El Hawat v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	El Hawat v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 269
CLAIMANT:	Yasmen El Hawat
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury under section 1.6(3); claimant suffered injury in a motor vehicle accident; Medical Assessor found claimant sustained a somatic symptom disorder secondary to the accident; insurer sought review; Held – claimant did not meet the diagnostic criteria for somatic symptom disorder; claimant sustained adjustment disorder with anxiety caused by the accident; MAC revoked and new certificate issued; adjustment disorder with anxiety is a threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alexey Sidorov dated 26 May 2023 and certifies the following injury caused by the accident is a threshold injury: · adjustment disorder with anxiety.

STATEMENT OF REASONS

INTRODUCTION

On 10 September 2020 Ms Yasmen El Hawat (the claimant) was a front seat passenger in a vehicle when another vehicle travelling through a roundabout collided with the left passenger side of her vehicle (the accident). Ms El Hawat sustained injury.
Ms El Hawat is now years 20 of age and was 16 years of age at the date of the accident.
Ms El Hawat lodged an Application for personal injury benefits dated 22 October 2020 in relation to injury allegedly sustained in the accident.
Insurance Australia Limited trading as NRMA Insurance is the relevant insurer with liability to pay statutory benefits to Ms El Hawat under the Motor Accident Injuries Act 2017 (the MAI Act).
Ms El Hawat’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the accident were threshold injuries.
On 18 February 2021 the insurer issued a Liability Notice - Benefits after 26 Weeks declining the claim for statutory benefits on the basis the injury sustained by the claimant was a non-minor (threshold) injury for the purposes of the MAI Act.
On 2 March 2021 the claimant requested an internal review of the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 26 March 2021 affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.[1]
[1] Insurer’s bundle p 312.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act” and whether treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances and relates to the injury caused by the motor accident.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Commission to Medical Assessor Sidorov.
The insurer has sought a review of the certificate of Medical Assessor Sidorov.

DOCUMENTS BEFORE THE REVIEW PANEL

On 13 May 2024 the insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 338 (hereinafter called the insurer’s bundle).
On 30 July 2024 the claimant uploaded to the portal documents indexed and paginated from pages 1 to 5 which solely encompass submissions dated 19 July 2023 (hereinafter called the claimant’s bundle).
On 6 November 2024 the Review Panel (Panel) directed the claimant by close of business 27 November 2024 to upload to the portal the following:
(a) updated clinical notes of Excelsior Family Medical Centre covering the time frame 1 March 2021 to date, and
(b) the clinical notes of any other general practitioner consulted by Ms El Hawat since the accident.
After significant delay the insurer uploaded the clinical records of Excelsior Medical Centre as of 12 December 2024 paginated from pages 1 to 422 (Excelsior Family Medical Centre).

THRESHOLD INJURY – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)adjustment disorder.”
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.3 of the Guidelines commenced on 6 December 2024 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   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    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    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.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

ASSESSMENT UNDER REVIEW – MEDICAL ASSESSOR SIDOROV

In a certificate dated 26 May 2023 Medical Assessor Alexey Sidorov certified the following injury was not a threshold injury for the purposes of the MAI Act:
· Somatic symptom disorder.
Medical Assessor Sidorov found Ms El Hawat:
“…developed somatic symptoms, specifically pain in her neck and back, in the absence of significant organic pathology and the relatively minor motor vehicle accident, …. She has since developed excessive thoughts, feelings and behaviours related to her pain symptoms, characterised by disproportional and persistent thoughts about the seriousness of the symptoms, as well as persistently high levels of anxiety, and secondary depressed mood regarding her pain, devoting excessive time and energy to these concerns”.
Medical Assessor Sidorov found the somatic symptom disorder developed secondary to the accident on the background of pre-existing psychological vulnerabilities. He reported there were no other identifiable causes.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of Medical Assessor Sidorov on 9 June 2023 within 28 days of the date on which his certificate was made available to the parties.
On 14 August 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 6 August 2024 the Panel agreed an examination was required.

