Hajipavlou v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Hajipavlou v Allianz Australia Insurance Limited [2025] NSWPICMP 20
CLAIMANT:	Kiveli Hajipavlou
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Lahz
MEDICAL ASSESSOR:	Home
DATE OF DECISION:	9 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of injuries; claimant involved in a T-bone collision resulting in soft tissue injuries and alleged traumatic brain injury (TBI); soft tissue injuries to the cervical spine, chest, and arms determined to have resolved without permanent impairment; alleged TBI and associated cognitive symptoms assessed under the Motor Accident Permanent Impairment Guidelines; no medically verified abnormalities in Glasgow Coma Scale (GCS), post-traumatic amnesia (PTA), or brain imaging to substantiate TBI diagnosis; MRI finding of right parietal lobe artefact deemed incidental and not clinically significant; psychological symptoms including memory deficits and anxiety attributed to adjustment disorder unrelated to brain trauma; injuries classified as threshold injuries, with no resulting permanent impairment; Held – claimant’s injuries caused by the motor accident are threshold injuries and do not give rise to a whole person impairment greater than 10%; Medical Assessor’s findings affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Ahamed Veerabangsa dated 23 October 2022. The Panel issues a new certificate determining that: (a) the following injuries caused by the motor accident are threshold injuries and do not give rise to permanent impairment: · soft tissue injuries, musculoskeletal injuries (left arm); · soft tissue injuries, musculoskeletal injuries (right arm); · soft tissue injuries, musculoskeletal injuries (chest), and · soft tissue injuries, whiplash (cervical spine) (b) the following injuries were not caused by the motor accident: · traumatic brain injury, amnesia, memory loss, concussion.

STATEMENT OF REASONS

INTRODUCTION

Kiveli Hajipavlou, the claimant, was involved in a motor vehicle accident on

17 February 2019. Her husband was driving, and she was seated in the passenger seat. Another vehicle struck the passenger side where she was sitting, T-boning their car. The airbags deployed and struck her face, resulting in bruises on her face and arms. However, she did not lose consciousness or experience a blackout during the incident.
The claimant was amnesic to the entire event. She experienced both retrograde and anterograde amnesia following the accident. The last thing she remembered was asking her husband to take her to church, and the first memory she had afterward was opening her eyes in the Fairfield Hospital Emergency Department. Her recollection of what happened in the hospital remained patchy.
Since the accident, she had struggled to form new memories and relied on writing everything down in a notebook, including her daily tasks and appointments. She also had difficulty recalling older memories. Before the accident, she had been highly capable, running multiple successful restaurants with excellent organisational skills.
After the accident, she found it difficult to fall asleep at night. Her stress levels were very high, and she experienced low mood and emotional instability. She started seeing a psychologist and was prescribed Cymbalta.
The claimant made an Application for Personal Injury Benefits on 17 March 2019 claiming, as a result of the motor accident, she had suffered memory loss, a black eye, chest pain and bruising. The medical certificate from Dr Roy Ani-Hanna, which supported the application, dated 4 April 2019, provided a diagnosis of traumatic brain injury (TBI).
In the correspondence exchanged between May and December 2020 with Allianz Australia Insurance Limited (the insurer), the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Injuries Act 2017 (NSW) (the MAI Act), the claimant’s representatives presented medical evidence, including Dr Oldtree-Clark’s report, arguing that the claimant’s impairments exceeded the 10% Whole Person Impairment (WPI) threshold. The insurer responded by requesting additional information, ultimately denying the claim in December 2020, citing insufficient stability of the claimant’s injuries for permanent impairment assessment.
In an internal review application submitted in December 2020, the claimant contested the insurer’s decision, citing evidence such as Dr Thomas Oldtree-Clark’s 20% WPI assessment. However, the insurer upheld its original decision in January 2021, maintaining that the injuries did not meet the threshold for non-economic loss damages, giving rise to a medical dispute.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether:
(a) whether the injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(e) of the MAI Act. Schedule 2 section 2(e) of the MAI Act; and
(b) the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The dispute as to permanent impairment was referred to Medical Assessor Ahamed Veerabangsa (Medical Assessor) who assessed the claimant and issued a certificate dated 23 October 2022 (the MAC).

