AAI Limited t/as GIO v Samarae

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Samarae [2025] NSWPICMP 109
CLAIMANT:	Ali Al Samarae
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	20 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; dispute about whether degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%; where Medical Assessor certified that post-traumatic stress disorder and major depressive disorder caused by the accident gave rise to a permanent impairment of 14%; Held – the claimant developed a somatic symptom disorder and an adjustment disorder with mixed anxiety and depressed mood as result of the accident; adjustment disorder with mixed anxiety and depressed mood gave rise to a 7% permanent impairment; Medical Assessment Certificate revoked and new certificate issued certifying that the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Nagesh dated 26 July 2023 and certifies that: · the claimant’s permanent impairment that has resulted from adjustment disorder with mixed anxiety and depressed mood caused by the motor accident is 7%, and · the claimant’s permanent impairment that has resulted from adjustment disorder with mixed anxiety and depressed mood caused by the motor accident is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Ali Al Samarae (claimant) was injured in a motor accident at Warwick Farm on

15 September 2018 (accident). Following the accident, he made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer). Liability for the claim has been admitted.
A dispute arose between the parties about whether the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%. The dispute is about a medical assessment matter and is a medical dispute: Sch 2 cl 2(a) and s 7.17 MAI Act.
The dispute was referred to Medical Assessor Nagesh for assessment. The Medical Assessor certified that post-traumatic stress disorder and major depressive disorder caused by the accident gave rise to a permanent impairment of 14%, and that the permanent impairment was greater than 10% (Assessment).
The insurer subsequently made an application under s 7.26 of the MAI Act for referral of the Assessment to a review panel. The President’s delegate subsequently found that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and referred the application to this Review Panel. The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020. The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, apply to the Review.

DIRECTIONS

On 25 June 2024 the Panel directed the parties to provide a joint bundle and submissions. The insurer subsequently lodged a joint bundle, and both parties provided written submissions. On 16 August 2024 the claimant’s solicitors confirmed that the bundle contained all the evidence upon which the claimant relies in the Review.
The Panel convened on 25 September 2024 and determined that re-examination of the claimant was required. The parties were informed that the examination would take place by MS Teams on 28 November 2024.

STATUTORY FRAMEWORK

No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%: s 4.11 MAI Act.
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1)     The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2)     Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3)     In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Psychiatric impairment caused by mental and behavioural disorders is assessed in accordance with cls [6.201]-[6.228] of the Guidelines: cl 6.35.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to 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 a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

ASSESSMENT UNDER REVIEW

Medical Assessor Nagesh gave a certificate and reasons dated 26 July 2023. The Medical Assessor certified that as a result of post-traumatic stress disorder and major depressive disorder that were caused by the accident the claimant had a permanent impairment of 14%, and that the impairment was greater than 10%.
The claimant described the accident involving him being rear-ended by a car when he was stationary at a set of traffic lights on his motorcycle. He was subsequently taken to Liverpool Hospital where he was admitted for two days. He reported injuries to his shoulder, neck, both knees, and back, and that he noticed psychological symptoms a week or two after the accident when he was in pain and could not sleep. He reported that the pain affected his mood, that he started having nightmares about the accident, experienced flashbacks, stopped driving, and became socially withdrawn. His concentration diminished, he was not eating well, was irritable, anxious and tired the majority of the time. He was commenced on anti-depressant medication, and referred to a psychologist whom he has seen for “a couple of years”.
The Medical Assessor recorded that the claimant had been unemployed for the previous four years, and was receiving Centrelink benefits. The claimant denied suffering from any mental illness prior to the accident. The Medical Assessor raised with the claimant that a diagnosis of post-traumatic stress disorder and major depressive disorder was made “stemming from” a motor accident in 2004.[1] His response was that he “probably did suffer but he could not remember”. The claimant reported that prior to the accident “life was perfectly fine”; he was able to drive, had no problems travelling, was living independently, his self-care “was not a problem”, and he was working three days a week as a truck driver.
[1] This date is likely a typographical error. The Panel infers that the correct date is 2014.
The Medical Assessor determined that as a result of the accident the claimant exacerbated pre-existing post-traumatic stress disorder and major depressive disorder, conditions that stemmed from a 2014 motor accident. He found that the post-traumatic stress disorder and major depressive disorder were in remission at the time of the accident. The Medical Assessor assessed a pre-existing impairment of 1%, and a current impairment of 15%. The degree of permanent impairment caused by the accident was determined to be 14%.

EVIDENCE

The evidence relied on by the parties for the purposes of the Review is contained in a joint bundle that was lodged in accordance with directions made by the Panel on 25 June 2024. The Panel has considered all the material in the joint bundle.

Documents related to the 2014 claim

A claim form[2] records that the claimant was involved in an accident at Fairfield on