EVIDENCE BEFORE THE REVIEW PANEL
Certificate of Medical Assessor Truskett

Medical Assessor Truskett issued a certificate dated 3 November 2022 in which he certified the following injury caused by the accident was a minor (threshold) injury for the purposes of the MAI Act:
· soft tissue injury to the neck, and
· soft tissue injury to the back.[4]
[4] Insurer’s bundle p 15.
He was asked to assess the neck, back, right shoulder, left shoulder, right hip and left hip.
Ms El Hawat complained of pain in the neck and the low back which was present all the time. She reported pain at the top of her right shoulder occurring every two days and lasting for a few minutes. She reported pain in the left shoulder all the time.
Medical Assessor Truskett reported she experiences pain at the top of the right buttock. He stated this is not the hip. He noted this pain is made worse when she attends the gym. She attends the gym daily and has a personal trainer. He reported pain in the left hip is in the same distribution. He also reported:
“She is unable to run for more than five minutes. She can walk, stand, and sit for 30 minutes. She can walk hills for 15 minutes. She can walk stairs. She can drive a motor vehicle for short distances. She can go shopping. She can make a bed and do vacuuming with a cordless stick vacuum. She does not cook by choice. She can wash her clothes in a washing machine but does not hang them up. She does not do yard duties by choice. She avoids bending. She can perform all acts of daily living. Her ability to socialise has been reduced. She can only have it now once a week. She does, however, attend the gym daily, but can no longer play Oztag or rugby. She gets swelling of both her feet.”
Medical Assessor Truskett also stated Ms El Hawat reported chronic abdominal pain for about six years that may have been related to gallstones but have not been completely relieved by her cholecystectomy.
On examination Medical Assessor Truskett reported Ms El Hawat was 160cm tall and weighed 79kg with a body mass index of 30.9kg/m2.
Medical Assessor Truskett reported the sensory changes extending on to the claimant’s face and the variable nature of the sensory changes to the trunk and upper and lower limbs could not be explained by organic pathology. He reported there was no contemporaneous evidence of injury to either shoulder or either hip. He concluded the claimant may have sustained soft tissue injury to the neck and back.

Application for personal injury benefits

In the application dated 22 October 2020 Ms El Hawat described her injuries caused by the accident as back, neck, right shoulder, left shoulder shock, aggravated anxiety, depression, headaches, vomiting, concussion. She reported the following relevant pre-accident condition:
“Anxiety – have had it for 1 year prior”.[5]
[5] Insurer’s bundle p 37.

Photographs

A photograph of a white Jeep shows deformity to the left front fender. There is no obvious damage showing passenger side door impact.
A photograph of a red vehicle shows damage to the rear driver’s side door and the rear panel and mudguard.

Treating medical evidence

Auburn Hospital

The claimant attended Auburn Hospital on 11 September 2020.[6] The clinical notes state:
[6] Insurer’s bundle p 88.
“Patient had car accident, other car went through roundabout at speed most likely ~ 20-40 km/hr and struck patient’s car in passenger side
-      minimal damage to car
-      patient was sitting in passenger seat and saw car coming
-      was wearing seatbelt
-      no injuries to other passengers, no ambulance or fire services called
-      No LOC, mild headache following
-      No nausea or vomiting post episode
-      Able to ambulate from scene, went to bed
Woke next morning with worsened headache which has remained intense, bilateral and constant
-      nil photophobia, no clinical neck stiffness, no drowsiness
-      no nausea or vomiting
-      not worse on coughing
-      not sudden onset.
Called ambulance this morning requesting for morphine and investigation of her back pain in the context of this and a previous accident several months ago.
Given paracetamol by ambulance with nil effect.”
On examination the following was reported:
“Head: NAD
Face: NAD
Neck: And with good movements nil neck stiffness. Nil midline cervical tenderness, primarily paraspinal
Chest: No localised rib tenderness with nil dyspnoea
Abdomen: Abdomen soft, generalised intermittent tenderness with no focal point nil rebound or percussion
Pelvis: NAD, ROM good
Arms: NAD
Legs: NAD, ROM good.
Back: Primarily paraspinal lumbar tenderness.”
Ms El Hawat was diagnosed with musculoskeletal pain and possible concussion secondary to motor vehicle accident. She refused analgesia. It was noted there was “no clinical need for XR or CT of spine but patient out of proportion pain”. X-ray of the whole spine, hips and pelvis showed no fractures.
Ms El Hawat attended the Emergency Department on 11 January 2021 with a history of chest pain.

