Aghbolagh v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Aghbolagh v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 586
CLAIMANT:	Ali Aghbolagh
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Christopher Canaris
MEDICAL ASSESSOR:	Himanshu Singh
DATE OF DECISION:	8 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury under section 1.6(3); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) found the claimant sustained an adjustment disorder with mixed disturbance of mind caused by the accident (a threshold injury); claimant sought review; Held – pre-existing psychological condition had resolved; claimant had sustained persistent depressive disorder caused by the accident; MAC revoked; persistent depressive disorder is a non-threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Doron Samuell dated 28 March 2024 and certifies that the following injury caused by the accident was a non-threshold injury: · Persistent depressive disorder (dysthymia).

STATEMENT OF REASONS

INTRODUCTION

Mr Ali Aghbolagh (the claimant) sustained injury in a motor vehicle accident on 17 November 2021 when the insured vehicle collided with the rear of the vehicle in which the claimant was a rear seat passenger (the accident).
Mr Aghbolagh is now 40 years of age and was 37 years of age at the date of the accident.
Mr Aghbolagh lodged an Application for personal injury benefits dated 14 December 2021 in relation to injury allegedly sustained in the accident.
Insurance Australia Limited trading as NRMA Insurance is the relevant insurer with liability to pay statutory benefits to Mr Aghbolagh under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Aghbolagh’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the accident were threshold injuries.
On 1 March 2022, the insurer issued a Liability Notice Benefits after 26 weeks declining the claim for statutory benefits on the basis the injury sustained by the claimant was a minor (threshold) injury for the purposes of the MAI Act.
On 8 March 2022, the claimant requested an internal review of the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 29 March 2022 affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.[1]
[1] Insurer’s bundle p 312.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Commission to Medical Assessor Samuell.
The claimant has sought a review of the certificate of Medical Assessor Samuell.

DOCUMENTS BEFORE THE REVIEW PANEL

On 24 March 2025, the claimant uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 219 (claimant’s bundle).
On 25 March 2025, the insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 110 (insurer’s bundle).
On 17 July 2025 in accordance with a Direction from the Panel the claimant uploaded to the portal an Application to Lodge Additional Documents attaching the clinical records of Workers Doctors and of First Care Medical Centre paginated from pages 1 to 347 (ALAD).

THRESHOLD INJURY- STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a) acute stress disorder,
(b) adjustment disorder.”
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of threshold psychological or psychiatric injury the Guidelines also 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.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

ASSESSMENT UNDER REVIEW

In a certificate dated 28 March 2024 Medical Assessor Doron Samuell certified the following injury caused by the accident was a minor (threshold) injury for the purposes of the MAI Act:
· adjustment disorder with mixed disturbance of mind.[3]
[3] Claimant’s bundle p 16
The injury referred for assessment was:
· Post-traumatic stress disorder.
Medical Assessor Samuell reported the claimant was a painter, security worker and pest controller who had not worked since the accident and who had lived in Australia since 2012. He came to Australia by boat as an asylum seeker and spent 100 days in immigration detention. Mr Aghbolagh denied any pre-accident psychological difficulty.
Mr Aghbolagh reported the vehicle was stationary on Victoria Road when the collision occurred. He described the impact as large.
Medical Assessor Samuell reported the claimant had frequent nightmares concerning the accident, panic attacks, difficulty establishing relationships, and is afraid of crowds and to contact people.
Medical Assessor Samuell noted a history of mood difficulties pre accident. He found the accident did not satisfy the stressor criteria for a post-traumatic stress disorder noting the Police Report referred to a minor traffic accident and where Dr McIntosh, engineer found it was a low velocity accident.
Medical Assessor Samuell diagnosed an adjustment disorder with mixed disturbance of mood arising from the accident, which he noted was a threshold injury.

REVIEW PROCEDURE

The claimant lodged an application for review of the medical assessment of Medical Assessor Samuell on 30 April 2024 within 28 days of the date on which his certificate was made available to the parties.
On 25 June 2024, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 21 May 2025, the Panel agreed an examination was required.

EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits

In the application dated 14 December 2021 the claimant reported injuries to the neck, both shoulders, right knee, lower back aggravation and shock.[5] It was reported that the car in which the claimant was a passenger was hit from behind while stationary at a traffic light and the impact pushed the vehicle into the one in front. The vehicle was said to be written off.
[5] Claimant’s documents p 37

Treating medical evidence

The claimant underwent a L5/S1 partial laminectomy, microdiscectomy and spinal rhyzolysis in December 2016.
On 17 May 2018, the claimant consulted Dr Forghani general practitioner (GP) in respect of acute pain and stiffness in his back. He was referred to Dr McKechnie, neurosurgeon.
On 27 February 2018, Dr Lewis Holford of Northern Pain Centre reported the claimant had continued to experience pain post lumbar spine surgery.[6] He reported neuropathic low back and right lower limb pain which had had a global impact on the claimant’s life. Dr Holford thought the claimant would benefit from multidisciplinary pain management. However, approval had been declined because the claimant was seeing a psychologist and physiotherapist elsewhere.
[6] Claimant’s documents p 86
On 24 May 2018, Dr Forghani GP reported the claimant complained of Palexia which caused him nightmares and being edgy. On 7 June 2018, Dr Forghani reported back pain. He reported agitation and anxiety caused by Palexia. On 15 July 2018, Dr Forghani reported the claimant had finished a course of pain management. Dr Forghani recorded “long talk about depression management”.[7]
[7] Claimant’s documents p 50, 86 and 116
A Mental Health Plan dated 19 July 2018 referenced depression/anxiety relating to a low back injury in 2016 and chronic pain.[8] The same day Dr Forghani wrote to Afsaneh Jolan stating “Thank you for seeing Mr Ali Daneshi Aghbolagh regarding his depression under mental health care plan. Would you please advise me about his management plan".[9]
[8] Claimant’s documents p 6
[9] Claimant’s bundle p 68
The claimant consulted Dr Lim, GP on 30 November 2021. Symptoms were reported as “Neck pain and stiffness radiating to bilateral shoulder and arms, L>R, pins and needles in bilateral hands, lower back pain and stiffness radiating to L) hip and L) leg, R knee pain, trouble sleeping, nightmares about accident (get hit from behind)”. In a report of 30 November 2021 Dr Lim diagnosed a cervical spine strain, bilateral shoulder strain, lumbar aggravation, right knee strain and acute stress disorder. He noted sleep disturbance due to pain and frequent nightmares about the accident.
In a Certificate of Fitness dated 16 December 2021, Dr Calvache-Rubio diagnosed a cervical spine strain, bilateral shoulder strain, lumbar aggravation, right knee strain, and acute stress disorder.
On 12 January 2022, Shanice Paing, provisional psychologist, undertook an Initial Needs Assessment on behalf of ReCare Services.[10] She reported Mr Aghbolagh was experiencing psychological symptoms of depression and anxiety relating to his inability to manage his chronic pain. She reported the claimant had ceased pre-accident hobbies of swimming and fishing. She reported he stayed in bed most of the day. Ms Paing administered the Depression Anxiety Stress Scales (DASS21). Mr Aghbolagh scored in the “extremely severe” range for Depression, “extremely severe” range for Anxiety, and the “extremely severe” range for Stress.
[10] Insurer’s documents p 65
In a report dated 16 February 2022, Mr Carl Nielson, psychologist diagnosed post-traumatic stress disorder[11]. Signs and symptoms were reported to include repeated disturbing unwanted memories pertaining to the accident, avoiding exposure to driving and traffic, negative thinking and anxious and depressive cognitions, fluctuations in arousal ranging from hypervigilance due to nightmares about the accident as well as low mood and fatigue from being unable to work. He reported the claimant avoided driving and social interactions wherever possible.
[11] ALAD p 27
Mr Aghbolagh consulted Dr Peter Khong, Neurosurgeon on 25 February 2022 when he presented with neck pain, bilateral shoulder pain, lower back pain and bilateral leg pain following the accident.[12] He recommended physiotherapy and hydrotherapy.
[12] ALAD p 114