15 April 2014, and that he was the driver of a vehicle that was struck from behind at “a very high speed” by another vehicle. The claim form records that he suffered injury to his neck, both shoulders, lower back, chest, shock, and internal injuries and that he experienced “constant pain, restriction of movement, anxiety/depression”. The claim form records that the claimant had a prior injury to his back in 2011. In response to the question “What was your employment situation before the accident?” the claimant ticked the box “Not Working”. He ticked the box “No” in response to the following questions: “Have you lost income because of the accident?” and “Before the accident, had you made any firm arrangements to start a new job, stop work, change your duties, working hours or earnings?”.
[2] Undated but date stamped as received by “GIO CTP Claims, NSW” on 11 August 2014.
Medical Assessor Baker gave a certificate dated 16 July 2015 in which he certified that adjustment disorder with mixed anxiety and depressed mood that was caused by the accident on 15 April 2014 gave rise to a permanent impairment that was not greater than 10%.
In his reasons, the Medical Assessor recorded that the claimant had served in the Iraqi armed forces, but did not “see any fighting at the front”. He was deployed with the army engineers driving water trucks to villages and farmers outside the city, and was responsible for repairing and mechanically maintaining the vehicles he was given to use. The claimant reported not sustaining any psychological or physical injuries during his service. He immigrated to Australia in 1999, traveling by boat to Christmas Island where he remained for about a year. He was then moved to Woomera, and after a further 12 months was released from detention. He then settled in Sydney in Department of Housing accommodation. He worked as a truck driver. The claimant reported that he was being treated for hypertension, diabetes, hypercholesterolemia and heart disease prior to the accident.
The claimant reported that his wife separated from him about two years prior to the accident. He said that prior to the accident he was independent in all activities of daily living, self-care, and personal hygiene. He was able to travel anywhere he chose, both locally and internationally, and had no trouble working part-time, three days a week, as a truck driver within Sydney. He had no difficulty with concentration. The claimant reported that he had considered changing his driving career to working as a bus driver, and had commenced training to do so prior to the accident.
Medical Assessor Baker recorded a history that the claimant developed a range of psychiatric symptoms after the accident as his level of function had failed to return to “its pre-injury condition”. He was prescribed anti-depressant medication, and had been referred to a clinical psychologist for treatment.
The Medical Assessor described the claimant as being “irritable and sullen throughout the assessment”. He reported frustration and was depressed in his mood. He had poor sleep and low energy, was not interested in socialising with anyone, and was anxious about returning to drive on Sydney roads. His concentration was poor, he no longer enjoyed reading, and had difficulty concentrating. He would not travel by motor vehicle alone, and reported that his pain restricted his capacity for employment. In the Medical Assessor’s opinion, the claimant would struggle to re-skill and find a less stressful work role. His psychiatric symptoms would result in him being erratic and he was not able to work more than “about 20 hours” a fortnight. The Medical Assessor diagnosed adjustment disorder with mixed anxiety and depressed mood that was caused by the accident. The Medical Assessor assessed a permanent impairment of 7%.
A “Discharge Referral Powernote” records that X-rays of both knees and lumbar spine were “NAD”. The neck and thoracic spine were clinically and radiologically cleared by CT. Chest and sternum pain had “self-resolved” and there was no residual tenderness to palpation. The discharge plan was “Discharge home” with simple analgesia for pain relief. A cervical spine CT incorporated into the note provides the following clinical information: “MVA high speed. Long extraction time. The C spine tenderness”. The findings recorded in the reports related to the CT cervical spine and thoracic aortogram, and X-ray lumbar spine have been considered by the Panel, as have the left shoulder ultrasound, the X-ray right and left shoulder report dated 14 July 2014, and the 18 June 2014 CT lumbar spine report.
Dr Guirgis, orthopaedic surgeon, reported on 3 February 2015. The doctor recorded a history of the claimant being involved in a motor accident in 2014. He was taken to Fairfield Hospital and then transferred to Liverpool Hospital. He continued to report pain in his neck, left shoulder, mid and lower back. In the doctor’s opinion, the claimant suffered injuries to his cervical spine, both shoulders, and lumbar spine as a result of the accident. Surgical treatment was not indicated. The claimant needed help around the home with heavier chores. The doctor assessed a 5% impairment of the cervical spine, 6% impairment of both the right and left shoulder, and a 5% impairment of the lumbar spine, resulting in a 20% impairment.
Dr Akkerman, consultant psychiatrist, reported on 29 April 2015. The doctor recorded a history of the 2014 accident, and injuries to the claimant’s neck, shoulder, back and chest that caused ongoing problems. The claimant reported that he had a psychological condition, and that some of the symptoms started “straight away”. The doctor recorded a range of symptoms that included irritability, reduced appetite, being scared in the car, not going out, not seeing friends as often, insomnia, reduced concentration and short term memory, low energy, avoidance, nightmares, flashbacks, and hypervigilance. The claimant reported that he had not had any physical treatment because he has been “concentrating on the physical side”. The report states that the claimant was born in Fiji. It is also recorded that the claimant was a director of a company that recycled tyres, that he had been “doing this for 18 months”, and struggled working full time. The claimant was described as being a “man of Indian appearance”. The Panel considers it likely that the individual referred to by the doctor is not the claimant; he was born in Iraq not Fiji, and there is no other history of the claimant being the director of a company that recycles tyres. Because of this, the Panel is not satisfied that the diagnosis made by the doctor (post-traumatic stress disorder and major depression) relates to the claimant. Nor is the Panel satisfied that the assessment of permanent impairment made by Dr Akkerman (17%) relates to the claimant.