Excelsior Family Medical Centre

In the period 26 January 2015 to 21 January 2022 the claimant had multiple attendances with chronic abdominal pain.
On 23 March 2016 Dr Lina Aljumha reported problem behaviour, aggressive behaviour, mother worried. Mother to see psychologist and claimant advised to do likewise.[7]
[7] Insurer’s bundle p 127.
On 7 April 2016 Ms El Hawat attended with her mother. Her weight was recorded as above the 99^th percentile. Weight was recorded as 72kg, height as 154cm.
On 15 July 2016 Dr Majeed reported the claimant did not follow a normal diet, her mother was worried about her weight and whether it would damage her knees and hips. She reported the claimant did not do any physical activity.[8]
[8] Insurer’s bundle p 127.
On 6 March 2017 Dr Majeed reported the claimant was admitted to Auburn for acute abdominal pain, nauseated without any vomiting.[9]
[9] Insurer’s bundle p 139.
On 21 September 2017, the claimant attended complaining of lower back pain and loin pain following jumping.[10] Imaging was performed which diagnosed minor scoliosis.
[10] Insurer’s bundle p 148.
On 6 November 2017 Dr Abdullah reported acute on chronic pain with constipation and noted the claimant was overweight.
On 18 May 2018 Dr Majeed reported chronic epigastric pain and on 23 May 2018 she referred the claimant to a paediatric gastroenterologist at Westmead for epigastric and abdominal pain.[11]
[11] Insurer’s bundle p 156.
On 6 December 2018 Dr Majeed reported persistent thoracic and lower back pain not related to activity. On 17 December 2018 Dr Abdullah reported lower back pain on and off for months with leg pain on and off lately.[12]
[12] Insurer’s bundle p 160.
On 18 December 2018 the claimant had an X-ray of the thoracolumbar spine which demonstrated scoliosis.[13]
[13] Excelsior Family Medical Centre p 139.
On 2 January 2019 the claimant had an abdominal ultrasound for left upper quadrant pain.[14]
[14] Excelsior Family Medical Centre p 139.
On 29 January 2019 Kerrie Park Chiropractor reported to Dr Majed that she had seen the claimant with chronic lower back.[15] She reported it was worse when sitting for too long or when standing for prolonged periods to help with housework. Ms Park reported: “Ms Hawat also agrees to being inactive and spending a lot of time using her mobile phone in bed”.
[15] Excelsior Family Medical Centre p 238.
On 19 July 2019 Dr Rostamian reported headache all over the head with photophobia.[16]
[16] Insurer’s bundle p 165.
On 9 September 2019 Ms El Hawat underwent a CT of the paranasal sinuses.[17]
[17] Excelsior Family Medical Centre p 242.
On 17 September 2019 the claimant had an MRI brain which was reported to be normal.[18]
[18] Excelsior Family Medical Centre p 146.
On 18 September 2019 the claimant’s weight was reported to be 79kg.
On 29 October 2019 Dr Majeed reported lower back pain, ongoing. She referred the claimant for a CT scan.[19]
[19] Insurer’s bundle p 168.
On 20 November 2019 Ms El Hawat saw Dr Martin Forer, ear, nose and throat surgeon in respect of her husky voice and intermittent sore throat.[20]
[20] Excelsior Family Medical Centre p 245.
On 14 December 2019 the claimant’s weight was reported to be 77kg and on 18 February 2020 it was reported to be 76kg.
On 25 March 2020 the claimant was reported to be low on iron and she underwent an iron infusion on 27 March 2020.
On 5 April 2020 Dr Majeed reported Ms El Hawat had been suffering headache, backache and abdominal pain.[21]
[21] Insurer’s bundle p 174.
On 24 April 2020 Dr Abdullah referred the claimant for a gastroscopy having regard to her history of abdominal pain. The same day Dr Huzaia reported the claimant had been feeling tired, she had an iron infusion one month ago, she also sometimes felt dizzy and had back pains.[22]
[22] Insurer’s bundle p 175.
On 29 April 2020 the claimant saw Dr Nicolaou, gastroenterologist in respect of severe epigastric pain which sometimes radiated to the back and had been present intermittently for two or three years.[23]
[23] Excelsior Family Medical Centre p 255.
On 5 May 2020 the claimant underwent a gastroscopy which was normal.[24]
[24] Excelsior Family Medical Centre p 252.
On 18 May 2020 Dr Sam Nassar, paediatrician saw the claimant for chronic recurrent abdominal pain and associated joint pain.[25] He noted frequent school absenteeism.
[25] Excelsior Family Medical Centre p 256.