On 23 March 2022, Ms Paing reported Mr Aghbolagh had low self-esteem and poor mood which was affecting his motivation to return to work.[13]
[13] Insurer’s documents p 84
On 29 April 2022, Dr Peter Khong, neurosurgeon reported complaints of worsening neck and back pain.[14] He diagnosed neck and lower back pain resulting from musculoligamentous strain and an exacerbation of degenerative change. He also reported leg pain may be related to bilateral lateral recess stenosis at L4/5. He recommended restarting physiotherapy and starting hydrotherapy.
[14] ALAD p 50
In a report dated 2 May 2022, Dr Gavin Soo, orthopaedic surgeon reported ongoing left shoulder pain and right knee pain following the accident[15]. Dr Soo reported clinically the claimant had symptoms consistent with the findings on imaging of an aggravation of a posterior labral tear to the shoulder. Dr Soo reported that the symptoms of anterior knee pain and difficulty walking up and down stairs was consistent with the MRI finding of fatpad impingement.
[15] Claimant’s documents p 66
On 4 May 2022, Dr Calvache-Rubio reported the claimant was taking Mirtazapine which initially helped with sleep, but which was losing its effect. [16]The claimant reported broken sleep, nightmares and pain waking him frequently. He was driving short distances and had intrusive thoughts about the accident and worried about having another accident.
[16] ALAD p 9
In a Transferrable Skills Analysis report dated 4 May 2022, Mr Chris Tong on behalf of ReCare Services Pty Ltd reported the claimant was experiencing psychological symptoms of depression and anxiety relating to his inability to manage life with chronic pain.[17] He also reported the claimant was afraid of driving.
[17] Insurer’s documents p 93
Mr Aghbolagh first consulted Dr Shafaei of First Care Medical Centre on 31 August 2022.[18] He reported back pain not improving, pins and needles and radiation of pain to the legs. He also reported anxiety and depression and post-traumatic stress disorder since the accident. He noted depressed mood, markedly diminished interest of pleasure in activities, weight loss, insomnia, fatigue or loss of energy, feelings of worthlessness, diminished ability to concentrate and inability to perform daily activities.
[18] ALAD p 227
On 1 November 2022, Dr Shafaei recorded: “Dressed appropriately, good self-care. Pleasant. Polite, good eye contact and rapport, described the mood as depressed, anxious at all times Low self-esteem, feeling of worthlessness, the effect was reactive and was observed smiling appropriately. Thought form was logical and not disrupted. … no suicidal thoughts … speech – coherent, capable of logical and consistent speech.”[19]
[19] ALAD p 229
On 9 February 2023 Dr Shafaei reported poor sleep, no early morning wakening, normal self- esteem, normal mood, anxious, no stress at work. No relationship problems. No financial problems. No irritability. No irrational fears. No panic attacks. No suicidal thoughts.[20]
[20] ALAD p 233
On 27 October 2023, Dr Shafaei reported the claimant was anxious and stressed with depressed mood, markedly diminished interest or pleasure in most activities, significant weight loss, insomnia, fatigue, loss of energy, feelings of worthlessness, diminished ability to think or concentrate and recurrent thoughts of death.[21]
[21] ALAD p 238
On 24 January 2024, Dr Shafaei referred the claimant to Dr Alan Huynh for management of anxiety and depression. At that time, the claimant was on Mirtazapine 30mg and Propranolol 10mg.
On 5 September 2024, Dr Shafaei reported the claimant’s mental health was declining.[22] He was anxious and stressed most days. On examination he noted the claimant’s appearance was normal, his speech was quiet, his mood low, his affect labile, thought form was logical, he displayed negative thinking, cognition was orientated, insight and judgement was intact.
[22] ALAD p 243
On 18 February 2025, Dr Shafaei reported the claimant was not doing well, mentally he was not interested, and he kept repeating the same issues over and over.[23] He diagnosed post-traumatic stress disorder. He noted the insurer was still refusing the claim.
[23] ALAD p 245
On 25 February 2025, Dr Shafaei reported the claimant’s presenting symptoms suggest a depressive episode and probably an adjustment disorder with depressive symptoms.[24] He referred the claimant to a clinical psychologist.
[24] ALAD p 247

