Insurance Australia Limited t/as NRMA Insurance v Najem

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Najem [2025] NSWPICMP 168
CLAIMANT:	Bassam Najem
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Paul Friend
DATE OF DECISION:	17 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment under section 7.26; dispute about whether degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is greater than 10%; Medical Assessor certified that adjustment disorder with anxiety and depressive symptoms was caused by the accident and gave rise to a permanent impairment that was greater than 10%; Held – claimant developed adjustment disorder with mixed anxiety and depressed mood as result of the accident that gave rise to a 6% permanent impairment; certificate of assessment revoked and new certificate issued certifying that the degree of permanent impairment of the claimant that has resulted from the psychological injury caused by the accident is not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Hong dated 19 September 2023. 2. Certifies that the degree of permanent impairment of the claimant as a result of the adjustment disorder with mixed anxiety and depressed mood caused by the motor accident on 18 March 2019 is not greater than 10%.

STATEMENT OF REASONS

BACKGROUND

These proceedings involve a dispute between Bassam Najem (claimant) and Insurance Australia Limited t/as NRMA Insurance (insurer) about whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), the degree of permanent impairment of the claimant as a result of any psychological injury caused by a motor accident at Yagoona on 18 March 2019 (accident) is greater than 10% (dispute). The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act.
The medical dispute was referred to Medical Assessor Hong for assessment. On 19 September 2023 the Medical Assessor certified that adjustment disorder with anxiety and depressive symptoms was caused by the accident and gave rise to a permanent impairment that was greater than 10%. He also certified that alcohol use disorder caused by the accident had “entered remission”.
The insurer 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 that the Assessment was incorrect in a material respect. The review application was accepted and referred to this review panel.
The review panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of Medical Assessor Hong’s 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 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

In accordance with directions made by the Panel on 9 October 2024 the parties filed a joint bundle that contained all material they rely on for the purposes of the Review. The parties have also filed written submissions relied on for the purposes of the Review.
On 11 December 2024 the Panel directed the claimant to provide it with the following material:
(a)    Dr Selim’s clinical notes from 3 June 2019 to date;
(b)    Dr Aloe’s clinical notes from 2 September 2019 to date;
(c)    a complete copy of Dr Rastogi’s clinical notes, and
(d)    a complete copy of Dr Jacqueline Youssef’s clinical notes.
On 10 February 2025 the claimant filed:
(a)    Dr Selim’s clinical notes from 3 June 2019;
(b)    Dr R Rastogi’s clinical notes, and
(c)    Dr Jacqueline Youssef’s clinical notes.
Dr Aloe’s clinical notes were filed on 11 February 2025.
On 12 February 2025 the parties were directed to provide on or before 19 February 2025 any submissions they sought to rely on in relation to the records from Drs Selim, Rastogi, Youssef and Aloe. No submissions were received from either party.

STATUTORY PROVISIONS

Permanent impairment

If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1)     The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2)     Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3)     In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4)     A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’, found in cls [6.201]-[6.228] of the Guidelines.
Pre-existing impairment is addressed in cls 6.31-6.33. Clause 6.34 deals with subsequent injuries.
In order to measure impairment caused by a specific event, a Medical Assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in the Guidelines, and subtract this value from the current impairment rating: cl 6.218.
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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition and impairment: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

THE MEDICAL ASSESSOR’S PREVIOUS ASSESSMENT

On 1 February 2023 Medical Assessor Hong declined to make an assessment of permanent impairment on the basis that alcohol use disorder and adjustment disorder with anxiety and depressive symptoms were “not yet permanent”. The certificate records that the permanent impairment of these injuries “should be capable of assessment in 6 months”.
In his reasons, the Medical Assessor recorded a past history of psychological symptoms and treatment, together with minor motor accidents in 2013 and 2015. The claimant reported having significant ongoing physical problems following the subject accident. He reported that: thoughts of the accident have become an obsession; since the accident he blames himself; is always anxious because he suffered major physical injuries, and at night he does not go out. He described the onset of driving anxiety “immediately”, and depressive symptoms gradually. The psychological symptoms had not resolved.
The claimant reported that in the last three months his alcohol had increased markedly. He said he had been drinking “too much” since Christmas 2022. He drinks both whiskey and aniseed spirits and estimated about 3.5 litres of spirits per week, and said it could be more. When asked why he drinks he said he is fearful that his life is ended; he used to be a professional interior designer but now, “there is nothing beautiful in his life and he blames himself”.
Medical Assessor Hong found that as a result of the accident the claimant developed an adjustment disorder with anxiety and depressive symptoms. He had also developed an alcohol use disorder “with no external trigger or contributing factor identified”. The claimant attributed this to his physical injuries and pain caused by the accident, and felt his life has ended. On the assumption that his physical injuries and pain are related to the accident, the alcohol use disorder was caused by the accident. The Medical Assessor recommended review in six months, after the claimant had treatment for the alcohol use disorder and investigated his weight loss.

ASSESSMENT UNDER REVIEW

Medical Assessor Hong gave a certificate and reasons dated 19 September 2023. The Medical Assessor certified that adjustment disorder with anxiety and depressive symptoms caused by the accident gave rise to a permanent impairment of 13% and that the impairment was greater than 10%. He also certified that alcohol use disorder that he had previously diagnosed had entered remission.
The claimant reported to the Medical Assessor that he “has had a few accidents and confirmed that in 2010 he suffered some psychological symptoms and he saw a psychologist”. He described the accidents that occurred in 2013 and 2015 as “minor”. He reported there were no further psychiatric problems. The Medical Assessor recorded the following history:
“In terms of having his wife as a carer before the subject accident, he said he has a left shoulder injury and left knee injury, and needed assistance. She has been on a Disability support pension from Centrelink. He said she helped him with everything because he could not do anything himself. She did all the cooking, cleaning, washing, shopping. His wife helped him with washing his back and showers due to pre-existing shoulder problem.”
The claimant gave the following description of the accident: “He had given way and wanted to go onto the Hume Highway when a car suddenly rear-ended him. [His] car was pushed forward by 5 metres”.
The claimant reported having significant ongoing physical problems, with his right shoulder being very severe. He had bilateral shoulder and bilateral knee problems, as well as back pain. The Medical Assessor recorded:
“He said thoughts of the subject accident have become an obsession. He said that since the accident he blames himself, he is always anxious because he suffered major physical injuries, and at night he does not go out. He only goes out for two or three minutes and returns home.”
The claimant reported the onset of driving anxiety immediately, and depressive symptoms gradually after the accident. His psychological symptoms had not resolved.
The Medical Assessor recorded changes that had occurred since his previous assessment of the claimant. In his opinion the claimant had an adjustment disorder that was caused by the accident. He also suffered an alcohol use disorder that had remitted. The reasons record the Medical Assessor’s psychiatric impairment rating scale (PIRS) ratings, and reasons for those ratings. There was no pre-existing or subsequent impairment.

EVIDENCE

The documentary evidence before the Panel consists of the joint bundle filed by the parties on 31 October 2024 together with the additional material from Dr Selim, Dr R Rastogi, Dr Youssef, and Dr Aloe that is referred to at [11] and [12] above. All this evidence has been considered by the Panel.
An Application for Personal Injury Benefits dated 30 April 2019 contains the following description of the accident:
“I was travelling along Colechin St approaching Hume Hwy. As I slowed to a stop in order to give way when a vehicle collided heavily into the rear of my vehicle.”
The claimant recorded that as a result of the accident he suffered injuries to his neck, back, left knee, and left shoulder.
A police report dated 28 August 2019 includes details of the circumstances in which the accident occurred. The impact type is described as “front to rear”.
Material relating to the property damages claim made on GIO in relation to the damage sustained by the claimant’s vehicle in the accident includes an assessment summary report in which the damage is described as “rear end impacted on the third party vehicle”. Photographs depict damage to the rear of the claimant’s vehicle.
On 9 June 2021 the insurer wrote to the claimant in relation to his application for internal review of its decision that his physical and psychological impairment does not exceed 10%. The insurer declined to provide an outcome for the review on the basis that the internal reviewer was “unable to rely on the available medical evidence to make an accurate assessment” of his permanent impairment, and was “therefore unable to determine” if his physical and psychological injuries exceed the 10% threshold.
The Panel has considered the Insurance Business Information System records in the joint bundle.[1]
[1] Joint bundle pages 686 – 689.