Medico-legal reports – 2018 accident

Dr Vickery, psychiatrist, reported to the insurer on 26 November 2021. The doctor took a history that the claimant has been self-employed as a truck driver two days a week from 2018- 2021. There was a prior motor accident in 2014. The claimant reported continuing pain in his neck and right shoulder following the 2018 accident, together with disturbed sleep due to pain, reduced social interaction and loss of motivation, and forgetfulness. He had been prescribed anti-depressant medication, and referred for psychological counselling.
The claimant reported being frustrated, distressed and emotional when discussing his life since his marital separation. His history and presentation were consistent. It was difficult for him to relate a “coherent and chronological history”. The doctor diagnosed pre-existing somatic symptom disorder. The treatment the claimant had been provided was due to the pre-existing injuries. There was no psychiatric incapacity to undertake pre-accident home duties or employment due to the accident. The doctor assessed a 24% impairment that was pre-existing. There was a post-accident impairment of 19%. The accident did not give rise to any permanent impairment.
Dr Rimmer, orthopaedic surgeon, reported to the insurer on 24 January 2022. The claimant reported injuries to his right shoulder and cervical spine as a result of the accident. The claimant reported that he injured his cervical and lumbar spine in the 2014 accident, and that he made a complete recovery. He reported pain in his cervical spine and right shoulder. He last worked as a truck driver in 2016. The reasons for ceasing were “extremely vague”. Examination of the cervical spine and right shoulder were “completely normal”. The doctor diagnosed musculoskeletal strain of the cervical spine, from which the claimant had recovered, and soft tissue injury of the right shoulder that had resolved. In the doctor’s opinion the claimant had completely recovered from the accident. There were no disabilities as a result of the accident caused injuries. In the doctor’s opinion, from a physical perspective there was no reason why the claimant could not return to work as a full time truck driver. There was no permanent impairment.

Clinical notes and material from treatment providers

Records from Dr Said’s practice

The Panel has considered the clinical records of Dr Said that include the claimant’s progress notes. The notes include references to the following:
16 August 2011         back pain - limitation of movement
2 September 2011     CT of the back lumbar disc bulging referred to Dr Darwish
16 August 2017         lumbar back pain - limitation of movement
19 September 2017   exacerbation of back pain – pain radiating to both legs
10 January 2018       fall on left knee – pain, tenderness, mild limitation of
movement
29 January 2018       trauma to right elbow, pain, swelling, and tenderness
17 September 2018   motor bike accident 15/9/2018 – bilateral shoulder pain and  limitation in movement, right hip pain
24 September 2018   lower back pain since accident limitation of movement
21 December 2018    reason for contact: depression, constipation, neuropathy
28 February 2019     motorbike accident 5 months ago. Left shoulder pain for 2  months. Restricted ROM
4 March 2019           discuss left shoulder ultrasound. Has supraspinatus tendonitis  and tear. Advised to avoid heavy lifting and repetitive  movements
20 March 2019          prescriptions printed – Viagra tablet
24 April 2019             pain in right shoulder and right ankle, fall
6 May 2019               right shoulder and right ankle pain
7 May 2019               review ultrasound right shoulder – full thickness tear
24 June 2019            bilateral shoulder pain
4 July 2019              back pain
11 March 2020          pain in right shoulder
20 March 2020          review left shoulder ultrasound – tendonitis
17 April 2020            prescription added Sildenafil 1 hour before sexual activity
13 May 2020            pain in left shoulder
15 May 2020             Sildenafil tablet
25 May 2020             right shoulder pain exacerbation, back pain exacerbation
7 July 2020                diabetes review. Psych: normal sleep. No early morning  waking. Normal mood. Normal self esteem. No irrational  fears. No panic attacks. No compulsive behaviours. No  delusions. No hallucinations. No suicidal thoughts. No  substance abuse.
8 July 2020                Psych: normal sleep. No early morning  waking. Normal mood. Normal self esteem. No irrational  fears. No panic attacks. No compulsive behaviours. No  delusions. No hallucinations. No suicidal thoughts. No  substance abuse
3 August 2020           shoulder pain, back pain. Psych as above
28 August 2020         2 days ago was on holiday hunting. Fell on ground. Injury  right little finger, right calf pain, some scratches left side
29 August 2020         bandaged right calf. Swelling stable. Walking painful
4 September 2020     Psych as above
17 October 2020       Housing problem created by neighbours. Traumatised.  Bullied. Spied on. Depression with anxiety. Difficult coping  mentally and physically with current housing. Psych: poor  sleep. Early morning waking. Depressed mood. Low self  esteem. Panic attacks.
7 November 2020     Psych: poor sleep. Early morning waking. Depressed mood.  Low self esteem. Panic attacks. Erectile dysfunction.
7 December 2020     Psych: Normal sleep. No early morning wakening.
23 February 2021     Shoulder pain and disability, back pain
22 May 2021            left and right shoulder pain and stiffness. Back pain. Sciatica.  Restricted movement.
18 June 2021            asking for mental health plan
7 July 2021                no joint pain, stiffness or swelling. Psych: Normal sleep. No  early morning wakening.
Material from Dr Johnson, respiratory and sleep physician, that is contained in Dr Said’s records confirm that the claimant suffers from obstructive sleep apnoea, and that he uses a CPAP machine.
Various referrals from Dr Qool record that the claimant’s medical history included back pain and depression in 2011. A referral from Dr Said dated 26 July 2019 refers to a history of depression with a date of 25 July 2011, and back pain with a date of 16 August 2011.
In a NSW Fitness to Drive Assessment dated 26 July 2019, completed by Dr Said, the box “yes” is ticked in response to the question “Does the patient have mental health issues?”, as is the box for “Chronic Depression”. The box next to “Tick if the patient requires medication for any of the above conditions” has also been ticked.
In a NSW Fitness to Drive Assessment dated 7 July 2021, completed by Dr Qool, the box “yes” is ticked in response to the question “Does the patient have mental health issues?”, as is the box for “Chronic Depression”.

