Ali v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Ali v AAI Limited t/as GIO [2024] NSWPICMP 283
CLAIMANT:	Syed Arsalan Ali
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Paul Friend
DATE OF DECISION:	9 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) by a Medical Assessor (MA) who determined that the claimant had a WPI not greater than 10%, that is, 7% WPI; review sought by claimant under section 63; claimant alleged a psychological injury caused by the death of his brother in a motor accident on 12 October 2016; clauses 1.5, 1.6, 1.7, 1.203 and 1.213 of Motor Accident Permanent Impairment Guidelines in respect of mental and behavioural disorders considered and applied; claimant did not meet the criteria for a DSM-5-TR psychiatric diagnosis; Held – the Panel revoked the certificate issued by MA Michael Li Ying Hong dated 18 November 2022; the Panel certified that the claimant did not sustain a recognised psychiatric injury caused by his brother’s death in the motor accident on 12 October 2016.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Michael Li Ying Hong dated 18 November 2022. 2. Certifies that the claimant did not sustain a recognised psychiatric injury caused by his brother’s death in the motor accident on 12 October 2016.

STATEMENT OF REASONS

BACKGROUND

The claimant, Mr Syed Arsalan Ali, is a 26-year-old man whose brother was involved in a motor accident on 12 October 2016 (the motor accident). Mr Ali’s brother was killed in the motor accident. At the time of the motor accident, Mr Ali was 19 years of age and resided with his family in Pakistan.
On 20 March 2017, Mr Ali lodged a motor accident personal injury claim form in respect of the motor accident. The relevant compulsory third-party insurer was AAI Limited t/as GIO (the insurer).
Mr Ali claims that he suffered psychological injuries as a result of his brother’s death in the motor accident.
Mr Ali’s claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of benefits and compensation by way of lump sum damages (under Chapter 5) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Mr Ali’s whole person impairment (WPI) has arisen in connection with his claim, namely, whether his WPI is greater than 10%. This constitutes a medical assessment matter under s 58(1)(d) of the MAC Act.
A medical assessment matter is determined in accordance with Chapter 3, Part 3.4 of the MAC Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Michael Li Ying Hong for assessment.
On 18 November 2022, Medical Assessor Hong determined that Mr Ali suffered a major depressive disorder caused by the motor accident and assessed Mr Ali as having a WPI not greater than 10%, namely, 7% (the Medical Assessment).

REVIEW PROCEDURE

Mr Ali sought a review of the Medical Assessment in accordance with s 63 of the MAC Act (the Review).
The President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 63(3) of the MAC Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 63(3A) of the MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the PIC Rules.
On 25 July 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review (Mr Ali by 13 October 2023 and the insurer by 27 October 2023).
On 13 November 2023, the Panel informed the parties that it considered a re-examination of Mr Ali was required. Arrangements were made for Mr Ali to be re-examined by Medical Assessor Gerald Chew and Medical Assessor Paul Friend by video link (MS Teams) on 15 January 2024.
On 12 April 2024, the insurer lodged with the Commission an application to admit late documents, Mr Ali objected to the admission of the document attached to the application. The attached document was a copy of the determination of a review panel on 19 February 2024 relating to another claim (Mr Ali’s sister) arising from the same motor accident. On 29 April 2024, the Panel refused the insurer’s application and provided brief reasons.

LEGISLATIVE FRAMEWORK

General provisions

Section 3 of the MAC Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Mr Ali’s claim and entitlements to compensation are governed by the provisions of the MAC Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 131 of the MAC Act provides that 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 the motor accident is greater than 10%.

Permanent impairment assessment

Section 44(1)(c) of the MAC Act says Motor Accidents Medical Guidelines may be issued in respect of the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The current Motor Accident Permanent Impairment Guidelines are effective from 1 June 2018 (the Guidelines). The Guidelines were developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with s 133(2)(a) of the MAC Act: cl 1.1 of the Guidelines.
The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 1.2 of the Guidelines. They apply under the MAC Act to the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident occurring between 5 October 1999 and 30 November 2017 inclusive: cl 1.3 of the Guidelines.
Causation of injury is addressed in cls 1.5, 1.6 and 1.7 of the Guidelines.
Clause 1.6 of the Guidelines notes:
“1.6 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.”

Clause 1.7 of the Guidelines states:
“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.”
Clause 1.203 of the Guidelines states:
“The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA 4 Guides (pages 291-302) is to be used for background or reference only.”
Clause 1.213 of the Guidelines states:
“The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.”
The current edition of the DSM is the fifth edition text revision (DSM-5-TR).
In respect of the PIRS, cl 1.219 of the Guidelines states that the behavioural consequences of psychiatric disorders are assessed on the following six areas of function, each of which evaluates an area of functional impairment:
(a)    self-care and personal hygiene (Table 11 of the Guidelines);
(b)    social and recreational activities (Table 12 of the Guidelines);
(c)    travel (Table 13 of the Guidelines);
(d)    social functioning (relationships) (Table 14 of the Guidelines);
(e)    concentration, persistence and pace (Table15 of the Guidelines), and
(f)    adaptation (Table 16 of the Guidelines).

Tables 11 to 16 of the Guidelines identify the five classes of assessment within each of the six areas of function.
Clauses 1.225 to 1.228 and Table 17 of the Guidelines address the three step procedure involved in calculating psychiatric impairment.
Clauses 1.222 to 1.224 of the Guidelines address the adjustment for the effects of prescribed treatment to the assessment of WPI.
Clause 1.218 of the Guidelines states:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
Pre-existing impairment is addressed in cls 1.31, 1.32 and 1.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 1.31 of the Guidelines.
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 1.33 of the Guidelines.
Subsequent injury is addressed in cl 1.34 of the Guidelines which states:
“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a) Mr Ali’s indexed and paginated bundle of documents lodged on the Commission’s portal on 13 October 2023 (Mr Ali’s documents), and
(b) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 26 October 2023 (insurer’s documents).

