BPN v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	BPN v Allianz Australia Insurance Limited [2025] NSWPICMP 590
CLAIMANT:	BPN
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Steven Yeates
DATE OF DECISION:	11 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); review of Medical Assessment Certificate (MAC); threshold injury dispute; Medical Assessor certified major depressive disorder and post-traumatic stress disorder (PTSD) were not caused by the accident and a decision as to whether those conditions were threshold injuries for the purposes of the MAI Act was not required; Held – somatic symptom disorder caused by the accident is not a threshold injury; MAC revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of assessment of Medical Assessor Verma dated 19 February 2024 and certifies that somatic symptom disorder with persistent and predominant pain caused by the accident on 6 April 2021 is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

[BPN] (claimant) was injured in a motor accident at Campbelltown on 6 April 2021 (accident). She subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer), the insurer of the bus involved in the accident.
These proceedings relate to a dispute between the claimant and the insurer about whether for the purposes of the MAI Act a psychological injury caused by the accident is a threshold injury (dispute). The dispute is a medical dispute, as defined in s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The dispute was referred to Medical Assessor Verma for assessment. On 19 February 2024 the Medical Assessor certified that major depressive disorder and post-traumatic stress disorder were not caused by the accident and that a decision as to whether those conditions were threshold injuries for the purposes of the MAI Act was not required (Assessment).
The claimant sought a review of the Assessment under s 7.26 of the MAI Act. The President’s delegate subsequently determined that there was reasonable cause to suspect the Assessment was incorrect in a material respect. The review application was accepted and referred to this review panel (Panel) to conduct the review of the Assessment (Review).

THE REVIEW

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

DIRECTIONS

On 12 February 2025 the Panel directed the parties to file a joint bundle that contained all material relied on by the parties for the purposes of the Review, together with written submissions for the purposes of the Review. A joint bundle, that includes written submissions prepared by both parties, was subsequently filed by the claimant.
In response to the Panel’s directions, on 14 April 2025 the insurer informed the Commission that it relied on its previous submissions dated 8 April 2024 and did not intend to lodge any further submissions.

PANEL DELIBERATIONS

The Panel convened on 14 May 2025. The Panel discussed the issues in dispute and the evidence. The Panel determined that a re-examination of the claimant was required. It was agreed the re-examination would be conducted by the medical members of the Panel on 16 July 2025.
The Panel re-convened on 8 August 2025. The members of the Panel discussed the re-examination findings and agreed on the outcome of the assessment as recorded in the certificate and these reasons.

STATUTORY PROVISIONS

The term “threshold injury” is defined in s 1.6 of the MAI Act and includes threshold psychological or psychiatric injury. A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(1)(a).
Section 1.6 provides that the regulations may exclude or include a specified injury from being a threshold psychological or psychiatric injury. Part 1 cl 4 of the Motor Accident Injuries Regulation 2017 (Regulations) states that acute stress disorder and adjustment disorder are each included as a threshold injury for the purposes of the MAI Act.
For the purposes of cl 4 “acute stress disorder” and “adjustment disorder” have the same meanings as in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013: cl4(3) of the Regulations.
Part 5 of the Guidelines contains the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. The Guidelines relevantly provide:

“General provisions for assessment
5.3    The 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.
5.4    …
5.5    A 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.
5.6    The 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.”

Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
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.”
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Briggs), Wright J held at [35]:
“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[1].”
[1] Now “threshold injuries”.
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs at [75]. Sections 5D and s 5E of the Civil Liability Act 2002 apply to the MAI Act.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Verma issued a certificate and reasons on 19 February 2024. As recorded earlier, the Medical Assessor certified that major depressive disorder and post-traumatic stress disorder were not caused by the accident and, given that finding, a decision as to whether these conditions are threshold injuries was not required.
In her reasons, the Medical Assessor recorded a pre-accident psychological history that included abuse as a child and extensive counselling. The claimant reported being diagnosed with post-traumatic stress disorder, and that she experienced flashbacks, nightmares, depression, emotional dysregulation, and hypervigilance. There was a psychiatric admission in 2005 following an overdose of sleeping tablets. The claimant had not worked since her 20’s because she has dyslexia.
There was a history of a fall in 2020 and subsequent chronic pain for which the claimant was prescribed Lyrica. She was using crutches as result of the injuries sustained in that accident.
The claimant gave the following version of the accident:
“…as the bus approached a roundabout, the bus stopped suddenly and [she] fell off her seat. She added that her bags and two crutches were scattered around her on the floor of the bus. She said that when she tried to get up, she started experiencing “electric pain” and experienced headache and blurry vision. She further added that other passengers helped her to get her crutches.”
The claimant reported that her mental health deteriorated gradually because of the accident and that her experience of pain impacted her mental health. She provided a history that pre-existing back pain had been made worse as a result of the accident. She also reported that her sleep deteriorated as a result of pain. She described experiencing low mood, lack of motivation, difficulty doing household chores, sleep disturbances, fluctuations in appetite, and feeling pessimistic.
The symptoms reported by the claimant have been considered, as have Medical Assessor Verma’s findings on examination, and her summary of the evidence. The Medical Assessor described the claimant’s presentation as being “consistent with the documentation received, history given, and mental status examination.”
The Medical Assessor found as follows:
“I overall believe that there has not been much changes [sic] in the level of functioning, except for the chronic pain impacting her ability to engage in household chores, etc. I believe her current presentation is consistent with the diagnosis of Major Depressive Disorder with Post-Traumatic Stress disorder. The diagnosis is based on the DSM-5 criteria…”
With respect to causation the Medical Assessor’s reasons state:
“[The claimant] has a pre-existing history of PTSD and Major Depressive Disorder for which [s]he has received extensive psychological treatment; however, like with any chronic mental health illnesses, she has experienced exacerbations. I believe that she continues to experience symptoms of both Major Depressive Disorder and Post-Traumatic Stress Disorder. I do not believe that the indexed incident caused the above symptoms as there is enough documentation to support that [the claimant] had pre-existing mental health issues.
[The claimant’s] change in functioning can be mainly attributed to exacerbation of pain rather than any mental health issues emanating from the MVA.”
Because causation had not been established to her satisfaction, the Medical Assessor did not address whether the conditions she diagnosed were threshold injuries.

