Khaled v AAI Ltd t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Khaled v AAI Ltd t/as AAMI [2025] NSWPICMP 526
CLAIMANT:	Mostapha Khaled
INSURER:	AAI Limited trading as AAMI
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Melissa Barrett
MEDICAL ASSESSOR:	Surabhi Verma
DATE OF DECISION:	18 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury considerations; claimant injured on 20 August 2022 but had previously suffered a work injury in 2016 for which he had a generalised anxiety disorder, adjustment disorder and severe depression; the Medical Assessor (MA) concluded that the claimant did not satisfy diagnostic criteria for a psychiatric disorder and that his level of functioning was similar to his pre-accident level of functioning; claimant had ongoing disabilities relating to right arm following 2016 work injury; Review Panel satisfied that the claimant had a pre-existing Somatic Symptom Disorder all that additional pain and physical restrictions arising from the accident exacerbated this condition; Review Panel adopts the reasoning in Lynch v AAI Ltd that the psychological condition can be present at any time to establish that the injury is not threshold; an accident can cause a non-threshold psychiatric condition if the evidence establishes that the accident caused or materially contributed to the psychiatric condition even if only by way of aggravating a pre-existing conditionsee Todev v AAI Limited t/as GIO and AAI Limited t/as GIO v Hoblos; Held – Review Panel was satisfied that the accident has caused such an aggravation; MAC revoked.
DETERMINATIONS MADE:	1. The claimant was injured in a motor vehicle accident on 17 December 2023. 2. Certificate and reasons of Medical Assessor Jones dated 1 December 2023 is revoked. 3. The claimant suffered physical injuries in the accident which in turn led to an aggravation of his pre-existing somatic symptom disorder. 4. The claimant has suffered a non-threshold injury.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant for review of a certificate and reasons of Medical Assessor Jones (the Medical Assessor) dated 1 December 2023.
For determination was whether the claimant had suffered a threshold psychiatric injury.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
· psychiatric injury.
The Medical Assessor concluded that the claimant had not suffered a psychiatric injury caused by the accident.
Following on from this assessment the Medical Assessor said that consequent on that outcome, a decision about whether the injury was a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (the Act) was not required.

Amendment to legislation

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.

LEGISLATIVE BACKGROUND

Jurisdiction

Threshold injury

A threshold injury is defined in s 1.6 of the Act which says;

“1.6 MEANING OF "THRESHOLD INJURY"

(1) For the purposes of this Act, a
‘threshold injury’ is, subject to this section, one or more of the following--
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.”

In summary, if a person injured in a car accident does not have a recognised psychiatric injury, then the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the Act. If a person injured in a car accident has a recognised psychiatric injury, then that injury will be a non-threshold injury.
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 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and 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 assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.10 to 5.12 of the Guidelines are headed “threshold psychological or psychiatric injury assessment” and provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5- TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    …
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
It is the goal of the Panel to achieve a just, quick and cost-effective resolution of the real issues in the Review. To achieve this purpose, the Panel directed the parties to produce respective bundles of documents upon which they rely on and, as noted this was done by both the claimant and the insurer.
The claimant however, produced a bundle of documents consisting of nearly 3,000 pages. With that bundle very limited submissions were made and there was little indication from the claimant about the relevance of each document forming the bundle.
The claimant had provided a note under its index to the documentation lodged which said;
“We refer to Rule 67 of the Personal Injury Commission Rules 2021 and advise that despite the documents listed in (c) exceed the 500-page limit, these were the documents made available to the Assessor when the application was filed on 5 April 2023 and have been provided in accordance with the Directions dated 3 February 2025.”
The Panel drew to the attention of the claimant that rule 67 does not apply to Medical Review Panel matters.
The Panel acknowledges that documentation produced by the claimant previously was relied upon by the Medical Assessor but at that time, rule 67 did not apply.
In this review application, the claimant made no attempt to refer in his submissions to most of the documents contained in his bundle of documents. The Panel therefore required, for its assistance, that the claimant provide additional submissions in support of his application, with reference to the specific documents in its bundle upon which he relied.
The Panel was concerned that the claimant had “dumped” documents within its bundle without consideration of its relevance to the review. There were documents contained within the bundle for example, relating to women with gynaecological problems and reports from their gynaecologist.
The Panel required the claimant to identify what was truly in dispute and how each or any of the documents in his bundle related to the resolution of the real issues in this review application. It was suggested to the claimant that he might find it more appropriate to provide a revised bundle of documents which were only specifically relevant to the claim and which would more clearly assist the Panel to resolve the real issues with respect to the review.
Subsequently the claimant provided a revised bundle of documents consisting of 104 pages, with submissions. It is from this bundle of documents from the claimant that the Panel now considers the review together with the bundle of documents produced by the insurer and consisting of 84 pages.

