screaming out “Oh no, kill me.” Mr Dhungel reported he felt overly responsible for placing his elderly mother in the path of danger. While he has regular contact with her, he has not been able to travel to Nepal since the accident and said he was therefore unable to re-assure himself about his mother’s mental health since she had left Australia. He said he was told that she was well however he was unable to stop his excessive intrusive depressive rumination that he had total responsibility for his mother’s safety while she was with him and he had failed in his relationship of a son to his mother.
Mr Dhungel continues to remain inappropriately guilt ridden as he was the driver of the car carrying his elderly mother and other family members. The claimant’s fears for his mother’s safety and health are mentioned in the reports of other examiners but this was a significant and persistent feature of our examination of the claimant.
It is our view Mr Dhungel’s depressed mood and depressive rumination, and inappropriate guilt are part of his depressive disorder which began from the time of the accident. It is our clinical judgment, based on years of experience, that with some cultural groups the resolution of harm done to an important primary relationship between son and an elderly mother cannot be satisfactorily repaired. From this cultural perspective, Mr Dhungel’s clinical presentation is, in our view, consistent with an ongoing depressive disorder.

CONSIDERATION OF THE ISSUES – THE PANEL

Causation – could the accident have caused or materially contributed to a psychological or psychiatric injury?

Before the accident Mr Dhungel was a well man who was able to maintain an independent lifestyle. He was employed and was able to support his wife and children. He had a strong and supportive relationship with his mother. Mr Dhungel’s mother was present in the car at the time of the motor accident.
Mr Dhungel’s motor vehicle accident on 15 March 2018 was a rear-end collision while he was at traffic lights, causing damage to the rear bumper bar and boot. Mr Dhungel had experienced his mother crying out at the time of the motor accident.
The test of causation posed in the Guidelines[16] requires the Panel to consider:
(a) whether the motor accident could have caused or contributed to the injury, which is a medical determination, and
(b) whether the motor accident did cause or contribute to the injury which is a non-medical determination.
[16] Clauses 6.5 – 6.7.
The Panel has considered the history given by the claimant, the statement of the insured driver, the property damage file, the photographs of the cars and the police report.
The Panel accepts that the rear end impact was sudden and unexpected. The claimant did not see the approaching vehicle and did not anticipate the collision. The Medical Assessors accept that those circumstances could have caused or materially contributed to an anxiety-based disorder.
The Medical Assessors note that Dr McIntosh has provided a report in respect of causation of the claimant’s physical injuries. He was of the view the claimant could have sustained some physical injury to his neck causing possible impairment in the shoulders, but that lumbar spine injury and serious injury generally was unlikely. He accepts he is not qualified to comment on psychological or psychiatric injuries.
While the clamant sustain fractures or other significant injuries such as the rupture of soft tissues in his shoulder, he has consistently complained of severe and unremitting pain in the seven years since the accident. The current Review Panel notes that the claimant’s physical injuries have been assessed by Medical Assessors of the Commission and Mr Dhungel has been diagnosed with soft tissue injuries (neck, lower back) and an impingement syndrome in the right shoulder. Medical Assessor Herald was of the view the claimant had a chronic pain syndrome. The Panel in the review of that assessment certified that the claimant has a current symptomatic permanent impairment as a result of his injuries.
In the circumstances, the Medical Assessors accept that the motor accident could have caused or materially contributed to the development of a depressive-based disorder.
The question remains, whether the accident did cause or contribute to the development of a psychological or psychiatric injury which requires a factual judgment from the Panel.

Did the accident cause a psychological or psychiatric injury?