Medico-legal reports and material from treatment providers

Dr Whetton, psychiatrist, reported to the insurer on 29 September 2020. The claimant reported that he became anxious and depressed and was treated by a psychologist following a motor accident in 2010. The doctor noted the reference to the claimant suffering anxiety and depression in Syria in 2013. The claimant reported that there was no further treatment until October 2019 when he was referred to Dr Rastogi.
In Dr Whetton’s opinion, the claimant presented in a state of agitation and gave a history warranting a diagnosis of adjustment disorder with depression. His symptoms and complaints are “subsequent to the motor vehicle accident of March 2019 and the physical injuries he claims”. The symptoms had persisted since March 2019 and appeared to be “running a chronic course”. Ongoing psychiatric treatment was recommended. Referral to the psychiatrist was considered reasonable. Referral to a multidisciplinary pain management clinic was recommended.
Dr Pillemer, orthopaedic surgeon, reported to the insurer on 3 December 2019. The claimant reported that he had been involved in a motor vehicle accident in April 2010 and that he sustained injuries to his neck, shoulders, back and left knee. He reported that as a result of the subject accident he injured his neck, both shoulders, back and left knee with pain going down both lower limbs. The doctor recorded that the claimant:
“…was questioned very specifically with regard to his ongoing symptoms following his first motor vehicle accident, and prior to his second motor vehicle accident. He says he was ‘feeling well with no pain’, but every now and then he would have some discomfort in his neck, left shoulder and left knee, with symptoms going as high as possibly 3-4/10. These symptoms would occur possibly once a week or even twice a week. On very specific questioning he feels that he was unrestricted and that he could walk as much as he wanted to, and he could negotiate stairs but he had simply been advised to avoid any heavy lifting. He had no problems with driving.”
While accepting that the claimant “may well have ongoing symptoms at a number of sites”, in the doctor’s opinion “there is obviously a very significant functional component present (abnormal illness behaviour)”. The doctor accepted the accident could have aggravated underlying symptoms that the claimant experienced prior to the accident, but stated that he:
“…cannot convince [himself] that he sustained any significant soft tissue injury to any of the above sites noting that he only saw his general practitioner some four weeks later, having seen him two weeks prior to the motor vehicle accident. In addition … there are very significant functional signs present making it virtually impossible to assess whether there is any additional underlying soft tissue damage that may have occurred as a result of the accident.”
In Dr Pillemer’s opinion, any aggravation that might have occurred at the time of the accident would long since have settled down. He thought that “…it is predictable that [the claimant] is not going to respond to any form of orthopaedic treatment in the longer term”. In his opinion “it is predictable that symptoms will continue in the same fashion”. As to the prognosis, the doctor expressed the opinion that the claimant is:
“…going to continue to complain of significant ongoing problems … but for all the reasons suggested [he is] unable to account for his symptoms and claimed disability on an orthopaedic basis at this stage.”
In the doctor’s opinion there was exaggeration of physical signs and “maximisation of claimed disability”. He described the claimant as having a “rather mournful affect”.
An undated certificate of capacity completed by Dr Selim refers to the accident, and records that the diagnosis is “MVA, neck, back, left shoulder, left knee injury”.

Documents in the joint bundle from P K Psychological services have been considered. An allied health recovery request (AHRR) completed by Dr Aloe dated 26 September 2019 relates to referral to Dr Youssef for counselling. The document includes the following under the heading “Diagnosis”:
“Client suffers from major depression, anxiety, stress, flashbacks memories and nightmares. The severity of the incident precludes him from working. He also demonstrated insomnia and feelings of inadequacy which affect his personal hygiene. Client appears distracted and unable to concentrate, emotionally unstable and often complains of chronic pain.”

An AHRR dated 14 November 2019 records:
“Client experiences post-traumatic stress disorder (PTSD), recurrent flashback memories and anxiety. Considering the severity of the client’s incident thus inhibiting the patient from working. The Client portrays feelings of inadequacy and experiences insomnia affecting his personal hygiene.”
And later:
“The client reported experiencing high level of PTSD symptoms as well as high stress levels. The client is seen to have recurrent thoughts of the incident, recurrent nightmares, as well as severe anxiety, poor appetite, poor hygiene, finds it difficult to readjust and presents low mood. The client reported experiences with fatigue and reduction of concentration as well as insomnia which is due to the pain and worrying feelings resulting in difficulty sleeping.”
The request states that there is “[n]o prior history of depression or psychological condition”.
The AHRR dated 6 February 2020 refers to:
“…Major Depression, high levels of stress, severe anxiety, flash-back memories, nightmares and the severity of those incident precludes him form working. Frequent disturbed sleep, feeling of inadequacy affecting his personal hygiene, poor concentration, thoughts, emotional instability and pain due to his health problems.”
The additional records from Dr Youssef provided at the direction of the Panel include the doctor’s clinical notes. The first entry is dated 26 September 2019. The claimant reported being involved in a motor vehicle accident on 18 March 2019, and that he had been having flashback memories of the accident. He thought he was going to die. He stated that he lacks motivation and was struggling with his personal hygiene and sometimes went for weeks without having a shower. He relies on his wife to assist him with personal hygiene, is unable to enjoy life at all, with markedly loss of interest, is often disorientated and confused, and has poor concentration. Since the accident he doesn’t have any friends and is socially isolated. He has loss of energy on a daily basis, feelings of guilt, hopelessness and worthlessness. He reported that he has extreme pain in his leg and neck and gets severe headaches.
On 3 October 2019 the claimant reported that symptoms of post-traumatic stress disorder were getting worse, and that he suffers panic attacks when he hears the noise of cars.
On 10 October 2019 reference was made to “flashback memories of MVA”, nightmares, poor sleep and low mood, irritability, general fatigue, and low motivation. The notes made on 17, 24 and 31 October have been considered, as have the notes made in November and December 2019, and those made in 2020, 2021, and 2022. The last entry in the notes is dated 17 February 2022. The following was recorded:
“Client continues to have PTSD with the following symptoms, flashback memories of MVA, poor sleep and low mood, irritability, general fatigue, and low motivation. He feels lonely and physically unable to move around and finds it difficult to concentrate or focus due to his physical pain. He reported being unable to cope with pain in his back, neck, left shoulder and both knees. Provided CBT and counselling.”
The records in the joint bundle from Dr Rastogi, psychiatrist, include a referral dated

13 September 2019. Dr Rastogi wrote to Dr Selim on 25 October 2019. She noted that the claimant had a past history of adjustment disorder from an accident in 2010, and that he “responded well.” The claimant reported that after the subject accident he:
“…is very aroused with anxiety and hypervigilant whilst driving. He is restless sand fidgety and struggling with basic tasks. He is very nervous and on edge and feels he cannot cope. He has no sexual drive and lacks intimacy. He feels hopeless and worthless and pessimistic about future. He reports intrusive dreams and dreams of having ongoing accident.”
Dr Rastogi diagnosed adjustment disorder with depressed and anxious mood, “that could be an exacerbation of a previous psychological condition”. Treatment recommendations were made, an further review arranged.
In a report dated 14 December 2019 Dr Rastogi recorded that the claimant was taking Endep 20 mg, not sleeping, and “always nervous and very upset and having bad dreams and fear of death.”
An AHRR dated 22 February 2021 records a diagnosis of major depressive disorder with post-traumatic features.
Dr Rastogi’s report dated 3 July 2020 states that the claimant “lacks motivation and drive”, “is adjusting to pain”, and not sleeping. He was “very disabled and sees no future ahead”. On

26 September 2020 the doctor recorded that the claimant was not sleeping at night with initial insomnia present, daytime tiredness and amotivation. He complained of poor concentration and that he had no pleasure in activities. There was pervasive depression and crying with emotional lability, intrusive thoughts, self-hatred, despondency and poor distress tolerance.
The claimant reported minimal shift of symptoms. His depression remained persistent with negative cognitions and he was very deconditioned. The doctor stated that “it has been challenging to cognitively challenge as his depression is persistent and has pessimistic view and is always having visions of death and his family will be better off”. The claimant presented with major depressive disorder as his depression has persisted despite treatment.
Dr Rastogi reported to the claimant’s solicitor on 10 December 2020. The claimant presented with major depressive disorder stemming from chronic pain, lack of adaptation and inability to pursue his premorbid interests. He also presented with “mild PTSD symptoms”. He could not resume preinjury functioning or duties. His prognosis was guarded. Further treatment was required. In a second report of the same date, the doctor provided a PIRS assessment, and assessed a 17% whole person impairment as a result of the accident.
The additional records from Dr Rastogi provided in response to the Panel’s direction include progress notes. The first entry in the notes is on 14 December 2019 and the last dated