The accident

The accident occurred on 20 August 2022. The claimant was turning right and had a green arrow for this manoeuvre. The insured driver failed to stop at a red light facing him and collided with the claimant’s driver’s side door. The claimant’s two children were in the back of his car. An ambulance and police attended.

Claimant’s submissions

The claimant noted that the Medical Assessor assessed the claimant as having “[N]o psychiatric disorder caused by the motor vehicle accident.” Consequent on this outcome, the Medical Assessor did not determine whether the claimant had a threshold or non-threshold injury.
The claimant submits that the Medical Assessor ought to have found that the claimant had suffered a psychiatric non-threshold injury.
The claimant says that the Medical Assessor ought to have considered the Diagnostic and Statistical Manual of Mental Disorders (DSM) -5 criteria for major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder,
(a) the claimant submits that had the Medical Assessor considered the DSM-5 criteria for major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder, it is possible that he would have found that the claimant satisfied sufficient diagnostic criteria to be diagnosed with one or more of the above diagnoses.
The claimant further submits that in the event that the Medical Assessor did consider the above DSM-5 criteria, he did not specify “the process of reasoning or the actual path by which he arrived at the conclusion…” (Momand v Allianz Australia Insurance Ltd [2023] NSWSC 1014, [71]; see also Minister for Immigration and Citizenship v Li (2013) 249 CLR 33).
The claimant submits that the Medical Assessor’s conclusion does not flow logically from the contents of his certificate. The claimant submits that the logical conclusion from the Medical Assessor’s certificate is that the claimant suffers from one or more of the above psychiatric injuries, but that their cause is the claimant’s physical injuries, making them secondary injuries. The claimant says that the conclusion that the Medical Assessor does reach is that the claimant “does not satisfy diagnostic criteria for a psychiatric disorder related to the motor vehicle accident” which is at paragraph 18 of his certificate. The claimant submits that what the Medical Assessor ought to have concluded following those premises is that the claimant was not suffering a psychiatric injury at all. However, the claimant submits that in any case, the substantively correct conclusion is that the claimant was suffering from a diagnosable psychiatric condition which had been made worse by the subject motor vehicle accident and therefore satisfies the criteria that the claimant’s injuries are non-threshold injuries.

Insurer’s submissions

The insurer submits that in reaching his conclusion, the Medical Assessor took the following into consideration:
(a)    the claimant was involved in a work accident in 2016;
(b)    he last worked in 2016 at the Tip Top factory where he sustained a work injury;
(c)    the claimant divorced his ex-wife in 2017;
(d)    there was overwhelming evidence of substantial mental health problems related to the work injury and subsequently;
(e)    following the work accident, the claimant was diagnosed with generalised anxiety disorder, adjustment disorder and severe depression;
(f)    following the work accident the claimant had been referred to mental health services and was referred to a psychologist;
(g)    following the work accident and in 2018, the claimant was referred to hospital for mental health reasons. He was referred to a psychiatrist and was experiencing suicidal thoughts, and
(h)    the most recent certificate of capacity of 14 January 2023 made no mention of psychiatric or psychological symptoms.
The insurer submits that the Medical Assessor recorded the claimant had active mental health problems leading up to the motor vehicle accident and said:
“His current level of function is similar to his pre-accident level of functioning (in fact he now is in a relationship).”
The insurer noted that the Medical Assessor found the claimant did not satisfy the DSM-5 for a psychiatric disorder related to the motor vehicle accident.
The insurer notes that certificates of capacity relating to the claimant make no reference to any psychiatric disability.