MEDICAL ASSESSMENT THE SUBJECT OF REVIEW

In the MAC, the Medical Assessor assessed the injuries referred for assessment following the subject motor vehicle accident.
The injuries referred were, as listed above, head - mild TBI, cervical spine - soft tissue injuries to the neck, chest – soft tissue injuries to the anterior chest wall, and soft tissue injuries to the bilateral upper arms.
The claimant was diagnosed with a mild TBI based on evidence of a head impact during the accident, resulting in bruising near the right infraorbital region. She experienced retrograde and anterograde amnesia lasting approximately one hour, though there was no reported loss of consciousness. A Glasgow Coma Scale (GCS) score of 15 indicated no significant neurological impairment, and imaging studies, including CT and MRI scans, revealed no structural abnormalities. These findings aligned with the typical presentation of mild TBI, where physical symptoms often resolve without lasting structural damage. Despite the resolution of physical symptoms, the claimant reported ongoing cognitive issues, particularly related to memory, focus, and emotional regulation, which became the primary focus of the impairment analysis.
The soft tissue injuries sustained to the neck, anterior chest wall, and bilateral upper arms initially caused significant discomfort but were found to have resolved completely by the time of assessment. Clinical evaluations and imaging studies provided no evidence of ongoing structural or functional limitations. Consequently, these injuries were not assessed for a WPI rating, as they did not contribute to any lasting impairment or disability. The Panel notes, although it was not stated in terms by the Medical Assessor, that the musculo-skeletal injuries qualify as “soft tissue injuries” and do meet the definition of a threshold injury of the purposes of s 1.6 of the MAI Act.
The psychological impact of the accident was significant and presented as the most enduring challenge for the claimant. She reported persistent anxiety, mood disturbances, memory deficits, and a reduced ability to participate in routine activities. These symptoms were consistent with a diagnosis of Adjustment Disorder with Anxiety. The claimant described heightened anxiety when traveling in a car and difficulties with concentration and emotional regulation, which adversely affected her daily functioning. The psychological symptoms were attributed to the trauma of the accident and its aftermath.
The impairment evaluation distinguished between physical and cognitive/emotional impacts. The resolved physical injuries did not contribute to a WPI rating, while the cognitive and emotional impairments were evaluated using the Clinical Dementia Rating (CDR) scale. The claimant’s memory deficits, anxiety, and mood disturbances were linked to the mild TBI and the psychological trauma of the accident, resulting in a WPI rating of 2% for emotional and behavioural disturbances. This rating was found to reflect the claimant’s ongoing psychological symptoms but acknowledged that they do not constitute severe or incapacitating impairments under the relevant medical guidelines.
The claimant’s pre-existing conditions, which included anxiety, depression, and thyroid disease, were considered in the assessment. While these conditions may have exacerbated the psychological symptoms, the Medical Assessor concluded that the impairments observed were predominantly caused by the trauma of the motor vehicle accident. As such, the pre-existing conditions were not deemed to have materially influenced the WPI determination.
The overall WPI rating of 2% was based entirely on the claimant’s cognitive and emotional impairments resulting from the accident. The resolved physical injuries were not found to contribute to any lasting impairment. While the psychological symptoms were persistent, they were deemed to result in only a modest level of impairment, given the claimant’s ability to manage daily tasks and maintain some level of functionality.

APPLICATION FOR REVIEW

The claimant lodged an application for review of the MAC on 16 May 2023 seeking a review of the medical assessment, which had concluded a 2% WPI for injuries sustained in the accident. The application for review was lodged after the 28-day statutory timeframe outlined in s 7.26(10) of the MAI Act. Directions issued by the President’s Delegate on 9 June 2023 required the claimant to submit arguments addressing the extension of time and the test outlined in r 133A(5) of the Personal Injury Commission Rules 2021 (Rules).
The claimant argued that the review application was submitted based on advice from the Personal Injury Commission (Commission) that the 28 day review period would commence only upon the issuance of the Combined Medical Assessment Certificate, which was eventually provided on 18 April 2023. The claimant outlined a timeline of interactions with the Commission, highlighting advice received and the delays caused by administrative errors, such as certificates being prematurely shared and later withdrawn.
The claimant contended that exceptional circumstances existed as required under r 133A(5) of the Rules, citing reliance on the interactions with the Commission. The claimant maintained that dismissing the extension application would cause substantial injustice, as non-economic loss formed the sole head of damages in her claim. The claimant argued that denying the extension would severely prejudice her case and urged that the extension application be allowed to rectify the alleged substantial injustice.
The insurer argued that the application was procedurally non-compliant and should be dismissed unless the President’s Delegate extended the allowable time.
In its submissions, the insurer argued that the claimant has not demonstrated any material errors in the assessment. It asserted that disagreements with clinical findings do not constitute errors warranting a review. Consequently, the insurer urged the dismissal of the review application on both procedural and substantive grounds.
By determination issued on 29 June 2023, the President’s Delegate considered both procedural and substantive issues related to the review application.
Despite the timing issue, the Delegate accepted the application for an extension of time, finding sufficient justification for “exceptional circumstances” under rule 133A(5) of the Rules on the basis that the claim involve procedural complexities and that denying the extension would result in substantial injustice, as the claimant’s claim for non-economic loss depended entirely on establishing a permanent impairment exceeding the statutory threshold.
The Delegate also considered the substantive aspects of the review. The claimant alleged that the original medical assessment contained material errors, particularly in relation to the classification and assessment of injuries. These alleged errors, if substantiated, could significantly affect the impairment rating and, consequently, the claimant’s eligibility for non-economic loss damages.
The Delegate found that procedural certainty must be balanced against the need to prevent injustice, particularly where potential errors in the original assessment could affect the outcome of the claim.
The Delegate concluded that the matter warranted further examination by a Review Panel to ensure procedural fairness and address potential substantive errors.