Dr McIntosh engineers report

In a report dated 15 March 2022, Dr McIntosh reported that in his opinion, on balance, it would be unlikely that the mechanics of the collision could have led to any structural injury of the cervical or lumbar spine, and right shoulder injury, any left shoulder structural injury, or a right knee strain.[25] However he concluded the circumstances of the accident could have caused soft tissue injury to the neck, to the knee, to the shoulders and to the low back with symptoms for a closed period.
[25] Claimant’s documents p 129

It should be noted that Dr McIntosh’s opinion was given in the absence of objective evidence regarding the collision sequence, in the absence of statements from the insured driver, witnesses or the driver of vehicle 3, in the absence of property damage information for vehicle 3 and in the absence of any CCTV or dashcam video.

Medico-legal reports

Dr Martin Allan, psychiatrist

The claimant was assessed by Dr Allan. He provided a report dated 24 May 2023.[26] Dr Allan reported the claimant denied any past psychiatric health issues. Dr Allan described the accident as follows:
“He states that all of a sudden without warning while stationary at a traffic light the vehicle in which he was travelling had been struck from the rear. He states the vehicle was written off. He states “It was such a loud bang I thought I was going to die. That’s still the flash that goes through my mind”. He states he was in a state of shock initially. He was not taken to hospital.”
[26] Claimant’s documents p 211
Dr Allan reported recurrent, involuntary, intrusive and distressing memories of the accident. He reported being in a vehicle was triggering for his distressing memories. He also describes a persistent sense of fear about what occurred, a persistent lack of confidence, reduced interest in social activities and withdrawal. Dr Allan reported the claimant felt detached from others, had difficulty feeling positive emotions, and was prone to irritability. He had challenges with concentration and his sleep was disturbed. Dr Allan diagnosed post-traumatic stress disorder. Dr Allan assessed a 22% whole person impairment.

SUBMISSIONS

Claimant’s submissions

The claimant provided undated submissions in support of the application for review.
The claimant submits that Dr McIntosh only expressed an opinion about the claimant’s physical injuries. Further it is submitted Dr McIntosh is not qualified to express an opinion as to whether the claimant sustained a psychiatric injury as a result of the accident.
The claimant submits there is no medical history of relevance which enabled Medical Assessor Samuell to conclude the claimant had a history of mood difficulties.
The claimant provided submissions in respect of the threshold injury dispute dated 24 August 2022. The claimant notes psychologist Mr Carl Nielsen diagnosed post-traumatic stress disorder on 16 February 2022.

Insurer’s submissions

The insurer provided submissions dated 14 May 2024.[27] The insurer submits the report of Dr McIntosh is relevant where it is necessary to look at the circumstances of the accident and the impact to make a psychological diagnosis. The Insurer submits the nature of the collision (rear end collision whilst stationary) does not meet the criteria to verify a post-traumatic stress disorder diagnosis.
[27] Insurers documents p 3
The insurer submits Dr Allan’s report discloses the non-disclosure of prior psychological illness. In relation to the claimant’s pre-accident history the insurer notes the following comments of Medical Assessor Samuell:
“I read the complete record, as at 11 June 2022, of the Pacific Medical & Dental Centre in Blacktown. I note the entry, dated 12 November 2020, in which it was noted that his commercial license had been suspended for a year for unclear reasons. It was also documented that he had a previous discectomy, something that had not been disclosed to me at interview. On 5 May 2019, I noted that he had surgery for achalasia and also had a problem with palpitations and heavy breathing, perhaps suggesting anxiety. On 19 July 2018, there was reference to a history of depression and his intention to claim permanent disability to use his superannuation. This was at odds with the history provided to me at interview. It was also noted that he had a previous workers’ compensation claim which was also not disclosed to me at interview. I note, on 7 June 2018, the claimant described a reaction of anxiety to Palexia.”
The insurer submits at no point does the Medical Assessor indicate that he solely based his current diagnosis on the pre-existing symptoms, merely concluding that it would be reasonable based on prior reactions, that developing psychological symptoms following the accident would be in line with the Claimant’s prior history.
The insurer provided submissions dated 31 August 2022. The insurer asserts the diagnosis of post-traumatic stress disorder was not verified for the purposes of the assessment where the description of Mr Nielson does not address how Criterion A is satisfied.