ASSESSMENT UNDER REVIEW

Medical Assessor Hong examined Mr Ali on 15 November 2022 and issued a certificate under s 61 of the MAC Act on 18 November 2022.[1]
[1] Mr Ali’s documents at pages 13-21.
Medical Assessor Hong was asked to assess the dispute between the parties about the degree of permanent impairment under s 58(1)(d) of the MAC Act in respect of psychiatric conditions – psychological injuries.
In respect of Mr Ali’s psychosocial and pre-accident history, Medical Assessor Hong noted that Mr Ali was born in Karachi, Pakistan and came to Australia about four years ago with his family. He was on a student visa. He grew up with his parents and was the second of five siblings. No developmental trauma was identified. Mr Ali was not aware of having had any formal medical diagnosis. He denied drug or alcohol problems. He had never been married and had not had any partners. Mr Ali did not have a past psychiatric history.
Medical Assessor Hong took the following history of the motor accident:
“On 12 October 2016, Mr Ali was overseas when he heard his brother, Shah Ali, was killed in an accident. He explained that his brother was like a father figure to him, they talked and shared everything, and that once he discovered that his brother was gone, he lost the person he loved the most, he developed depression immediately and he has not recovered since.
He confirmed his grandmother passed away 10 days before his brother and aside from this, there have been no other losses in the family or accidents, since 2016.
He reported that since his brother passed away, he has had no motivation and no goals. He said he is angry for no reason and argues with people.
He reported that everybody in the family is affected by his brother's death, and does not know if anyone is on treatment for mental health.”[2]
[2] Mr Ali’s documents at pages 14-15.
Medical Assessor Hong noted that Mr Ali described the onset of anxiety and depressive symptoms shortly after the motor accident and that his psychological symptoms had not improved over time.
In respect of current symptoms, Medical Assessor Hong noted that Mr Ali described chronic amorphous depressive symptoms and loss of enjoyment. Mr Ali complained of low energy and fitness levels; loss of weight; sleep disturbance; reduced concentration and memory (with thoughts wandering back to his brother); anxiety; irritability; and social withdrawal. He denied having had suicidal ideation, a change in alcohol consumption or ever having experienced symptoms of psychosis. He complained of headaches and pain affecting different parts of his body.
On mental state examination, Medical Assessor Hong made the following observations:
“Mr Ali had short uncombed hair and a full beard. He was generally vague and only made eye contact briefly. He gestured regularly. There was no psychomotor slowing or abnormal movements. There was no apparent distress during the assessment. He was mildly restricted in his affect range and reactivity. He spoke spontaneously. He was not thought disordered and the provided history was easy to follow.
There were no difficulties in alternating between topics and staying within a topic. He maintained a normal speed.”[3]
[3] Mr Ali’s documents at page 16.
Medical Assessor Hong took the following employment history:
“In Karachi, he finished A level which is equivalent to Year 12, and was admitted to a University. He cannot remember what study he was undertaking and states that after his brother’s death, he did not go properly.
His father had a business in garment manufacturing, and he did not do any work in Karachi but was going to the factory to learn the business, after his brother passed away, he stopped going.
Mr Ali came to Australia and started a bachelor's degree in business in November 2018. He states it was meant to be a 2-1/2 and 3-year course, but he has been doing it for about four years now, and he thinks he might finish it sometime in 2023. He reported he lacks focus and does not study every day. All classes are online. I asked Mr Ali whether he is doing full-time study, he states he does not know how to answer that. I asked him whether he is passing the exams, and he says he is passing, but he did not pass some of the components and he has to redo it. Aside from this, he could not provide further clarification.
Mr Ali worked briefly in a car wash business in June 2019. He states he was there may be [sic] two to four months and he did not want to do it. He then worked in the pizza shop as a kitchen hand and worked for about three months, and states he did not like it and that his employer was asking him to do clean up work, which he did not want to do, so he did not continue.”[4]
[4] Mr Ali's documents at pages 16-17.
In respect of Mr Ali’s current functioning, Medical Assessor Hong noted that Mr Ali did not have any goals and did not know what he wanted to do in the future. He was living with his parents, sister and brother. He showered two or three times a week without prompting. He did not talk to his family much. He eats whatever the family prepares. He does not contribute to the house work. He goes to the shops sometimes to take random walks. He has no problem with driving but stated that he did not want to drive anymore. He no longer engaged in his previous activities, which included cricket, football and other sporting activities. On the days he is studying, he might spend three hours online. When he is not studying, he does nothing. He has no friends in Australia and does not contact his friends overseas.
Medical Assessor Hong did not identify any inconsistencies in Mr Ali’s presentation.
Medical Assessor Hong provided a summary of the relevant documentation in his possession.
In respect of Mr Ali’s diagnosis, Medical Assessor Hong noted that Mr Ali had no prior psychological difficulties but that after his brother passed away in the motor accident, he developed chronic depressive symptoms. He had never received any treatment, did not wish to pursue any treatment and his condition became entrenched over the years.
Medical Assessor Hong opined that Mr Ali’s depressive symptoms were consistent with a major depressive disorder.
In respect of causation, Medical Assessor Hong concluded that the death of Mr Ali’s brother was a major contributor to his current psychological condition as he had not identified other relevant factors. In coming to this conclusion, Medical Assessor Hong noted that Mr Ali had no past psychiatric history. He also noted that Mr Ali’s grandmother had passed away and that, 10 days later, his brother passed away. Mr Ali had described a major reaction with chronic depressive symptoms as a result of his brother’s death.
In respect of the PIRS six areas of function, Medical Assessor Hong assessed Mr Ali as follows:
(a)     self-care and personal hygiene: class 2;
(b)     social and recreational activities: class 3;
(c)     travel: class 1;
(d)     social functioning (relationships): class 2;
(e)     concentration, persistence and pace: class 2, and
(f)     adaptation: class 3.