A Housing Pathways Medical Assessment dated 18 October 2020, completed by Dr Qool, records that the claimant suffered from depression, shoulder pain, and back pain. The overall impact of the conditions on his wellbeing were “moderate”. The likely duration was “long” (five years or more). It is recorded that the claimant’s accommodation was exacerbating his medical conditions, and that a neighbour was spying on him.
A letter from Dr Said to “whom it may concern” dated 6 June 2019 records that the claimant was involved in a motor accident on 15 September 2018 and that he experienced bilateral shoulder pain and right hip pain. An ultrasound of the right shoulder showed a partial tear of the supraspinatus tendon.
Dr Said certified on 24 September 2018 that the claimant had no capacity for work from

15 September 2018 to 19 October 2018 following the accident. The certificate records that the claimant suffered right hip pain, bilateral shoulder pain and lower back pain.
The prescription information in the joint bundle found at pages 284-299 has been considered.
Medicare services records include reference to psychiatric consultations from

19 September 2011. There are further consultations in 2012. A mental health treatment plan was prepared in August 2014. There was a psychiatric assessment on 24 November 2015, a mental health treatment plan review on 30 May 2016, and psychiatric assessments in September, October, November, and December 2016.

Centrelink certificates

A certificate dated 16 August 2017 refers to the exacerbation of lumbar back pain, and certified the claimant unfit for work from 16 August 2017 to 15 September 2017. A certificate dated 19 September 2017 refers to the exacerbation of lumbar back pain radiating to both legs, and poor control of blood sugar. The claimant was unfit from 19 September 2017 to

19 December 2017.
A certificate dated 29 January 2018 refers to a left knee injury and right elbow pain and swelling, with a 29 January 2018 date of onset, and certified the claimant unfit for work from 29 January 2018 to 15 March 2018. A certificate dated 28 May 2018 refers to a right leg injury, with a date of onset of 26 May 2018, and abdominal pain, and certified the claimant as unfit for work from 28 May 2019 to 13 July 2018. A certificate dated 24 September 2018 refers to lower back pain and right hip pain with a date of onset of 15 September 2018.
The claimant was certified unfit from 24 September 2018 to 24 December 2018. A certificate dated 6 May 2019 refers to right shoulder and right ankle injuries with a date of onset of

6 May 2019. A certificate dated 4 July 2019 refers to right shoulder and back pain, with a date of onset of 4 July 2019.
A certificate dated 16 March 2020 refers to bilateral supraspinatus tendonitis and certified the claimant unfit for work between 16 March 2020 and 16 June 2020. A certificate dated

25 May 2020 refers to exacerbation of lumbar back pain, and records that the claimant was unfit for work from 25 May 2020 to 25 August 2020. A certificate dated 3 August 2020 records that the claimant was unfit for work from 3 August 2020 to 3 November 2020. Another certificate dated 3 August 2020 records that he was unfit for work from

7 November 2020 to 7 February 2021.
A Centrelink certificate dated 23 February 2021 records that the claimant was unfit for work between 23 February 2020 and 23 May 2021. A Centrelink Medical certificate dated

22 May 2021 refers to shoulder pain, back pain, right leg pain, and “muscle tear”. The date of onset was 16 March 2020. The certificate also refers to diabetes. The claimant is certified as being unfit for work from 23 May 2020 to 23 August 2021.

Liverpool Hospital records

The hospital records confirm that the claimant was transferred from Fairfield Hospital on

15 September 2018 following a motor vehicle accident. The notes record that the claimant was rear-ended by a car and thrown from the car, landing on his right side. He complained of right shoulder and right hip pain. Progress notes record “Stationary on Motorbike – hit from behind- thrown 2m apparently”. The ED nursing notes record “rear ended from behind by car PT stationary on bike. Unsure of car’s speed. Ejected form [sic] bike aprox 1.5m”.
The Ambulance report dated 15 September 2018 records that the claimant complained of right shoulder and hip pain.
There are admission records dated 15 April 2014. The claimant presented to the Emergency Department after being involved in a motor accident. He reported chest, sternum and cervical spine tenderness. There were also complaints of bilateral knee pain and lumbar spine tenderness. Radiological investigations were undertaken, and the claimant was discharged the same day.

SUBMISSIONS

Insurer’s submissions

For the purposes of the Review the insurer relies on written submissions dated 25 July 2024. In the insurer’s submission there is no evidence of a diagnosable psychiatric illness that is causally related to the accident. The insurer relies on Dr Vickery’s opinion that the claimant suffered from a pre-existing somatic symptom disorder. In the insurer’s submission there is material that supports a finding the claimant was suffering from an adjustment disorder prior to the accident. The insurer argues that the evidence supports a finding that there is no permanent impairment causally related to the accident.
The insurer argues that, contrary to what he told Medical Assessor Nagesh, the claimant was not working before the accident. In support of this submission the insurer points to the claim form, that records the claimant was receiving a Newstart allowance when the accident occurred, the clinical records of Dr Said, and the Centrelink certificates that certified the claimant unfit to work “well into 2018” due to his physical ailments.

Claimant’s submissions

The claimant relies on submissions dated 9 August 2024, and incorporates his earlier reply submissions. The claimant argues that Medical Assessor Nagesh’s finding that his pre-existing major depressive disorder and post-traumatic stress disorder were in remission at the time of the accident was correct, and that he correctly determined that his pre-existing conditions had been aggravated by the accident. The claimant submits that this finding is supported by his ongoing treatment regime that includes anti-depressant medication and counselling with a psychologist.
The claimant submits that there is no error in the assessment of Medical Assessor Nagesh, and that his accident caused permanent impairment is greater than 10%.

RE-EXAMINATION

What follows is the report prepared by Medical Assessors Roberts and Senior Medical Assessor Mason following their re-examination of the claimant.