Medical evidence

The Medical Assessor provided a certificate of 17 December 2023.
It was noted that the claimant last worked in 2016 at a Tip Top factory, performing pick packing work where he sustained a work injury. He was lifting a crate, dropped it and experienced a sharp knife-like pain in his elbow. He has had two operations so far, one in 2018 and one in 2021. His main injury was to his elbow; but he also had back problems briefly. The claimant divorced in 2017 and also lost his driver licence.
Regarding his mental health, the claimant reported that between the work accident and the motor vehicle accident he was “still down and stuff”. He reported he was not seeing anyone for treatment. He said to the Medical Assessor that he had his elbow injury and he had depression.
The Medical Assessor asked what he considered the mental health impact from the motor vehicle accident was and to which he responded that he “felt a bit down” and had no vehicle to get around. He said his main problems were from the pain in his back and neck. He said he was offered to see a psychologist however, he did not find that it was helpful. The Medical Assessor asked him if he had experienced any other mental health symptoms in the last year or so and he said that he had not.
The claimant reported to the Medical Assessor that he divorced from his wife after the work accident and after that “everything went downhill”. He said following the work accident he got a bit better compared to his worst when he started to see his children a bit more often. He said after the car accident his depression and anxiety had kicked in even more and he is still suffering, but “not as bad”. He said that it is more his back and neck that is giving him trouble.
The Medical Assessor concluded that the claimant’s mental health symptoms, as they related to the subject accident, were proportional and consistent with his reported level of pain and physical dysfunction related to the physical injuries sustained in the motor vehicle accident. The Medical Assessor said that the claimant did not satisfy diagnostic criteria for a psychiatric disorder related to the motor vehicle accident. His level of functioning was similar to his pre-accident level of functioning. It was also noted that at the time of assessment, the claimant was in a relationship.
The Medical Assessor said that the claimant presented as having no ongoing, active psychiatric disorder related to the subject motor vehicle accident. He had a substantial injury prior to the motor vehicle accident from which he suffered significant physical injuries and limitations but also substantial psychiatric symptoms. The claimant still had active mental health problems leading up to the motor vehicle accident.
The insurer provided a copy of the clinical notes of Peak Consulting concerning the claimant, The insurer has made no submission specifically referring to these notes, many of which are handwritten and difficult to decipher.
Clinical notes of Peake Consulting have been provided. In an entry on 10 April 2018, in a progress report of that date, the claimant indicated feelings of frustration and was reported to be easily annoyed because of his inability to perform activities, such as playing with children, housework and social and recreational activities in the same way he used to. He noted he was easily upset and irritable causing further arguments with his family. He noted he worried about the future. He displayed some fear avoidant behaviour, mainly due to a lack of confidence. The claimant was said to be pain focussed although he noted that he tried to distract himself from the pain.
The claimant reported the following symptoms at the time of the assessment:
(a)    easily upset;
(b)    low mood;
(c)    increased impatience;
(d)    nervous tension and stress;
(e)    easily agitated and irritable;
(f)    increased aggression and anger;
(g)    mood swings;
(h)    low concentration;
(i)    difficulty relaxing, and
(j)    some rumination about negative events or arguments.
At the time of the assessment, the claimant completed the Depression, Anxiety and Stress Subscale (21) (DASS). The DASS was noted to be a quantitative measure of distress along three scales depression, anxiety and stress. It is not a categorical measure of clinical diagnosis. The claimant scored 26 on stress (severe), 28 on depression (extremely severe) and 26 on anxiety (extremely severe).
Centrelink notes, from the insurer’s bundle and in relation to the 2016 work injury, report the following;
“Dr. Shams, general practitioner, (GP) 2 February 2024 noted a diagnosis of bilateral elbow injuries. She notes marked tendinopathy of the common extensor and common flexor tendon right elbow.
Dr. Shams 15 December 2023 noted left elbow pain and clicking sound.