30 August 2021. The progress notes include references to the following matters:
14 December 2019            “always nervous and very upset and having bad dreams and fear of death”
11January 2020               “Taking Endep 75 mg and sleep better
right shoulder needs operation and left shoulder needs cortisone
preoccupied with shoulder injury and consequences and disabilities
suggest increase Endep to 100mg
psychoeducation on pain and depression
Reason for contact:
Major depressive disorder”
15 May 2020  “…reports gradual physical deterioration and will need surgery
feels under pressure and cannot cope
pian [sic] is chronic and has poor pain threshold
isolated and home bound and struggling to cope
explained anticholinergic side effects
suggested increase Endep to 100mg
lacks confidence and not driving at all , son transporting him everywhere”
3   July 2020     “…lacks motivation and drive
adjusting to pian and make accommodation and help with pain
working with helplessness and worthlessness…”
14 November 2020   “…still socially avoidant and struggling to cope and has marked anhedonia
very nervous and fear
lack of intimacy and depression association explained…”
9 January 2021   “…presented with grief, loss , lack of adaptation , changed his life. feels overwhelmed and his life changed
having auditory hallucinations and visual hallucinations
feels sacred and always on edge and fear of being killed
Reason for contact:
PTSD (post-traumatic stress disorder)”
2 August 2021    “…remains very deconditioned and trapped with depressive symptoms , memory loss and very avoidant and barrier to recovery
poor insight and debilitated by anxiety
hearing voices in his head and explained arousal and hypervigilance
Remains incapacitated and functional decline…”
30 August 2021                   “…was working till 2016 and was designer and focussed on business
not able to work since accident an continues to be debilitated
excessive fears and avoidance
Reason for contact:
PTSD (post-traumatic stress disorder)
Major depressive disorder”
Dr Rastogi’s report to Dr Aloe dated 8 May 2021 records that the claimant:
“…is tormented by anxiety and arousal and is home bound. He is reliant on his family and does not demonstrate any motivation and drive. He is socially isolated and reclusive. He has no desire to do things and remains hopeless and worthless…”
The AHRR for physiotherapy dated 8 July 2019 relates to exacerbations of cervical and lumbar strain, left shoulder impingement, and left knee injury.
A report from Dr Maniam dated 29 July 2010 is addressed to Dr Selim. The report refers to a motor accident and injuries to the claimant’s neck, lumbar spine, left shoulder, left knee, and both elbows. The diagnosis was “musculo ligamentous strain, cervical spine with aggravation of underlying degenerative disease in the cervical and lumbar spines”. There was no neurological encroachment. The doctor also diagnosed traumatic impingement of the left shoulder.
Dr Maniam reported to the insurer on 17 October 2019. The report refers to the accident on 18 March 2019. The claimant reported pain in the cervical spine, lumbar spine and both shoulders, and left knee. The doctor recorded that “there was a rear end collision and he was shunted forwards and backwards and this could possibly have caused an avulsion injury to both shoulders”.

Dr Maniam reported to the claimant’s solicitor on 31 August 2020. The claimant had been referred to the doctor by Dr Selim for treatment of injuries sustained in a motor accident on 18 March 2019. He had injured his cervical spine, both shoulders, lumbar spine, and left knee. He did not work after 2010. He was involved in a motor vehicle accident on

2 August 2015 and was “granted an invalid pension”. Various pre-existing conditions and injuries are noted. The doctor recorded that at the time of the subject accident the claimant was unemployed. The disabilities recorded by the doctor have been considered, as have his findings on examination. The doctor diagnosed aggravations of pre-existing changes in the cervical spine, lumbar spine, shoulders and left knee. Treatment recommendations were made and assessments of permanent impairment given.
On 26 May 2021 Dr Aloe reported. The report records that the claimant suffers from chronic neck pain, back pain and shoulder pain as a result of the accident on 18 March 2019. His injuries had been managed conservatively. He also reported psychological symptoms and had been referred to Dr Rastogi. The doctor reported that he had seen the claimant:
“…[a] few times in the last few months, his mood is flat, he is withdrawn and his self esteem is poor, he told me that he is not hands on with work and he retreated to the back-seat and handed his work to family members and this causing more suffering and depression, [the claimant] is compliant with his medications but he does not think it is making big difference.”
In Dr Aloe’s opinion the claimant’s symptoms are consistent with depression and post- traumatic stress disorder. He also has somatic symptoms as a result of his depression aggravating his physical injuries.
The Ambulance report dated 20 April 2014 relates to a fall while the claimant was dressing. He injured his head as a result. The past history involved “Hypercholesterolaemia; Diabetes Type 2; Back Problems chronic- post MVA”.
The physiotherapy records have been considered. The records refer to a motor vehicle accident in 2010, and relate to the claimant’s neck, shoulder, back and knees.
Dr Aloe’s records have been considered. The clinical notes in the joint bundle commence on 30 April 2012. There is reference to a motor accident in a note dated 19 November 2013 that involved neck, back, shoulder and knee symptoms. Notes recorded on 28 March 2014 include reference to “depressed mood and anger”. There are multiple references to neck and back pain in subsequent entries. A note on 28 August 2015 refers to a motor vehicle accident on 2 August 2015 following which there was neck, back, and left shoulder pain. The notes include references to diabetes.
A note on 26 July 2019 records that neck, back, left knee, right knee pain started after a motor vehicle accident on 18 March 2019. The last entry in the notes is dated 2 September 2019 and refers to bilateral shoulder pain.
Dr Aloe’s records also include radiological reports, test results, certificates, and reports from other practitioners, all of which have been considered. A report from Medhat Metry, psychologist, dated 9 July 2010 records a diagnosis of adjustment disorder with anxiety and depressed mood and confirms that the claimant was treated with cognitive behavioural therapy.
The additional records from Dr Aloe, printed on 6 February 2025, have also been considered. The records include progress notes, reports from other practitioners, certificates of capacity, and radiological reports. The progress notes between 30 April 2012 and 2 September 2019 have already been addressed. The notes between 13 September 2019 and 26 June 2024 include reference to the following:
13 September 2019               shoulder pain, back pain, pain affecting daily activities, insomnia, tiredness, anxiety, depressed mood
7 November 2019                  anxiety, depression, neck pain, shoulder pain
2 February 2021  chronic back pain
9 April 2021  neck, left knee, shoulder, lumbar pain. “Started after MVA”. Affecting ADL’s, work and sleep
30 April 2021  depression, back and neck pain
11 October 2021                    anxiety, insomnia, taking antidepressant
6 June 2022anxiety/depression, post traumatic stress. “Started after car accident” On Cymbolta 60mg
1 March 2023  depression
8 June 2023depression, back pain
16 June 2023  depression, mental Health Care Plan.
24 January 2024  depression
9 February 2024  chronic depression “started after injury”
25 June 2024  depression
Dr Maniam’s records have been considered. The records include hand written clinical notes, and radiological reports. Bankstown Lidcombe Hospital records relate to a motor accident on 7 April 2010, and a fall on 20 April 2014. The records from Dutton St Medical Centre have also been considered.
The Panel has considered the records from the “Medical and Dental Centre” Punchbowl,

Dr Selim’s practice. The records contained in the joint bundle were printed on 3 June 2019. The first entry in the clinical notes is dated 23 October 2000. The notes include the following references:
29 August 2006 – reason for visit “Depression”;
7 April 2010 – depression;
15 April 2010 – motor vehicle accident on 7 April 2010 – T bone accident;
30 April 2010 – depression fears;
1 July 2011 – depression;
20 March 2013 – depression, stress disorder;
3 October 2013 – depression;
11 August 2015 – motor vehicle accident on 2 August 2015 front seat passenger neck pain, low back pain, knee pains;
22 March 2018 – depression. Poor sleep. Early morning waking. Depressed mood. Low self esteem. No irrational fears. No panic attacks. Lovan prescribed, and
18 April 2019 – motor vehicle accident on 18 March 2019. Neck pain, low back pain, left shoulder pain, left knee pains.
The Panel has considered the additional records from Dr Selim’s practice as at
6 February 2025. The first attendance recorded in the progress notes is dated 4 June 2019. The entry refers to “neck and back pain and stiffness” and “stress disorder”. On 17 July 2019 there is reference to “neck and back left leg pains” and depression. References to those complains and right knee pain was also made on 28 February 2020. The most recent entry was made on 30 March 2020, and referred to “chondropathy on patella”.
The practice records include test results, radiological reports, reports from other practitioners, and prescription records.
Dr Selim reported on 12 July 2011. The report records that the claimant had been a regular patient since 1993. He was receiving treatment for left shoulder injury, Type 2 diabetes, neck and back injuries, degenerative changes in the lumbar spine, ankle, knee, and elbow issues, together with issues relating to his kidney, liver, and stomach. There was a motor accident on 7 April 2010. A list of other treatment providers and medication is included, including a psychologist, Mr Metry.
The Medicare records indicate that between 21 October 2009 and 28 August 2015 no psychotropic medication was prescribed.
Pharmacy receipts have been considered. Psychotropic medication prescribed consisted of fluoxetine 20 mg on 22 March 2018, Amitriptyline 10 mg on 19 November 2019,
16 December 2019, 15 January 2020 and 12 July 2020. Duloxetine 60 mg on
2 December 2020. Quetiapine 25 mg on 12 January 2020. Quetiapine 25 mg on
18 September 2021. Duloxetine 60 mg on 18 September 2021. Duloxetine 30 mg on
1 October 2020. Mirtazapine 15 mg on 12 July 2020. Amitriptyline 50 mg on 12 July 2020. These are largely antidepressants and pain modulators. Quetiapine is for anxiety.