Who attended the assessment

Medical Assessors Roberts and Senior Medical Assessor Mason assessed the claimant using Microsoft Teams on 28 November 2024. The claimant participated in the interview from his lawyer’s offices. Ms Lana al-Akhoas, an Arabic interpreter assisted during the assessment.

Psychosocial history and pre-accident history

The claimant is a 67-year-old man. He described himself as single. He stated that he has three daughters, three sons and eight grandchildren.
The claimant was born in in Samawah city in Iraq. He stated that he is the middle child of six boys and six girls. His mother and his siblings live in Iraq and call him irregularly.
One year prior to the interview, the claimant travelled to Iraq to visit his mother when she became unwell. He spent three weeks in Iraq. He travelled alone stopping in Dubai before landing in Baghdad where he was picked up by relatives. He returned to Australia in the company of his daughter.
The claimant attended school until Year 8 which he explained was the third year of high school. He then obtained a role as a mechanic working with his father. His father and his uncles owned a garage in Iraq.
The claimant married his wife in Iraq. They left in 1999. He was 48 years of age when they arrived in Australia in 2000. He stated that he was not drafted into the Army during the Iran/Iraq war but was required to repair vehicles. He was not drafted into the Army during the Kuwaiti war. He was questioned about the timeline of events given the dates that he presented of when he left Iraq and when he arrived in Australia. He clarified that he “fled” from Iraq to Iran where he spent five or six years. He stated that he was fearful that he might be executed because he is Shia. He stated that the Iranian centre set up camps for him and others who had fled Iraq and he worked in Iran although he did not know the language. He was advised to travel to Australia via Malaysia and Indonesia, spending two nights in Malaysia and then two nights in Indonesia. He spent two nights on Christmas Island and then spent six months in Woomera. He recalled that Woomera was in the desert and that he “cried and cried”. Further clarification was sought regarding the timeline of these circumstances, in response to which the claimant stated that he arrived in Australia in 1999 and left Iraq six years prior. He was asked why the rest of his family was not afraid that they would be killed. He replied that he was taken to Abu Ghraib prison. When he was allowed out to see his family, he fled. He spent four months in prison with two paternal cousins both of whom were executed. When he left Iraq, he initially fled to Kurdistan where he spent three days before entering Iran. His wife subsequently followed him to Iran via Soleymaniyeh.
On arrival in Australia, the claimant obtained work as a mechanic and then drove a truck. He summarised his participation in the workforce stating “Centrelink and work here and there”.

The claimant stated that he separated from his wife 15 years ago. She “got crazy” and “chucked (his) bags out on the street and said go.” When asked about the basis upon which his relationship failed, he replied “Some women when they come here from Iraq, Syria, Iran, they go crazy.”
The claimant stated that his children made an effort to maintain a relationship with him and after the motor accident sought to encourage a relationship between him and his former wife telling her “Poor dad, he’s unwell.” He stated however that his children are busy with their work and home life and he does not want to trouble them. He stated that they are “tired of (him) and their mother”.
In terms of medical history, the claimant reported having been involved in a motor accident in 2014. He was the driver and there were no passengers in the vehicle. He was driving a Toyota RAV4 transporting an engine in the back of the vehicle. A car collided with the rear of the vehicle pushing it into the car in front. The claimant was cut out of the car. Despite back pain, he resumed work. He stated that he did not injure his shoulder at the time. He recalled that the car was squashed in the accident and he felt pressure against his back. Ambulance, fire brigade and police attended and he spent two days in hospital. He estimated that he was driving at 60kmph at the time of the impact but the car that collided with the rear of his vehicle was driving at 120kmph.
When asked regarding his experiences in Abu Ghraib prison, the claimant stated that he was hit with a cable and sustained injuries to the back of his head, forehead and his body generally. He stated that he was “as if dead” due to the beatings that he received. He added that all through his life he had never been happier until he arrived in Australia. He referred specifically to his exposure to war camps, prisons, and death. He spoke of having become “like crazy people” before coming to Australia. He did not describe any specific psychiatric symptomatology nor did he report having participated in mental health care.
In addition to the matters referred to above, the claimant confirmed having undergone an angioplasty and having been diagnosed with diabetes and cholesterol.
The claimant was asked further about his mental health prior to the motor accident. He replied that he had not seen any mental health professionals. He stated that he forgets everything. When challenged on this point, given the manner in which he presented his account overall, he reiterated his tendency to forgetfulness. The Medical Assessors asked him how confidently his information should be viewed with respect to its reliability, and he did not respond.
The claimant stated that prior to the accident he worked. He was asked regarding his driver’s licence and whether he was licensed for a passenger vehicle or a truck, to which he responded that he was licensed for an HR truck licence since arriving in Australia.

History of the motor accident

The claimant stated that he was driving a scooter with his son seated behind him. They were stationary at traffic lights when the scooter was hit from behind by a speeding car. He stated that he was thrown off the scooter and landed on his shoulder. When asked about his son, the claimant stated that nothing happened to him. He stated that his son and the scooter both fell on top of him. When asked to clarify the nature of the accident, the claimant stated that he was unable to move following the accident. Ambulance and police attended and he was taken to hospital.

History of symptoms and treatment following the motor accident

The claimant recalled being placed in a neck brace. He was given injections and his arm was “blocked”. The next morning he felt symptoms in his neck and his arm. He underwent X-rays and was discharged from hospital.
After the discharge following his initial period of assessment, the claimant returned to hospital on two occasions by ambulance. It was identified that he had sustained a tear in his shoulder. He was prescribed painkillers and underwent massage. He was referred to a specialist. He reported perpetual pain and the prescription of further medication.