EVIDENCE

The bulk of the evidence relied on by the parties in the Review is contained in a joint bundle filed in accordance with directions made by the Panel. The Panel has considered all the material in the joint bundle.
The claimant filed an application to lodge a report of Dr Rastogi dated 4 November 2022. The insurer consented to the application. On 21 July 2025 the Panel gave the claimant leave under rule 67C to rely on Dr Rastogi’s report in the Review.

CCTV footage

The insurer has filed, at the Panel’s direction, CCTV footage depicting the accident. The Panel has viewed the footage. It is comprised of vision recorded from different cameras on the bus. The claimant can be seen boarding the bus and seating herself near the middle door. A bag she placed on the floor falls over. She can be seen falling off her seat. Another passenger is seen assisting her.

Claim form

In an application for personal injury benefits dated 13 September 2021 the claimant provided the following description of the accident:
“I was on crutches entered the bus just sat down to get my opal card out the driver stopped suddenly I fell off the seat banging my head twice on the floor, landed heavily on the left side of my body, hurting my hand as I tried to stop myself from falling.”
The claimant described her accident caused injuries as follows:
“l fell banged my head twice and, had blurred vision and an extremely severe headache, I also ended up with 10 slipped discs, they are pinching on nerves in which I have shooting pain and numbness in my legs. I now have scoliosisthesis [sic].”

The insurer’s decisions

The joint bundle includes an internal review decision dated 27 June 2022. The internal review relates to the insurer’s decision that the accident was caused wholly by the fault of the claimant.
A second internal review decision dated 27 June 2022 relates to the insurer’s decision that the claimant’s accident caused injuries are “minor injuries” (now threshold injuries). The internal reviewer found that as a result of the accident the claimant suffered soft tissue injuries to her cervical spine and lumbar spine. The internal reviewer was not satisfied the claimant suffered an injury to her nerves/brain and found that a left knee injury was a “minor injury”. As to the claimed psychological injury, the internal reviewer said this:
“Based on the medical evidence before me, I am of the view you have sustained a minor psychological injury for the reasons that follow.
The clinical records note longstanding and frequent treatment for PTSD prior to the accident. Following the accident, it does not appear that you have been diagnosed with a recognised psychiatric illness caused by the accident.
In the circumstances, I am satisfied you have sustained a minor psychological injury because you have not been diagnosed with a recognised, non-minor psychological injury in accordance with the criteria of the DSM-5.”

Records from treatment providers

The joint bundle contains two sets of records from Tharawal Aboriginal Corporation. All these records have been considered by the Panel. Included in this material is a report from Dr Thorn. The report refers to a request for information made by the insurer’s solicitors dated 21 May 2024, and includes the version of the accident provided by the claimant when she attended the practice on 8 April 2021, two days after the accident. There is reference to the claimant reporting headaches, a tender upper left forehead, very tender low back, and tender knees. The report traverses the claimant’s subsequent progress, including her complaints and treatment.
Dr Thorn recorded that since the accident the claimant “had new pain in her back radiating to both legs, left knee pain, bilateral shoulder pain…”. She went on to say:
“[The claimant] had pre-existing anxiety, depression and PTSD. I am unable to confirm whether this has impacted her current clinical diagnosis but her injury has definitely worsened her depression symptoms due to her chronic pain as a result.”
The doctor recorded that the claimant had a previous fall in 2020 “though her pain from that had been minimal prior to her bus injury”. In the doctor’s opinion the injuries caused by the accident have caused chronic pain that is ongoing. Prior to the accident she was in receipt of a disability support pension and unable to work. She remained unable to work. In Dr Thorn’s opinion the “impact psychologically has also impacted her capacity to work”.
The records include radiological reports, all of which have been considered by the Panel. The reports relate to investigations of the claimant’s shoulder, lumbar spine, left knee, and cervical spine.