Claim documents relating to the motor accident on 30 April 2001

An “Initial Rehabilitation Assessment Report” dated 26 June 2001 relates to an accident on 30 April 2001. The report records that at the time of the accident the claimant was self-employed, and was working three or four hours a day post-accident “from his office and has not ventured onto a work site” since the accident. The claimant reported that the accident occurred in the following circumstances: “…it was raining very heavily and they were travelling when another car drove up from behind and ran into the back of [his] car.” He reported that he immediately experienced pain in his back and neck. The claimant reported that he “could not get out of the car due to the pain he was experiencing in his lower back and knee”. He was assisted from the car by police, but did not attend hospital. He sought medical treatment three days after the accident.
The claimant reported that he “felt pain all over”. The report records that Dr Selim, the claimant’s general practitioner, stated when spoken to on 27 June 2001 that the claimant “had ongoing difficulties with his cervical and lumbar spine and left shoulder”, and that “the left shoulder is an aggravation of a previous shoulder injury”. The claimant reported that “approximately eighteen months prior to the accident he began to experience pain in his left shoulder”, and commented that he “did not know why this pain started”.
The claimant reported that he continued to experience pain, mostly in his cervical region but also in his thoracic and lumbar region, left knee, left shoulder, both elbows, groin, and hips. He had limited functional tolerances. Various recommendations were made for further treatment.
The rehabilitation closure report dated 20 August 2001 records that the rehabilitation program had been closed at the direction of the insurer.
The material includes various radiological reports, physiotherapy referrals, reports from treating doctors and medico-legal reports.
On 8 November 2001 Dr Pierides, specialist in occupational medicine, reported to the insurer. He recorded a history of the claimant being involved in a rear end collision on

30 April 2001. The claimant reported working three to four hours a day on the computer, and that prior to the accident he worked 10 hours per day. He reported that he felt tired and had generalised aches and pains in his body but his pain was worse in his neck and low back. He also complained of pain in his left shoulder. In the doctor’s opinion the claimant may have suffered a cervical and lumbar strain in the accident. The claimant’s presentation was not consistent with the accident circumstances; his distribution of pain throughout the cervical and lumbar spine and his alleged inability to maintain himself at work for any more than two to three hours due to increased pain was not consistent with the accident circumstances nor was it consistent with the examination findings which revealed no significant clinical abnormalities or the X-ray and bone scan findings which revealed no significant bony injury. He required no further treatment, and “should be encouraged to get back to his normal activities”. In the doctor’s opinion the claimant was exaggerating his disability “significantly”. His prognosis “based purely on physical grounds is excellent”.

In a report dated 21 November 2001 Dr Rosenberg, orthopaedic surgeon, recorded that he first saw the claimant in July 1999, at which time he was complaining of having developed pain about his left shoulder and elbow which “dated back about two years previously”. The doctor thought that the claimant had a rotator cuff injury with impingement and a small tear. He responded well to conservative measures and hydrocortisone injections. He last saw the claimant in December 1999.
In a medico-legal report dated 19 November 2001 Dr Patrick, surgeon, provided impairment assessments in relation to the claimant’s neck, back, and left arm, all of which related to the 30 April 2001 accident.

In a report dated 15 January 2003, Dr Selim recorded that he saw the claimant on

2 May 2001, at which time a gave a history of being involved in a motor vehicle accident on 30 April 2001. He presented with chest pain, low back pain, neck pain and severe left shoulder pain. He had a past history of left shoulder rotator cuff instability and left supraspinatus tendonitis. In the doctor’s opinion the claimant suffered from cervical and lumbar strain injury as well as an aggravation of his left shoulder rotator cuff instability. He was off work for about eight weeks and started work thereafter.
A claim form dated 27 July 2001 includes a description of the accident on 30 April 2001, and lists injuries to the claimant’s back, neck, left knee, both elbows, left shoulder, bruising and anxiety. Details of the claimant’s employment are recorded, together with his treatment providers. An attached medical certificate completed by Dr Selim on 29 June 2001 records “MVA, cervical+ lumbar, left shoulder injury”. Clinical findings were “neck pain, stiffness, left shoulder pain, lower back pain.”
An Accident Notification Form dated 3 May 2001 contains brief details of the accident, and includes a medical certificate completed by Dr Selim on 2 May 2001. The certificate refers to left shoulder, neck and low back pain.
Particulars provided by the claimant’s solicitor to the insurer dated 15 November 2001 refer to neck, back, left knee, elbow and left shoulder injuries, together with bruising and anxiety.
The evidence includes a number of request for particulars and responses, the contents of which have been considered, as have taxation and employment records.
A deed of release confirms that the claim for damages relating to this accident resolved for the sum referred to in cl 1 of the deed dated 6 May 2003.

Claim documents relating to the motor accident on 7 April 2010

An Ambulance report dated 7 April 2010 records that the claimant had been involved on a motor accident that day, and reported pain in his neck, mid and lower back, and rib pain. The claimant reported that his speed at the time of the accident was 40kmph. The report records that the claimant was the driver of a car “T-boned/passenger side + airbags deployed”.
A hospital discharge referral dated 7 April 2010 records that the claimant had presented after a motor vehicle accident that occurred at moderate speed. There was no head injury. He complied of neck pain. An X-ray of the cervical spine was ordered, and showed no fracture/soft tissue swelling.
A police report dated 3 June 2010 records that the claimant was the driver of a vehicle involved in a motor accident at Bankstown on 7 April 2010. The report includes a description of the accident. The claimant was the driver of a vehicle that made a right hand turn in front of another vehicle resulting in a collision between the vehicles. The report records that the claimant’s vehicle was the “unit responsible” for the accident.
A claim form dated 21 May 2010 contains a diagram and description of the accident. The claimant’s injuries from the accident were recorded as being:
“Head injury, unconscious (1 min), injury left knee, Injury right ear, injury to neck, injury to back, injury to left shoulder, injury, bruising and lacerations to arms, shock.”
The claimant’s response to the question “How do the injuries affect you now?” included “…anxiety, depression, stress”.
A medical certificate attached to the claim form completed by Dr Selim on 30 April 2010 records “MVA, T Bone…neck, [b]ack, left shoulder, knee pain”.
An investigation report dated 7 July 2010 is addressed to NRMA. The report relates to the accident on 7 April 2010, and includes a statement from the other driver involved, a record of interview with Constable Hobson, and photographs of the accident scene. The Constable confirmed that the claimant was found by police to have been at fault for the accident, and was issued with infringement notices for the offence of “Not give way to vehicle – right turn into terminating road”.
A report from Dr Howison, ear, nose, and throat surgeon, dated 11 June 2010 records that the claimant injured his neck, back, and shoulders in a motor accident on 7 April 2010. He attended Bankstown Hospital and was discharged after observation. He was not admitted. There was no loss of consciousness. He has complained of intermittent headaches since the accident.
In a report dated 9 July 2010, Mr Metry, psychologist, recorded that the claimant was under his care for his psychological condition, following referral by Dr Selim. In his opinion the claimant was suffering from adjustment disorder with anxiety and depressed mood. He was receiving cognitive behavioural therapy.
A certificate of exemption from the Claims Assessment and Resolution Service dated

6 October 2010 records that the insurer denied fault for the claim, and that the claim was exempted from assessment under s 92(1)(a) of the Motor Accidents Compensation Act1999 (MAC Act).

