Insurance Australia Limited t/as NRMA Insurance v Rachak

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Rachak [2025] NSWPICMP 239
CLAIMANT:	Georgette Rachak
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Matthew Jones
MEDICAL ASSESSOR:	Steven Yeates
DATE OF DECISION:	4 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical assessment of threshold injury and treatment dispute; insurer’s application for review under section 7.26; claimant sustained physical injuries and alleged psychological injuries; first record 10-months after accident; new GP notes “PTSD” symptoms; 3-years after accident usual GP records symptoms; no treatment for 4-years; claimant alleged psychological symptoms after previous work-related claim and earlier motor accident claim; Held – claimant did not have post-traumatic stress disorder; claimant sustained major depressive disorder before car accident not aggravated in current accident; claimant sustained adjustment disorder which is a threshold injury; single psychological consultation requested in 2023 not allowed because claimant had consultation with a different psychologist in 2024; MAC revoked; new certificate issued; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certifications of Medical Assessor Shen dated 27 October 2023. 2. Certifies that: (a) the claimant’s psychological or psychiatric injury caused by the motor accident on 19 December 2020 is a threshold injury, and (b) the psychological consultation made by Eastbrooke Blacktown GP Super Clinic on 10 March 2023 is related to the injuries caused by the accident but is not reasonable and necessary in the circumstances. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Georgette Rachak was involved in a motor accident on 28 August 2020. She was a passenger in a vehicle driven by her daughter when there was an impact from behind and the car was shunted forward.
Ms Rachak says she injured her spine and shoulder in the accident and developed a psychological or psychiatric injury following the accident. Ms Rachak made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that she says caused the accident.
A medical dispute about whether Ms Rachak’s injuries were threshold injuries or not arose in connection with that claim and Ms Rachak referred that dispute to the Personal Injury Commission (the Commission) for assessment. There was also a dispute about a single psychological consultation which was referred to the Commission in the same application.
On 22 June 2023, Medical Assessor Home determined the claimant’s physical injuries were threshold injuries. The Panel understands that assessment has not been the subject of an application for review.
On 27 October 2023 Medical Assessor Shen determined that the claimant had a psychological or psychiatric injury that was not a threshold injury. The Medical Assessor also determined that the single psychological consultation in dispute was related to the accident and reasonable and necessary in the circumstances. The insurer does not accept those decisions. NRMA lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 15 December 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on

1 November 2024 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Ms Rachak’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages[1].
[1] Ms Rachak’s accident occurred in 2020. On 1 April 2023 amendments to the legislation came into effect. For accidents on or after that date, 52 weeks of statutory benefits are paid on a no-fault basis. The amendments changed the terminology of “minor” injury to “threshold” injury and this applies to all accidents.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” and a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[2] provide:
“[5.10] In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
[5.11]The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.”
[2] The current version of the Guidelines is version 9, effective January 2023.
In summary, the Guidelines provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not, thereby excluding any unrecognised psychiatric illnesses from the recovery of statutory benefits (after 26 or 52 weeks) and damages under s 1.6(3) of the MAI Act. The method prescribed by the Guidelines would also include the means of determining whether an adjustment disorder or acute stress disorder was present (both of which are recognised psychiatric illnesses, but which are threshold injuries in accordance with cl 4(2) of the Regulation).
Where there is evidence establishing that the accident caused a non-threshold injury, at any time after the accident, a finding must be made that the accident caused a non-threshold injury even if the injury has healed, or the claimant has recovered from the injury or the condition is in remission at the time of the medical assessment[3].
[3] See Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6.
If the claimant has a pre-existing non-threshold psychiatric condition (such as post-traumatic stress disorder) and the evidence establishes that a later accident caused or materially contributed to a worsening of that pre-existing condition, that aggravation will be also be a ‘non-threshold’ injury[4]. An aggravation of a pre-existing threshold psychiatric condition (such as an adjustment disorder) may be a new injury but it will also be a threshold injury.
[4] See Todev v AAI Limited t/as GIO [2023] NSWSC 836 and AAI Limited t/as GIO v Hoblos [2023] NSWPICMP 210.