The second set of records from Tharawal Medical Centre include a clinical summary that refers to a range of conditions that pre-date the accident, including post-traumatic stress disorder, rotator cuff syndrome, carpal tunnel syndrome, disc prolapse, migraine headaches, and sleep apnoea. The medication history has been considered.
The progress notes begin in 2015 and end in 2021. The last entry recorded was on

13 December 2021 and relates to a counselling session.
The pre-accident notes include reference to a range of complaints and ailments, including those recorded in the clinical summary. An entry on 19 March 2015 records as follows: “Mood assessment: labile emotions at times – childhood trauma, lack of motivation”. The notes recorded further detail of the trauma that occurred in the claimant’s childhood. The Panel has considered the description of the trauma contained in the notes but does not propose to record the details in these reasons. It is recorded that antidepressants were suggested “but [she] doesn’t want to be on it”. Notes that relate to a dental consultation on 30 June 2015 state that she had “over 6 years of psychological counselling.”
On 19 August 2015 the following was recorded: “anxiety/depression, feels worthless all the time”. DASS scores were 16 (extreme severe depression) 10 (extremely severe anxiety) and 14 (severe stress).

In May 2018 there was reference to left knee pain and mild tenderness at L4/5. On

29 May 2018 there was reference to depression related to family issues. A note on

20 June 2018 states “Discussed likely has PTSD – went through the criteria does -meet this – not open to psychotherapy – wouldn’t’ like medication”. Notes on 15 August 2018 relate to a consultation with a psychologist. There is reference to nervousness, hypervigilance and nightmares. The subsequent notes made by psychologists have also been considered. Those notes include references to issues with the claimant’s family, friends, and neighbours. On 1 October 2019 there is reference to worsening depression, and a K10 score of 45.
A note recorded on 8 October 2020 refers to a fall in the bath. On 5 November 2020 the counsellor recorded that the claimant was “stressed about being in hospital and having tests and people touching her”. She was in hospital for a “slipped disc”. On 8 April 2021 it was recorded that the claimant was injured on a bus three days before. There were symptoms in her knees and low back.
The notes recorded post-accident include reference to pain in the claimant’s knees and back. She was referred to a neurosurgeon. Surgery was recommended. She was subsequently referred to a second neurosurgeon.
There are multiple reports from Dr Abraszko, neurosurgeon. The focus of the doctor’s involvement was the claimant’s back pain. A report dated 30 June 2021 records that the claimant had been referred following two falls “one in October last year and spent about six weeks in the hospital and the second one on 6 April”. The claimant complained of back pain. She was significantly overweight and “has PTSD, anxiety and migraine”. Back surgery was discussed.
Dr Lee, a neurosurgeon, reported on 7 February 2022 and 18 November 2021. The claimant reported back pain after a fall in 2020 and again after a fall in 2021. She had chronic low back pain. It was explained to the claimant that chronic pain can affect her “psychological mental health”. The doctor thought that if surgery is not considered, she may benefit from pain management.
Dr Yoon, rheumatology registrar at Camden Hospital, reported on 11 March 2022. He recorded a history of the claimant falling in the bathroom in October 2020. There was a subsequent fall on a bus in April 2021. Since then, she reported left leg and back pain. She also reported a right shoulder injury “over the past few years”. Physiotherapy had been improving her symptoms. The claimant had non-inflammatory arthritis with right shoulder bursitis and osteoarthritis in her left knee. She required regular simple analgesia.
In a report dated 10 May 2024 Dr Kamalaraj, staff specialist rheumatologist at Camden Hospital, noted a range of physical and psychological complaints, including post-traumatic stress disorder and anxiety. The claimant was being treated for right shoulder injury, low back pain, left knee meniscus tear and degenerative changes.
A report from Dr Dubossarsky addressed to Dr Thorn dated 30 April 2021 records that the claimant was “managing post discharge but she described having another fall on a bus which aggravated her pain”. Physiotherapy should be continued and a progress MRI of the whole spine performed.
Records from MacArthur Physiotherapy are in evidence before the Panel. A report from Kate Ryan dated 13 April 2021 records that the claimant reported lower back pain following a fall in the bathroom. Her symptoms were “settling well with treatment and [she] had shown significant improvement”. The claimant then aggravated her back pain following a fall on a bus in April 2021. Most of the entries in the progress notes relate to the claimant’s wrists. The progress notes dated 13 April 2021 record that the claimant experienced a flare up of low back symptoms following an incident on a bus on 6 April 2021.

A discharge referral from Camden Hospital dated 18 November 2020 records that the claimant had been admitted for six days with back and right hip pain. Reference is made to various radiological investigation reports, the claimant’s medical history, treatment, and functioning on discharge.
A certificate of fitness dated 4 November 2021 refers to the accident and pre-existing canal stenosis at L4/5. It is recorded that in the accident she suffered injuries to her cervical, thoracic and lumbar spine, together with knee pain. It is also recorded that the accident had “significantly affected her mood, worsened depression”.