The insurer has submitted at length about the inconsistencies in the claimant’s presentation to medical assessors, other examiners and his treatment providers. The insurer has provided surveillance material and social media extracts and records and reports from the claimant’s treatment providers to suggest that the claimant does not have a psychiatric or psychological injury. The claimant himself conceded he had not told the truth to Ms Khan. All of the material casts doubt in the Panel’s mind as to the accuracy of the histories given to Medical Assessors Baker and Rikard-Bell at the re-examination.
The then Chief Justice of the Common Law Division of the Supreme Court of NSW in Allianz Australia Insurance Limited v Mackenzie and Ors[17] said at [43]:
“In accordance with the requirement in Wingfoot at [55], I am of the opinion that the Review Panel's Statement of Reasons explains the path of its reasoning in sufficient detail to enable a court to see whether the opinion did or did not involve an error of law. I agree with the first defendant that the function of the Review Panel was neither arbitral nor adjudicative and that it was not necessary for it to choose between competing arguments, nor to opine on the correctness of other opinions on a medical question. Its function was to form and give its own opinion as to the medical questions referred to it by applying its own medical experience and its own medical expertise (Wingfoot at [47]). This is what it did. In doing so, it sufficiently set out its reasoning process.” [emphasis added]
[17] [2014] NSWSC 67.
The claimant has responded to some of the insurer’s material by providing his own statement and a statement from someone at the HBG. The claimant has been taken by Medical Assessors Baker and Rikard-Bell to the major aspects of the insurer’s challenge to his histories. The Panel accepts that not every inconsistency has been put to the claimant, as time did not permit it.
Justice Hoeben cited the decision of Wingfoot which is often relied on in arguments relevant to the sufficiency or adequacy of reasons. But the passage highlighted above is also important for its summary of the function of a Review Panel such as the present Panel. These are not curial proceedings where the Medical Assessors take evidence from witnesses (such as the insured driver or personnel from the HBG) or where it would be appropriate to cross-examines the claimant. The Panel is not arbitrating or adjudicating a dispute but providing a medically expert opinion as to the medical assessment matter before it taking into account all of the material, the claimant’s history and where the Medical Assessors apply their clinical judgment in diagnosing the claimant’s presentation.
The Panel has formed a clear view that the claimant has exaggerated the extent of his physical and mental health issues at times during the course of his claim and has exaggerated aspects of his claim to the Medical Assessors of this Panel including his ability and capacity to function.
However, the Panel is of the opinion that the claimant was physically injured (on the basis of contemporaneous complaints and the other Panel’s findings) and based on the clinical judgment and medical expertise of the Medical Assessors has also developed psychological symptoms. The Panel is therefore satisfied that the claimant did sustain a psychological or psychiatric injury as a result of the accident.

Diagnosis and Reasons

Two Review Panels in David v Allianz Australia Insurance Ltd[18] and Lynch held that whether the claimant has symptoms of a threshold or non-threshold injury on the day of any re-examination by a Panel is only one part of the assessment. The Panels found in those two cases that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have sustained a non-threshold injury regardless of the state of the injury (healed, recovered or in remission) at the time the Panel undertakes its assessment. The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.
[18] 2021 NSWPICMP 227.
Medical Assessors Baker and Rikard Bell agree that:
“[232.1] There is no evidence of any pre-existing mental health condition, however it is our clinical judgment that the stressors of immigration on an immigrant can produce unique and unexpected vulnerabilities. Mr Dhungel’s employment at the embassy ceased and he had to return to Nepal before returning again to Australia permanently. He attempted to adapt by looking for other roles and volunteered in the community. He was unable to find an adequate career substitute after he ceased working at the Nepalese embassy but maintained his connection with a Nepalese association.
[232.2] He was then involved in the motor accident and was unable to keep his elderly mother safe whilst he was a driver. He feels unable to repair the harm to the relationship between him and his mother. The incapacity of Mr Dhungel immediately after the motor accident demonstrated to us an important aspect of the psychological injury. This happened at the time of the motor accident and remained at the time of this re-examination and is what has triggered a depressive disorder.
[232.3] It is our clinical judgment that the motor accident has had a more than negligible contribution to the initial onset of his depressive disorder.”
Medical Assessors Baker and Rikard-Bell are of the view that the claimant’s condition has improved since the onset of this disorder and observes that seven years after the accident Mr Dhungel has returned to a limited form of driving, he is in the garden, helps his wife with the cooking and shopping and is able to engage with the Nepalese community although in a more limited role.
While WPI has been assessed by others and this Panel was not tasked with revisiting that medical assessment matter, the Panel’s view is that, on his current presentation, it is unlikely the claimant would have a degree of WPI greater than 10%.