Treatment and care

Section 3.24(1) establishes an injured person’s entitlement to treatment and care, subject to a number of limitations and restrictions. Two of these limitations are found in s 3.24(2):
(a) statutory benefits are not payable for treatment and care that is unrelated to the injuries caused by the accident, and
(b) no benefits are payable for treatment and care that is not reasonable and necessary in the circumstances.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[5]. So too, disputes about whether treatment and care is reasonable and necessary or whether it is related to injuries caused by the accident[6] can be referred to the Commission for assessment.
[5] Schedule 2, clause 2(e) in the MAI Act.
[6] Schedule 2, clause 2(b) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shen’s, further medical assessments and the review of medical assessments by this Panel[7].
[7] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Shen examined the claimant on 23 October 2023 and issued his reasons on 27 October 2023.
He noted he was referred a dispute about whether the claimant had a psychiatric condition, in particular a post-traumatic stress disorder, and whether certain psychological counselling sessions were related to the accident and reasonable and necessary in the circumstances.
The claimant was 55-years-old at the time of the accident living with her adult children and was said to have been separated from her husband for more than 10 years.
The claimant had contact with family in Lebanon and friends locally although she is more reluctant to contact them regularly. She says she has drifted away from her friends as they are more active than she is.
She detailed a 2018 accident when she injured her neck and back and that she had some psychological distress as a result of that accident being fearful, she would be hit again.
She is reported to have said that before the second accident she has no psychiatric symptoms but was taking medication for pain and to help her sleep.
The current accident occurred while she was a passenger in the rear seat. Her daughter was driving, and they were stopped at traffic lights. She heard braking before they were hit, and she was restrained by her seatbelt. She said she hit the rear of the driver’s chair with her head and then to the right against the door.
Ms Rachak says she did not lose consciousness but developed pain in her neck, shoulders and right knee immediately after the accident. She was taken to hospital by ambulance examined and released.
She said her psychological symptoms emerged a couple of weeks after the accident. These symptoms include being scared, anxiety for being hit again and being wary of trucks on the highway. She felt depressed, her weight increased, and she struggled with sleep. She had a few counselling sessions, but they were ceased by the insurer, and she had no medication.
She said she wanted to see a psychologist and would go on medication if it was recommended.
The claimant was examined. She had been showering and cooking regularly although she says they are simpler meals. She does light laundry, none of the big shopping and she drives to medical appointments and to meet her friends. While she was not working at the time of the accident, she said her pain now would prevent her from working.
Medical Assessor Shen diagnosed:
“Other Specified Trauma - and Stressor-Related Disorder, as the traumatic experience is not sufficient to meet Criterion A of the PTSD Diagnosis, but she has experienced a Post-traumatic stress syndrome that would otherwise have met the diagnostic threshold, excluding the Criterion A.”
He considered the disorder was caused by the accident but did not determine the relationship between it and the earlier accident. As it was not an adjustment disorder or an acute stress disorder he found it a non-threshold injury.
He considered the disputed treatment related and reasonable and necessary.

ISSUES FOR DETERMINATION

Insurer’s submissions 10 November 2023

The insurer submits that the Medical Assessor has not provided sufficient reasons for his decision, has failed to consider the medical evidence and has failed to explain the causal connection between the accident and the need for treatment.
The insurer’s submissions summarise the entirety of the Medical Assessor’s decision before providing substantive submissions commencing at page 5.
The insurer says the Medical Assessor did not explain how criteria G or any other criterion for a post-traumatic stress disorder were met, limiting his statement of reasons to his finding that she did not satisfy criterion A. The insurer also submits the Medical Assessor did not distinguish between the claimant’s restrictions due to her physical injuries and physical factors and restrictions due to mental health matters.
The insurer submits there was inconsistency in the history in terms of the claimant’s medication Cymbalta which had been prescribed before the current car accident.
In terms of the treatment dispute, the insurer submits the Medical Assessor did not acknowledge the evidence that the claimant was having psychological treatment including medication before the accident and the Medical Assessor records that he was not provided with details of the disputed consultation. The insurer says it was provided at page 17 of the original assessment documentation.
The insurer also submits that there was no reference to a psychological disorder in the first certificate of capacity issued by the claimant’s doctor.

Insurer’s submissions 27 November 2023

The insurer sought to rely on the AAMI documents having first come into their possession on 17 November 2023. The insurer made the following submissions to the Commission in respect of admitting these documents into evidence:
(a)    the claimant had an accident on 16 February 2018 and made a claim;
(b)    the certificate of capacity dated 22 February 2018 alleged injuries including a whiplash injury to the neck, bilateral upper limbs and a lumbar injury with pain radiating to the right leg;
(c)    on 6 April 2019 an allied health recovery request (AHRR) form was completed seeking treatment for a Major Depressive Disorder;
(d)    on 12 July 2019 another AHRR form was completed seeking treatment for an adjustment disorder with depressed mood;
(e)    on 3 September 2020, less than a week after the current motor accident the claimant’s solicitor told the insurer that the claimant was suffering from symptoms of insomnia, nervousness, anxiety and depression, deterioration in relations and a reduced capacity to drive and enjoy life all as a result of the 2018 motor accident, and
(f)    the claimant accepted an offer of settlement on 26 November 2020.
The insurer notes that Medical Assessor Shen took a history from the claimant of no previous relationship issues or issues with concentration or energy and that while he reported the claimant had some psychological distress after the 2018 accident with anxiety for two to three weeks, the claimant denied any pervasive anxiety, depressed mood or sleep difficulties. The insurer says the records suggest otherwise.