Dr Rastogi’s report

Dr Rastogi reported on 4 November 2022. The doctor recorded a history of the accident, the claimant’s subsequent symptoms and treatment. The Panel has considered the pre-accident psychiatric history recorded by the doctor. Dr Rastogi diagnosed major depressive disorder “on a background of pre-existing PTSD”. With respect to causation the doctor stated that there is a direct connection between the accident and the claimant’s psychological condition. She made recommendations with respect to treatment and recorded that the claimant’s psychological prognosis was guarded.
In a separate report of the same date Dr Rastogi provided an assessment of permanent impairment. The current impairment was 15% and the pre-existing impairment was 2%. There was a 13% impairment as a result of the major depressive disorder caused by the accident.

Review of Medical Assessor Menogue’s assessment

A differently constituted review panel issued a certificate and reasons dated 3 October 2024. The panel confirmed the certificate of Medical Assessor Menogue dated 5 July 2023. Medical Assessor Menogue certified that the physical injuries suffered by the claimant as a result of the accident were threshold injuries.
The panel’s reasons record that the claimant’s complaints were of mild pain in her neck, both shoulders, lower back, and left knee. The panel found that:
“ … there is the presence of long-standing and pre-existing arthritic change…any initial symptomatology resulted in temporary aggravation has since ceased and her current clinical presentation is largely consistent with the pre-fall overall clinical presentation.
…the fall is no longer a contributory factor as her current clinical presentation is due to her widespread pre-existent arthritic change. That there may have been some temporary aggravation of underlying and constitutional conditions as confirmed radiologically, but her current clinical presentation is due to the underlying and pre-existing conditions. That any initial symptomatology due to aggravation of the pre-existing conditions have since ceased and is no longer a contributory factor.”
The Panel determined that there is no evidence that the claimant sustained any injury “which would constitute a non-threshold injury”.

Other evidence

There are screen shots from CCTV footage taken from the bus. The claimant can be seen standing at the bus doors before boarding, sitting, and subsequently face down on the floor of the bus. Her bags and crutches can be seen in the aisle between the seats.
The correspondence from the claimant’s solicitor to the insurer dated 6 June 2022 and the insurer’s liability notices dated 2 December 2021 and 31 January 2022 have been considered.

SUBMISSIONS

Claimant’s submissions

In written submissions dated 22 March 2024 the claimant argues that Medical Assessor Verma applied the wrong test for causation. She argued that the exacerbation of a pre-existing psychological injury if caused by the motor vehicle accident is sufficient to establish a non-threshold injury under the MAI Act.

Insurer’s submissions

The insurer’s written submissions dated 24 November 2022 address both the “fault” dispute and the “minor injury” dispute. The insurer argued that injuries to the claimant’s lumbar spine, cervical spine, and left knee are “minor injuries”. In the insurer’s submission there was no shoulder injury as a result of the accident, and there is no evidence to support “a non-minor head injury”.
The insurer did not dispute the claimant suffered injuries to her cervical and lumbar spine as a result of the accident. With respect to the cervical spine the insurer argued there is “no evidence to support a non-minor injury of the cervical spine as a result of the subject accident”. With respect to the claimant’s lumbar spine, the insurer submitted that “the claimant sustained a soft tissue injury of the lumbar spine, a minor injury for the purpose[s] of the Act”.

The insurer argued that:
“…[t]here is no evidence to indicate the subject accident caused any psychological injury let alone a non-minor injury. It is the insurer’s submission that any ongoing psychological injury is a result of the claimant’s pre-accident PTSD and depression.”
At [20] the insurer submitted that it is “clear from the above that the claimant’s level of functioning has been impacted due to her physical injuries and reported pain”.
The insurer’s submissions dated 8 April 2024 record that:
“While [Medical] Assessor Verma’s conclusion differs from the claimant’s unqualified analysis of the evidence, the insurer submits that [Medical] Assessor Verma, being an appropriately qualified expert, has utilised the gamut of her clinical skills to arrive at the conclusion the claimant did not sustain a psychological injury in the subject accident.”
The insurer argues that Medical Assessor Verma was correct in declining to undertake a threshold injury assessment, noting her conclusion that the major depressive disorder and post-traumatic stress disorder were not caused by the accident. In the insurer’s submission, there “is no reasonable cause to suspect that there are any errors in the certificate of [Medical] Assessor Verma’s [sic] as alleged by the claimant, let alone a ‘material error’ in the sense contemplated by section 7.26 of the Act.”

RE-EXAMINATION FINDINGS

The claimant was re-examined by Senior Medical Assessor Baker and Medical Assessor Yeates (Medical Assessors) on 16 July 2025 using MS Teams. She was located at her lawyer’s office and was supported by her friend. Prior to the re-examination the claimant requested that a support person be present at the re-examination. The insurer did not “take issue” with the claimant’s request.[2] The Panel agreed to a support person being present.
[2] Message to the Commission sent on 15 July 2025.
The claimant was informed that the Panel had viewed the CCTV footage prior to the re-examination. The claimant said she had also viewed the same footage.
The claimant said she was born at Peak Hill. She stated that her father, who worked as a coal miner, died from a dust-disease. Her mother had also died. She was the fifth child of a family of eight children. The claimant said she was aged 63 years. She had no children.