Claim documents relating to the motor accident on 2 August 2015

In evidence before the Panel are a range of documents relating to a motor accident on

2 August 2015. The documents include material from Medicare including a statement, past history report, and prescribing history, all of which have been considered. There are various reports from treating doctors, radiological, ultrasound, and investigation reports.
A report from Al Assad University Hospital in Syria dated 21 September 2013 records that the claimant had been admitted to hospital on 18 September 2012 in relation to complaints of headaches and dizziness for a week. He was admitted for a second time on

25 November 2012, and was treated for hypertension. There was a third admission on

17 January 2013 that related to complains of left chest pain. The claimant was found to have osteoarthritis in the left shoulder that led to limited movement in the left arm, disc degeneration at C5/[6] and C6/7, together with disc degeneration “throughout” the lumbar spine at L1/2,L4/5, and L5/S1. The were also cystic and arthritic changes evident in both knees. He was discharged on medication (specified) for anxiety and depression which he was advised to continue.
A medical certificate completed by Dr Selim dated 15 August 2015 records “MVA neck injury, back injury, left shoulder, left knee injury”.
A claim form dated 24 August 2015 records that the claimant was involved in a motor accident on the M5 East at Bankstown on 2 August 2015. The claim form contains a diagram depicting the accident scene and the position of the vehicles. In response to the question “What are your injuries from the accident?” the following is recorded: “back, Neck, [left] Shoulder, [left] Leg/Knee, Shock”.
A NSW Police report dated 15 September 2015 records that the claimant was the left front passenger in a vehicle involved in an accident at Padstow on 2 August 2015. A description of the accident is provided. The vehicle in which the claimant was travelling collided with the rear of another vehicle.
The material relating to this accident includes Dr Selim’s progress notes covering the period 23 October 2000 -14 August 2015. The notes include references to the following:
29 August 2000 - lost money in building upset abdominal pain Reason for visit “Depression”;
7 April 2010 – depression; counselling;
15 April 2010 – motor vehicle accident on 7 April 2010 T bone accident…neck pain, headache, backpain, dizziness;
30 April 2010 – neck pain, back pain, stiffness, left shoulder pain…depression fears;
1 July 2011 – neck and back pain, left shoulder pain, depression, left knee pain;
20 March 2013 – depression, stress disorder;
3 October 2013 – depression, left shoulder pain, neck and back pains, and
3 August 2015 – motor vehicle accident today pain neck limited movements, pain both knees no swelling.
An investigator reported to the insurer on 3 November 2015 and 25 September 2015. Annexed to the first report is a statement from a witness to the accident on 2 August 2015. The witnesses name and other identifying details have been redacted. There is also a statement from the driver of the at fault vehicle that has also been redacted.
On 20 February 2016 NRMA denied liability for the claim on the basis that it did not agree the claimant suffered injury, loss or damage as a result of their accident. On 23 February 2016 NRMA issued a further liability notice in which it denied its insured was at fault and caused the accident because it had “sufficient evidence that [the claimant] was not present in the motor vehicle at the time of the accident”. The insurer went on to state that it had evidence that the claimant had made a false statement in the claim form in breach of s 177(1) of the MAC Act.
In correspondence to the claimant’s solicitor dated 11 May 2016 NRMA confirmed that it “alleges that the claim is a fraudulent claim”. On 17 May 2016 the Claims Assessment Resolution Service issued a certificate in which it recorded it finding that the claim was exempt from assessment under s 92(1)(a) of the MAC Act.

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 31 October 2024. The insurer draws the Panel’s attention to the prior accidents in which the claimant was involved. The insurer also makes reference to “ongoing physical and psychosocial issues” prior to the accident that involved neck pain, back pain, headaches, dizziness, left shoulder pain, depression, low self-esteem, knee pain, poor diabetes management, and lethargy.
The submissions record that the claimant stopped working in 2017, and has relied on the disability support pension since then. His wife has been his carer, and undertook the cooking, cleaning, washing, shopping, and assisted the claimant with showering.
With respect to the accident, the insurer notes that police did not attend, and that the photographic evidence shows minor damage to the rear bumper, boot, and lights that required replacement and painting.
Turning to the claim form, the insurer notes that there was no reference to a psychological injury, nor was reference made to the accidents in 1999, 2011, 2013, or 2015. The insurer submits that histories provided by the claimant to various doctors, both treating and medico-legal, were “incomplete” with respect to prior accidents, prior injuries, prior symptoms, his work history, and the assistance he required prior to the accident.
At [38]-[60] the insurer recounts various matters of history, findings, and opinion recorded by Medical Assessor Hong in his reasons. At [61]-[66] the insurer identifies “issues” with the Medical Assessor’s reasons. In the insurer’s submission, contrary to the Medical Assessor’s findings, the claimant reported pre-accident psychological symptoms on 22 March 2017. Further, the Medical Assessor “erroneously” attributed all the claimant’s physical complaints to the accident, and “failed to note the present complaints match the pre-accident records, including those made on the 13.03.2019, 5 days prior to the subject accident.” Further examples are provided at [64].
The insurer submits that the claimant has “systematically failed to accurately disclose his pre-[accident] claims, reasons for cessation of the same, and injuries associated with the same”.
In the insurer’s submission the “accident was of a kind that did not meet Criterion A for PTSD as stated under the DSM-V-TR.” The insurer argues the “property damages photos evidence the mechanism of the accident was not such that the [c]laimant was exposed to actual or threatened death or serious injury.” The insurer notes that an ambulance did not attend, police did not attend, nor was hospital attended following the accident.
The insurer argues that there is no objective evidence the accident caused an “objective change in the underlying pre-existing and symptomatic pathology” in the claimant’s left shoulder and “knee issues”.
The insurer submits that “it is in the context of a continuation of these pre-existing physical injuries” that the “[c]laimant[‘s] alleged psychiatric injury on or around September 2019” arose. The insurer argues that the accident did not cause the ongoing pre-existing symptomology or pathology, and the effects of same should be disregarded.

In the insurer’s submission, the medical records “evidence that the claimant has systematically omitted or minimised his pre-accident issues, and has progressively misattributed these issues and their progressive worsening to the subject accident.”
The insurer submits there is no medical evidence that the claimant suffered “major physical injuries” as a result of the accident. The insurer argues that the claimant ceased working two years prior to the accident, and prior to that had reduced his working capacity due to ongoing physical injuries. In these circumstances, the insurer argues, “the perception that the subject accident has had a significant impact to his vocational life is not rational nor can it reasonably be attributed to the accident.”
The insurer submits the alleged ongoing chronic pain and physical injuries are not related to the effects of the accident, and relies on Dr Pillemer’s opinion that there was “abnormal illness behaviour”, issues with the delay in presentation, and that any additional soft tissue injury as a result of the accident has settled down.
At [88]-[103] the insurer addresses each PIRS category, and draws attention to matters it submits are relevant to each PIRS class.

Claimant’s submissions

The claimant relies on written submissions dated 15 November 2024. He acknowledges that he has been involved in a number of motor vehicle accidents in which he suffered injuries “over the years”. In the claimant’s submission, the medical evidence is “clear” that he suffered “undoubted physical injuries” as a result of those collisions.
The claimant argues that “it is well known that even a relatively modest collision impact can have very severe consequences on people”, and that “[t]he likelihood of a serious injury is, of course, far greater when the person has underlying problems” such as his pre-existing physical conditions. In his submission, “it is trite but true to say that a tortfeasor takes his or her victim in their condition at the date of the event”.
He argues that he suffered “psychological trauma in relation to the accident which does not fit within the category of a threshold injury”. He submits that there is no pre-existing impairment and that, for the reasons identified at [19] of his submissions, he satisfies criterion A for post-traumatic stress disorder.
In the claimant’s submission, the Panel “will have to make its own determination of the PIRS Criteria”.

RE-EXAMINATION REPORT

The claimant was re-examined by Senior Medical Assessor Mason and Medical Assessor Friend (Medical Assessors) by MS Teams on 17 February 2025. The report prepared by the Medical Assessors following the re-examination follows.

Brief personal details

The claimant is a 65-year-old man who has been in receipt of the disability support pension since 2017. He lives with his wife. She has received the carers pension to care for him because of his physical injuries, since 2017. They live in private rental accommodation in Sydney.

Psychosocial and pre-accident history

The claimant was born in Latakia, Syria on the Mediterranean coast. He said his father died in 1995 at approximately 75 years of age but he does not know the cause of death, because he was in Australia at the time. His mother died of a stroke at 62 years of age, from shock caused by the murder of his brother by members of the Muslim Brotherhood on their front door step. He said he is the seventh of 10 children consisting of 5 males and 5 females. Another brother died in 1985.
He described a normal birth and development and suffered no form of abuse throughout childhood. He said his father had a good job and they did not want for anything.
He described living a beautiful life. He said he was active in sport from the age 8 years continuing throughout his teens. He attended school in Syria and completed year 12. He studied interior design and architecture in Spain and completed the 5-year degree course in 1986 when he was 26 years of age.
He then returned to Syria and worked as a designer in the construction of a stadium and then moved to the United Arab Emirates in 1990 where he worked in construction and design for three years.
He came to Australia in 1993 with his wife under the skilled migration program. His wife had studied mathematics and physics and worked as a teacher. He studied for recertification and obtained his Australian qualifications. He then worked for a design company for four years and another company for one year. He had his own design and construction business from 1995 until 2002 when he sold both the factory and business. He then worked in a number of his own businesses until 2017 for various periods of time.