Medical Assessor Hong assessed Mr Ali as having a 7% WPI.

REVIEW OF EVIDENCE

The City School North Nazimabad Karachi General Certificate of Education

In evidence, there is a copy of Mr Ali’s The City School North Nazimabad Karachi General Certificate of Education certifying his achievements in the June 2014 examination series.[5]
[5] Insurer's documents at pages 25-26.
Mr Ali was awarded advanced subsidiary grades in accounting and business studies.

Cordoba School Certificate of General Education

In evidence, there is a translated copy of Mr Ali’s Cordoba School General Certificate of Education certifying his achievements in the June 2016 examination series.[6]
[6] Insurer's documents at pages 505-506.
Mr Ali was awarded advanced subsidiary grades in accounting and business studies and advanced levels in Urdu and business.

International English language test results

In evidence, there is a copy of Mr Ali’s international English language test results dated 21 January 2017.[7]
[7] Insurer's documents at page 504.
Mr Ali attained a score of 6.5 for listening; 6.0 for reading; 5.5 for writing; 6.0 for speaking; and an overall band score of 6.0.

Motor accident personal injury claim form

In evidence, there is a motor accident personal injury claim form completed by Mr Ali on 3 April 2017 (the claim form).[8]
[8] Mr Ali's documents at pages 29-38.
The claim form set out the basic particulars of the motor accident to the best of Mr Ali’s ability.
In the claim form, Mr Ali described his injuries caused by the death of his brother in the motor accident as a “psychological injury”, “post-traumatic stress disorder” and “nervous shock”.[9]
[9] Mr Ali's documents at page 36.
In the claim form, Mr Ali described his occupation at the time of the motor accident as “student/accounting”.[10]
[10] Mr Ali's documents at page 37.

Bahria University

In a message from Bahria University dated 18 July 2017, Mr Ali was notified of his university acceptance.[11]
[11] Insurer's documents at page 507.
In evidence, there is Mr Ali’s Bahria University, Karachi campus student card issued in August 2017.[12] The student card confirmed Mr Ali’s enrolment and the program for which he was enrolled.
[12] Insurer's documents at pages 508-509.

Visas

On 26 June 2018, Mr Ali applied for a visitor tourist visa (subclass 600) through the Australian Government’s Department of Home Affairs.[13]
[13] Insurer's documents at pages 493-495.
As a requirement of his visa application, Mr Ali was required to undergo a medical assessment. In the medical referral letter dated 26 June 2018,[14] Mr Ali denied any psychological or psychiatric disorder including major depression or any other health related issues.
[14] Insurer’s documents at pages 497-497.
On 28 September 2021, Mr Ali applied for a student visa (subclass 500) through the Australian Government’s Department of Home Affairs.[15] On the same date, the Department of Home Affairs issued Mr Ali with a bridging visa whilst his student visa was being processed.[16]
[15] Insurer's documents at pages 9-11.
[16] Insurer's documents at pages 21-23.
Accompanying the visa application was an undated document signed by Mr Ali and entitled “Statement Of Purpose”.[17] In that document, he stated, amongst other things:
“As far as my high school education is concerned, I have completed my O levels from The City School Senior Boys North Nazimabad Karachi followed by A levels from Cordoba School for A levels. I then started my Bachelor of Science in Accounting and Finance from Bahria University in 2017 but not completed yet.
I came with my family on a visitor visa to Sydney Australia, while visiting different places I encountered many universities and colleges and I saw the students here are from all over the world studying together and teaching standards are also very high as compared to Pakistan, which inspired me to try my luck in one of the colleges. Upon applying, I successfully got admission in Bachelor of Business at Holmes College due to my A level results.
…
I have always been interested in studying business since primary school as my father is a successful businessman and I have been highly inspired with his business skills. I as a result, I [sic] chose business subjects in O levels and A levels. I have strong intention to develop a successful business career due to which the course I will be studying at Holmes College is a Bachelors [sic] of Business that starts from 12^thNovember 2018 and ends on 31^st July 2021.”[18]
[17] Insurer's documents at pages 499-501.
[18] Insurer's documents at page 499.
Mr Ali was subsequently granted a student visa (subclass 500) by the Department of Home Affairs.

Holmes Institute

Mr Ali applied for admission to a Bachelor of Business degree at Holmes Institute in Sydney on 9 October 2018[19] and his application was accepted on 11 October 2018.[20]
[19] Insurer's documents at pages 510-511.
[20] Insurer's documents at pages 528-539.
Transcripts of Mr Ali’s academic record were in evidence[21] together with requests for course extension forms.[22]
[21] Insurer's documents at pages 598-599.
[22] Insurer's documents at pages 83-86.
On 18 November 2022, Mr Ali was conferred a Bachelor of Business degree by Holmes Institute.[23]
[23] Insurer's documents at page 600.

Employment

In evidence, there are Mr Ali’s pay advices issued by Manisha Tina Pty Limited (Crust Pizza) for the pay periods commencing 9 December 2019 and ending on 14 June 2020.[24]
[24] Insurer's documents at pages 100-126.
In evidence, there are Mr Ali’s Commonwealth Bank of Australia records.[25] The insurer prepared a schedule of Mr Ali’s income receipts from 25 February 2019 to 20 June 2022 from his Commonwealth Bank of Australia records.[26] The schedule identified payments of income to Mr Ali from Green Global, Door Dash Inc, Crust Pizza, Menulog Pty Limited, Uber BV, Deliveroo Australia and 7-Eleven Stores.
[25] Insurer's documents at pages 130-448.
[26] Insurer's documents at pages 576-588.
In evidence, there was a schedule of payments made by Uber BV to Mr Ali for the period 1 June 2022 to 21 March 2023.[27]
[27] Insurer's documents at pages 589-597.