Psychosocial history and pre-accident history

The claimant said that when she was about 2 years of age she fell and had stitches. She said she was told about this event in her early life.
Her family moved to South-western Sydney, and she attended primary school education and then high school until she was aged 13 years. She then left school to assist her mother at home.
The claimant said that she had been identified as suffering from dyslexia. The Medical Assessors note that dyslexia is not a defined DSM-5-TR diagnosis. The claimant was asked which specific difficulties she experienced as a child. She said she was better at maths than at reading and spelling. She said that she had difficulty with writing. She said she could only read a few short words, such as “cat” and print her name before the accident. She said she was reliant on assistance from her friend for most of the interpretation of reading and completion of documents should she have to fill in documents. She reported that at the time of the re-examination she had applied for NDIS support on five occasions without success.
The claimant said that between the years of 9 to 17 years she was exposed to childhood trauma and sexual abuse. She said she felt inappropriate shame about what had happened to her, and she concealed the trauma until she first told her friend. The claimant then informed one of her sisters, who recommended that she seek counselling for her trauma. The claimant said she had commenced counselling when she was about 30 years of age and continued for about four years. She said she would attend about once every two weeks during this time.
The claimant said that she first tried to work at Coles when she was aged 16 years. Her mother was also a worker in the same shop. The claimant was provided with work to be done in the green grocery and fruit section of the store. She was unable to persist with this type of work and left. She said her mother then assisted her with the provision of casual cleaning work which they would perform together when the work was available. The claimant had not worked for many years before the accident.
The claimant said that she had received the disability support payment (DSP) from a young age. She commenced receiving support from the Australian Government from the age of about 14 years. She spent her adult life caring for her young nieces and nephews whilst their parents worked.
The claimant reported as a child she suffered from recurrent middle ear infections. She did not report any fractured bones or need for surgical treatment. She did not report any allergies.

Pre-existing psychiatric history as reported by the claimant at the time of the re-examination

The claimant said that in 2005 she had suffered from an episode of sadness and loss of hope. She said that she went to hospital and reported she felt that she wanted to commit suicide. She said that she was discharged home. Soon after returning home, she said she took a potentially lethal dose of medication and re-presented to the hospital. She was treated for a major depressive disorder. She reported that Zoloft (sertraline), an evidence-based antidepressant medication, made her feel worse because of the side-effects of nausea, vomiting and dizziness. The side-effects reported by the claimant are clinically known to be associated with the list of side-effects that could be caused by this medication.
The claimant said that whilst receiving psychological treatment for her childhood trauma she was told she had post-traumatic stress disorder. She said that she did not fully understand what post-traumatic stress disorder meant. She said the next time that the term post-traumatic stress disorder was said to have happened was after the accident. She said that her psychologist and general medical practitioner had both tried to explain the nature of the condition.

Pain history

The claimant said that prior to the accident she had been at home and fallen in her bath. She was transferred and admitted to hospital. She reported that she experienced severe pain from her fall in the bath. She was prescribed Lyrica 300mg twice daily. She said that she was transferred from the general hospital to a rehabilitation hospital. She was then discharged from the rehabilitation hospital. She was prescribed Lyrica 300mg twice daily for her pain. She reported that the morning dose of Lyrica caused her to become sleepy. She decided to stop her morning dose of Lyrica to avoid drowsiness.
The claimant said that before the accident her pain had improved “a lot.” She said she had become mobile again and had begun to slowly clean her unit. She said she did not drive and that she relied on public transport.