He was asked about an episode of depression recorded by general practitioner Dr Selim on 29 August 2006 after a financial loss incurred on a building project. He replied that he had no memory of being depressed at that time. He said he had a house and sold it but did not lose money.
He married in 1985. His wife initially worked as a teacher and then in his businesses as a bookkeeper. They have four children. All have left home and are living independently. He said he has seven grandchildren.
Leisure activities prior to the accident consisted of going out with his family for barbecues and picnics. He said he enjoyed reading about design and was living a normal life. He exercised by walking, running and swimming which ceased because of the left shoulder injury. He described going for regular walks on a daily basis prior to the accident. He said all these activities stopped after the accident. The Medical Assessors noted he had significant physical injuries prior to the accident and he agreed this was the case.
The claimant was asked about previous motor accidents. He reported an accident in 2010 when he was transported to the hospital by ambulance. He said he had lumbar disc and left knee injuries which he described as "mild". He was the at-fault driver in this accident and was unable to claim.
He said he did attend two psychological counselling sessions with Mr Medhat Metry who had a room in his general practitioner’s surgery but this was just because he was "stressed". He denied anxiety and depression. The Medical Assessors noted Mr Metry had diagnosed an adjustment disorder with mixed anxiety and depressed mood. The claimant stated this was not the case.
The claimant spontaneously reported another accident in 2013 in which he was driving but he did not suffer injury and did not make a claim. He said his wife was injured and made a claim. He stated there were no other motor accidents.
He was asked about a motor accident in 1999. He initially said he could not remember but then said he was a passenger in a Porsche driven by a friend which was hit from behind. He again said he could not remember but then stated there was a settlement because he hurt his back.
He was asked about a claim for stolen vehicle in 1999. He said it was a Nissan Pathfinder which was eventually found and returned by the police. He stated the insurer did not reject his claim.

He was asked about a motor accident in 2001 at Chipping Norton. He said he believes this was the incident in which the Porsche car was rear ended at Milperra.

The claimant was asked about a motor accident in April 2015 on the M4 in which he was a passenger. He said another person made a claim. He believed the other person’s lawyer wanted to benefit by making two claims instead of one. He said he did not want to make a claim because he was not injured.
He was asked about a motor accident in August 2015 at Lane Cove. He said he was involved in a motor accident on the M5 at King Georges Road but no claim was made. When asked about another motor accident in August 2015 at Blacktown he said he had never been in that suburb.
The claimant denied any history of problems with the law. He denied the use of cigarettes and recreational drugs and said he does not gamble. He drinks at most one coffee per day. He acknowledged excessive alcohol consumption in the past after the subject accident but said he has not had a drink for 18 months.
The claimant acknowledged the presence of physical pain prior to the accident. He reported injuries in his left shoulder, neck, lower back and both knees. Past medical history consisted of the development of type II diabetes 15 or 16 years ago. He said he has not undergone any surgery. He denied hypertension and hypercholesterolaemia.
He was asked about a period of hospitalisation in Syria in 2012 when hypertension was diagnosed; he was also diagnosed with anxiety and depression and was treated for that. He said he was stressed because he was stuck in Syria due to war. It was necessary to go via Lebanon to return to Australia. He agreed that he was agitated but said that settled on his return.
When asked if he had suffered any complications of diabetes he referred to the fact that he needed reading glasses and said there had been problems with his retinal arteries which have responded to treatment. He said he uses a lot of eye drops.
The claimant denied any past psychiatric history. References to anxiety and depression in the past were raised with him. He denied he had suffered from either. He denied any family history of psychiatric illness.
It was difficult to obtain an accurate history of the medications he uses. He was clear that he takes metformin 1000 mg daily for diabetes. He said he has never required the use of insulin. He uses Tramadol 100 mg twice or three times daily depending on the severity of his ongoing pain. He said he also uses Mobic. He also referred to the use of quetiapine to enable sleep. He described taking various doses including 50 mg, 100 mg and 200 mg at night.
With regard to pre-accident functioning, the claimant was living with his wife and son. He was in receipt of the disability support pension for physical injuries but said he was working for approximately two hours per day providing supervision to his son and son-in-law in the family design and construction business.
He said his self-care and personal hygiene was adequate. He showered daily although needed some assistance from his wife because of physical injury.
Social and recreational activities consisted of spending time with his family, seeing friends and going for regular walks. He was able to drive in an unrestricted manner. He could use public transport and had flown to Syria in December 2017. He said his relationship with his wife and family members was intact.
With regard to concentration he said he was able to read design magazines and spend time on his computer.

History of the motor accident

Mr Najem said he was travelling with his son-in-law as a front seat passenger and was stationary at a stop sign at the intersection with the Hume Highway. Another vehicle hit him from behind and pushed him 5m forward. He did not impact another vehicle.
The vehicles on the Hume Highway were driving around him or had to stop to avoid hitting his vehicle. He was wearing a seatbelt. The airbags did not deploy. He said he hit his head on the glass and his right knee hit a section of the car near the door. He said he did not lose consciousness but he did feel dizzy. He needed a few minutes to clear his head and then got out of the car and exchanged details with the female driver of the car that hit him. He said she apologised. He called police and told them about the accident. Because no one was hurt and he did not need an ambulance, they did not attend.
He said the accident occurred only 500m from his home, so he then drove home. He said the rear of the car had been pushed in and the insurer of the other vehicle paid for it to be repaired.

History of symptoms and treatment following the motor accident

The claimant said initially he did not attend his general practitioner. When he developed severe pain in the right shoulder, neck and right knee, he attended Dr Selim three or four weeks later. He prescribed Mobic and referred him for physiotherapy.
He said left shoulder pain developed at some later stage. He did physiotherapy for an entire year.
He was asked about the transfer of his care to Dr Marwan Aloe, general practitioner. He replied that Dr Selim had returned to Egypt. He said there was no interruption to the continuity of his treatment, although COVID-19 intervened which made attendances more difficult.
He said his physical symptoms deteriorated over time. He now experiences severe pain in both shoulders, neck, back and both knees. He stated that he has a dislocation of his right shoulder and a supraspinatus tear that requires surgery which has been refused by the insurer.
His physical activity has been significantly reduced because of back pain and knee pain. He said he struggles to walk from the lounge to the kitchen because of back and knee pain and he is now unable to go out for his regular daily walk.
He described the development of anger and irritability because of these limitations and he tends to take this out on the people close to him.
When asked about the development of psychological symptoms, he said these came on approximately a year after the accident. When further questioned about this later in the examination, he said it could have been only six months after the accident. He could not remember accurately because it is so long ago. The symptoms consisted of a feeling of exhaustion, brought on by the pain and all the medications he is taking.
He repeated that he feels exhausted. He described agitation and being unable to control his anger. He said he overreacts if people say something he does not like. He said he swears at his children and his wife. He said he throws his reading glasses at his wife and children. He has had to replace lenses, of his reading glasses on three occasions, because he broke them, when he threw them.
He said he feels down, and flat and lethargic. He has no energy to get up in the morning. He said he began to feel like he was nothing and has stopped seeing friends. He referred to an old Arabic saying in which he feels like he is "buried alive".
He said he cannot make decisions and he swears at himself a lot, and his concentration is poor. He said sometimes he sets out to do something and then forgets what it was.
The claimant did not describe suicidal ideation or impulses. He did not describe trauma related symptoms arising from the motor accident. He made no reference to intrusion symptoms or reexperiencing phenomena, apart from saying he sometimes wakes up after a dream about a motor accident.
He has difficulty getting off to sleep. He is woken by pain throughout the night and is unable to get back to sleep. He said the medications he was prescribed did help with the sleep problem.
Treatment consisted of referral to psychiatrist Dr Richa Rastogi and counsellor Dr Jacqueline Youssef. He saw Dr Rastogi between October 2019 and late 2023. He believes he had multiple sessions with Dr Youssef. He said neither the psychiatrist nor the counsellor made any difference to his symptoms.