Insurer’s submissions 28 August 2020

The insurer made a further application to admit additional documents in respect of the work-related injury and a claim on Catholic Church Insurances and clinical notes from Dr Hanna.
The insurer draws attention to the following:
(a)    on 20 January 2012 the claimant saw Dr Hanna with pain in the neck, back, abdomen, poor sleep, low self-esteem, depression and anxiety and a mental health care plan was completed;
(b)    on 22 March 2012 similar physical complaints were made;
(c)    the claimant attended on 1 December 2016 with lethargy, poor sleep, low self-esteem, depressed mood and anxiousness;
(d)    on 17 August 2017 the claimant attended with shoulder pain, low self—esteem, depression, anxiety and irritability;
(e)    the claimant attended on 26 February 2018, six days after her car accident complaining of pain in the neck, right upper arm, lower back, right leg and numbness in arms and legs;
(f)    on 4 October 2019 apart from her physical complaints, the claimant was said to have low self-esteem, anxiousness and depressed mood and she the stated reason for the visit was “counselling and depression”;
(g)    Dr Hanna recorded the motor accident on 28 August 2020 diagnosing whiplash and pain in the claimant’s hips;
(h)    on 29 August 2022, the claimant had a further car accident at a roundabout. The claimant complained of pain in her neck radiating to the right shoulder, and
(i)    on 10 March 2023, the claimant had pain in her neck, back, right shoulder and in both hips. She had poor sleep, low self-esteem, depressed mood, anxiousness and irritability and a referral to Dr Abu-Arab was provided.
The insurer points to the following matters from the Catholic Church Insurances documents:
(a)    on 16 January 2013 the claimant gave a statement saying that she was always depressed due to the effects of the work-related injury five years earlier in 2008;
(b)    the claimant was assessed on 22 March 2011 in the Workers Compensation Commission as having a 13% whole person impairment for her right shoulder injury, and
(c)    two previous work capacity certificates issued on 30 November 2012 and 2009 stated that the claimant had depression as a result of her work injury.
The insurer’s original submissions noted a longstanding history of depression and the prescription of Cymbalta. The insurer notes there is no report after the current accident of a psychological injury from Dr Hanna and that Dr Lim was the first practitioner to do so who referred the claimant to “Insightful Mind” a psychological practice 11 months after the car accident on 2 July 2021.

Claimant’s submissions[8]

[8] The claimant has provided two copies of her submissions in response to the review, at page 4 and page 11 of her bundle of documents.

The claimant challenges the insurer’s submissions that the Medical Assessor has failed to provide reasons for disorder he diagnosed noting the insurer has restated the Medical Assessors history and reasons.
The claimant appears to acknowledge the script for Cymbalta in 2011 and says the Medical Assessor engaged with the material provided by the parties.
The claimant submits that while the Medical Assessor did make a mistake suggesting he did not have the referral (when he did) he was aware of the dispute and the request and did not need to see it.
The claimant says that the reason for the absence of any psychological complaint in the first certificate of capacity is that it takes time for psychological symptoms to emerge.

Procedural matters

The Panel issued directions to the parties on 6 December 2024 seeking bundles of the relevant documents upon which they relied in the assessment.
The insurer’s bundle of over 2,761 pages was received on 9 December 2024 and the claimant’s bundle of 127 pages was received on 22 January 2025.
The insurer’s bundle contains 236 pages of documents apparently generated in respect of this accident and over 2,000 pages comprising the information from AAMI regarding a 2018 motor accident and information from Catholic Churches insurance company over a work-related injury in 2008. There is much duplication within the insurer’s bundle.
The Panel met on 29 January 2025 to discuss the review and issued a report and directions document to the parties on 30 January 2025.
The Panel advised that we could not locate clinical notes or reports from a treating psychologist or psychiatrist or from a medico-legal psychologist or psychiatrist and asked the parties to confirm:
(a) whether there were clinical records, notes or reports from a treating psychologist or psychiatrist and
(b) whether the parties rely on any medico-legal reports from a psychologist or psychiatrist.

The Panel referred to a history from Dr Tait that the right side of the claimant’s body was thrown against the inside of the car and that her car was written off and she was cut out of the vehicles. The claimant was asked to confirm this history, and the parties were asked for emergency services documents and photographs of the damage done to the vehicles.
The claimant was directed to provide a response by 11 February 2025 and the insurer by

18 February 2025.
The claimant has not responded to the Panel’s requests.
The insurer responded drawing the Panel’s attention to the references to psychological and psychiatrist treatment in the records but did not take the Panel to any clinical notes from a treating psychologist or psychiatrist. The insurer confirmed:
(a)    it had no medico-legal reports from a psychologist or psychiatrist;
(b)    it did not have any photographs of the cars involved in the 2020 accident, and
(c)    in terms of the mechanism of the accident the insurer referred to the Ambulance report which states the claimant was extricated via a spinal board with assistance from fire and rescue personnel.

REVIEW OF THE EVIDENCE

Claim form and claim documents – 2020 car accident

The claimant signed the claim form (but did not date it) declaring it as true and correct. She disclosed the previous accident and AAMI claim.
The claimant gave a consistent history of the accident but left blank the section where she was to describe her injuries.
The claimant said she was taken to Nepean Hospital and discharged the same day.
She did not answer the question about suffering illnesses or injuries affecting the same part of her body.
The police report is dated 17 September 2020 but says the accident was reported on

28 August 2020. The Ford vehicle was reported to have front damage and did not need towing. The Mazda vehicle had front nearside damage and did not need towing. The vehicle the clamant was in (Toyota Yaris) had rear damage and was not towed. A fourth vehicle (Toyota HiAce) was also damaged but was not towed. All drivers were said to have exchanged details, but police and ambulance were called because the claimant complained she was injured.

Claim documents - other claims

A statement from the claimant in the workers compensation proceedings arising out of her work-place accident, signed and dated 17 December 2013 says that the claimant has had neck, back and shoulder pain from 2008 / 2009 to the date the statement was signed.
A police report and photographs of vehicles involved in the 2018 accident have been provided suggesting a rear end collision with neither vehicle being towed. The photographs are of such poor quality the Panel has had difficulty interpreting them.
The claimant’s 2018 claim form was signed and dated 22 February 2018. She says she had no previous CTP claims and that she injured her neck, had headaches, pain in her shoulders and arms, pins and needles in her hands and lower back pain with pins and needles in the right leg. Ms Rachak disclosed “previously stabilised shoulder and back injuries.”