History of the motor accident and treatment

The claimant said that she was planning to attend her sister’s party. She said she knew that her sister liked the Jurassic Park movies. The claimant had spent time ringing different shops to find out who had a copy of the blue ray version of the Jurassic Park movie she was looking for to give to her sister. She found and reserved a copy to be held at JB HiFi.
The claimant said she planned to go by bus as usual. She had both her crutches which she used to support her walking. She said she would usually find a Kmart trolley or a Target trolley to support her whilst she was walking inside the shopping centre. She preferred these trolleys as they were at her preferred height above the ground.
The claimant said she had expected the bus driver to lower the bus to the height of the kerbside, so she did not have to struggle and lift herself onto the bus. Unfortunately, the bus was not able to provide this function. She used her two crutches to raise herself onto the bus. Then she said the bus driver signalled for her to move toward the back of the bus. The claimant said that she moved to where she thought the driver had directed her.
The claimant was sitting on a seat in front of the rear door. The other two seats were raised. She was looking for her Opal card to tap on. She had placed her bags and crutches in a position for her to look for her Opal card. She was not holding on to the handrail. Unexpectedly the driver slowed the bus to a stop. The claimant was unable to stop herself moving forward and hitting her head “on the rail where groceries go, twice.”
The claimant was informed that the CCTV footage does not show her hitting her head twice. She said she was aware of this however it was her first belief that she had hit her head twice. The claimant said she was assisted up onto the seat. She held the handrail and whilst the bus was travelling, she was seen to dab her forehead on occasion. The claimant said she thought she had cut her skin, but she said she had no bleeding from the incident.
The claimant, after leaving the bus, went into the mall. She first went to a food vendor and then to her chemist. She said she was familiar with the chemist, and she often spoke to him about her health. The chemist told the claimant she could have a mild concussion, as the claimant said she had a headache and had vomited since leaving the bus.
The claimant said she became upset, and she called her sister for assistance. She said that her sister lived close to her home – about “two doors away.” The claimant’s sister collected the claimant from the mall. The claimant was asked why she did not attend the local hospital. She said she did not want to go to hospital as she would have to wait a long time. She said her recent experience was in October 2020 after she had fallen in the bath. She said she was transferred from Campbelltown to Fairfield Hospital as there were no beds. She said that she could not have any visitors as the distance was too far and this distressed her.
The claimant said she had waited for about two days whilst she hoped that her pain would settle. She said her pain did not settle and she attended her local medical centre. She said her normal general practitioner was not working that day. She was attended by another doctor who recommended increasing the claimant’s Lyrica by a minor amount. The claimant said that the adjustment to her medications “didn’t do much” and she remained in pain.
The claimant said that her pain had failed to ease, and she said she had pain in the right side of her body, knees, lower back and “sciatic pain” in her legs. She said that as her pain progressed, she had become incontinent of her bowels and her urine.
The claimant said she could not put up her hair as was her custom because of pain in her right shoulder. She said that she had pain in her left knee and that she sits on a heat pad which provided partial relief. She reported that recently she had received a cortisone injection. She was initially improved in her pain however the effects of the treatment quickly failed, resulting in a return of her pain.
The claimant said that she had been provided advice about surgical treatment. She said she was fearful of “becoming a vegetable”. The claimant was asked to explain her meaning and she said that “she had heard sometimes people have anaesthetic and wake up injured – like a vegetable.” She said she had attended her neurosurgeon for advice, and she recommended surgical treatment as the doctor thought she was at risk of “paralysis.” She said the information made her upset and anxious and she was frustrated that the wait for the MRI scan of her lower back was about four months, as she could not afford the cost of a private MRI examination.

The claimant said that she had not used any antidepressant medication as the prescription of Zoloft made her worse and she did not want another problem on top of her pain. The claimant said she had been treated by a clinical psychologist. She said that she was appreciative of the psychologist and general practitioner’s help. She said she was primarily fearful of her pain and what will happen as the pain had not improved and she “wanted help.”

Mental state examination

The claimant presented as a clinically overweight woman who reported her height as 4 foot and 5 inches. She was dishevelled. She spoke with a loud voice at times whilst emphasising her anxiety and worries about her pain. She said she was worried that her pain had spread from the right side of her body to most areas of her body.
The claimant’s mood was reactive and congruent with the content of her speech. When talking about her childhood trauma and abuse she was tearful. When talking about her friendship and support from her friend she was observed to be able to share mutual laughter. During the re-examination the claimant was able to be re-assured by her support person. The claimant reported pain but did not demonstrate any excessive pain related behaviours. She complained about sitting for too long.
The claimant was able to concentrate for the 70-minute re-examination. She was able to explain herself. When distressed by the content of her memories she could use the psychological skills taught to her to settle quickly and then return to the re-examination process.
Prior to direct questioning the claimant did not report any depressed mood. When crying about her childhood trauma she said it was understandable given what she went through. The claimant was not asked to provide any details about her childhood trauma and abuse.
The claimant did not report any symptoms of post-traumatic stress disorder prior to prompting. She did confirm that she would become angry at the thought of the bus driver and that she felt he was at fault for not driving his bus safely. She said her pain caused her poor sleep. She said she had suicidal thoughts because of her unrelenting pain. She felt her main worry was not having her pain treated and relieved. She said her pain resulted in her having low energy and loss of interest in cleaning her home.
The claimant did not report re-living the experience of the accident. She did have frustration and anger when she was reminded about the motor accident.
The claimant was insightful into her condition. Her judgment was normal. She said she had also applied to NDIS five times unsuccessfully for assistance with her cleaning and maintenance of her home.

Diagnosis

The claimant had a prior history of post-traumatic stress disorder and major depressive disorder and had been treated for these conditions before the accident.
In October 2020 she fell in her bath and suffered from severe pain from this fall. She spent an extended period in the general hospital and regional rehabilitation hospital prior to being discharged. She was supported by her friend and the local Aboriginal Medical Service.
The claimant said her pain was improving and that she had significantly improved before the motor accident. She said she had reduced her use of Lyrica to avoid daytime sleepiness.
The claimant did not report sufficient symptoms to meet a diagnosis of major depressive disorder or post-traumatic stress disorder using DSM-5-TR criteria.
The claimant reported that her symptoms after the motor accident included headache and pain in her back. She reported that her pain has increased in severity and regions of her body affected. She said that she had not had any subsequent falls, motor accidents or injuries. The claimant’s anxiety, fatigue and fear of further health deterioration is in keeping with DSM-5-TR F45.1 somatic symptom disorder with persistent and predominant pain.
The criteria for this condition are as follows:
Criterion A:
One or more somatic symptoms that are distressing or result in significant disruption of daily life.
Criterion B:
Excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns are manifested by at least one of the following:
Persistent high level of anxiety about health or symptoms.
Criterion C:
Although one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than six months.)
The specifier “with predominant pain” is for individuals whose somatic symptoms predominantly involve pain. The specifier “persistent” denotes a persistent course characterised by severe symptoms, marked impairment and long duration (more than six months.)