Injuries and conditions since the accident

The claimant said there had been no further motor accidents and he was not aware of any personal trauma. He reported a significant deterioration in his condition from late 2023 or early 2024. He said he became withdrawn and no longer went out of the house unless it was necessary. He stopped seeing all friends and relatives. He said he swore at all his children and told them to stop visiting. The Medical Assessors note this coincides with development of severe knee pain which prevents many previous activities.
He said prior to that he was able to drive to the shops but now relies on his wife to drive.
He stated he had been reading some design magazines up until the end of 2023 but in 2024 he lost interest in doing so. He said he has lost his appetite and his weight has been reduced from 70 kg to 56 kg.

Current symptoms

The claimant described loss of interest in all activities. He does not see friends. He does not allow his children or grandchildren to visit. He becomes easily irritated and angry, swears at people and throws objects. He has stopped going for walks because of pain. He is despondent and angry that the insurer will not fund surgery for his shoulder. His sleep remains impaired. He finds little enjoyment in activities. He described difficulties with both concentration and memory. He experiences ongoing significant pain in both knees, his lower back, both shoulders and his neck.

Current and proposed treatment

There is no current or proposed treatment apart from the medication prescribed by his general practitioner which appears to be only quetiapine of uncertain dose to assist with sleep. He did not describe the use of antidepressant, antianxiety or pain modulating agents. He said he cannot afford to continue consultations with the psychiatrist and psychologist.

Mental state examination

The claimant’s appearance is consistent with his stated age. He had longish hair, a greying beard and was wearing a dark T-shirt. He was located alone in a room in his home. He said his wife was present elsewhere in the house.
He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 9.00am and concluded at 11.15am. He was assisted throughout the interview by the Arabic interpreter.
The claimant was difficult to interview. He was somewhat irritable but cooperative. He tended to talk over the top of the interpreter and not let her complete her translation of what he was saying. While it appeared he did have a good understanding of the English language, and a reasonable facility for expressing himself in English, the interview was conducted entirely via the interpreter.
His speech was normal in rate, rhythm and prosody. It appeared he was intelligent and well educated. Although he complained of ongoing debilitating pain, no obvious pain behaviour was evident throughout the interview.
His range of affective expression was full and included the expression of humour from time to time. He was able to smile. He nonetheless made it clear that he was not enjoying life and resented the impact of the motor accident. He did not become tearful or distressed.
He described anxiety in relation to driving which appears to have been exacerbated since the beginning of 2024. He said he has become more afraid of being rear ended.
He described depressive symptoms as a consequence of his physical impairment and pain. He did not describe suicidal ideation or intent.
He appeared to have no difficulty with concentration throughout the 2-hour and 15-minute interview. There was no evidence of impaired memory throughout the interview. The claimant was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current functioning

Self-care and Personal Hygiene: The claimant required assistance from his wife with showering prior to the accident. Medical Assessor Hong reported she had provided personal care from 2017 and was responsible for all household activities including cooking, shopping, washing and laundry; her contribution in this regard has not changed. However the claimant currently requires more assistance from his wife because of the deterioration in his physical condition. He reported he showers every two or four weeks largely because he finds it difficult to walk within the household. It is difficult for his wife to get him to shower more frequently because of pain involved in movement. He noted weight loss from 70kg to 56kg.
The Medical Assessors did not regard him as seriously depressed and did not attribute this weight loss to his psychiatric condition. Excluding physical impairment he is mildly impaired from a psychiatric viewpoint.
Social and recreational activities: The claimant said he does nothing. Because he has sworn at all the children they no longer visit; the Medical Assessors regard his angry mood as arising from disabling ongoing pain and physical impairment. He said he tells them not to come. He is unable to walk from the lounge room to the kitchen. He does not see friends because of physical pain. He does not go for daily walks because of physical pain. He can no longer enjoy reading design magazines or being on his computer, partly because of the deterioration in his eyesight and partly because of ongoing pain. He is unable to attend cafes, restaurants and entertainment venues because of physical impairment. From a psychiatric point of view he is mildly impaired.
Travel: The claimant stated he has not renewed his driving licence and has not attended a doctor since August 2024. He said he is afraid of being rear ended again so has stopped driving. The Medical Assessors note that it is not possible for him to drive with such painful knees. He ascribed not driving to being fearful of further rear-end motor accidents. He is unable to use public transport because of physical impairment and pain. He denied air travel since the accident. From a psychiatric point of view he is mildly impaired.
Social functioning: The claimant continues to live with his wife who is supportive of him but he treats her badly. He said he has not seen a friend for eight months. He has not allowed family to visit for three months; this is due to irritability arising from increasing pain and deteriorating physical capacity. With the exclusion of physical impairment and pain he is mildly impaired from a psychiatric viewpoint.
Concentration, persistence and pace: The claimant said he has no ability to concentrate and his memory is poor. However, this was not evident throughout the 2-hour 15-minute interview when his concentration did not fail and his memory was more than reasonable. He stated he was no longer able to read design magazines and browse the internet. He is mildly impaired.

Adaptation: The claimant ceased full-time work in 2017 and has been in receipt of the disability support pension since then. He stated prior to the accident he was working two hours/day in a supervisory role in a business involving his son and son-in-law. He was totally reliant on his wife who received the carers benefit with regard to his contribution to household activities. His ability to continue to work in this supervisory role has been reduced by his physical injuries, pain, and his psychiatric injury. He has a minor impairment as a result of his psychological injury.

Consistency of presentation

There were a number of inconsistencies in regard to previous motor accidents; when questioned the claimant acknowledged only two previous accidents. His responses when questioned about other accidents are provided above.
There were inconsistencies in regard to concentration and memory. The claimant stated he had difficulty in these areas but this was not evident during the interview. When this was raised with him he had no comment to make.
The Medical Assessors noted the absence of pain behaviour throughout the interview. The claimant stated he had used tramadol and quetiapine.
The claimant denied a history of depression in 2006 which was clearly documented by

Dr Ashraf Selim. When questioned about this entry, he said the doctor was mistaken.
Psychologist Mr Medhat Metry had diagnosed an adjustment disorder with mixed anxiety and depressed mood in July 2010. The claimant denied this was the case and stated he was simply stressed.

Diagnosis and reasons

The Medical Assessors were satisfied that the claimant met DSM-5-TR criteria for an adjustment disorder with mixed anxiety and depressed mood.
The accident did not satisfy DSM-5-TR criterion A for post-traumatic stress disorder. The claimant did not describe re-experiencing or intrusion symptoms. He did not provide a history consistent with the diagnosis of post-traumatic stress disorder.
The claimant mentioned anxiety in relation to feeling fearful of being rear ended while driving from the beginning of 2024. He was able to drive before that without this fear.
He mentioned depression in relation to his significant physical impairment and pain which have prevented him from most physical activities. He stated he is barely able to walk from the lounge room to the kitchen because of pain. He did not describe suicidal ideation or intent.
The claimant confirmed the observation by Medical Assessor Hong that there was a period of alcohol abuse which had ceased and he had been abstinent for the last 18 months. A diagnosis of alcohol use disorder in remission is appropriate. The condition does not give rise to any impairment.
The claimant meets DSM-5-TR criteria for adjustment disorder with mixed anxiety and depressed mood as follows:
Criterion A. He developed emotional and behavioural symptoms within three months as a result of the accident.

Criterion B. He exhibited distress that is out of proportion to the severity or intensity of the stressor and described impairment in social and occupational functioning.

Criterion C. The condition does not meet criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.

Criterion D. The condition is present in persistent form because its consequences have not terminated after six months.
The Medical Assessors noted there was pre-existing physical injury and pain. There were also reports of physical and injury following the accident. The Medical Assessors did not diagnose a somatic symptom disorder caused by the accident.
In forming an opinion about whether the claimant was suffering from a pre-existing psychological condition immediately prior to the accident, the Medical Assessors took into consideration the totality of the evidence, including the following:
(a)    Dr Selim’s notes that record depression and other psychological symptoms in 2006, 2010, 2011, 2013, and 22 March 2018;
(b)    the referral to Mr Metry in July 2010;
(c)    reference in Dr Aloe’s notes on 28 March 2014 to “depressed mood and anger”;
(d)    reference in the claim form dated 30 April 2001 to anxiety;
(e)    reference to the claim form dated 21 May 2010 to anxiety/depression/stress;
(f)    the claimant’s ongoing pre-accident physical complaints (neck, back, knees, shoulders, diabetes) including 5 March 2019 (two weeks before the accident) when he reported neck and left shoulder pain;
(g)    the claimant’s history of difficulties associated with returning to Syria, and
(h)    the multiple prior motor vehicle accidents.
The Medical Assessors were aware the claimant had suffered significant pain and physical disability prior to the accident. It was concluded he had a predisposition to the development of anxiety, depression and anger as a consequence. The Medical Assessors were not satisfied the claimant was suffering from a psychological condition immediately prior to the accident. In this regard, the Medical Assessors have given weight to the records of the treating doctors in the 12 months prior to the accident. The only complaint of psychological symptoms was on 22 March 2018, nearly a year prior to the accident. The Medical Assessors determined that there was no pre-accident psychological condition or impairment.