On 23 June 2020 Dr Majeed reported Ms El Hawat opened up about anxiety, panic attacks at school.[26]
[26] Insurer’s bundle p 178.
On 27 June 2020 Dr Majeed reported Ms El Hawat needed a new referral to physiotherapy not chiropractor.
On 16 July 2020 Dr Rostamian reported:
“called at 2.44
She requests for bloodtest because just want to check up ??????
Asked you why do you want to check, she said because dizzy and want to check her vitamin just in case ???? no nausea, no abdominal pain, no red flag
I told her your last blood test was 2 months ago and all vitamin were ok even iron was good.”[27]
[27] Insurer’s bundle p 178.
On 3 August 2020 Dr Rostamian reported back pain after car accident.[28]
[28] Insurer’s bundle p 179.
On 11 September 2020, Dr Leena Majeed reported she received a call from the claimant’s mother to say she had been in a motor vehicle accident the preceding evening. The claimant was reportedly immobile and couldn’t move out of bed. Dr Majeed advised calling an ambulance.[29]
[29] Insurer’s bundle p 179.
On 14 September 2020 Dr Abdullah diagnosed neck pain and back pain. No abnormality was detected on examination; it was reportedly “all muscular”.[30] The claimant attended Dr Abdullah again on 16 September 2020 for back pain.
[30] Insurer’s bundle p 180.
Dr Majeed issued a Certificate of capacity/certificate of fitness dated 22 October 2020 in which she diagnosed lower back pain and neck pain.[31] In relation to pre-existing factors Dr Majeed reported she “was investigated before for joint pain but was clear by investigations”. The management plan was “referral scanning, neck, thoracic, lumbar, multiple discs, pain killers”.
[31] Insurer’s bundle p 79.
On 17 November 2020 Dr Abdullah reported back pain and referred the claimant to Dr Sean Suttor.[32]
[32] Insurer’s bundle p 182.
On 16 December 2020 in a telehealth call the claimant referred to mosquito bites. Dr Abdullah reported “nil other issues”. [33]
[33] Excelsior Family Medical Centre p 79.
On 25 December 2020 the claimant consulted Dr Rostamian with a right MCP (metacarpal phalangeal joint) injury, after bumping her hand.
On 21 January 2021 Ms El Hawat consulted Dr Rostamian with a history of lower abdominal pain for a week.[34]
[34] Excelsior Family Medical Centre p 79.
On 16 March 2021, 9 April 2021, 7 May 2021, 25 May 2021, and 8 September 2021 the claimant attended for blood collection.[35] On 7 May 2021 her weight was reported to be 70kg.[36] She attended Telehealth consultations in the meantime to obtain the results of the blood tests.
[35] Excelsior Family Medical Centre p 81-85.
[36] Excelsior Family Medical Centre p 83.
On 27 September 2021 and 8 October 2021 Ms El Hawat consulted Dr Khine in respect of a right thumb wart.
On 4 November 2021 Ms El Hawat attended for blood collection. On 6 December 2021 she consulted Dr Abdullah in relation to her late period by two days.
On 1 March 2022 Ms El Hawat consulted Dr Abdullah in respect of left chest pain since she had a COVID 19 vaccination a year earlier.[37] A family history of Marfan syndrome was noted. On 10 March 2022 the claimants mother spoke to Dr Abdullah about the family history of Marfan syndrome and her concern about the claimant’s ongoing chest pain after the COVID injection.
[37] Excelsior Family Medical Centre p 88.
On 29 March 2022 Ms El Hawat attended for blood collection.
On 6 April 2022 Ms El Hawat in a telephone consultation discussed her chest pain after the COVID vaccine.[38]
[38] Excelsior Family Medical Centre p 90
The next consultation was not until 27 January 2023 when Ms El Hawat attended for blood collection.[39]
[39] Excelsior Family Medical Centre p 91
On 17 April 2023 Dr Ibrahim reported lethargy, abdominal pain, heartburn and reflux, poor sleep and anxiety. The diagnosis was “overweight, gord”.[40]
[40] Excelsior Family Medical Centre p 91
On 18 April 2023 Dr Ibrahim reported chronic back pain and bilateral knee pain and noted the claimant was overweight.[41]
[41] Excelsior Family Medical Centre p 92
On 20 October 2023 Dr Ho reported Ms El Hawat was acutely “unwell”. He diagnosed a viral illness.[42]
[42] Excelsior Family Medical Centre p 92
On 13 December 2023 Dr Ibrahim saw Ms El Hawat in relation to a wisdom tooth extraction.
On 15 January 2024 Dr Ibrahim saw Ms El Hawat in relation to a “long very painful period”. He diagnosed URTI (upper respiratory tract infection), endometriosis and abdominal bloating after eating gluten.
On 2 February 2024 Ms El Hawat consulted Dr Alshawi for a blood test, a cough for one week, vomiting, tired, fatigues and a husky voice.[43] He diagnosed URTI.
[43] Excelsior Family Medical Centre p 94
On 19 February 2024 Ms El Hawat consulted Dr Abdullah in respect of tonsilitis and on 20 February 2024 she consulted Dr Abdullah in respect of PCOS (polycystic ovary syndrome) and sought a referral to a gynaecologist.[44]
[44] Excelsior Family Medical Centre p 95
On 29 May 2024 Dr Ibrahim reported the claimant’s back pain was aggravated by lifting.[45]
[45] Excelsior Family Medical Centre p 95
On 22 August 2024 Ms El Hawat consulted Dr Ibrahim in respect of fever and a sore throat.[46] She diagnosed a viral infection.