THE MEDICAL EXAMINATION

The assessment was attended by Mr Aghbolagh, who was located at his home and participated in the appointment over a video conference through a Microsoft Teams meeting. The appointment was also attended by Mr Bhagya Ghazvi, a Persian (Farsi interpreter) with NAATI number CPN2ZQ850. The examination was conducted by Medical Assessors Canaris and Singh.

History

Psychosocial history and pre-accident history

Mr Aghbolagh stated that he was 41 years of age. He was born in Iran. He grew up with his parents and lived with his mum in the later years. His father passed away when he was around age 15 or 16. He had three sisters and five brothers growing up. He went through high school but did not finish. He then joined military service at the age of 18 or 19. He stated that the military service was compulsory, and he was there for two years. He noted that he did not participate in any conflict and denied any mental health issues or trauma arising from his time in the military service. He then started to work with his brother in kitchen cabinet making. He worked through the next few years.
He moved to Australia as a refugee in 2012. He stayed in a refugee camp. He was there for around three months and then was given a visa. He denied any problem during his stay in the refugee camp, stating that it was good, and they looked after him. He came alone from Iran to Australia. He denied any mental health issues in the past. He denied any previous history of anxiety or depression.
Mr Aghbolagh had back surgery in 2016 for a work-related injury. He was working as a painter and after the injury, he went on workers’ compensation. He had surgery, hydrotherapy and physiotherapy. He stated that he was off work for somewhere less than two years around 18 to 19 months. He received treatment and he got paid out for his injury. He stated his mental health was not affected, he was not depressed and was not diagnosed with depression. Mr Aghbolagh stated he saw a psychologist when told to attend by his GP. He attended one 30-minute session only and there was nothing and no follow-up. He attended a pain programme as part of his treatment.
Mr Aghbolagh was asked about a note by Dr Afshin Forghani dated 15 July 2018 stating “Finished the course of pain management but overall, he is happy with what he learned, stopped Endep as well. Long talk about depression management mental health care plan considered next time. Would like to claim permanent disability to use his Super. Related forms need to be filled out. Works Comp stopped paying him”. Mr Aghbolagh stated his solicitor was applying for permanent disability. He again stated he did not have any significant mental health issues, and it was not serious. He denied having an episode of depression.
Mr Aghbolagh stated that he was working full-time before the accident. He was working as a painter. He did not have any mental health issues before the accident and there was no impairment in his level of psychological functioning. He was in a good relationship and was able to take care of himself. He was able to socialise and enjoy things at work and outside of work. He was working as a painter with someone and working eight hours a day for five days and sometimes six days a week.

History of the accident

Mr. Aghbolagh stated on 17 November 2021, he was involved in a motor accident. He was a passenger in the car, seated in the rear seat behind the driver's seat. The car was stopped at a traffic light. He was wearing a seatbelt at the time of the accident. The stationary car was hit by another car from behind, and he sustained injuries to his lower back, neck, left shoulder and right knee. His friend was the driver of the car whose girlfriend was the passenger next to him; she was screaming. His friend said “Let's just go home” so they went home in the same car. There was no police or ambulance at the site of the accident. The airbags were not deployed. A few days after the accident, he experienced a lot of pain in his whole body. After a few days, he saw Dr Lim at Workers’ Doctors. The car was later written off.