Mrs Syeda Fizza Adnan

In evidence, there is a statement by Mr Ali’s mother, Syeda Fizza Adnan, dated 11 June 2020 that described how her son’s death in the motor accident had affected her, her husband and her children.[28] I will now refer to the relevant parts of that statement.
[28] Insurer's documents at pages 559-573.
Mrs Adnan stated that each of her children had been affected by her son’s death in the motor accident in different ways. The older children (Mr Ali being one of them) seemed to have been less affected or had been better able to cope with and overcome the difficulties they faced after their brother’s death.
Mrs Adnan stated that Mr Ali was two years younger than his deceased brother but that they were extremely close and were best friends. They had many common friends and often socialised together. They also shared interests such as cricket, cars, computers and mobile telephones.
Mrs Adnan stated that, although Mr Ali was clearly upset and emotionally distressed by his brother’s death, he had, as far as she was able to tell, coped remarkably well so far. Based on what Mr Ali had told her, he felt that, as he was now the oldest son, he had to become an adult and replace his deceased brother and behave responsibly.
Mrs Adnan stated that she could see that Mr Ali was still distressed and emotionally upset by his brother’s death but that he tried not to show it. He had managed to maintain his studies to a reasonable degree.
Mrs Adnan stated that she had observed that, since his brother’s death, Mr Ali had confined his social activities and social interaction to close family members only. He appeared to have lost contact with and ceased to have an interest in socialising with his many friends. He did not appear to have made many close friends when he was in New York or since he has been in Australia. He had adopted the role of the protector of his younger siblings.
Mrs Adnan stated that she had observed that, in the last few years, Mr Ali had developed personality traits that had not existed prior to his brother’s death. He had become quite stubborn and often had bouts of anger and an inability to control his emotions. At times, he shouted and lost control of his emotions. These traits in Mr Ali were not noticed by her before his brother’s death. Mrs Adnan was fearful that Mr Ali was bottling up all of his emotions and was at risk of a breakdown. However, so far, he seemed to be coping reasonably well although, there were obvious differences in the way he was acting and differences in his emotional state.

Treating medical records and reports

On 20 March 2017, Dr Bhatti of Karachi, Pakistan completed a motor accident pro forma medical certificate in respect of Mr Ali.[29] The medical certificate formed a part of Mr Ali’s claim form dated 3 April 2017. Dr Bhatti provided a diagnosis of post-traumatic stress disorder and recommended that Mr Ali undergo review by a psychiatrist.
[29] Mr Ali's documents at page 41.
In evidence, there is a referral letter from Dr Nasheeth Usmani, general practitioner, of Greenacre Medical to Dr Ashraf Philips, psychiatrist, dated 10 April 2021.[30] The referral was for the purpose of obtaining an opinion and for management. The referral letter stated that Mr Ali’s presenting complaints were major depressive disorder secondary to the event of a motor vehicle accident on 12 October 2016 in which his brother had died. The referral enclosed what was referred to as a letter from Dr Julian Parmegiani, consultant psychiatrist. The referral also stated that there was no medical history recorded and no medications recorded. Mr Ali’s lawyers had referred him to Dr Parmegiani for a medico-legal consultation and report on 13 October 2020.
[30] Mr Ali's documents at pages 64-65.
There is no report from Dr Usmani in evidence. Mr Ali’s Greenacre Medical clinical records are not in evidence.
There is no report from Dr Philips in evidence. Dr Philips’ clinical records in respect of Mr Ali were not in evidence.
There was no evidence from any other treatment providers, which was consistent with Mr Ali’s evidence that he had never received any treatment, nor did he wish to pursue any treatment for his condition.