[46] Excelsior Family Medical Centre p 96

Imaging

CT lumbar spine, 15 September 2020 by Medscan Merrylands – the report concludes:
“There is minimal disc bulge at L3/4, L4/5, and L5/S1. No central canal or lateral recess or foraminal stenosis.”
CT thoracic spine by Medscan Imaging, 15 September 2020 – the report concludes:
“Mild scoliosis concave to the right, no focal disc protrusion seen.”
CT cervical spine by Medscan Merrylands, 16 September 2020 – the report concludes:
“There is minimal posterior central disc bulging at C5/6. No cord distortion or foraminal narrowing.”

SUBMISSIONS

Insurer’s submissions

The insurer provided submissions dated 9 June 2023 in support of the application for review.[47]
[47] Insurer’s bundle p 4
The insurer submits Medical Assessor Sidorov failed to take into consideration the claimant’s pre-existing health issues and to clarify inconsistencies between the claimant’s reporting and the available medical information. The insurer notes the Assessor reported:
·        She stated prior to the accident, she was very physically active and partook in various sports, including Oztag and swimming, as well as going to the gym.
·        Ms El Hawat stated she mostly does not do housework due to pain.
·        She described after the accident, due to the pain levels, she had not been able to continue with her normal activities, such as going to the gym.
·        She reported significant weight gain since the accident.
The insurer notes the following was disclosed in the clinical notes of Excelsior Family Medical Centre:
·        15/07/2016 - weight issues, does not do any physical activity;
·        29/06/2017 – noted weight of 80kg;
·        06/11/2017 – issue of overweight;
·        18/05/2018 – chronic epigastric and abdominal pain;
·        06/12/2018 – persistent thoracic and lower back pain. Not related to activity;
·        29/10/2019 – ongoing lower back pain;
·        18/02/2020 – noted weight 76kg body mass index (BMI) 29.3;
·        04/04/2020 – lower back pain mostly muscular, and
·        03/08/2020 – back pain after motor vehicle accident two weeks ago. Had X-ray of lumbosacral spine.
The insurer notes the claimant had weight issues and lower back pain prior to the accident and she was also involved in another accident two weeks prior to the subject accident and reported back pain.
The insurer also refers to the history reported by Medical Assessor Philip Truskett in his certificate dated 3 November 2022:
“The Claimant reports she attends gym daily but no longer play Oztag or rugby. She can go shopping. She can make a bed and do vacuuming with a cordless stick vacuum. She does not cook by choice. She can wash her clothes in a washing machine but does not hang them up. She does not do yard duties by choice. She avoids bending. She can perform all acts of daily living.”
The insurer submits that the available documentation suggests the claimant was not active and did not engage in physical activity prior to the accident.
The insurer notes Medical Assessor Truskett reported the claimant weighs 79kg and has a BMI of 30.09. The insurer states there is no evidence of any significant weight gain where pre-accident her general practitioner (GP) recorded a weight of 80kg on 29 June 2017 and of 76kg on 18 February 2020. The insurer argues a weight gain of 3kg does not represent “significant” weight gain.