Pre-accident

Dr Abu-Arab psychologist wrote to Dr Hanna on 9 July 2012[9] noting insomnia, depressed mood and anxiety due to a work injury. He diagnosed a major depressive disorder.
[9] Page 832 of the insurer’s bundle.
An AHRR dated 12 July 2019 sought treatment for an adjustment disorder with depressed mood due to irritability, nervousness, low mood, lack of motivation, inability to concentrate, social withdrawal and so on.

Treating medical records and reports

Ambulance records[10] indicate the claimant was, at the scene of the current accident, conscious, alert and oriented and complaining of right lateral neck pain, right shoulder and arm pain with numbness in the right arm, lumbar pain but with no obvious signs of injury. She was removed from the vehicle via a spinal board with assistance from fire and rescue personnel.
[10] Page 128 of the insurer’s bundle.
Both parties have provided copies of Dr Hanna’s records. The insurer’s submissions summarised earlier in these reasons, identify the relevant pre and post-accident entries. The claimant has not challenged the accuracy of this summary.
Dr Hanna completed the first certificate of fitness. While he signed the certificate, he did not date it. The claimant did sign it on 18 September 2020.
Dr Hanna diagnosed a whiplash injury (cervical disc prolapse), lumbar back pain secondary to aggravation of L5/S1 and L4/5 disc prolapse. He diagnosed right jaw pain and sciatica with right shoulder injury. He noted the claimant’s previous physical complaints.
On 16 October 2020 the claimant was referred for physiotherapy and her current medications were stated to include Cymbalta. On 6 November 2020 Dr Hanna referred the claimant to Dr Tait and again the Cymbalta medication was mentioned. On 3 December 2020 Dr Hanna referred the clamant for physiotherapy and hydrotherapy with Momentum rehabilitation and the Cymbalta prescription was mentioned in the list of current medications.
In a report for the insurer from Momentum Rehab, dated 9 December 2020 Ms Welsh an occupational therapist documented the claimant’s injuries, restrictions, pre-accident state and treatment to date. Under the heading “psychological function” Ms Welsh noted that the claimant had difficulty falling asleep due to pain and that she “became teary” at her current physical state and expressing fear she would not be able to return to her pre-motor vehicle accident state and she queried whether the insurer would support psychological counselling services. Ms Welsh encouraged the clamant to discuss this with her GP.
The claimant saw Dr Tait and was referred for an MRI of her neck and back on 29 January 2021 and nerve conduction studies. On 20 April 2021, Dr Tait referred the claimant to Dr Subshara of the Western Sydney Pain Centre.
On 2 July 2021 Dr Lim referred the claimant for physiotherapy for “ongoing neck, shoulder and lower back pain following a MVA.” In that referral no current medical problems are recorded, no past medical problems were recorded, and no current medications were recorded.
In a report dated 2 July 2021, Dr Lim records as the claimant’s past employment history that she last work as a childcare worker on 17 December 2020 and had previously been a cleaner for five years. He records her injuries as “neck, shoulder, back and psych” and that the claimant attempted a return to childcare work after the accident but could not. He does note neck, shoulder back and leg injuries from a previous car accident in 2018. In addition to her physical injuries, he says, “she still has symptomatic PTSD and requires treatment for this” and he referred her to Insightful Mind (as well as to Dr Tait).
There are three AHRR forms for physiotherapy and two for exercise physiology from 2020 and 2021. There are no AHRR forms for psychological or psychiatric treatment.
On 29 August 2022 the claimant attended on Dr Hanna following an accident dated

13 August 2022 when she was hit by another car in a roundabout. She was hit from the left side. She was able to get out of the car and complained of neck pain and right shoulder pain. There were no further relevant entries after this date.
On 11 March 2023 (following a consultation on 10 March 2023) Dr Hanna records psychiatric symptoms of poor sleep, early morning wakening, low self-esteem, depressed mood, anxiety, irritability and diagnosed “Counselling / PTSD”. A referral to Dr Abu-Arab was provided. On 13 October 2023 the claimant was seen again for low self-esteem, depressed mood and anxiety and other matters. Tramal and Endep were prescribed and Cymbalta formerly ceased.
The Panel notes there is no clinical note of any psychiatric symptoms complained of by Ms Rachak do Hanna between the date of the accident and 10 March 2023.
A certificate of fitness completed on 10 December 2024 by Dr Hanna notes the claimant’s injuries as cervical and lumbar disc prolapse, right shoulder soft tissue injury and posttraumatic stress disorder. There is a referral to Ms Amgap psychologist dated

10 December 2024 from Dr Hanna which cites “severe anxiety, panic attacks and depressed mood following the August 2020 car accident.”

Medication

In 2012, 2013, 2014, 2015, 2016, 2017, 13 August and 15 October 2018 and on 4 November 2022 Amitriptyline (brand name Endep) was prescribed. The Medical Assessors note that Amitriptyline is an anti-depressant.
The claimant’s copy of the records shows Duloxetine (brand name Cymbalta) being prescribed on 29 November 2019, 31 August 2020 (with no mention of any accident-related psychological symptoms) and 31 December 2020 (with no mention of accident-related psychological symptoms). The Medical Assessors note that Duloxetine is a medication used to treat depressive and anxiety disorders.