Medico-legal reports

Dr Tom Newlyn: 21 August 2018

On 20 August 2018, Mr Ali consulted Dr Tom Newlyn, psychiatrist, at the request of the insurer. Dr Newlyn prepared a report dated 21 August 2018.[31]
[31] Insurer's documents at pages 469-480.
Dr Newlyn took a history from Mr Ali that his brother had died in the motor accident on 12 October 2016. Mr Ali had received a message from his brother’s friend advising that his brother had been in an accident. Mr Ali telephoned the friend but he did not reply. He went on to a news channel and saw that there had been an accident on the highway. He called the hospital and was told that his brother was “no more”.[32] There had been a head-on collision. The driver of the other vehicle had fallen asleep at the wheel. Mr Ali’s brother had broken his neck in the motor accident.
[32] Insurer's documents at page 470.
Mr Ali told Dr Newlyn that he had slept in the same room as his brother until he was aged 19 years. His brother had always supported him. He has tried to live with the sadness but it never fades away. Sleeping habits were disturbed. He was unable to forget his brother. Sometimes, when he thought about his brother, he could hear him in his thoughts. He still had some of his brother’s clothes and he may wear them or touch them.
Dr Newlyn noted that, following the motor accident, there had been no treatment history. No psychopharmacology trial was prescribed. No other medications were indicated or prescribed. No behavioural interventions were recalled by Mr Ali. Psychotherapy was not provided. No family therapy was provided.
Dr Newlyn noted that there had been no relevant injuries or conditions suffered by Mr Ali since the motor accident. There had been no significant psychiatric history. There had been no pre-accident professional counselling or psychotropic medication trials conducted.
Dr Newlyn took a detailed family history that included Mr Ali’s parents and siblings. Mr Ali told Dr Newlyn that his family had lead a normal life and that his childhood was good. Mr Ali reported no childhood sexual or physical trauma.
In respect of Mr Ali’s academic history, Dr Newlyn noted that Mr Ali had completed year 12 in August 2016. Results came out on 14 August 2016 but university admissions had closed on 29 July 2016. Mr Ali had planned to do business management and thought that he would apply for a February 2017 enrolment. However, following the motor accident, Mr Ali’s family did not want to live in Karachi “with the memories being too hard”.[33] Mr Ali went to New York and a cousin forced him to go to a community college. However, it was too expensive. He planned to enrol in a university course in Australia but was uncertain as to which one. He had decided against business management. He was trying to convert his visa to a student visa.
[33] Insurer's documents at page 473.
In respect of Mr Ali’s employment history, Dr Newlyn noted that, whilst Mr Ali was living in Queens, he worked in a convenient store up to 12 hours per day, 5 days per week in Long Beach. Travelling to work involved a two hour bus ride. Mr Ali stated to Dr Newlyn, “I worked every second I was there”.[34]
[34] Insurer's documents at page 473.
In respect of Mr Ali’s current functioning, Dr Newlyn noted that Mr Ali reported personality changes since the motor accident. At the time of the consultation, Mr Ali was residing with his family in Islamabad after having returned from the USA after six months. He left the USA because it was too expensive. Dr Nguyen noted that, whilst Mr Ali resided in the USA, he did not shower every day and that many habits had changed since the motor accident. He did not make any friends in Islamabad. He no longer associated with friends after the motor accident. He had lost interest in past times since the motor accident. He did not engage in any sporting activities. He was able to work and complete tasks in the convenience store in the USA and he worked at activities at an average pace.
In respect of mood, Dr Newlyn opined that Mr Ali had described grief symptoms.
Dr Newlyn observed that the history obtained from Mr Ali was reliable and consistent with his psychiatric mental status examination.
On mental state examination, Dr Newlyn observed that Mr Ali’s appearance was consistent with age; he was neatly groomed; he was behaviourally average; no psychomotor retardation or agitation was observed; no tics or vocalisations were reported; no aggressive acts towards peers and property were reported; he was cooperative; facial expression was serious; eye contact was good; language was appropriate with average volume, goal-directed coherence and no bizarre use of language; affect was serious and consistent with thought content; affective reactions were appropriately modulated; there was no evidence of cyclic mood changes; no suicidal ideation; no phobias reported; no obsessions observed or reported; no dissociative behaviour observed or reported; no preoccupations reported; no anomalies in perceptions; no hallucinations reported; no delusions reported; sensorium was clear; orientation was intact for time, place and person; no short-term or long-term memory deficit; no impairment of concentration observed; used abstract concepts without difficulty; and of average intelligence.
Dr Newlyn opined that Mr Ali’s condition was consistent with the alleged injuries and disabilities.
Dr Newlyn opined that Mr Ali met DSM-5 diagnostic criteria for the principal diagnosis of bereavement and not post-traumatic stress disorder or major depression. However, the Panel notes that bereavement is not a DSM-5-TR diagnosis and that Dr Newlyn has used the ICD-10 diagnostic coding system.
Dr Newlyn opined that as Mr Ali had no clinical psychiatric disorder, his condition was stable and that his psychiatric injuries had sufficiently recovered. Mr Ali did not require treatment.
Dr Newlyn opined that Mr Ali did not have a psychiatric disability that would interfere with his ability to resume pre-accident study or home duties.

Dr Richa Rastogi: 2 September 2018

On 2 September 2018, Mr Ali consulted Dr Richa Rastogi, consultant psychiatrist, at the request of his lawyers. Dr Rastogi prepared a report dated 2 September 2018.[35]
[35] Mr Ali’s documents at pages 42-53.
Dr Rastogi took a detailed history of injury that was consistent with the material in evidence.
Dr Rastogi noted Mr Ali’s current symptomatology as follows:
(a)    poor concentration and memory problems;
(b)    intrusive memories of his brother;
(c)    abandonment of activities such as football;
(d)    socially reclusive and isolated, having lost friendships;
(e)    quiet and withdrawn, spending most of his time at home;
(f)    feeling responsible and self-blaming for the emotional state of his parents;
(g)    describing himself as being a burden on his family;
(h)    loss of identity;
(i)    immense pressure to look after the family;
(j)    feeling dumb and stupid, and
(k)    loss of confidence and feelings of uselessness and loss of purpose.
Dr Rastogi noted that Mr Ali had not received any treatment to date. There was no known previous history of depression or anxiety and no family history of mood disorder or drug and alcohol abuse.
Dr Rastogi diagnosed Mr Ali with a chronic adjustment disorder with delayed bereavement and dependent personality traits.
Dr Rastogi opined that Mr Ali’s injuries were mainly psychological causing poor performance, poor concentration, flashbacks of his brother, anhedonia, loss of interests, social aloofness, reclusiveness and self-loathing thoughts, impacting his peer related and academic performance. Such impairments were likely to be pervasive and have a significant impact on his social and academic functioning and increased the risk of depressive relapses due to poor stress vulnerability and poor distress tolerance. The immense responsibilities placed on his shoulders to carry his family and care for his parents and siblings had taken a significant toll.
Dr Rastogi observed that Mr Ali was planning to attend university but that his performance was poor. He was not performing to his pre-morbid social and academic capacity. This would impact his future vocational and social goals because of his anxiety and poor self-image and loss of confidence.
Dr Rastogi opined that there were no restrictions on Mr Ali’s capacity for work on the open labour market.
In respect of the PIRS six areas of function, Dr Rastogi assessed Mr Ali as follows:
(a)     self-care and personal hygiene: class 1;
(b)     social and recreational activities: class 3;
(c)     travel: class 1;
(d)     social functioning (relationships): class 2;
(e)     concentration, persistence and pace: class 3, and
(f)     adaptation: class 2.

Dr Rastogi assessed Mr Ali as having a 6% WPI.