Causation

The claimant was recovering from an injury prior to the accident. She had improved markedly and whilst she might have experienced pain it had not impaired her capacity to travel or socialise or attend to other important specific functioning before the motor accident. The claimant was engaged in a social and recreational activity at the time of the accident. She was preparing to participate at her sister’s party and engage in the family tradition of gift giving. She was not disordered in these areas of functioning prior to the motor accident.

The Medical Assessors are satisfied that the accident could cause a somatic symptom disorder with persistent and predominant pain. The claimant’s pain was exacerbated by the accident. The pain continued to increase in severity and distribution and is associated with the claimant experiencing anxiety and fear about her future health which is sufficient to meet DSM-5-TR criteria for this disorder.
The claimant at the time of this re-examination was pre-occupied with her predominant and persistent somatic symptom of pain which had not resolved from the date of the motor accident to the date of this re-examination.
The claimant did have a pre-existing post-traumatic stress disorder and major depressive disorder. The accident did not cause an aggravation to the pre-existing conditions that was more than negligible.
The claimant’s pre-existing post-traumatic stress disorder was diagnosed as part of her childhood trauma. She did not report that her childhood trauma related symptoms had become exacerbated by the accident. The claimant did report that whilst receiving psychological treatment for her childhood trauma she was told she had post-traumatic stress disorder. She then explained she did not fully understand what the term “PTSD” meant. She said the next time that the term “PTSD” was said to have happened was after the accident. She said that her psychologist and general medical practitioner had both tried to explain to her that they thought she had “PTSD”. The claimant then progressed to state that she was upset with the bus driver because he had not been respectful to her as she entered the bus. She said she had pain after the accident because of her fall in the bus. She said her pain remained untreated and she was concerned as her pain had not improved after she had been told she had no more need for physical treatment. The claimant said she hoped she would be treated at a Pain Clinic but prior to this re-examination she had not been referred by her medical team.
Whilst having angry thoughts about the behaviour of the bus driver, the claimant did not report that her life had been placed in danger because of the accident. The claimant’s immediate behaviour after the accident was not consistent with her being identified either by herself or the bystanders who assisted her that she needed emergency services immediately after the accident occurred. The CCTV footage does not show that the claimant was exposed to actual or threatened death or serious injury because of the accident. For these reasons the accident fails to meet DSM-5-TR F43.1 criterion A for a new episode of post-traumatic stress disorder caused by the accident. The claimant did not report past symptoms from her childhood trauma having re-presented as would have been expected if that trauma had been exacerbated by the accident.
For the above reasons the claimant does not have post-traumatic stress disorder caused by the accident and the accident did not result in an exacerbation of her childhood trauma previously diagnosed as post-traumatic stress disorder.
The claimant reported the main emotion she experienced since the accident was feelings of anxiety that her pain has not resolved and the medical team had not referred her to a Pain Clinic. The claimant said that she did experience normal sadness when she thought of her childhood trauma and she had learnt to not think about these experiences. The claimant had an angry emotion when thinking about the lack of respect displayed by the bus driver in the claimant’s entry into the bus and then moving the bus before she had “tapped on.”
The claimant demonstrated a full range of consistent behaviours whilst interacting with her support person. She showed warm positive emotions to her support person. She showed an angry affect on her face whilst talking about the behaviour of the bus driver towards her. The anger she showed was not excessive or inconsistent with her subsequent anxiety about her ongoing pain.
The claimant’s lack of motivation was reported as caused by her pain and her changes in functioning of different aspects of her activities of daily living were explained by the claimant as related to her pain experience after the accident.
The claimant did not report a depressed mood for most of the day, for more days than not as required for the claimant to have experienced the core symptoms of depressed mood as defined by DSM-5-TR F32.0 major depressive disorder of mild severity or greater.
The claimant did not report or demonstrate any loss of interest or anhedonia where she would not be able to experience any positive emotions that were observed by the Medical Assessors during this re-examination. For these reasons the claimant does not have a major depressive disorder caused by the accident.

DETERMINATION

The Panel is satisfied that prior to the accident the claimant suffered from a number of physical conditions. In this regard the Panel gives weight to the records of her treatment providers, including the clinical summary in the Tharawal Aboriginal Corporation notes.
The Panel is satisfied the claimant had a pre-accident history of back symptoms. The history included a fall in her bath in October 2020 that resulted in injury to her back and ongoing symptoms including pain. Following the fall, she was hospitalised and referred for radiological investigations.
The claimant told the medical members of the Panel when the re-examined her that her back symptoms following the fall significantly improved before the accident. The claimant’s report that her back symptoms had improved is supported by Dr Thorn’s opinion that the claimant’s pain from the fall had been “minimal prior to her bus injury”.[3] The Panel is satisfied the claimant’s back pain did improve after the fall but had not resolved prior to the accident.
[3] Report of Dr Thorn dated 14 June 2024.
The Panel gives weight to the Tharawal Aboriginal Corporation notes recorded on 7 and