Dr Tait

Dr Maharajan, from Dr Tait’s clinic wrote to Dr Hanna on 8 May 2018. He has a history of the claimant’s work injury to her right arm and elbow and her 16 February 2018 motor accident. He noted complaints of neck and back pain with non-dermatomal radicular symptoms in the upper limbs and the right lower limb.
On examination the claimant had a full range of neck movements but restricted lower back movements. There were no signs of radiculopathy,
The claimant returned on 2 July 2018 and a facet joint injection at L4/5 was recommended.
On 29 January 2021 the claimant saw Dr Tait for the first time since 2018. He has a history of the 2020 car accident and that “the right side of her body was thrown against the inside of the car” and that the car was written off and the claimant cut out of the vehicle. The claimant complained of severe low back pain as well as neck and shoulder pain. The claimant reported numbness in both hands and in the right lower limb. Further scans were advised.
20 April 2021 the clamant saw Dr Tait due to neck and back pain and right lower limb pain radiating to her foot. After considering her imaging studies he could not find a cause for the right lower limb pain and recommended nerve conduction studies.

Radiology

There have been several imaging studies performed before and after the accident as follows:
(a)    28 February 2018 – CT lumbar spine revealed disc bulges at L4/5 and L5/S1, no canal stenosis but abutting both S1 nerve roots, moderate facet joint arthritis and bilateral sacroiliitis. MRI was recommended;
(b)    13 March 2018 – MRI of the cervical spine revealed minor herniations at C3/4, C4/5, C5/6 with no fractures but a C4/5 annular tear;
(c)    22 May 2018 – mild facet joint arthritis of L4/5 only;
(d)    6 June 2018 – MRI lumbosacral spine showed minor left foraminal herniations at L4/5 and L5/S1 levels just contacting the L5 nerve root on the left lower level;
(e)    6 September 2018 – a right L4/5 facet joint injection was undertaken;
(f)    2 September 2020 – CT lumbar spine showed a mild posterior disc bulge at L5/S1 with no canal stenosis but possible irritation of left exiting L5 nerve root and multilevel facet joint arthritis worse at L5/S1 and sacroiliitis;
(g)    29 September 2020 - MRI of the cervical spine correlating with the MRI from March 2018 – disc osteophyte complexes at C4/5 and C5/6 with mild neural exit foraminal narrowing on the right at C4/5 possibly irritating the C5 nerve root as it exited the spinal column;
(h)    18 January 2021 – ultrasound right and left wrist due to suspected carpal tunnel and evidence of that syndrome was found in both;
(i)    8 April 2021 – MRI of the lumbar spine due to right lower limb numbness. It was noted there was no previous study and the conclusion was there was no specific cause found for the symptoms but that there was minor disc and facet joint degenerative changes in the lower lumbar spine level;
(j)    20 April 2022 – CT of the cervical and lumbosacral spine with a clinical note of radiculopathy. In the cervical spine there were mild changed noted at C4/5, C5/6, C6/7 and C7/8 but all canal and foraminal regions were patent. Facet joints appeared normal. In the lumbosacral spine there was facet joint osteoarthritis at three levels with moderate canal and foraminal stenoses, and
(k)    4 May 2023 – CT Lumbar spine reported spondylitic changes of the lumbar spine with mild disc bulges and facet joint arthropathy at multiple levels with impingement of nerve roots at L4, L5 and S1.

Medico-legal reports

There are no medico-legal reports in respect of the current accident from either party, but the insurer relies on medico-legal reports from the first accident as follows:
(a)    Dr Bodel, orthopaedic surgeon records complaints of neck, back and knee pain, shoulder pain and referred pain into the arms and right leg. He has a history of the claimant seeing a pain physician and being recommended to have treatment with a clinical psychologist. Dr Bodel had a history of no previous neck, back, shoulder or knee problems but did have a history of an elbow injury in 2008;
(b)    In a separate report, Dr Bodel assessed the claimant’s WPI from the 2018 accident at 21%;
(c)    Dr Barrett, orthopaedic surgeon provided a report to the insurer in the 2018 accident. The report is dated 25 February 2020. He too has a history of the 2008 right elbow injury and the claimant denied any previous injury to her neck, shoulders or back. He noted the examination was difficult and “Waddell’s signs for pain behaviour were positive.” Dr Barrett considered the claimant had sustained short term soft tissue injuries but that any ongoing symptoms were due to her pre-existing conditions;
(d)    In a separate report, Dr Barrett found no WPI resulting from the injuries sustained in the 2018 accident, and
(e)
Dr Korber, radiologist provided a report to the earlier accident’s insurer dated

3 June 2020 comparing the claimant’s pre 2018 accident radiology with her post 2018 radiology. He expressed the view there “are no obviously posttraumatic findings on the imaging” and that the features shown on the cervical and lumbar scans were likely degenerative.

Other assessments

Medical Assessor Home, on 22 June 2023 determined that the claimant’s cervical spine and lumbar spine injuries were threshold injuries, and that certain disputed treatment (nerve conduction and EMG studies, physiotherapy and MRIs) did not relate to the injury and were not reasonable and necessary in the circumstances.
Medical Assessor Home has a record at [9] that the claimant was involved in an earlier accident in 2018 and was still experiencing symptoms in her neck, lower back, right arm and right leg at the time of the current accident.
The examination findings recorded at [16] were that there were no signs of radiculopathy in the upper or lower limbs.

RE-EXAMINATION FINDINGS

General

The claimant attended the medical re-examination on 26 February 2025 at 9.00am with Medical Assessors Yeates and Jones. The re-examination occurred by way of Microsoft Teams. Good connectivity occurred throughout the re-examination and the Medical Assessors were satisfied with how the re-examination was conducted.
The following is the report following that re-examination.