Post traumatic stress disorder

Medical Assessor Hong diagnosed a chronic posttraumatic stress disorder (in partial remission) with associated mood symptoms in June 2020. The Panel considered whether the claimant should be diagnosed with a posttraumatic stress disorder.
Medical Assessors Baker and Rikard-Bell say:
“[236.1]The accident was sudden. The claimant was not aware of immediate injury to himself although he was worried about his mother’s health and wellbeing and the possible risk of her health being jeopardised by the motor vehicle accident.
[236.2] In our clinical judgment, we are not of the view that Criterion A is satisfied. Criterion A of DSM-5-TR requires there to be “exposure to actual or threatened death, serious injury or sexual violence …” The commentary (at page 305 of the Manual) explains there must be a traumatic event and gives as examples, exposure to war, terrorist attacks, torture and “severe motor accidents.”
[236.3] We are of the view the claimant’s accident was not “severe”. While emergency services attended the damage done to the vehicles was not great, no-one was taken to hospital and Mr Dhungel went to see a doctor the next day. The claimant was walking around the scene afterwards and both cars were driven away from the scene.”
As the accident was not a “severe” accident and where death or serious injury did not occur and was not threatened to any of the occupants of the vehicle within the meaning of DSM-5-TR, the Panel is not satisfied that at any time since the accident Criterion A would have been satisfied and that therefore at no stage has the claimant satisfied the criteria for a diagnosis of posttraumatic stress disorder.

Major Depressive Disorder

Medical Assessor Nagesh diagnosed a Major Depressive Disorder in 2023 and therefore the Panel has considered this disorder. DSM-5-TR sets out at page 183, the criteria required for a claimant to meet this diagnosis
Medical Assessors Baker and Rikard-Bell say:
“[239.1] Criterion A requires five or more of the following symptoms to have been present for the same two-week period and that at least one of them is either a depressed mood or loss of interest or pleasure:
(a)    depressed mood most of the day, nearly every day as indicated by either subjective report or observation by others;
(b)    markedly diminished interest or pleasure in all or almost all, or almost all, activities most of the day, nearly every say as indicated by either subjective account or observation;
(c)    significant weight loss when not dieting or weight gain, or impact on appetite;
(d)    insomnia or hypersomnia nearly every day;
(e)    psychomotor agitation or retardation nearly every day (as observed by others);
(f)    fatigue or loss of energy nearly every day;
(g)    feelings of worthlessness or excessive or inappropriate guilt nearly every day;
(h)    diminished ability to think or concentrate or indecisiveness, nearly every day, and
(i)    recurrent thoughts about death.
[239.2] While his engagement with the HBG and his current stated level of function suggests Mr Dhungel does not have a depressed mood most of the day nearly every day, it is our clinical judgment that he has markedly diminished interest or pleasure in most things. In Mr Dhungel’s case he reported it was difficult (but not impossible) for him to get into a car (and drive short distances) and says he is unable to enjoy his role as a grandparent (criterion A(b)). He has had difficulty getting to sleep and would often have bad dreams (Criterion A(d)). He is tired and lacks energy (Criterion A(f)). He continues to have feelings of hopelessness and helplessness and feels guilt and a failure particularly about not being protective enough of his mother (Criterion A(g)). He reports some difficulties with concentration (Criterion A(h)).
[292.3] Criterion B require the claimant’s mental health symptoms to cause “clinically significant distress or impairment in social, occupational, or other important areas of functioning”. This does not require the claimant to have clinically significant distress or impairment in social and occupational and other areas. In Mr Dhungel’s case, we are not satisfied that he has significant accident-related distress or impairment relating to his occupation however there is evidence of distress and impairment in his social function. He no longer has as active a social life as he did before the accident, and he has reduced the level of his attendance at social gatherings. He says his relationship with his wife is strained and he no longer has contact with all of his friends.
[292.4] Criterion C states that the depressive episode (or condition) is not attributable to the physiological effects of a substance or other physical condition. Mr Dhungel has no substance use disorder. He has physical injuries that other Medical Assessors have said result in a permanent impairment which Mr Dhungel says includes pain. We have been careful to not include pain or the effect of pain in our diagnosis.
[292.5] Criterion D says that at least one major depressive episode is not better explained by schizophrenia or other psychotic disorders. This is not relevant as Mr Dhungel has at no stage since the accident had any psychotic or schizoid disorder;
[292.6] Criterion E requires there to have been no episodes of mania or hypomania. In none of the histories given by the claimant has he indicated any episode of mania or hypomania.”

IS THE CLAIMANT’S INJURY A THRESHOLD INJURY?

Clause 4 (2) of the Regulation provides that a psychological or psychiatric injury is a threshold injury if it is an acute stress disorder or an adjustment disorder.
As the Medical Assessors have diagnosed the claimant to have sustained a Major Depressive Disorder in accordance with DSM-5-TR as a result of the accident, the Panel is satisfied that the claimant has a non-threshold injury.
As the Panel has arrived at the same conclusion as Medical Assessor Nagesh, it follows that his certificate should be affirmed.

[2025] NSWPICMP 309

6 May 2025