Claimant’s submissions

The claimant provided submissions dated 19 July 2023.[48]
[48] Claimant’s bundle p 1
The claimant submits that Medical Assessor Sidorov took a detailed history of the claimant, he pre-and-post accident functioning, “determining that the accident and the consequential deterioration in her health was attributed to her psychological symptoms and decline”.
The claimant submits Medical Assessor Sidorov actively engaged with inconsistencies and addressed the claimant specifically regarding those inconsistencies in relation to her self-report of her psychiatric history pre-dating the accident.
The claimant also submits that the medical records provide a history of fluctuations in the claimant’s weight and there is also a record of her injury in a previous motor vehicle accident. The claimant submits particulars have been provided to the insurer stating the claimant suffered intermittent back pain which was unrelated to any intervening event, such as a motor vehicle accident. It is submitted that the claimant denies being involved in any other motor vehicle accident and disputes the notation which appears in the clinical notes of Excelsior Medical centre.

THE MEDICAL EXAMINATION

Ms El Hawat was assessed by Medical Assessors Chew and Hong via MS Teams on 21 October 2024. She was unaccompanied and was identified by NSW Health Care Card. She was in a private room at her lawyer’s office in Auburn which she drove to unaccompanied from her home in Guilford.
She was examined on a second occasion by Medical Assessors Chew and Hong via MS Teams on 11 April 2025 after receipt of further medical records. She was unaccompanied in a room at her home in Guilford.

Psychosocial history and pre-accident history

Ms El Hawat is a 21-year-old woman who lives in Guilford with her mother, two brothers and one sister. She is not currently in a relationship and has no children. Her parents separated when she was two months old.
Her mother remarried and she has three maternal half siblings aged 6, 11 and 12. Her mother subsequently separated from her husband around five years ago. Her father re-partnered around 14 years ago, and she has four paternal half siblings aged 2, 8, 12 and 13.
Ms El Hawat reported that her childhood was difficult initially without a father. She said that her mother's new husband was abusive, and she witnessed domestic violence. She said that she was bullied at school for being isolative and overweight. She was taunted for this and told she was “fat” and “ugly”.
She said she first attended for psychological help in Year 8 because of difficulties at home with domestic violence and at school with bullying and saw the school counsellor.
Ms El Hawat said she had suffered from abdominal issues and back pain related to her gallbladder on and off since the age of 12 and this had resolved in 2022 after surgery.
When she was assessed on 21 October 2024 Ms El Hawat was looking for work and was receiving the Jobseeker allowance from Centrelink. Prior to this she worked full time in office administration for a window retailer. She said that work was difficult because she developed back pain if she remains sitting or standing for too long and she needs to take regular breaks and walks.
She does not drink alcohol or use cannabis or illicit drugs. She vapes nicotine.

History of the motor accident

The accident occurred on 10 September 2020 while she was in Year 11. Ms El Hawat was in a Jeep Cherokee SUV driven by her father. Ms El Hawat was the front seat passenger wearing a seatbelt and her sister was in the rear seat. They were in a roundabout going straight when a large Mazda SUV came from the far-left lane and turned right into the car hitting the left side of the vehicle between the front passenger door and left front panel. After exchanging details, the vehicles drove off and emergency services were not called.
Ms El Hawat said that around 15 minutes later she developed severe pain in her lower back. She attended the emergency department the next day and was there for 13-14 hours with no diagnosis. She said that she saw her GP a few days later who said there were disc bulges.