Current symptoms

When asked about the emotional effects of the accident, the claimant reviewed the accident itself. He added, “Ever since that day, I haven’t been able to do a thing,” due to severe pain in his shoulder. He explained that within five to ten minutes of lying on that side, he must turn to the other side. He added that he is not well mentally and he is unable to do a thing. He stated that he has no friends, no companion and he has no children at home. He stated that previously he had a lot of friends but he does not have the energy to participate in any social activities. He stated that he does not have anything good in his life. His mind is not clear. He referred to his friends and family having “forsaken” him. He stated that everything is “ruined” and he looks around and cries.
The claimant stated that if his shoulder symptoms resolved, he would be able to work and he would feel relieved. He then digressed to state, “I don’t have anybody,” and “all my nerves are ruined.”
The claimant stated that his sleep is disturbed by pain and once he wakes during the night, he is unable to return to sleep. When he feels mentally well, he eats, but when he feels mentally unwell, he does not eat. He stated that he spends his days crying, watching television and falling asleep. He stated that he asks God for strength and the power to work. He described motivation with respect to the prospect of resuming work. He did not report suicidal thoughts.
The claimant no longer rides a scooter. He stated that the vehicle was destroyed, and that he does not want to ride a scooter having become afraid of further accidents. He drives his car once or twice a week. He stated that he only drives locally because he is afraid. When he sees a scooter, he feels afraid and he thinks about what would happen if he hit it. The claimant stated that he always thinks about the motor accident “all the time” because it is the accident that “ruined” him. He stated that it is the accident that destroyed him, humiliated him and destroyed his life. He stated that after the accident, no one would employ him and his general practitioner “prevented (him) from carrying”.

Current and proposed treatment

The claimant stated that his general practitioner has prescribed him tablets. He stated that he takes one tablet for cholesterol and five tablets for diabetes. He named Panadol Osteo of which he takes four tablets per day and Jardiance 25mg of which he takes one tablet per day. He stated that he monitors his blood sugars daily between 8.30am and 9.00am before he has breakfast.
The claimant stated that he has been under the care of Dr Mohamad Arab in Granville and Dr Kassam in Bankstown. He stated that he has seen these clinicians for mental health and headaches but he could not remember further detail of the treatment they provided stating, “Too many medications, I’m tired.”

Clinical Examination

Mental state examination

As recorded earlier, the assessment was undertaken utilising audiovisual technology. The quality of the connection was satisfactory. The claimant presented with neatly combed trimmed hair. He was clean shaven. No deficits with respect to personal care or grooming were apparent. During the early part of the interview, the claimant gestured with his left hand only, his right hand remaining out of view entirely. Later during the interview, he became animated, gesticulating with both hands.
At times during the interview it seemed that the claimant failed to understand matters that were raised with him and questions were repeated or reworded. The interpreter commented on a difference of dialect but it was not apparent that this was of a degree that undermined communication. It was thought that the claimant had difficulty hearing as he would lean forward as if attempting to listen more closely. He was asked directly whether his hearing was compromised to which he responded that he could hear without any difficulty whatsoever. He was a digressive historian who often presented responses to questions in a manner that made it seem as if he had not heard what was asked. As stated above, however, he confirmed that he had no difficulty hearing.
The extent to which his responses were unclear and the presence of contradictory answers was noted and clarification was sought by the Medical Assessors. It also seemed that he found it difficult to explicitly articulate mood symptoms necessitating direct questioning. He exhibited a restricted range of emotional expression. His account reflected a tendency to depressed mood and a state of dysthymia. Anxiety was described with respect to driving. Although he reported reflecting on the accident, traumatic intrusion symptoms were not described. He did not describe hypervigilance. No features of a psychotic nature were apparent.

Current functioning

The claimant lives alone in Fairfield. One of his daughters comes weekly. She cleans, cooks and packages food in the freezer for him. She may take him shopping. She does his laundry. Sometimes he cooks for himself, making an egg, tomato and potatoes. He stated that he cannot do his own laundry due to physical limitations. Since the accident he has been unable to shower more than once or twice weekly attributing this to physical symptoms, stating that he cannot lift his arm up and down much due to his right shoulder injury.
The claimant stated that he drives a small car and relies on his left hand. He drives to Aldi. Sometimes he drives with his daughter in his car. He stated that he feels afraid and therefore has reduced his driving.
When asked how he spends his time, the claimant replied that he does not sleep at night, and was woken by pain in his right shoulder. He falls asleep watching television. He spends much of his time at home. He stated that his friends do not contact him but then stated that he and a friend talk by phone once or twice each week. As stated above, he sees one of his daughters weekly and his other children monthly. He stated that they can see that he is not doing well. He stated that his home is “very dirty”, his furniture is disorganised and his children suggest he should go to hospital. When asked how it is that his home is very dirty given that his daughter attends and cleans weekly, he replied that she does simple things, focusing on what is important and then leaves. He stated that she is the only person who shows him any affection. When asked about his participation in household tasks, the claimant replied that he does what he can with one hand.
The claimant is in receipt of an aged pension. He stated that Centrelink withdraws payments for amenities. He could not recall what payments he was receiving before he became eligible for the aged pension but confirmed that he was receiving a three-monthly exemption from the requirement to search for work due to the physical injury to his shoulder.
The claimant stated that he last worked as a truck driver prior to the accident and that he stopped driving as a result of the accident. He stated that he was driving two or three days a week and that he worked in the same role for eight to ten years. He worked for his children who owned the truck having previously worked for a friend. He stated that his general practitioner prevented him from continuing to work because his physical injury prevented him from steering the truck properly. If his shoulder was fixed, however, he stated that he would work “immediately” and commence “tomorrow”.
The claimant stated that he had not been eating properly because he feels mentally “uncomfortable”. He did not explain what he meant by this. He confirmed that he eats two meals a day, one in the morning and one at sunset.