History of symptoms and treatment following the accident

Mr Agbolagh stated as he was in a lot of pain he saw his GP. He also saw other specialists and had MRI scans. He received an injection for his knee. He continued to have pain for which he received treatment paid for by the insurance company for an initial six months, however, the treatment was later stopped. He was prescribed painkillers and received physiotherapy. He stated he saw a specialist, Dr Singh, who suggested surgery for his lower back which the insurance company has denied.On being asked about his mental health, Mr Aghbolagh stated that lot of things have happened. He could not sleep well after the accident. He was in lot of pain and taking many painkillers. He was often angry as he could not sleep well in the night.
His symptoms came bit by bit and gradually they got worse. He was not able to talk to his family and friends. He was unable to have good communication with his mother. He started to decline in his mental health bit by bit and slowly. He had nightmares every night about the accident. He often panicked in the daytime or following the nightmares. He did not feel normal. He often got angry very quickly. He became a completely different person from who he used to be. He would not go anywhere; he stayed in his room and spent most of the time in the house. He does not know what is happening. He is suffering from something, and it started to scare him.
Mr Aghbolagh stated that his symptoms have been getting worse. The nightmares continued and he always thinks about the accident. He feels anxious with shortness of breath and dry mouth. His relationship with his partner got affected as he was often angry and upset.
Mr Aghbolagh stated he found it hard to get up from the bed in the morning as he would not be able to sleep at night. He was prescribed mirtazapine for his sleep which enabled him to sleep for two to two and half hours and then he would stay in bed and then again wake up. He lost his sexual desire which affected his relationship. He stopped going out, he did not go to the gym and did not go swimming. He would always be worried about his future and lost the desire and motivation to move forward or to do anything.
Mr Aghbolagh initially saw a psychologist, Mr Carl Nielsen; however, the funding for the treatment stopped. He started to see another psychologist, Lina.
Mr Aghbolagh stated that treatment has not helped him much and his symptoms have continued.

Details of any relevant injuries or conditions sustained since the accident

Mr Aghbolagh denied any relevant injuries or conditions sustained since the motor accident.

Current Symptoms

Mr Aghbolagh stated his pain is the same, though it has got worse. He is not receiving any physiotherapy. He was given a referral by his GP to see a physiotherapist, but the sessions were not approved. His lower back is in pain; he cannot walk for a long time and his right knee is in pain as well which kills him.
Mr Aghbolagh stated that initially if he was not in pain then he felt that he would get back to his normal life. He would get back to things that he enjoyed and get back to work. If there was no pain, he would think about going out with his friends, going to the gym and going for swim. However, he stated over the course of time his mental health has been affected more. He now feels even if the pain is not there it is not going to change much. He has no energy and no motivation to do anything. He may be on phone but then he gets distracted and does not enjoy that.
He used to have his own Instagram page where he used to write articles and was very active. He has deactivated his page. He may watch some short YouTube videos. He does not go anywhere and stays in his room. Mr Aghbolagh stated he will just cry when he thinks about the accident. He is always under stress and feels anxious. The stress and anxiety get worse when he gets a phone call. He was shaking and was very anxious before the medical assessment. He is fearful of going into a crowd. He does not go out with his friends. He has lost his friends, and they even stopped calling him. He is losing himself as well. He does not care about things. He believes that no one can help him and does not see any help in the future. He does not have any expectation. He at the same time does not know why he is like that.
Mr Aghbolagh stated he just sits in his room and does nothing. He needs surgery for his lower back, which has not been approved by the insurance company. He gets angry because of this and is under a high amount of stress. He stated it feels that it is worse than hell. He stated he was also advised he required a psychiatric admission, but it was rejected by the insurance company.
Mr Aghbolagh stated his sleep continues to be disturbed because of the pain and now more because of his thoughts. The nightmares used to be every night and used to be about the car accident but now it is not every night though it still stresses him out and causes him a lot of anxiety. He would often be fighting with someone in his nightmare or is back in Iran with his family and old friends. It is all about fighting, accidents or running from something and someone. He often wakes up with panic attacks and sweating from nightmares.
Mr Aghbolagh said that he cries when he thinks about his future. He often feels empty and even in brief moments when the pain is bearable, this feeling does not go away. He does not have any plans and questions himself about “what will he do”. He has an ongoing sense of emptiness.
Mr Aghbolagh stated he was thinking of ending his life and he harmed himself recently, around two months ago. He hit the top of his head with a kitchen knife and had a big cut. He was taken to Westmead Hospital by his housemate and required stitches. He was discharged back home. He said he still thinks of finishing himself off sometimes though he does not have a plan. He talks to his psychologist about his panic attacks which continue to happen around three to four times a week.