REVIEW

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (NSW) (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s Delegate referred the matter to this Review Panel, presently constituted (the Panel), to assess.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the 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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel understands that the following injuries have been referred to it to review:
(a)    traumatic brain injury, amnesia, memory loss, concussion;
(b)    soft tissue injuries, musculoskeletal injuries (left arm);
(c)    soft tissue injuries, musculoskeletal injuries (right arm);
(d)    soft tissue injuries, musculoskeletal injuries (chest); and
(e)    soft tissue injuries, whiplash (cervical spine).
The Panel issued a direction dated 14 July 2023, with which the parties complied, that the parties provide a joint bundle of all the material upon which they relied for consideration by the Panel on review.
The following is a summary of the relevant material contained in that joint bundle.

EVIDENCE

In an admission report to Fairfield Hospital dated 17 February 2019, the claimant, then a 66 year old woman, presented to the hospital following the subject motor vehicle accident. She reported that she had self-extracted from the car after the airbags deployed and did not lose consciousness. She experienced approximately one hour of amnesia, both retrograde and anterograde. The last thing she remembered was heading to church, and the first memory following the accident was waking up in the hospital.
Physical examination revealed a bruise on the right infraorbital area and some tenderness on the left side of her neck, but there were no bruises or significant cervical spine tenderness. There was no visible seat belt bruising on the anterior chest wall. Other areas, including the chest, shoulders, abdomen, hips, and gait, were normal.
The medical team conducted a primary survey and found no abnormalities. Diagnostic imaging, including CT scans of the brain, facial bones, and cervical spine, as well as a chest X-ray, revealed no abnormalities. Routine blood tests, including liver function tests and markers for inflammation, showed no significant issues.
The impression was a likely mild TBI with significant amnesia. The claimant was reassured and provided with head injury advice, including guidance on recognising red flag symptoms. A follow-up with her general practitioner was recommended within two days, with the possibility of further investigations, such as a thyroid ultrasound, if deemed clinically necessary.
A CT of the cervical spine taken on 17 February 2019 demonstrated no evidence of acute fractures or bone abnormalities, and the alignment of the cervical spine was normal. There was no abnormal prevertebral soft tissue swelling. However, degenerative changes were identified at the atlantoaxial joint and at the C 5-6 disc level. These degenerative changes included bilateral foraminal narrowing at C5-6, caused by uncovertebral osteophytes. Despite this narrowing, the cervical canal remained capacious, indicating no significant compression of the spinal cord. The imaging also revealed an abnormality involving the left thyroid lobe, which appeared enlarged and was likely associated with a multinodular goitre. The report recommended a thyroid ultrasound for further evaluation of this finding, as no prior imaging had assessed the thyroid. There were no signs of apical pneumothorax, and the imaging did not show any acute traumatic changes. The report concluded that while there were degenerative changes and thyroid abnormalities, there were no acute findings related to trauma. Further investigation of the thyroid abnormality was advised to rule out any underlying pathology.
The brain and spine cervical CT scan dated 17 February 2019 detailed imaging, performed without contrast, included axial and reformatted scans of the head and cervical spine, extending from the cranio-cervical junction to the disc level between T1 and T2. For the head, the CT scan revealed generalised involutional changes, which were consistent with the claimant’s age. There was no evidence of intracranial abnormalities, haemorrhage, or surface collection. The ventricles and basal cisterns were symmetric and midline. No skull vault fractures, or facial bone fractures were identified. However, there was patchy mucosal thickening within the inferior maxillary antra, while the remainder of the paranasal sinuses and mastoid air cells appeared clear.
The cervical spine imaging showed that alignment was maintained, with no acute fractures or bone abnormalities detected. There was no abnormal prevertebral soft tissue swelling. However, degenerative changes were observed at the atlantoaxial joint and the C5-6 disc level. These included bilateral foraminal narrowing caused by uncovertebral osteophytes. Despite these findings, the cervical canal was capacious, indicating no significant spinal cord compression. Additionally, an abnormality was identified in the left thyroid lobe, which appeared enlarged and was likely related to a multinodular goitre. The report recommended further evaluation of this finding through a thyroid ultrasound, as this issue had not been previously investigated. The CT scan demonstrated no evidence of intracranial haemorrhage, surface collection, or fractures. The cervical spine exhibited normal alignment with no acute abnormalities. The thyroid enlargement was identified as an area requiring further assessment.