History of symptoms following the accident

Ms El Hawat reported around October 2023 she presented to Auburn Hospital with pain. She underwent X-rays and was told there was nothing wrong. She presented to Westmead Hospital the following day and was diagnosed with a fracture in her spine.
Ms El Hawat reported she trialled Ozempic for weight loss in 2024 but developed side effects and it was ineffective.
Ms El Hawat reported she trialled Saxenda for weight loss in 2024 after Ozempic but again she developed side effects.
She states that in the context of the accident and back pain her anxiety worsened.

Injuries or conditions since the accident

In 2022 she had a cholecystectomy. She said this resolved her abdominal pain and the back pain which was present prior to the accident and which she believed was associated with the abdominal pain and gallbladder.
She lost her driver’s licence in 2024 for speeding in a school zone. With the help of a lawyer her suspension was reduced, and she got her licence back.

Current and proposed treatment

Ms El Hawat reported she attends weekly a practitioner for cupping, acupuncture and adjustment of her back. She has a coach at the gym which she attends daily with a tailored exercise and mobility program.
She reported she attends the Auburn Youth Centre and sees a psychologist and or youth worker weekly. She also attends weekly classes covering topics such as mental health and dealing with stress.
She takes weekly subcutaneous Tirzepatide for weight loss. She takes the oral contraceptive pill for gynaecological reasons. She refuses to take psychotropic medication. She has been taking occasional Endone which was prescribed for wisdom tooth pain. She takes occasional Neurofen for back pain.
She is awaiting a sleep study for her sleep issues.

Mental state examination

Ms El Hawat appeared her stated age and was reasonably groomed. She had a reactive affect. She reported her mood as anxious, depressed and stressed. Her speech was of normal rate, rhythm, volume and prosody. There was no abnormal psychomotor activity. There was no evidence of psychosis. She was oriented to time, place and person. There were no suicidal thoughts.

Current symptoms

Ms El Hawat said that because of the pain suffered, particularly in her back, she has poor sleep and felt depressed and stressed. She said she develops anxiety about it where her heart races, her breathing becomes difficult, and she feels faint. She said that she continues to struggle with her weight because her back pain limits the intensity of training she can perform.
She said she suffered episodes of back pain.
Ms El Hawat only worries about the pain when it is significant. When the pain improves or resolves, her anxiety subsides and her worrying thoughts regarding her physical injuries and pain, also subside.
She described anxiety not related to pain in a more unpredictable manner and related this to the general changes in her life over time.

Current functioning

Ms El Hawat is independent with self-care and activities of daily living. She is able to drive. She has reduced social activity however maintains relationships with family and some friends. Her concentration is subjectively reduced, however, there were no deficits noted during the interview.
When she was assessed on 11 April 2025 Ms El Hawat advised she was pursuing a career in Content Creation. She completed a three-month social media marketing course at TAFE and has been working in the industry for three months. She works for herself. She has one client who is a family member. She said that she was offered work by a construction company, however, did not take it as she felt the work was too difficult.

Consistency of presentation

Her history and presentation were internally consistent when assessed on 11 April 2025. A number of alleged inconsistencies were discussed with Ms El Hawat.

Weight loss and activity

The clinical notes of the Excelsior Family Medical Centre record a weight of 76kg on 18 February 2020. Ms El Hawat said she lost a significant amount of weight between February 2020 and the accident on 10 September 2020 as a result of diet and exercise. She said at the time of the accident her weight was down to 60+kg. She said she had significantly increased her level of activity in the period before the accident with multiple activities including Oztag and gym sessions.

Prior back pain

Ms El Hawat said the pre-injury back pain was associated with her abdominal pain and resolved with the surgery in 2022. She described the back pain since the accident as a different type of pain and different to her pre-accident back pain.

Prior anxiety

Ms El Hawat agreed she had prior anxiety issues related primarily to difficulties with the family unit and her mother’s husband in particular. However, Ms El Hawat said this anxiety was significantly milder and different in quality to the anxiety she experienced after the accident.
The Panel discussed with her the panic attacks recorded in her GP records two weeks before the accident. She said they occurred at school, when she was successfully losing weight. The Panel found it difficult to obtain further clarification about those panic attacks. The Panel noted in the second assessment, she confirmed she has had panic attacks and chronic anxieties, related to her pre-existing family stressors.