History and background

Ms Rachak understood that the interview was a Medical Review Panel convened to

re- evaluate the threshold injury decision that had been previously determined.
Ms Rachak was born in Tripoli, northern Lebanon. She was raised by her mother, father, and siblings, of whom she is the youngest. Her father worked in construction, while her mother managed domestic duties and did not work outside the home. The family identifies as Maronite Catholic. Ms Rachak was a physically healthy child and young person, raised in a family with sufficient material means, ensuring she did not lack food, clothing, shelter, or other necessities. There was no domestic violence, and Ms Rachak denied experiencing any exogenous physical, sexual, or emotional trauma. The family home was in Tripoli. Ms Rachak denied any issues meeting developmental milestones or having difficulties with her early attachment relationships.
Ms Rachak attended primary and high school in Tripoli, where she had no disciplinary issues and enjoyed a wide circle of friends. She was a high-achieving student who graduated with sufficient marks to attend university. She studied Arabic literature and language studies, earning a degree.
Ms Rachak immigrated to Australia in 1996, citing family reunion as she had several cousins here. Upon arrival, she was unable to teach and held multiple jobs including meat processing, bakery work, machine operation, and various other positions organised by a recruitment agency. Ms Rachak formed a relationship with a man with whom she had two children, born in 1998 and 2000, respectively. She described the relationship as “on and off” and indicated that she did not remain in an intimate relationship with him. For the remainder of Ms Rachak’s adult life, she was primarily a full-time mother and, not withstanding several part-time positions after her children were older, she did not return to full-time employment. Her children are both well-educated.
When her children were older, Ms Rachak worked in a library and as a cleaner. She gave no history of working as a child-care or educator in Australia. She held a position as a cleaner at Holy Family School. While working there, she sustained a shoulder and elbow injury for which she was declared permanently disabled and she has received the Disability Support Pension since around 2011. She said she has not worked since.
Ms Rachak lives in Blackett, Sydney, and described herself as financially secure.
She reported she had a previous motor accident in 2018 where she was hit from behind, after which she sustained various musculoskeletal pains. These were investigated at the time and injury claims were filed, for which she received a payout. She continued driving after that accident and travelled to Lebanon in 2019 for several months.

Circumstances of the accident

Ms Rachak provided an account of the accident that occurred on 28 August 2020. She reported that she was out for lunch with her children and was seated on the right side in the rear passenger seat of the vehicle. Her daughter was driving. The vehicle was second in the queue and stopped at a red light when it was hit from the rear at what Ms Rachak was told to be at about 60 km/h. She was wearing a seatbelt, and the airbags did not deploy on impact. Ms Rachak recalled hearing a crash and experiencing a sudden impact to the right. She did not lose consciousness.
An ambulance arrived at the scene, and she was helped out of the vehicle through the door, but she was not cut out of the vehicle. She was given analgesia (morphine) at the scene and described experiencing intense pain in her right shoulder and neck. She was taken to Nepean Hospital, where her injuries were examined, and she was discharged from the emergency department without being admitted. She presented two days later to her general practitioner with pain in her shoulder, which was further investigated.

Psychiatric history

Ms Rachak reported that two or three days after the current accident, she began to experience distressing dreams that persisted for several weeks and continue to this day, occurring approximately once every fortnight. She stated that she feels “back to zero” after the 2018 accident and asserts that the accident relevant to this claim was “stronger” than the previous one.
She reported sleep disturbances, being woken often by the pain in her neck, shoulder, and lower back. Additionally, she mentioned some numbness in her right leg. She expressed sadness over her inability to engage in her previous activities due to a combination of pain and low mood, and she felt more anxious about leaving the house than before.
She described increased irritability with her children, dissatisfaction with their contributions to household chores, and her need for more physical assistance around the home than her children could provide. Ms Rachak complained of feelings of hopelessness and guilt and expressed frustration with her physical incapacities. She reported feeling a heightened sense of vulnerability when she drives and is fearful of having another collision. She has however, not stopped driving since the accident.

Ms Rachak sought treatment from her general practitioner regarding her physical injuries and first consulted a psychologist on 13 January and then 24 February 2025 for treatment which she attributed to the 2020 accident.
There is a strong pain component to her symptoms, with her psychological injuries tied to pain from frequent awakenings and ongoing daytime discomfort.
Ms Rachak gave a significant history of depression and multiple musculoskeletal complaints since at least 2008 and following her workplace injury. She accepted there were previous prescriptions for antidepressant medications, and Ms Rachak said that a persistent “low mood” was a factor in her total permanent disability claim and a condition in her application for permanent disability benefits.
Functionally, Ms Rachak showers daily, lives independently, and completes her domestic duties at a slower pace than before the accident due to her physical injuries. She prepares simpler dishes than before, but can still cook her own meals. Approximately once every three weeks, she meets a friend for a meal. She shops and enjoys slow walks in the local park. Although Ms Rachak continues to drive, she said she had persistent anxiety about being struck by other vehicles. She also travels by train but has not gone overseas since 2019. Her relationships with family are intact, and she remains single. She spends most of her day watching television, which she can concentrate on. Ms Rachak has not engaged in substantial paid or unpaid work since at least 2011.
Ms Rachak recalled that after travelling to Lebanon in early 2019 she returned feeling much improved, however there were subsequent presentations to her GP for mental health reasons. Ms Rachak also reported that she had a significant deterioration in her mental health in the 6 to 12 months before this re-examination, but she was unable to suggest a reason for this or articulate the details other than confirming this was the cause of her recent consultations with a psychologist on 13 January 2025 and 24 February 2025.
Ms Rachak is under the care of her GP, Dr Hanna. She does not consult any specialists. Her current medications include Amitriptyline 10mg at night, paracetamol, Celecoxib, Metformin, and a statin. Other health conditions include Type 2 Diabetes Mellitus and Hypertension.
Ms Rachak gave no history that would indicate a primary psychotic illness or bipolar affective disorder. Additionally, there is no family history of major mental illness, addictions, or suicide. Ms Rachak has never been psychiatrically hospitalised nor experienced suicidal ideation, intent, or attempts.
Ms Rachak has never smoked tobacco, consumed alcohol, or taken illicit drugs, nor has she ever gambled. There is no criminal history, but involvement in a previous workers compensation claim, a previous motor accident claim (and a more recent motor accident in August 2022) and a disability claim.