In the Certificate of Capacity dated 4 April 2019, Dr Abi-Hanna diagnosed the claimant with TBI stemming from the accident. The report noted her ongoing memory issues and psychological distress, including anxiety, which severely impacted her functional capacity. It recommended psychological interventions, neuropsychological assessments, and the initiation of antidepressant medication (Cymbalta).
In the report dated 4 April 2019, psychologist, Ms. Belinda Messer, documented an initial assessment of the claimant’s mental health following the accident. The claimant exhibited anxiety and avoidance behaviours, particularly related to driving and social interactions. Recommendations included mindfulness strategies and engagement in enjoyable activities to manage her distress.
The Liverpool Hospital discharge report for the claimant detailed her admission on

17 April 2019
for assessment and management of memory loss, anxiety, and emotional distress following the subject motor vehicle accident. The primary diagnoses were post-traumatic stress disorder (PTSD) and mild TBI.
The claimant presented with symptoms including fear of riding in vehicles, emotional instability, and significant memory difficulties. She reported both retrograde and anterograde amnesia immediately following the accident, which persisted in the form of short-term memory issues. Her emotional state was marked by frequent crying, low mood, and heightened anxiety, especially in situations that reminded her of the accident. The claimant was evaluated by a multidisciplinary team. She denied suicidal ideation, psychotic symptoms, or hallucinations but described difficulty maintaining her train of thought, although she could refocus quickly. Neurological assessments did not reveal any acute abnormalities. Her history of using Cymbalta for mood regulation was noted, and she was encouraged to continue psychological therapy under the guidance of her GP. The discharge plan included obtaining a Mental Health Care Plan to address PTSD symptoms, maintaining regular follow-ups with her GP, and undergoing further neuropsychological evaluation to monitor her cognitive function. The report highlighted her supportive family environment, with her husband actively involved in her care. She was reassured about her symptoms and encouraged to engage fully in psychotherapeutic interventions to aid her recovery.
Dr Choong’s report, dated 21 May 2019, detailed the claimant’s condition following the subject accident. Dr Choong noted that the claimant was amnesic to the entire event, with retrograde and anterograde amnesia. She recalled asking her husband to drive her to church but had no memory of the accident itself. Her first recollection afterward was waking up in the Fairfield Hospital Emergency Department. Her recollections of the events in the hospital were described as patchy.
Post-accident, the claimant experienced significant difficulties forming new memories, necessitating the use of a notebook for daily chores and appointments. She also reported challenges recalling old memories. Previously, she was a highly functional and successful owner of multiple restaurants, with excellent organisational skills, but this was no longer the case.
The claimant reported difficulty sleeping at night, high levels of stress, a low mood, and emotional instability. She was receiving psychological support and had recently been started on Cymbalta. On examination, Dr Choong observed normal speech, full range of eye movement, and normal visual fields. Neurological and physical examinations, including cranial nerve and upper/lower limb assessments, were unremarkable.
Dr Choong concluded that the claimant likely sustained a concussion during the accident and had developed symptoms consistent with PTSD. He recommended an MRI scan of the brain, an EEG, and a formal psychometric assessment by a neuropsychologist. Dr Choong also encouraged the claimant to continue seeing her psychologist.
In the MRI brain report dated 29 May 2019 imaging revealed no extra-axial collection or space-occupying lesion. The ventricles and surface cerebrospinal fluid (CSF) spaces appeared normal, and the grey and white matter demonstrated normal signal and appearance, indicating no acute intracranial abnormalities. A notable finding was a 5mm ovoid susceptibility artefact in the right posterolateral parietal lobe. This artefact showed no corresponding abnormalities on other sequences and no evidence of gliosis. It was most likely interpreted as a prior microhaemorrhage or cavernoma. No signs of diffusion restriction or acute haemorrhage were detected, further ruling out recent injury in this region. Additionally, mild mucosal thickening was observed in the maxillary sinuses, along with a few mucus retention cysts in the left maxillary sinus. Similar mild thickening was also noted in the ethmoid air cells bilaterally, but the remaining paranasal sinuses and mastoid air cells appeared clear. These findings were incidental and unrelated to the claimant’s primary concerns. In conclusion, the MRI identified a small susceptibility artefact in the right parietal lobe, likely representing a prior microhaemorrhage or cavernoma. There were no acute abnormalities observed, and the sinus findings were considered mild and incidental.
An EEG performed on 28 June 2019 was unremarkable. It revealed symmetrical alpha rhythm posterior background. No epileptic discharges or focal abnormality was noted.
Clinical neuropsychologist, Dr Amanda White’s, neuropsychological assessment report dated 8 July 2019, evaluated the claimant’s cognitive and psychological functioning following the subject motor vehicle accident. Since the accident, the claimant had reported significant changes in her mood, cognition, and daily functioning.
During the evaluation, the claimant presented as anxious and emotional, often crying when discussing the impact of the accident on her life. Her thought processes were circumstantial and tangential, and she displayed low self-confidence, frequently seeking reassurance. She had difficulty maintaining attention and became easily overwhelmed during testing.
The neuropsychological assessment revealed several cognitive findings. The claimant’s ability to learn and retain new information ranged from low average to average, though she struggled with unstructured material. Her performance declined with repeated tasks, indicating difficulties with sustained processing. Problem-solving, reasoning, and planning skills were assessed as low average to average, although verbal abstract reasoning was a relative weakness, potentially influenced by language-related factors. Self-reported questionnaires indicated severe depression, extremely severe anxiety, and moderate stress, aligning with her clinical presentation. Basic attention was in the borderline range, and verbal-based tasks, such as naming and semantic fluency, showed weaknesses, potentially due to interpreter-related issues.