Causation and reasons

The claimant was involved in an accident on 18 March 2019, now six years ago. He was rear ended while stationary at traffic lights. Photographs provided by the insurer indicate rear-end indentation for which the repair quotation was $5,890. The accident was not insignificant but it was certainly not a serious event. He was able to drive the vehicle home. It is possible such an accident could have caused a psychiatric condition. The Medical Assessors concluded the accident was the direct cause of an adjustment disorder with mixed anxiety and depressed mood.

Degree of permanent impairment psychiatric impairment rating scale

The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.

Psychiatric Impairment Rating Scale – Subsequent impairment

As at 17 February 2025

Psychiatric diagnoses	1. Adjustment disorder with mixed anxiety and depressed mood
	2. Alcohol use disorder in remission
Psychiatric treatment description	Psychiatric consultation Psychotropic medication Psychological counselling

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	The claimant required assistance from his wife with regard to showering prior to the accident. Medical Assessor Hong reported she had provided personal care from 2017 and was responsible for all household activities including cooking, shopping, washing and laundry; her contribution in this regard has not changed. The claimant currently requires more assistance from his wife because of the deterioration in his physical condition. He reported he showers every 2 or 4 weeks largely because he finds it difficult to walk within the household. It is difficult for his wife to get him to shower more frequently because of pain involved in movement. He noted weight loss from 70 kg to 56 kg. The Medial Assessors did not regard him as seriously depressed and did not attribute this weight loss to his psychiatric condition. Excluding physical impairment and pain he is mildly impaired from a psychiatric viewpoint.
2. Social and Recreational Activities	2	The claimant said he does nothing. Because he has sworn at all the children they no longer visit. The Medical Assessors are satisfied that his angry mood arises from disabling ongoing pain and physical injuries. He is unable to walk from the lounge room to the kitchen. He does not see friends because of physical pain. He does not go for daily walks because of physical pain. He can no longer enjoy reading design magazines or being on his computer, partly because of the deterioration in his eyesight and partly because of ongoing pain. He is unable to attend cafes, restaurants and entertainment venues because of physical impairment. From a psychological perspective he could occasionally attend social events without needing a support person. The claimant has a mild impairment as a result of his psychological injury.
3. Travel	2	The claimant stated he has not renewed his driver licence and has not attended a doctor since August 2024. He said he is afraid of being rear ended again so has stopped driving. The Medical Assessors consider that it is not possible for him to drive given the pain he experiences in his knees. He ascribed not driving to being fearful of further rear-end motor accidents. He is unable to use public transport because of physical impairment and pain. He denied air travel since the accident. As a consequence of his psychological injury he is mildly impaired. He could travel without a support person but only in a familiar area such as local shops or visiting a neighbour.
4. Social Functioning	2	The claimant continues to live with his wife who is supportive of him but he treats her badly. He said he has not seen a friend for 8 months. He has not allowed family to visit for 3 months. This is due to irritability arising from increasing pain and deteriorating physical capacity. With the exclusion of physical impairment and pain he is mildly impaired from a psychiatric viewpoint.
5. Concentration, Persistence and Pace	2	The claimant said he has no ability to concentrate and his memory is poor. However, this was not evident throughout the 2-hour 15-minute interview when his concentration did not fail and his memory was more than reasonable. He stated he was no longer able to read design magazines and browse the internet. He is mildly impaired.
6. Adaptation	2	The Medical Assessors have considered the impact of the claimant’s psychological injury on the claimant’s functioning on work and work-like settings. He ceased full-time work in 2017 and has been in receipt of the disability support pension since then. He stated that prior to the accident he was working 2 hours/day in a supervisory role in a business involving his son and son-in-law. He was totally reliant on his wife who received the carers benefit with regard to his contribution to household activities. His ability to continue to work in this supervisory role has been reduced by both his physical injuries, pain, and his psychological injury. The reduction of the claimant’s work hours from 10/week to 0/week has been a consequence of physical injuries, ongoing pain, and the adjustment disorder. In the clinical judgement of the Medical Assessors the psychological contribution to the claimant ceasing work is relatively small. The Medical Assessors have assessed the claimant’s adaptation by reference to work or a work-like setting, and determined that the accident caused psychological injury has given rise to a minor impairment of adaptation. Class 2 is assessed.
List classes in ascending order: 2 2 2 2 2 2
Median Class Value: 2
Aggregate Score: 12
Subsequent % Whole Person Impairment: 6%

*%WPI

Apportionment – pre-existing/subsequent impairment

There is no requirement for apportionment for pre-existing or subsequent impairment.

Effects of treatment

There is no evidence that significant treatment has been effective. No treatment allowance effect is made.

Conclusion – Permanent impairment

The degree of permanent impairment caused by the motor accident is 6%.
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.

DETERMINATION

The Panel has taken into consideration the claimant’s pre-accident history that includes:
(a)    his involvement in a number of motor vehicle accidents, including in April 2001, April 2010, November 2013, and August 2015;
(b)    the injuries reported by the claimant following those accidents;
(c)    the records from treatment providers that document a long history of pain in his back, neck, shoulders, legs, hips, right ankle, knees;
(d)    a diagnosis of diabetes;
(e)    admissions to hospital in Syria in 2012 and 2013, and
(f)    the reports of depression recorded in Dr Selim’s clinical notes, and the referral of the claimant to Mr Metry, psychologist.
The Panel is satisfied that the claimant was vulnerable to psychiatric injury because of his established tendency to develop anxiety and depression. Other than the reference to depression on 22 March 2018 in the clinical notes of Dr Selim there are no documented reports of psychological symptoms in the 12 months prior to the accident. The Panel is satisfied that the claimant was psychologically asymptomatic at the time of the accident. The Panel finds that at the time of the accident the claimant was not suffering from a psychological condition. The Panel is also satisfied that there was no pre-accident psychological impairment.
The Panel finds that the claimant developed psychological symptoms approximately six months after the accident. There is a reference to “stress disorder” recorded by Dr Selim in his clinical notes on 4 June 2019. On 13 September 2019 Dr Aloe referred the claimant to

Dr Rastogi, psychiatrist. There were other referrals for psychological treatment in September 2019. In her report to Dr Selim dated 25 October 2019 Dr Rastogi noted a pre-accident history of psychological symptoms, and recorded that following the accident the claimant developed psychological symptoms, including anxiety and hypervigilance. Dr Rastogi diagnosed an adjustment disorder as a result of the accident. The Panel gives weight to this evidence.
The Panel finds that the accident could have and did cause the claimant to develop adjustment disorder with mixed anxiety and depressed mood. The Panel agrees with and adopts the reasons given by its medical members in support of their finding that the claimant satisfies the DSM-5-TR criteria for that condition. The Panel is satisfied that the accident was a necessary condition of the occurrence of the adjustment disorder with mixed anxiety and depressed mood. The Panel finds that as a result of the accident the claimant developed adjustment disorder with mixed anxiety and depressed mood.
The Panel agrees with and adopts the reasons given by its medical members in support of their finding that the claimant does not satisfy the diagnostic criteria for a diagnosis of post-traumatic stress disorder. In particular, the Panel finds that criterion A is not satisfied.
The Panel is also satisfied that the claimant suffered alcohol use disorder, and that this condition is in remission. The alcohol use disorder does not give rise to any impairment.
The Panel has had regard to the class descriptors provided for each category of functioning in the PIRS. The clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel agrees with and adopts the precise examination findings of its medical members, and the reasons they have given in support of those findings, with respect to each PIRS category.
The Panel finds that the claimant has a permanent impairment of 6% as a result of the accident caused adjustment disorder with mixed anxiety and depressed mood. The Panel is satisfied that the accident was a necessary condition of the occurrence of the impairment. The impairment was caused by the accident.
The Panel finds that the degree of permanent impairment of the claimant as a result of the accident caused psychological injury is not greater than 10%.
The Panel revokes the certificate of Medical Assessor Hong dated 19 September 2023. The Panel certifies that the degree of permanent impairment of the claimant as a result of the adjustment disorder with mixed anxiety and depressed mood caused by the accident is not greater than 10%.

[2025] NSWPICMP 168

17 March 2025