Comments on consistency

Inconsistencies with respect to the claimant’s account are referred to above. Efforts were made to achieve clarity which were not always successful.

Diagnosis and reasons

The Medical Assessors noted the extent to which the claimant’s physical symptoms represent a preoccupying and distressing factor undermining his day-to-day functioning. The level of distress and disruption was apparent, as were his persistent thoughts about the seriousness of his symptomatology. On this basis, a diagnosis of somatic symptom disorder was made.
The Medical Assessors considered the mood symptoms presented by the claimant and his anxiety with respect to travel. It was apparent that the mood symptoms were an effect of his physical limitations and the physically compromised lifestyle that he endures. A diagnosis of adjustment disorder with mixed anxiety and depressed mood was made.
Diagnoses of major depressive disorder and post-traumatic stress disorder were considered. The Medical Assessors were not satisfied that the diagnostic criteria for either of these conditions were met.
The Medical Assessors noted the history of significant adversity and overt trauma to which the claimant had been exposed in Iraq and as a consequence of his flight from Iraq via Soleymaniyeh, Iran, Malaysia, Indonesia and detention camps in Australia.
The Medical Assessors noted that the claimant reported that despite his experiences in Abu Ghraib prison, he successfully organised his escape from Iraq and established himself in Australia with relative success. His account did not reflect the presence of any features suggestive of psychiatric symptoms or psychiatric compromise, supporting the conclusion that he was not psychiatrically affected or, at least, he was not affected in any enduring manner as a result of the events in Iraq. The Medical Assessors were satisfied that the claimant did not suffer from a diagnosable psychiatric condition or permanent impairment as a result of these experiences.
Medical Assessor Baker’s Certificate dated 16 July 2015 pertaining to the motor accident on 14 April 2014 was considered. The Medical Assessor diagnosed an adjustment disorder with mixed anxiety and depressed mood that was caused by the April 2014 accident, and assessed a 7% whole person impairment. The Medical Assessors obtained a history from the claimant that there were no ongoing symptoms attributable to the previous accident and there was no impairment that could be ascribed to a psychiatric condition in the period prior to the accident. The Medical Assessors considered that this history is consistent with the natural course of an adjustment disorder, which is usually expected to resolve within six months of resolution of the stressor. The Medical Assessors noted that the claimant had remained on the minimum therapeutic dose of Pristiq (desvenlafaxine) 50mg with no adjustment and no increase. The Medical Assessors did not consider that this contradicted the history presented by the claimant. Patients often remain on medication well beyond resolution of any symptoms.
As described above, the claimant demonstrated an unusual manner of discourse during the interview, being digressive, unclear and contradictory at times. It seemed to the Medical Assessors that he may have experienced difficulties hearing, which he denied. The Medical Assessors confirmed with the interpreter that there were no apparent difficulties making herself understood or understanding the claimant, despite the difference of dialects. The Medical Assessors concluded that the impression of evasiveness was simply reflective of the claimant’s conversational style, namely, he sought to steer the conversation in the direction that he thought was necessary as opposed to meeting the requirements of the interviewer and the line of questioning that was presented.

Causation and Reasons

As explained above, the Medical Assessors made a diagnosis of somatic symptom disorder caused by the accident. The Medical Assessors also made a diagnosis of adjustment disorder with mixed anxiety and depressed mood. This diagnosis was found to have been caused by the physical limitations and the physically compromised lifestyle that he endures as a result of the accident.
As required by the Guidelines, for the purposes of assessment of psychiatric whole person impairment, the effects of somatic symptom disorder were excluded.

Permanency of impairment

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
The history of psychiatric symptomatology presented by the claimant reflected the protracted course of his psychiatric injury despite his participation in treatment. It is not apparent that the treatment has been ongoing nor was it apparent to the Medical Assessors that the treatment has altered the course of the diagnosed conditions. On this basis, the medical assessors were satisfied that the impairment is unlikely to change substantially and by more than 3% in the next year.

Psychiatric diagnoses	1. Adjustment disorder with mixed anxiety and Depressed Mood	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Nil ongoing.