Dr White concluded that the claimant exhibited clinically significant psychological distress, including anxiety and depression, which negatively affected her cognitive abilities and social functioning. The doctor opined that these issues were likely linked to a mild TBI sustained during the accident.
Several recommendations were provided. Regular therapeutic support with a psychologist was advised to address the claimant’s emotional distress, while cognitive rehabilitation was not considered necessary at the time. Practical strategies were suggested, such as presenting information in smaller chunks, focusing on one task at a time, and taking regular breaks to manage attention and reduce feelings of overwhelm. Medical monitoring was also recommended, including reviewing her mood and medication regimen. Given that the claimant had stopped taking Cymbalta, alternatives were suggested. Further evaluation of her dizziness, such as assessing her blood pressure, was also advised.
Dr White emphasised that with structured support, encouragement, and appropriate treatment, the claimant’s cognitive and emotional symptoms could improve over time. A feedback session was planned to explain the assessment results and provide additional guidance.
In the follow-up neurologist report dated 2 August 2019, Dr Ho Choong reaffirmed that the claimant continued to experience memory difficulties without significant neurological findings. Normal EEG and MRI results were emphasised, pointing to psychological stress as the predominant factor contributing to the claimant’s cognitive dysfunction. Continued therapy with a psychologist was strongly recommended.
The report dated 14 August 2019, psychologist, Belinda Messer, opined that the claimant’s presentation following the subject motor vehicle accident was consistent with a diagnosis of PTSD.
Ms Messer opined that the claimant was directly exposed to a traumatic event, being a passenger in a vehicle involved in a T-bone collision. She reported significant fear and anxiety regarding the incident and its aftermath. Intrusion symptoms included unwanted upsetting memories, nightmares, flashbacks, and heightened emotional and physical distress when exposed to reminders of the event. She described frustration and upset feelings about the changes in her competence due to memory loss.
Avoidance behaviours were identified, such as not engaging in activities or going out as before, particularly avoiding being in a car. Negative alterations in cognition and mood were evident, including low mood, lack of motivation, decreased interest in activities, and difficulty engaging with family and social circles. The claimant expressed concerns about her memory, feeling isolated, and being unable to travel to see her family overseas.
Alterations in arousal and reactivity included irritability, hypervigilance, heightened startle responses, difficulty concentrating, and sleeping disturbances. The symptoms persisted for more than one month and were not attributable to substance use, medication, or other illnesses.
The claimant’s presentation significantly impaired her ability to maintain social and occupational functioning as previously. She had actively participated in treatment, attending five sessions to address her condition. The report concludes that the claimant’s symptoms were a direct result of the motor vehicle accident.
In the psychiatrist’s report dated 12 February 2020, Dr Oldtree-Clark, Consultant Forensic Psychiatrist, assessed the claimant on 12 February 2020 following a referral to evaluate the psychiatric consequences of her motor vehicle accident. The report documented the claimant’s history, mental health symptoms, functional impairments, and the resulting WPI in accordance with statutory guidelines.
Dr Oldtree-Clark conducted a detailed assessment and applied the Psychiatric Impairment Rating Scale (PIRS) to evaluate the claimant’s impairments across several aspects of functioning. He noted that the claimant experienced moderate impairments in concentration, persistence, and pace due to intrusive memories of the accident aftermath. Social and recreational activities were also restricted, limited to family interactions, and the claimant was unable to travel unaccompanied, indicating moderate impairments in these domains. Although her social functioning in relationships was intact, with a supportive marital relationship, her employability was severely impacted, as she was deemed not employable despite having retired. This was attributed to significant psychiatric symptoms arising from the accident.
Dr Oldtree-Clark diagnosed the claimant with PTSD, a primary psychiatric injury related to the accident. He concluded that her condition was permanent and stable, unlikely to change substantially within the next 12 months. Using the PIRS, he calculated the claimant’s total WPI at 19%, with an additional 1% adjustment for the effects of ongoing psychotropic medication. This resulted in a total WPI of 20%, reflective of the significant and enduring impact of her psychiatric condition on her overall functioning.
Dr Antonella Ventura’s report, dated 26 November 2020, examined the psychological and emotional impacts of the accident, focusing on memory concerns, emotional symptoms, and functional impairments, while considering pre-existing conditions and life circumstances.
The claimant reported that on the morning of the accident, she was being driven to church by her husband when their car was T-boned by another vehicle. She recalled no memory of the collision itself but remembered waking up in a hospital bed. She was discharged the same day with a black eye but no other significant injuries. Following the accident, the claimant described significant stress and anxiety. She noted feeling socially withdrawn, tearful, and concerned about her memory, expressing fears that her memory issues would worsen over time. While she denied experiencing intrusive memories of the accident, she described ongoing anxiety, particularly when traveling as a car passenger, and feeling hypervigilant in such situations.
The claimant also expressed concerns related to COVID-19, particularly its potential impact on her husband, which she said had further restricted her social and recreational activities. Despite these challenges, she maintained a degree of routine in her daily life, including cooking, cleaning, and gardening, although she felt less confident in her abilities compared to before the accident. She visited her parents regularly and occasionally went out for coffee or shopping. Her primary source of distress remained her perceived memory deficits and the unpredictability of life since the accident.