Dr Julian Parmegiani: 13 October 2020

On 13 October 2020, Mr Ali consulted Dr Julian Parmegiani, consultant psychiatrist, at the request of his lawyers. Dr Parmegiani prepared two reports dated 13 October 2020.[36]
[36] Mr Ali’s documents at pages 54-63.
Dr Parmegiani took a background history, psychiatric history, medical history, history of the motor accident and the psychiatric sequelae that were, in the main, consistent with the material in evidence.
On mental state examination, Dr Parmegiani observed Mr Ali to be of emaciated appearance. He was punctual for his appointment and was cooperative with the interview process. Mr Ali’s emotional expression was reduced in range and he rarely smiled. Mr Ali’s thinking was coherent and he did not express delusional ideas. He did not experience visual or auditory hallucinations. He was oriented in time, place and person and his memory was intact.
Dr Parmegiani provided the following summary and opinion:
“Mr Syed Arsalan Ali is a 23-year-old man whose older brother was killed in a motor vehicle accident on 12 October 2016. Mr Ali and his brother had a close relationship, and they planned to take over their father’s textile business in due course. Mr Ali planned to join his brother in Australia, and study together.
Mr Ali became depressed after his brother’s death. His psychological reaction was more significant than normal bereavement. Mr Ali withdrew from his university studies in Pakistan, and he lost interest in all other activities. His appetite decreased and he lost 10kg in weight. He suffered insomnia, reduced energy and poor motivation. He eventually resumed his studies, but his symptoms continued. Mr Ali remained consistently depressed and withdrawn. He had no contact with friends and he did not visit recreational venues. He neglected his nutrition and personal hygiene. His symptoms were consistent with a diagnosis of Major Depressive Disorder, in accordance with the criteria listed in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric association).[37]
[37] Mr Ali's documents at pages 57-58.

Dr Parmegiani opined that Mr Ali’s major depressive disorder was caused by the motor accident.
Dr Parmegiani noted that Mr Ali had not undergone any specialist psychological or psychiatric treatment and that he had not suffered from a pre-existing psychiatric condition.
Dr Parmegiani opined that Mr Ali could work or study for up to 20 hours per week. However, he would find it difficult to work or study longer hours due to his reduced stress tolerance.
In respect of the PIRS six areas of function, Dr Parmegiani assessed Mr Ali as follows:
(a)     self-care and personal hygiene: class 3;
(b)     social and recreational activities: class 3;
(c)     travel: class 1;
(d)     social functioning (relationships): class 3;
(e)     concentration, persistence and pace: class 1, and
(f)     adaptation: class 3.
Dr Parmegiani assessed Mr Ali as having a 13% WPI.

Dr Tom Newlyn: 8 February 2021

On 8 February 2021, Mr Ali consulted Dr Tom Newlyn, psychiatrist, at the request of the insurer. Dr Newlyn prepared a report dated 8 February 2021.[38]
[38] Insurer’s documents at pages 481-492.
Once again, Dr Newlyn took a detailed history in respect of the motor accident, treatment, family background, education and employment.
In respect of Mr Ali’s daily routine, Dr Newlyn noted that Mr Ali lived with his family in a two bedroom home unit. He lies down in the living room and he does not know who is at home and he does not know where his family spends their time. He had no idea when to go to bed. He lies down during the day and goes to sleep. He used a computer when studying. He did not know which room was his brother and sister’s room. He did not focus and did not know how much time he spent on classes.
In respect of self-care, Mr Ali stated that his father forced him to shower every month or fortnight. He trimmed his beard when his father told him that he looked bad. He has a haircut every three to four months at a shop that his father takes him to. Most of the time, his father cooked. Sometimes, he did not eat for 24 hours or he might eat too much. He does not help with household chores. He does not change his clothes for a week. Someone washes his clothes for him but he had no idea who.
In respect of friendships, Mr Ali denied having friends in Australia. He did not remember any of his friends. He had no interest in talking to anyone. He felt lonely.
Mr Ali denied having any interests or sporting activities. He did not go out. He only travelled when forced to do so.
In respect of concentration, persistence and pace, Mr Ali found himself sitting idly not knowing what was going on whilst he was studying. He only reads when studying. He was always out of focus. He did not feel like working. He was unsure as to what stage he was at in his studies.
Dr Newlyn observed that Mr Ali described grief symptoms.
On mental state examination, Dr Newlyn observed that Mr Ali’s appearance was consistent with age. Dr Newlyn observed that, during the interview, there were delays in answering at first. Mr Ali shifted in his seat and sometimes turned away. However, as time went on, he did not have many overt movements. There were no tics or vocalisations reported. There were no aggressive acts towards peers and property reported. Impulse control was average. Interaction was avoidant, in that, he gave short imprecise answers. Expression was serious. Eye contact was maintained when answering some questions but at other times he looked away and down. When not answering questions, eye contact was not maintained. Language rate was appropriate; language volume was average; and language coherence was imprecise with a surprising lack of knowledge about how the household ran, where people were and what they did. There was no bizarre use of language. Affect was avoidant. Sensorium was clear. Short-term and long-term memory deficits did not appear to be related to a mental health problem. Concentration was not impaired in the clinical interview. Knowledge was not assessable because of avoidance and imprecision.
In respect of present complaints, Mr Ali reported a lack of interest in his family but was able to study for his bachelor’s degree. He is sad and misses his brother.
Dr Newlyn reported that all Mr Ali’s interviewed family members presented with a similar inability to recall events and reported similar distress concerning the death of Mr Ali’s brother. The similarity in presentation with memory problems that did not meet criteria for usual memory disturbance, suggested that the complaints were not reasonable and not part of the clinical psychiatric disorder.
Dr Newlyn observed that Mr Ali’s symptoms had altered since his last assessment, in that, there was added memory impairment.
Dr Newlyn observed that the history obtained was inconsistent with a diagnosis of a clinical psychiatric disorder.
Dr Newlyn opined that Mr Ali did not meet DSM-5 diagnostic criteria for the diagnosis of a clinical psychiatric disorder. Symptoms at assessment did not fit a known clinical disorder and had elements of Follie A Famille. Dr Newlyn explained:
“Folie A Famille is a described mental health disorder in which emotional and behavioural symptoms are transmitted from one individual to another. The disorder is not in DSM-5.
Social isolation contributes to the onset of the disorder. Socially isolated people tend to become dependent on those they are with, leading to an inducers’ influence on those around them.
All 5 family members interviewed presented with similar unusual symptoms.”[39]
[39] Insurer’s documents at pages 489-490.
Dr Newlyn opined that Mr Ali did not have a clinical psychiatric disorder that would affect his academic studies or that would impact his ability to work.
Dr Newlyn concluded that, as Mr Ali did not have a clinical psychiatric disorder, an assessment of the degree of permanent impairment was not required.
Dr Newlyn opined that the prognosis for Mr Ali was for the resolution of his symptoms once the legal matter had settled.
In response to a request to comment on Dr Parmegiani’s report dated 13 October 2020, Dr Newlyn stated that he had interviewed Mr Ali’s family members who had presented with symptoms that were not a part of a clinical psychiatric disorder and he disagreed with the conclusions of Dr Parmegiani.