Category	Class	Reason for Decision
1. Self-care and Personal Hygiene	2	The claimant lives independently but has weekly support from his daughter. His account reflected his reliance on his daughter such that in the absence of her support, the Medical Assessors concluded that his ability to live independently would likely be tenuous and, overall, reflected moderate impairment. Based on the claimant’s account, the support received from his daughter is due to the extent to which he is physically compromised. He did not ascribe limitations with respect to household tasks or personal care to factors of a psychiatric nature. He attributed altered appetite to psychiatric factors although he reported consistently eating two meals a day. Having regard to the nature and severity of the claimant’s psychiatric symptomatology, and despite his attribution of limitations overwhelmingly to factors of a physical nature, the Medical Assessors concluded that mood symptoms including diminished motivation would cause impairment in this area of a mild degree independent of non-psychiatric factors.
2. Social and Recreational Activities	3	The claimant presented an unclear account of his pre-accident participation in social and recreational activities but reported that he had a circle of friends with whom he had regular contact. He described a reclusive lifestyle at the time of the assessment and no participation in recreational activities. It was unclear, based on his account, whether this was an effect of physical or psychiatric factors or a combination of both. The Medical Assessors nevertheless concluded, based on the nature and severity of his psychiatric symptoms, that irrespective of non-psychiatric factors, his psychiatric injury would render him moderately impaired in this area.
3. Travel	2	The claimant reported restricting his driving due to anxiety. He no longer rides a scooter, the scooter having been destroyed, and he expressed reticence to ever ride a scooter again. He reported having travelled independently to Iraq. The Medical Assessors concluded that the history presented by the claimant reflected mild psychiatric impairment in this area.
4. Social Functioning	2	The claimant retains one friend with whom he has regular ongoing contact. He also has consistent contact with his children who are evidently concerned about his wellbeing and he has weekly contact with one of his daughters who provides consistent support. His marriage had dissolved 15 years ago. Based on his account of the relationship dynamics between him and his children, the Medical Assessors were left with the impression that there had been little change but his description with respect to his friendships indicated mild impairment in this area of functioning.
5. Concentration, Persistence and Pace	2	The claimant participated in the interview utilising the interpreter effectively for almost two hours. Although he reported forgetfulness, aspects of his account indicated intact memory while other matters were presented in an inconsistently vague manner. Overall, the Medical Assessors were satisfied that he was answering questions to the best of his ability. The Medical Assessors noted that the claimant does not engage in any activities that demand persistence and pace and, with respect to household tasks, physical compromise was presented as the most prominent impediment. Overall, the Medical Assessors concluded that mild psychiatric impairment was present.
6. Adaptation	2	On more than one occasion during the interview, the claimant indicated that if his physical symptoms were successfully treated, he would be working. A prominent factor driving his psychiatric distress was his inability to work. The Medical Assessors found that his psychiatric symptomatology was of a sufficient degree of severity to produce mild impairment independent of non-psychiatric factors.
List classes in ascending order: 2, 2, 2, 2, 2, 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7%

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment

The entirety of the whole person impairment calculated above arises as a result of the psychiatric injury caused by the accident.

Pre-existing and subsequent impairment

The Medical Assessors are satisfied that there was no pre-existing or subsequent psychiatric impairment.

Effects of treatment

The Medical Assessors understood that the claimant was not in receipt of ongoing treatment for his mental health condition. It is not apparent, based on his account, that treatment had produced any appreciable change in his psychiatric symptoms nor has it altered his psychiatric impairment. No adjustment for effects of treatment is required.

Assessment of whole person impairment

The degree of permanent impairment of the claimant that has resulted from the adjustment disorder with mixed anxiety and depressed mood caused by the accident is 7%.

DETERMINATION

The Panel has considered the claimant’s pre-accident history of physical and psychological conditions. This history includes:
·        complaints of back pain since August 2011 with symptoms radiating into both legs since at least September 2017;
·        left knee and right elbow pain;
·        depression;
·        the claimant’s involvement in a motor vehicle accident in 2014, and
·        Medical Assessor Baker’s diagnosis of adjustment disorder with mixed anxiety and depressed mood together with his finding that this condition was caused by the 2014 accident and gave rise to a permanent impairment that was not greater than 10%.
The Panel is satisfied that as a result of the accident the claimant suffered injury to his shoulders, hip, and low back. The Ambulance report records that the claimant complained of right shoulder and hip pain after being rear-ended and thrown from his bike. The claimant attended Liverpool Hospital on the day of the accident, reported his involvement in the accident, and complained of right shoulder and right hip pain. He reported bilateral shoulder pain and right hip pain to Dr Said when he saw the doctor on 17 September 2018, two days after the accident. He reported low back pain since the accident when he saw Dr Said on 24 September 2018. The Panel is satisfied that the claimant continues to experience pain in his shoulders and back as a result of the injuries he suffered in the accident.
The Panel has given consideration to the claimant’s experiences in Iraq, and his flight from Iraq to Australia. The Panel as a whole is satisfied that he did not suffer from a diagnosable psychological condition or have a pre-existing impairment as a result of these experiences. In this regard, the Panel agrees with and adopts the reasons given by its medical members in their re-examination report.

The Panel is satisfied that as a result of the accident the claimant developed a somatic symptom disorder and an adjustment disorder with mixed anxiety and depressed mood. The Panel agrees with and adopts the reasons given by its medical members in support of both the diagnosis of these conditions and the finding that they were caused by the accident. The Panel is satisfied that, but for the accident the claimant would not have developed these conditions.
The clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the psychiatric impairment rating scale (PIRS): cl 6.217 Guidelines.
The Panel adopts the precise examination findings and conclusions of its medical members based on their examination of the claimant, and their specific findings with respect to each PIRS category and permanent impairment.
The Panel finds that the claimant has a permanent impairment of 7% as a result of the adjustment disorder with mixed anxiety and depressed mood.
Neither the PIRS assessments nor the permanent impairment assessed include any allowance for the impact on the claimant of the somatic symptom disorder. In this regard, the Panel notes that the PIRS must not be used to measure impairment due to somatoform disorders: Guidelines cl 6.215.
The Panel agrees with and adopts the reasons given by its medical members in support of their finding that there was no pre-existing psychological impairment at the time of the accident.
For the foregoing reasons, the Panel finds that the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is not greater than 10%.
The Panel’s findings with respect to the claimant’s accident caused psychological injuries and impairment differ from the findings made by Medical Assessor Nagesh. The Panel revokes the certificate of Medical Assessor Nagesh dated 26 July 2023 and issues a new certificate that reflects its findings.

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Citations

AAI Limited t/as GIO v Samarae [2025] NSWPICMP 109

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650

[2025] NSWPICMP 109

20 February 2025