During the mental state examination, the claimant presented as a well-groomed woman who demonstrated no signs of self-neglect. Her mood was dysphoric but reactive, and her affect was appropriate. While she expressed significant concerns about her memory, there was no evidence of cognitive impairment during the evaluation. Dr Ventura noted that the claimant’s symptoms were consistent with an Adjustment Disorder with Anxiety, which she attributed directly to the motor vehicle accident. The condition was exacerbated by pre-existing anxiety and external stressors, including family issues and the ongoing impact of COVID-19.
Neurological investigations revealed no evidence of brain damage related to the accident. Dr Ventura concluded that the claimant’s memory issues were more likely linked to anxiety and possible dissociation at the time of the incident. She recommended that the claimant be provided with education and reassurance about the nature of her memory concerns, emphasizing that there was no physical damage to her brain.
The claimant demonstrated no impairments in self-care, personal hygiene, or daily activities and was deemed fit for independent living. Dr Ventura concluded that no further psychiatric treatment was required as her symptoms were mild and stable. Her prognosis was described as favourable, with no significant impact on her daily life or capacity for activities.
In relation to permanent impairment, Dr Ventura concluded that the claimant’s Adjustment Disorder with Anxiety was not stable and was likely to improve with time and further education about her memory loss. She noted that permanent impairment had not been reached, as the claimant had not yet achieved maximum medical improvement. Dr Ventura recommended reassessment in three months. Additionally, she clarified that her evaluation did not include comparisons with Dr Oldtree-Clark’s WPI assessment from February 2020, as that report was unavailable for review.
Dr Ventura concluded that the claimant’s Adjustment Disorder with Anxiety was mild, likely to improve, and manageable with appropriate reassurance and education about her condition. No further psychiatric intervention was deemed necessary at the time of the assessment.
Dr Ventura’s psychiatric re-assessment report dated 19 May 2021, was based on a review of historical records, available medical documentation, and an interview with the claimant. The claimant had previously been evaluated on 26 November 2020, with the assistance of an interpreter. For this session, she declined an interpreter, stating she no longer required one. During the interview, the claimant expressed ongoing concerns about her memory, which her doctor described as a result of her brain being “shaken” during the accident. Although she remained somewhat preoccupied with her memory, she appeared clinically less distressed compared to the earlier assessment.
The claimant reported feeling socially withdrawn, stating that she no longer invited guests to her home and rarely socialised. She expressed a desire for company but noted that many people no longer visited her, attributing this to others being preoccupied with their own lives. She experienced ongoing sleep difficulties, sleeping an average of five hours per night, though her appetite remained unaffected. She described minimal anxiety outside of driving situations but continued to feel anxious when riding as a passenger, particularly in heavy traffic. Despite this, she retained the ability to enjoy daily activities such as walking in the garden, spending time with her grandchildren, reading, and doing household chores. When shopping, she preferred walking around rather than sitting in a café.
During the mental state examination, the claimant presented as a well-groomed, older woman who spoke fluent English and showed no signs of self-neglect. Her mood was dysphoric but reactive, with an appropriate affect. There was no evidence of thought disorder, psychosis, or cognitive dysfunction, despite her subjective memory complaints. She exhibited somatic-focused anxiety, particularly concerning her memory and a fear of developing stomach swelling due to medications. She denied any suicidal ideation or depressive ruminations and appeared grossly cognitively intact.
The claimant reported having discontinued all prescribed medications due to concerns about side effects, specifically swelling in her stomach. She stopped taking her thyroid medication and continuous positive airway pressure treatment for sleep apnoea. Additionally, she expressed concerns about receiving the COVID-19 vaccine, fearing it might cause complications such as stomach swelling.
Dr Ventura concluded that the claimant’s symptoms were consistent with Adjustment Disorder with Anxiety, which was directly attributable to the motor vehicle accident. These symptoms occurred against a backdrop of pre-existing anxiety and untreated medical conditions, including thyroid disease and sleep apnoea, which likely exacerbated her condition. The adjustment disorder was described as mild, stable, and permanent, with minimal impact on her ability to carry out daily activities.
The claimant’s functional impairments were assessed across several areas. She demonstrated no impairment in self-care or personal hygiene. Her participation in social and recreational activities was limited, as she avoided events and gatherings. She experienced mild anxiety when travelling as a passenger in a vehicle, though there was no marked avoidance. While she reported some loss of friendships, her family relationships remained strong. She also described subjective memory disturbances but showed no objective cognitive impairment. Her overall capacity for adaptation was unaffected.
Dr Ventura calculated the claimant’s WPI as 5%. The adjustment disorder was considered stable and caused only mild, permanent impairment. No further psychiatric treatment was recommended, as her symptoms were not incapacitating and did not interfere significantly with her activities of daily living. Dr Ventura concluded that the claimant was fit for all daily activities, including driving as a passenger, and suggested maintaining her engagement in routine activities for overall well-being.
Dr Cameron’s report dated 28 February 2022, assessed the claimant for any WPI arising out of the subject accident. At the time of the assessment, the claimant lived with her husband in Cecil Hills and had retired shortly before the accident. She reported pre-existing health issues, including hyperthyroidism, osteoarthritis, and a history of multiple surgeries, but no prior history of psychiatric illness. Despite her retirement, she had been actively managing her household and engaging in daily activities before the accident.