Dr Julian Parmegiani: 15 June 2021

On 15 June 2021, Dr Parmegiani prepared a supplementary report at the request of Mr Ali’s lawyers.[40] Dr Parmegiani was provided with a copy of Dr Newlyn’s report dated 8 February 2021 and was requested to comment on that report and to provide an assessment of Mr Ali’s WPI.
[40] Mr Ali’s documents at pages 66-68.
Dr Parmegiani maintained his assessment of 13% WPI.
In respect of Dr Newlyn’s report, Dr Parmegiani agreed with his observations that Folie A Famille is not a recognised psychiatric condition. However, he did not agree that Folie A Famille was an explanation for Mr Ali’s psychiatric presentation. Dr Parmegiani maintained that when he assessed Mr Ali, the history of symptoms provided was consistent with a diagnosis of major depressive disorder. Mr Ali presented with insomnia, early-morning waking and diurnal mood variation. There was reduced appetite and weight loss of 10kg. He felt depressed, withdrawn and unmotivated. He avoided social contact. He lacked energy and concentration. He lost interest in his studies and did not returned to university.
Dr Parmegiani concluded that, using a recognised diagnostic system, Mr Ali and other family members became significantly depressed following the death of Mr Ali’s older brother.

SUBMISSIONS

Mr Ali’s submissions

Mr Ali provided written submissions.[41] A brief outline of those submissions is provided below.
[41] Mr Ali’s documents at pages 1-9.
Mr Ali relied on the reports of Dr Parmegiani.
Medical Assessor Hong diagnosed Mr Ali as having suffered a major depressive disorder caused by the death of his brother in the motor accident.
After providing his conclusions as to diagnosis and causation, Medical Assessor Hong failed to correctly assess Mr Ali’s WPI.
Mr Ali’s submissions went on to review Medical Assessor Hong’s assessment of the PIRS six areas of function and sought to demonstrate, on the material in evidence, the errors made in the classifications attributed to self-care and personal hygiene and social functioning.

Insurer’s submissions

The insurer provided written submissions dated 14 September 2021 and 19 January 2023. A brief outline of those submissions is provided below.
The insurer relied on the reports of Dr Newlyn.
The insurer provided submissions in respect of Medical Assessor Hong’s assessment of the two PIRS areas of function focussed on by Mr Ali’s submissions.
Despite his ongoing complaints of psychological injury and emotional distress, Mr Ali did not undergo any treatment for his condition.
As a requirement of his visa application, Mr Ali was required to undergo a medical assessment. In the medical referral letter dated 26 June 2018, Mr Ali denied any psychological or psychiatric disorder including major depression or any other health related issues.
Despite his ongoing complaints of psychological injury and emotional distress, Mr Ali successfully completed his Bachelor of Business degree with Holmes Institute.
Mr Ali’s mother, in her statement dated 11 June 2020, described Mr Ali as coping remarkably well with the loss of his brother, managing his studies and achieving reasonable marks.

THE RE-EXAMINATION

The Panel re-examination and assessment of Mr Ali was undertaken via audio-visual link (MS Teams) on 15 January 2024. Medical Assessor Chew and Medical Assessor Friend undertook the re-examination and assessment jointly.
Mr Ali confirmed his full name and date of birth. He was unsure how old he was and hesitantly said that he was either 26 or 27 years old.
Mr Ali reported that he lived with his parents and three siblings aged approximately 22, 20 and 16 years.
Mr Ali adamantly denied any current work or study, stating that he had not worked for “a few years”. He said that he was supported financially by “whatever comes in” from his father’s work. He was unable to describe or say what work his father did. He was unable to explain the deposits to his bank account from Uber and other income as provided in the documents.

The motor accident

When asked to describe the motor accident, Mr Ali reported that, in 2016, his brother was involved in a motor accident resulting in his death. Mr Ali was living with his family in Karachi, Pakistan at the time. He said that the family was informed of the motor accident via a message from his brother’s friends in Australia to his mother’s telephone. He said that he rang the hospital and confirmed his brother’s condition.
Mr Ali reported that his brother’s funeral was held in Pakistan and that his brother was buried in Pakistan.

Symptoms

Mr Ali reported that, following the motor accident, he became “not himself” with “mood swings”. On direct questioning, he confirmed that his mood swings were predominantly in the depressive range. He reported that his brother was always “just there” in his mind. He said that he was close to his brother and they spent a lot of time together in Karachi. He said that he looked up to him as an older brother and that “he was my go-to person”. He said that he was devastated by the loss of his older brother. He said that, prior to the motor accident, he spoke to his brother weekly by telephone.
Mr Ali reported poor sleep, in particular difficulty staying asleep, waking up in the middle of the night. He did not report any suicidality. He did not report diurnal mood variation.
Mr Ali claimed that he spent most of his time at home in the house, mainly alone in his bedroom in bed. He said that, periodically, he would try and “clean something around the house”.
Mr Ali stated that he showered approximately once every four days.
Mr Ali said that he left the house up to three times a week by foot, going for a walk or to the local Coles or IGA to buy snack food.
Mr Ali said that his appetite was variable. He did not think that there had been significant weight gain.
Mr Ali said that his mother cooked and performed most of the domestic duties.
Mr Ali reported that he was trying to read a book, “The Alchemist”, but struggled to read for more than a few minutes at a time. He said that he watched television very occasionally, the last time being a few weeks ago watching a game show. He said that he did not interact with social media and did not watch YouTube or any other media. He said that he did not do any gaming.
Mr Ali said that he had no friends in Australia. He said that he had lost contact with his friends in Pakistan.