Prior accident

The Panel referred Ms Hawat to the entry in her GP records on 3 August 2020 where it was reported she had back pain after a motor vehicle accident two weeks earlier and had undergone an X-ray of the lumbosacral spine. Ms El Hawat adamantly denied she had been involved in a prior motor vehicle accident.

DIAGNOSIS

The Panel notes the certificate of Medical Assessor Truskett dated 3 November 2022. He concluded the claimant had sustained a soft tissue injury to the cervical spine and aggravation of a soft tissue injury to the lumbar spine caused by the accident.
The Panel finds the claimant has an adjustment disorder with anxiety. The diagnostic criteria used to define an adjustment disorder with anxiety under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR) are addressed as follows:
·        Criterion A – she has developed anxiety in response to the accident.
·        Criterion B – the anxiety causes marked distress and impairs her function.
·        Criterion C – the stress related disturbance does not meet criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
·        Criterion D – the symptoms do not represent normal bereavement.
·        Criterion E – the symptoms are persisting because of the continued pain from the motor accident.
The Panel finds the claimant does not have a somatic symptom disorder with predominant pain. The diagnostic criteria under DSM-5-TR are addressed as follows:
·        Criterion A. She presents with pain that is distressing. This pain is predominantly back pain and is of a different quality to the back pain that she experienced prior to the accident which resolved after gallbladder surgery in 2022.
·        Criterion B. This is not met as the thoughts feelings and behaviour are not disproportionate and not persistent. They resolve when the pain resolves. There is not a persistently high level of anxiety about her pain – the anxiety lessens when the pain lessens. She does not spend excessive time and energy on her pain, it is only when the pain is severe or changes, that she acts on it and consults her GP. This is reflected in the GP's treatment records with several consultations immediately after the accident, then a long gap before a further consultation for her pain symptoms.
·        Criterion C. The pain has been ongoing for longer than six months.

CAUSATION

Medical Assessors Chew and Hong noted Ms El Hawat addressed the inconsistences between her history and the medical records.
The Panel finds the adjustment disorder was caused by the accident.
When questioned Ms El Hawat conceded she had pre-existing issues with pain, but she described it as a different type of pain which was related to her gallbladder and which resolved when her gallbladder was removed in 2022. She also confirmed pre-existing anxiety and depressive symptoms related to her family.
In relation to the entry on 3 August 2020 the Panel refers to Mason v Demasi where Basten JA noted the need to exercise caution when relying upon the histories recorded by health professionals.[49] The Panel found the claimant to be an honest historian and accepts her denial of involvement in an earlier motor vehicle accident some two weeks prior to 3 August 2020.
[49] Mason v Demasi [2009] NSWCA 227.
Whilst the claimant has undoubtedly struggled with her weight the Panel has no reason to doubt her assertion of weight loss and increased activity in the period prior to the accident. The history provided by the claimant to the Panel is consistent with the history reported by Medical Assessor Truskett that as a result of the accident she still attended the gym but could no longer play oztag or rugby.
Ms El Hawat had pre-existing psychological issues namely an adjustment disorder with anxiety related to family trauma and issues. Her pre-existing adjustment disorder was aggravated as a result of the accident. She has not developed another psychological diagnosis at any time after the accident.
There was pre-existing anxiety related to her family issues and bullying but the Panel finds the current psychological symptoms are related predominantly to the pain she has experienced since the accident which the Panel confirmed was caused by the accident.

THRESHOLD INJURY

The Panel notes that in accordance with the MAI Regulations an adjustment disorder is a threshold injury for the purposes of s 1.6 of the MAI Act.

PANEL CONCLUSION

The Panel revokes the certificate of Medical Assessor Alexey Sidorov dated 26 May 2023 and certifies the following injury caused by the accident is a threshold injury:
· adjustment disorder with anxiety.

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Citations

El Hawat v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 269

Cases Citing This Decision

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Cases Cited

1

Statutory Material Cited

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Mason v Demasi [2009] NSWCA 227

[2025] NSWPICMP 269

17 April 2025