Dr Cameron found that the claimant remained distressed and emotionally affected by the accident. She reported ongoing memory deficits, dizziness, and limitations in her ability to perform household tasks. She stated that she enjoyed activities such as cooking and gardening but found them more challenging. Physical examination revealed moderately reduced range of motion in the cervical and lumbar spine, with no significant neurological abnormalities.
Clinical records reviewed included those from Fairfield Hospital, which noted a mild TBI and one hour of amnesia following the accident. Records from other treating practitioners, including Drs White, Choong, and Ventura, provided further insight into her condition, including diagnoses of adjustment disorder with anxiety and post-traumatic stress disorder.
Dr Cameron concluded that the claimant sustained a mild TBI, as well as musculoskeletal soft tissue injuries, during the accident. These injuries were consistent with her complaints and disabilities. He determined that her symptoms were stable and unlikely to deteriorate further. Using the Motor Accident Permanent Impairment Guidelines (the Guidelines), he assessed her WPI at 5%, primarily attributing this to emotional and behavioural impairments plausibly related to her brain injury.
Dr Cameron noted that future treatment was not necessary and emphasised that the assessment should focus on the impact of emotional and behavioural impairments rather than physical injuries. He provided an evaluation of functional limitations, concluding that while the claimant managed her daily life with some assistance, her impairments, including mild memory deficits and emotional distress, had a tangible impact on her quality of life.