Current and proposed treatment

Mr Aghbolagh continues to see his GP on a regular basis. He has been prescribed medications. He takes mirtazapine 30 mg at nighttime and has done so for the last few years. He also has started to take escitalopram 10 mg, however, sometimes he may take two tablets and has been on this for the last few months. He has seen few psychologists though he currently continues to have weekly psychology sessions. Mr Aghbolagh stated that the psychology sessions have not helped much with his mental health and his mental health has gone down gradually over the time.

CLINICAL EXAMINATION

Mental State Examination

Mr Aghbolagh was seen over a video conference on 23 July 2025. He was fluent in English and was able to take part in most of the assessment by himself. He briefly needed help from a Persian interpreter who was also present during the assessment. Both Medical Assessors were located in their offices.
Mr Aghbolagh was dressed casually and appeared clean. He maintained good eye-to-eye contact and a rapport was established. He initially appeared anxious and asked a few questions about the reason why those questions were asked of him. He then gradually settled down in the interview. There were no signs of agitation or retardation. He had a light beard. His speech was spontaneous with normal rate, tone and volume. He described his mood as anxious, and he said he was feeling stressed. His affect was distressed and he was teary during the assessment.
He described low levels of energy and motivation. He reported lack of desire and loss of confidence. He reported lack of libido. He described disturbed sleep with nightmares and a lowered appetite. He had ongoing fear of leaving his house and going into the crowd. He had feelings of emptiness and feelings of hopelessness and worthlessness. He denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts of harming others. He was worried about his future, his recovery and the ongoing pain and his inability to return to employment. There was no evidence of formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. He wants to get better and to have surgery for his back as recommended and is upset that it has not been supported by the insurance company. He described his attention and concentration as poor. He had intact judgement and had reasonable insight into his issues and was help seeking.

Current functioning

Mr Aghbolagh stated he finds it hard to get up from the bed and he does not sleep well at night. He takes Mirtazapine 30 mg at nighttime for sleep, may sleep for two or two and a half hours and then he stays in bed. He has lost his appetite, he has not weighed himself, he may eat something when he is hungry, may have a bread or tuna, though he does not enjoy food. When he gets anxious, he goes to the balcony to get some fresh air. He has a fear of crowds, though he can drive his car locally to go to the shops. He has not been on any holiday or long-distance travel.
Mr Aghbolagh stated that he showers every few days when he feels like it. His housemate helps him with laundry. He does not care about how his room looks or how he looks. He does not go out even if his friends may ask him; he comes up with some reason to not go out. He does not have concentration to read. He cannot read the reports that are given to him. He has to read things a few times before he can understand what he is reading. He said his English is fine when it comes to reading but he cannot focus and is always thinking about something else when reading.
He does not watch a lot of TV as he does not enjoy it. He is mostly in his room lying down. His relationship ended almost a year after the accident and has not been in relationship since. All his family live overseas. He said he was often angry and argued a lot with his ex-partner. He also lost his sexual desire which was another reason for the end of his relationship. He continues to struggle from the loss of libido and does not desire any relationship currently.

Comments on consistency

His presentation was consistent with the history given during the clinical interview, the documentation received and the mental state examination.
The Medical Assessors raised with the claimant the report of Dr Lewis Holford, pain management specialist dated 27 February 2018 who the claimant consulted subsequent to lumbar spine surgery on 9 September 2016. Dr Holford reported the claimant’s sleep was disturbed, there was an impact on his mood, and he had been unable to work since the time of the accident. Mr Aghbolagh stated his mood may have been affected at that time but there were no ongoing symptoms of depression, and he was coping well with it. The Panel also notes that earlier in the examination the claimant denied having an episode of depression associated with his earlier back injury in 2018.
However, noting Dr Holford stated the claimant was under the care of a psychologist, Dr Forghani reported a talk with the claimant about depression management and on 19 July 2018 he placed the claimant on a Mental Health Plan for depression and anxiety the Panel finds the claimant has downplayed the extent of his earlier symptoms. On the available evidence the Panel accepts the claimant suffered from symptoms of anxiety and depression in 2018. However, there is no further record of psychological complaint between July 2018, and the accident and the Panel accepts the claimant had recovered from any pre-existing psychological condition at the time of the accident.