Mental state examination

The mental state examination revealed a woman of Middle Eastern descent who was appropriate, polite, and well-groomed, with painted fingernails and a warm social demeanour. Her mood was low, and her affect was anxious yet reactive, with moments of spontaneous levity. The thought content was oriented to reality, showing no features of psychosis or current disconnection from reality, but it was filled with references to chronic pain and vague psychological symptoms attributed by Ms Rachak to the current accident.
Her thought form was normal. Her speech was grammatically correct, well-structured, and showed proper syntax and spontaneous elaboration, with no substantial linguistic limitations. There were no perceptual disturbances, and judgment was not acutely impaired. Cognition was grossly normal with no indication for formal testing.

CONSIDERATION OF THE ISSUES

The Panel adopts the clinical findings of Medical Assessors Jones and Yeates.

Diagnoses

The Panel notes there are longstanding pre-existing physical complaints, including neck, shoulder, and lower back pain, which substantially predate the accident by several years, as documented in the evidence provided and may have been aggravated by the accident. There is also a clear, documented previous history of depressive symptoms persisting for at least two years after her 2018 accident and over lapping with the current accident. The records indicate that after the 2018 accident there was sleep disturbance, anergia, hopelessness, and anxiety for which there has been previous pharmacological treatment.
Ms Rachak had difficulty articulating, or answering questions about, the differences in her experience of mental health symptoms before and after the 2020 accident, apart from indicating that the 2020 was a “heavier accident” when compared to the 2018 accident.
The significant history of mental health problems included a claim for (physical and) psychological injuries related to the 2018 accident, that was still being pursued following the 2020 subject accident.
It is the clinical judgment of the Medical Assessors that the claimant meets the criteria for a Persistent Depressive Disorder as set out in DSM-5-TR. It is the clinical judgment of the Medical Assessors that this is unrelated to accident due to a clear documented history of depression following a work accident, then the 2018 accident and persistent pain. The Persistent Depressive Disorder was caused by events before the current car accident and continues.
Noting the allegation from the claimant and Medical Assessor Shen’s diagnosis the Panel considered whether the claimant has a post-traumatic stress disorder. It is the clinical judgment of the Medical Assessors that the claimant does not satisfy several of the criteria as follows:
(a)    criterion A is not met – the vehicles involved were driven away, there were no broken bones or lacerations, soft tissue injuries only. No airbags deployed. There was no exposure to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence;
(b)    criterion E is not met – while the claimant suggests she is more irritable and has difficulty sleeping these were, on her history primarily related to her physical injuries and ongoing pain but not because of her mental health issues, and
(c)    criterion G is not met – the claimant has some mild to moderate functional, but not clinically significant, limitations which are primarily related to her physical symptoms and not any mental health issues. The Panel also notes that the claimant returned to driving after the accident and has continued to drive albeit with some fear of a further accident.
The Medical Assessors are of the view that in their clinical judgment Ms Rachak also presents with symptoms and signs consistent with a separate and distinct Adjustment Disorder with anxiety and depressed mood that has been caused by the accident on

28 August 2020. The adjustment disorder symptoms arose in response to the current accident and include a diffuse low mood, with accompanying anxiety symptoms such as increased vigilance whilst driving, irritability, and reduced motivation for social outings. The global functional impairment is modest. The overall severity of the adjustment disorder would be considered mild to moderate.
Criterion A for an Adjustment Disorder requires “the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s)”. The claimant’s accident occurred on 28 August 2020. The first mention of psychological symptoms was to the insurer’s rehabilitation advisor, Ms Welsh on

9 December 2020. The Panel is prepared to accept that her symptoms presented within three months of the accident.
Criterion B requires, “symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
(a) marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation, and
(b) significant impairment in social, occupational, or other important areas of functioning.
The claimant’s reaction to this accident appears to be out of proportion to its severity (all vehicles drove away) and the nature of her injuries (no broken bones or significant lacerations and her physical injuries have been assessed as soft tissue “threshold” injuries). While there has been some impairment reported to her social and domestic areas of function, it is not apparent that this impairment is significant from a mental health perspective and appears to be related to her physical symptoms. However, as the first requirement is present there is no need to further consider this.
Criterion C requires, “the stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder. The Medical Assessors have earlier explained why the claimant does not meet the criteria for a post-traumatic stress disorder and there are no other possible disorders for the claimant’s symptoms. The Medical Assessors did consider whether the claimant was experiencing an exacerbation or aggravation of her pre-existing depression however it is their clinical judgment that the current car accident was a separate and distinct stressor which has caused a further injury with distinct symptoms which are not a continuation of the previous condition.
Criterion D is met as no one died in the accident and “the symptoms do not represent normal bereavement”.
Criterion E states that “once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months.” Ms Rachak’s accident occurred more than four years ago and according to her history she has ongoing pain, which is perpetuating her psychological symptoms. For that reason, the Panel is of the view that the adjustment disorder is a persistent adjustment disorder with symptoms of a depressed mood and anxiety.