PANEL’S CONCLUSIONS ON THE REVIEW

The Panel considered the material in the parties’ joint bundle and determined that the review did not require a re-examination of the claimant. The Panel was not presented with any evidence to depart from the approach taken with respect to the musculoskeletal soft tissue injuries determined by the Medical Assessor, as set out at paragraph 16 herein, as having resolved. The Panel proceeded to assess on the papers the claimed mild TBI.
The Panel notes that the claimant’s GCS at the scene of the accident and later at the hospital was 15/15, a normal score.
At hospital, the claimant reported one hour of post-traumatic amnesia. That is, the claimant said she could not remember events taking place within the first hour of the accident. At hospital, a soft tissue injury (bruise) was noted below the right eye.
CT scans of the brain performed 17 February 2019 reported relevantly:
“No intracranial pathology. There was no intracranial haemorrhage or surface collection. The ventricles and basal cisterns are symmetrical and lie midline. No skull vault fracture is seen. No definite facial fractures are seen. No definite fracture relating to the right orbit.”
The claimant did not undertake formal post-traumatic amnesia (PTA) assessment with usual tools such as the Abbreviated Westmead PTA Scale (AWPTAS) used for mild TBI with GCS of either 14 or else 15 or the Westmead PTA scale used for other more severe injuries.
The Panel considered paragraph 1.164 in the Guidelines, which instructs that for an assessment of mental status impairment and emotional and behavioural impairment there should be:
(a) evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact, and
(b) one or more significant, medically verified abnormalities such as an abnormal initial post- injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.
Further, paragraph 1.165 of the Guidelines instructs that the results of psychometric testing, if available, must be taken into consideration. The Panel has considered the assessment of Dr White.
The Panel notes that the claimant did not have any medically verified abnormality of GCS (i.e. less than 15), nor is there a medically verified abnormality of post-traumatic amnesia.
There was no acute brain imaging abnormality on initial CT scans, nor evidence of trauma on the subsequent MRI scans.
A patient’s self-report does not equate with medical verification of post-traumatic amnesia. It is necessary that the Westmead PTA Scales be administered by trained staff.
On 29 May 2019, an MRI brain showed a 5mm focus of susceptibility artefact in the posterosuperior aspect of the right parietal lobe, consistent with either cavernoma or else a small microhaemorrhage. No other abnormal susceptibility artefact demonstrated to suggest the presence of previous haemorrhage. There was no diffusion restriction.
No other intracranial abnormality was noted, and an EEG performed on 28 June 2019 was normal.
The Panel considered the abovementioned finding on the MRI brain scan and found that the weight of the evidence is that the above (incidental) finding on brain imaging is not clinically significant for the following reasons:
(a)    The finding is not considered to be traumatic.
(b)    The treating neurologist Dr Choong on 2 August 2019 did not think that the abovementioned small focus on the brain scan was the cause of the claimant’s memory complaints. Rather, he expressed the view that significant psychological symptoms were (adversely) influencing her cognition. He recommended psychological interventions and emphasised that he had not found any sinister/serious cause for her memory symptoms.
(c)    The neuropsychologist Dr White on 8 September 2019 noted clinically significant psychological distress causing reduced attention and concentration, in turn serving to undermine cognitive function. She found no requirements for cognitive rehabilitation; rather the claimant needed psychological treatment due to her ease of being overwhelmed when learning new things.
(d)    Dr Ventura on 26 November 2020 also found no neurological basis for the claimant’s complaints of memory loss. Further, Dr Ventura said there was no physical evidence that the subject accident caused neurological damage, and that the memory loss was attributable to an anxiety reaction. Dr Ventura recommended that the claimant receive reassurance that she does not suffer from brain injury secondary to the subject motor accident and that she be properly educated about the clinical findings/conclusions.
It is important to recognise that a TBI is not the only condition causative of cognitive complaints after trauma. Any person subjected to significant physical and/or psychological trauma may complain of poor memory and reduced concentration/attention due to psychological reaction to the physical/emotional trauma experienced.
In the case of the claimant, there is abundant evidence before the Panel of significant psychological symptoms following the motor accident. However, the Panel finds that these symptoms are psychological and are not arising from organic brain trauma.
The Panel finds that the claimant does not satisfy the criteria set out in the Guidelines for evaluation of mental status impairment and emotional and behavioural impairment due to brain trauma arising from the subject motor accident, for the reasons given.
Accordingly, the Panel is not satisfied that the claimant has suffered any TBI, such that all injuries listed for assessment on the review constitute soft tissue injuries, which are threshold injuries for the purpose of the MAI Act. None has occasioned any permanent impairment capable of assessment.

[2025] NSWPICMP 20

9 January 2025