8 April 2021, that provide contemporaneous evidence of the claimant’s complaints of back pain following the accident. The notes recorded on 7 April 2021 refer to a fall on a bus the day before, and state “lower back – acute on chronic slightly worse”. There is also reference to “tingling in her legs yesterday”. The notes made on 8 April 2021 record that the claimant fell off a seat on the bus, landed on the floor:
“…hit her head and she got all the tingles in the back and down both legs and feet numb with throbbing and pressure on the knees…
…very tender low back and SI joints[4]…”
[4] The Panel infers “SI joints” is a reference to sacroiliac joints.
Radiological investigations of the claimant’s back were ordered, and she was referred to Drs Abraszko and Lee, both of whom are neurosurgeons. In her report of 14 June 2024 Dr Thorn recorded that “since her bus injury [the claimant] has had new pain in her back radiating to the legs…”. In a report dated 30 April 2021 Dr Dubosarsky, of Camden Hospital, recorded that the claimant:
“…was initially managing adequately post discharge but she described having another fall on a bus which aggravated her pain.”
The Panel notes that the claimant was treated at Camden Hospital following the October 2020 fall. Dr Dubosarsky’s reference to “post discharge” relates to her admission with respect to the fall.
The Panel has considered the certificate and reasons of the review panel dated

3 October 2024[5] (October 2024 panel), including the panel’s re-examination findings. That panel found the claimant suffered physical injuries as a result of the accident, the panel’s reasons recording that “[t]here are threshold injuries in relation to the right shoulder, left shoulder, cervical spine, lumbar spine and left knee”. The panel also found that “any initial symptomatology resulted in temporary aggravation has since ceased and her current clinical presentation is largely consistent with the pre-fall overall clinical presentation.” The panel went on to find at [71] that the accident was no longer a “contributory factor as her current clinical presentation is due to her widespread pre-existent arthritic change”. The panel did not record in its reasons when, in its opinion, the aggravation of the claimant’s pre-existing changes caused by the accident ceased.
[5] The panel was constituted by Member Macken and Medical Assessors Couch and Kenna.
The October 2024 panel confirmed the certificate of Medical Assessor Menogue dated

5 July 2023. The medical dispute assessed by Medical Assessor Menogue, and the matter to be certified by him, was whether the physical injuries caused by the accident were threshold injuries for the purposes of the Act: s 7.17 and sch 2 cl 2(e). Medical Assessor Menogue certified that the physical injuries referred to him (both shoulders, cervical and lumbar spine, and left knee) were threshold injuries. Because the October 2024 panel confirmed Medical Assessor Menogue’s certificate of assessment it is conclusive evidence that the injuries referred to the Medical Assessor are threshold injuries: s 7.23(2)(b) MAI Act. Other than in that respect, the findings of Medical Assessor Menogue (and the October 2024 panel) do not bind this Panel.
The Panel is required to make, and has made, its own findings. In reaching its findings, the Panel has evaluated the totality of the evidence before it. The Panel is satisfied the claimant injured her back as a result of the accident and that this injury resulted in her experiencing increased pain.
On the basis of the pre-accident records from Tharawal Aboriginal Corporation, the Panel is satisfied the claimant had a pre-accident history of post-traumatic stress disorder and major depressive disorder and was treated for these conditions. For the reasons given by the medical members of the Panel in their re-examination findings, the Panel is not satisfied the accident either caused or made a material contribution to these conditions whether by way of exacerbation or aggravation. The conditions were not made worse by the accident.
The two medical members of the Panel, both of whom are psychiatrists, have diagnosed somatic symptom disorder with persistent and predominant pain. This diagnosis was made by them following a thorough review of the evidence before the Panel and after they had re-examined the claimant. The Panel gives weight to the opinion of its medical members that the claimant has a somatic symptom disorder with persistent and predominant pain and agrees with and adopts their reasons for making this finding. The Panel finds the claimant satisfies the diagnostic criteria for somatic symptom disorder with persistent and predominant pain.
The Panel is satisfied the accident could cause a somatic symptom disorder with persistent and predominant pain. The Panel has found that the claimant injured her back as a result of the accident and that her pre-existing back pain was made worse as a result of the accident.
The Panel is satisfied the somatic symptom disorder has developed as a result of the claimant’s accident caused physical symptoms. The Panel is satisfied the accident was a necessary condition of the occurrence of the somatic symptom disorder. Factual causation has been established on the balance of probabilities.
Somatic symptom disorder with persistent and predominant pain is not a threshold injury.
The Panel revokes Medical Assessor Verma’s certificate dated 19 February 2024 and certifies that somatic symptom disorder with persistent and predominant pain caused by the accident on 6 April 2021 is not a threshold injury for the purposes of the MAI Act.

De-identification of the decision

These reasons contain sensitive personal information. Having weighed the matters referred to in rule 132(4) of the Rules, including the safety, health and wellbeing of the claimant and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied the decision should be de-identified before it is published.
The Panel directs that, pursuant to Rule 132 of the Rules, the decision be de-identified prior to publication.

[2025] NSWPICMP 590

11 August 2025