CONCLUSION

Is the claimant’s injury a threshold injury?

The Medical Assessors on the Panel have diagnosed the claimant, as she presented, with an Adjustment Disorder which is a psychiatric illness recognised in the DSM-5-TR as required by s 1.6(1)(b) of the MAI Act.
In accordance with cl 4(2) of the Regulation, an Adjustment Disorder is a threshold injury. Therefore, the claimant, as she presented on the day of the re-examination to Medical Assessors Yeates and Jones is assessed as having a threshold injury.

Has the claimant ever had a non-threshold injury?

The case of Lynch was referred to in paragraph [13] above. The Panel in that case had found that a claimant has a non-threshold injury regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment. The Panel gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.
On the basis of the Medical Assessors’ diagnosis and in particular the commentary on Criterion A for a post-traumatic stress disorder, the Panel is of the view the claimant has not met the criteria for a post-traumatic stress disorder at any time since the accident. On the basis of the claimant’s history the Panel is not satisfied the claimant has met Criterion G at any time since the accident.
The claimant has seen a GP, Dr Lim who is not, with respect, a qualified psychiatrist and whose notes do not provide any great detail of the claimant’s symptoms. She was not referred to a psychologist until Dr Lim saw her about a year after the accident and there are no records from any psychologist at that time. She was referred again to Dr Abu-Arab in March 2023 and there are no records or reports from him. She has only seen a psychologist recently and no records are available from that psychologist. There are no medico-legal reports from any expert.
The Medical Assessors have carefully perused the material in particular the treating notes from Dr Hanna and Dr Lim and it is their clinical judgment that at no time since the accident is there sufficient information for the Panel to make a finding that the claimant meets the criteria for any disorder recognised in the DSM-5-TR other than an Adjustment Disorder.

The treatment in dispute

The disputed treatment is said to be a single psychological consultation with Eastbrooke Blacktown GP Super Clinic on 10 March 2023. That clinic is where the claimant’s GP,

Dr Hanna practices. The clinical note of that date[11] concerns an attendance which was recorded on 11 March 2023. The claimant complained of neck pain, back pain, right shoulder pain and bilateral hip pain. She also complained of poor sleep, early morning wakening, low self-esteem, depressed mood, anxiety and irritability. A diagnosis of “counselling / PTSD” was made and a referred letter to Dr Abu-Arab was written. A further consultation occurred, and further letter was written to Dr Abu-Arab on 13 March 2023. The referral to

Dr Abu-Arab[12] refers to “severe anxiety, panic attacks and depressed mood” since the accident on 28 August 2020. The Panel is proceeding on the basis that what is in dispute is a consultation with Dr Abu-Arab not the 10 March 2023 consultation with Dr Hanna.
[11] Page 1560 of the insurer’s bundle.
[12] Page 17 of the claimant’s bundle.
On 10 December 2024, Dr Hanna referred[13] the claimant to Miss Amgap, psychologist for “severe anxiety, panic attacks and depressed mood” since the car accident. On that day a certificate of capacity was provided which diagnosed a post-traumatic stress disorder and recommended psychotherapy and counselling as part of the injury management plan[14]. On 23 December 2024, NRMA approved the treatment[15] and requested an AHRR for any further sessions, if required.
[13] Page 51 of the claimant’s bundle.
[14] Page 121 of the claimant’s bundle.
[15] Page 124 of the claimant’s bundle.
While the Panel is prepared to accept that the 10 March 2023 referral related to the psychological injuries caused by the accident, the Panel is not of the view that a consultation with Dr Abu-Arab, psychologist is now reasonable and necessary for the following reasons:
(a)    it is now nearly two years since the referral to Dr Abu-Arab was given and there is no evidence that the claimant pursued that particular referral (such as a report or letter from Dr Abu-Arab to Dr Hanna);
(b)    an identically worded referral was provided to a different psychologist, Ms Amgap on 10 December 2024 and an initial consultation was approved by the insurer;
(c)    the claimant confirms she has seen a psychologist twice in recent times, and it is reasonable to assume that the psychologist the claimant has seen is Ms Amgap and
(d)    there are no records from any psychologist or psychiatrist who may have treated the claimant since the accident.
As the claimant appears to now be seeing a psychologist it would not appear reasonable or necessary to pursue a referral from a different psychologist given two years previously.

CONCLUSION

The Panel has determined that the claimant has an Adjustment Disorder caused by the accident and that this is, for the purposes of the MAI Act a threshold injury.
The Panel has also determined that the request for treatment made on 10 March 2023 was related to the accident but is not now reasonable and necessary in the circumstances.
As the Panel has arrived at different conclusions to those of Medical Assessor Shen, it follows therefore that his certificate should be revoked, and a fresh certificate issued.

[2025] NSWPICMP 239

4 April 2025