DETERMINATION

Diagnosis

Mr Aghbolagh is a 41-year-old single male, living by himself with a housemate. He had a history of psychological symptoms following surgery for an earlier back injury but given no complaint in the three years preceding the accident the Panel accepts the condition had resolved. He had no family history and no significant alcohol or other drug history. He was involved in a motor vehicle accident on 17 November 2021 where he was a passenger in the rear seat of the car. He developed pain symptoms in his back, neck, right knee and left shoulder following the injury. He did not require immediate hospital attention and saw his GP for the first time after a few days. He could not return to work and received treatment for his pain which stopped after six months. He also gradually developed psychological symptoms which have continued following the accident.
Mr Aghbolagh does not meet the criteria for post-traumatic stress disorder. He does not meet criterion A as he was not exposed to a serious accident or injury and was not exposed to death or threatened death in the motor vehicle accident.
However, he continues to present with psychological/psychiatric symptoms which currently meet the DSM-5-TR criteria of persistent depressive disorder with anxious distress. The symptoms have continued despite the treatment that he has received under the care of his GP and psychologist in the form of anti-depressant medications and psychological intervention. He continues to struggle in his functioning in that he is unable to return to employment, has lost his relationship, is not able to socialise, lost his friends, and no longer takes part in hobbies that he once enjoyed. His psychological symptoms are also driven by ongoing pain. The restrictions in his level of functioning are also caused to an extent by ongoing pain. However, his current mood symptoms are related to the ongoing pain, the restriction in movements and inability to return to employment which is related to the accident.
The criteria of persistent depressive disorder are met as per the DSM-5-TR as follows:
(a)    Depressed mood for most of the day for more days than not;
(b)    Presence while depressed of the following:
(i)Poor appetite.
(ii)Insomnia.
(iii)Low energy or fatigue.
(iv)Low self-esteem.
(v)Poor concentration or difficulty making decisions.
(vi)Feelings of hopelessness;
(c)    During the two-year period, he has never been without symptoms;
(d)    Criteria for major depressive disorder has been continuously present;
(e)    There has never been a manic or hypomanic episode, and he has never met the criteria for cyclothymic disorder;
(f)    The symptoms are not attributable to the physiological effects of a substance or another medical condition;
(g)    The symptoms cause clinically significant distress or impairment in social occupational or other areas of functioning, and
(h)    The anxious distress specifier captures post-traumatic symptoms.

Causation

In Briggs v IAG Limited trading as NRMA Insurance[28] his Honour Justice Wright stated at [35]:
[28] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
The question is whether the accident could have caused or contributed to the claimant’s psychological injury and whether it in fact did so.
The Panel finds any psychological symptoms experienced by Mr Aghbolagh in 2018 had fully remitted and he did not have any pre-existing condition at the time of the accident.
The Panel is satisfied that the accident could and did cause psychological injury given there is a direct temporal relationship between the accident and the onset of mental health symptoms. The symptoms described after the accident have been clinically significant and have caused mental health issues and impairment in functioning. The symptoms got worse over time due to the ongoing pain, the restrictions in movement, minimal improvement with the treatment for pain and the inability to return to employment. The symptoms continued despite the claimant receiving psychological and biological treatment for his ongoing mood symptoms and became more significant and distressing compared to his pain over time. The Panel finds the persistent depressive disorder was caused by the accident.
The following injury was caused by the motor accident:
·Persistent depressive disorder.

Threshold injury

Section 1.6(1) of the Act provides:
“For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Part 1 clause 4 (2) and (3) of the Motor Accident Injuries Regulation 2017 states:
“(2) Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of the Act
(a) acute stress disorder
(b) adjustment disorder
(3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)”
The following injury is a non-threshold injury:
· Persistent depressive disorder (dysthymia).

CONCLUSION

The Panel revokes the certificate of Medical Assessor Doron Samuell dated 28 March 2024 and certifies that the following injury caused by the accident was a non-threshold injury:
· Persistent depressive disorder (dysthymia).

[2025] NSWPICMP 586

8 August 2025