Current and proposed treatment

Mr Ali is not engaged in any treatment and does not wish to have any psychological, psychiatric or pharmacological treatment.

Past psychiatric history

Mr Ali denied any past psychiatric history.

Medical history

Mr Ali reported no comorbid medical history.

Personal history

Mr Ali was born and raised in Karachi, Pakistan. He is of Muslim faith.
Mr Ali said that his family life was “happy and good” prior to the death of his brother. He said that he completed the equivalent of year 12 in Karachi.
Mr Ali denied any further studies in Pakistan. He was asked about the enrolment in the Bahria University in Karachi. An image of his student card was included in the supplied documents. Mr Ali stated that he probably enrolled in the university after completing school but did not attend the university because of his emotional state following his brother’s death.
Mr Ali migrated to Australia in “around 2017 or 2018” and studied a Bachelor of Business at Holmes Institute. He completed his degree in 2022. He said that the course was online. On further direct questioning, he stated that he had attended face to face, prior to the COVID-19 pandemic restrictions.
Mr Ali completed the degree in September or October 2022. He took leave from the degree from about November 2021 to about February 2022.
The Panel asked Mr Ali how he was able to complete the degree if he had so much difficulty with concentration and memory. He replied that he was “pushed” by his father who was keen for him to complete the degree. His father had subsequently advised Mr Ali to enrol in a master’s degree, which he had not done. Mr Ali stated that he was not in the mood to do a further degree.
Mr Ali admitted that he worked part time for Crust Pizza for 20 hours a week until two years ago. He said that he was a team member in the store and did not do any deliveries. He was unable to explain the inconsistency between his self-report and the information provided showing deposits from Uber into his bank account from 2021 onwards.[42]
[42] Insurer’s documents at pages 130-448 and at pages 576-588.
The Panel asked why he was not working. He replied that he was not in the mood and tending to depression.
The Panel asked about his father’s attitude to his current situation considering that his father had “pushed” him to complete the undergraduate degree. He replied that his father wanted him to do a master’s degree.
The Panel asked about the content of the Statement of Purpose which was part of the Student Visa Application and the report by Dr Newlyn in the material provided.
In his Statement of Purpose, Mr Ali stated:
“I chose Holmes College because its [sic] one of the best colleges in Sydney and due to its location, high quality modern facilities, outstanding faculty, as well as emphasis on comprehensive learning environment. I am hoping to learn advanced level knowledge and skills related to business that would enable me to operate our family business more efficiently and effectively. Holmes College is conveniently located on York Street, Sydney CBD. It can be easily accessed by public transport such as trains and buses.”[43]
[43] Insurer’s documents at page 499 at [4].
In his report dated 8 February 2021, Dr Newlyn took the following work history from Mr Ali:
“While I was in Queens I worked in a convenience store. It took up to 12 hours a day 5 days a week. I worked till 8 or 9 PM. I worked at Long Beach and it was a 2-hour bus ride. I worked every second I was there. I haven’t worked in Australia.”[44]
[44] Insurer’s documents at page 485.
The Panel asked Mr Ali how he was able to work up to 12 hours each day, 5 days each week in 2017 or 2018 when he was living with his family in the United States and yet was not currently working.
Mr Ali replied that he was not in the mood and tending to depression.
The Panel asked Mr Ali about the discrepancy between his forceful statements and clear goals in the Statement of Purpose and the reported concentration and memory problem and not working or studying since completing the undergraduate degree.
Mr Ali provided a similar answer about not being in the mood.
Mr Ali stated that he previously enjoyed sports, particularly cricket but had not engaged in any sports in Australia.

Mental state examination

Mr Ali was casually dressed and presented with untidy hair and a beard. He engaged hesitantly. He stated that he had difficulties recalling short and long term details. He reported his mood as up and down but mainly low. His affect was restricted to the dysphoric range. His speech was of normal rate, rhythm, volume and prosody. There was no formal thought disorder. There were no delusions and no hallucinations. He was oriented to time, place and person. He described concentration difficulties but was able to concentrate for the duration of the interview of approximately one hour. There was no suicidality noted.

DIAGNOSIS AND REASONS

Mr Ali’s account was inconsistent. He stated that he was not in the mood to work but could not explain the deposits in his bank account from Uber from 2021 onwards. His description of his current symptoms was vague.
Mr Ali repeatedly stated that he was not in the mood and tending to depression when he was asked why he was mostly staying at home.
The inconsistencies in his account compared to the supplied documents and his account that his father “pushed” him to compete the undergraduate degree were unable to be reconciled.
The Panel, in this circumstance, is unable to make a recognised psychiatric diagnosis under DSM-5-TR.
It follows that, without a recognised psychiatric diagnosis, the Panel could not make an assessment of WPI.

FINDINGS

The Panel adopts the re-examination findings and conclusions of Medical Assessor Chew and Medical Assessor Friend based on their examination and specific findings pertaining to diagnosis and the assessment of permanent impairment.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[45] and Insurance Australia Ltd v Marsh.[46]
[45] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[46] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel revokes the certificate issued by Medical Assessor Hong dated 18 November 2022.
The Panel determines that Mr Ali did not sustain a recognised psychiatric injury under
DSM-5-TR caused by his brother’s death in the motor accident.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

[2024] NSWPICMP 283

9 May 2024