Dr. Hughes, orthopaedic surgeon, 11 January 2023 noted a diagnosis of Charcot-Marie-Tooth and ulnar and median nerve pathology in his right arm. Osteoarthritis of the right elbow. Early translocation of the joint with complete loss of articular cartilage and loose bodies. On the left hand side he is getting overuse pathology in the form of common extensor origin tendonitis.
The condition is diagnosed.
Onset is noted as 2016. Given the chronicity of symptoms, the condition is expected to persist for greater than 24 months.
Treatment:
Right elbow: Dr. Endrey-Walder, general surgeon, 13 January 2017 noted injury occurred at work in 2016 and commenced a light duties program at work. He notes physiotherapist involvement and referral to orthopaedic surgeon. He notes the claimant underwent 16 sessions of physiotherapy and that conservative management was unlikely to be successful in the long term. Then current medication was Nurofen as he was unable to tolerate stronger anti-inflammatories.
Dr. Hughes 5 November 2019 noted the claimant underwent a right carpal tunnel, right elbow arthroscopy, right open radial head excision and right open ulna nerve subcutaneous transposition.
There was evidence of engagement in rehabilitation physiotherapy and ongoing reviews with Dr. Hughes. He noted there was no further orthopaedic intervention and that he may require an elbow replacement in the long term.
Left elbow: Dr. Hughes 24 March 2020 noted x-ray completed due to complaints of left elbow pain, mainly lateral and this was associated with crepitus of the left elbow. 11 January 2023 Dr. Hughes noted the claimant was getting overuse pathology in the form of some common extensor origin tendonitis.
Dr. Shams 2 February 2024 noted that for both elbows the claimant had engaged in rest, simple analgesia, physiotherapy, anti-inflammatories, muscle strengthening exercises, and orthopaedic specialist reviews.
Dr. Shams 15 December 2023 noted the claimant has engaged with exercise physiology, counselling, specialist and psychiatrist review, physiotherapy for muscle strengthening, review with psychologist.
The claimant said for his right elbow he underwent physiotherapy prior to surgery, had surgery and then spent 6- 8 weeks recovering, before engaging in a further physiotherapy rehabilitation program. He had been advised at that stage there was no further treatment available.
He reported his left elbow symptoms had developed due to overuse, his left was not his dominant hand, and he had scans and an MRI completed and reviewed by the orthopaedic surgeon. He has also engaged in physiotherapy for the left elbow, however, this was not helping. He advised there is no surgical intervention available for this elbow either. He advised he has seen a psychologist for pain management for around a year. He attends the GP fortnightly for review.
Dr. Shams 01 August 2023 noted: Diagnosis: Depression and anxiety disorder.
Onset noted as April 2023. The claimant said this had been affecting him since his workplace accident in 2016. Given the chronicity of symptoms, the condition was expected to persist for greater than 24 months.
Treatment:
Dr. Shams 1 August 2023 noted counselling and cognitive behaviour therapy.
Dr. Shams 15 December 2023 noted review with psychiatrist and review with psychologist Mrs. Touak. He said he had some intervention with a psychologist here and there, but largely tried to manage the condition himself. He said the GP prescribed him medication, but he did not take it as he did not like to take medication.
Symptoms:
Nil symptoms listed on the medical certificate.
The claimant said that he generally was not managing well. He said if symptoms exacerbate, he would speak with his GP.
In the absence of confirmation of diagnosis from a psychiatrist or registered/clinical psychologist, the condition cannot be considered diagnosed. Additionally, regular engagement with mental health treatment may lead to significant functional improvement. As a result, the condition cannot be considered reasonably treated or stabilised.”

The Centrelink records produced make no reference to the accident the subject of this review, occurring on 20 August 2022.
Neither party has had a medico legal examination of the claimant and upon which they rely.

Medical examination

The claimant was examined by Medical Assessor Barrett and Medical Assessor Verma on
17 June 2025. Their report follows:
“The claimant was assessed via videoconferencing. He was located at his home and was assessed unaccompanied.
Introduction.
Mr Khaled is a 41-year-old man who lives with his parents in their home in Greenacre. He has three children, two teenaged children from his first marriage and a toddler from his second relationship. He last worked in 2021, after he was terminated by his former employer, Tip Top Bakery. He has been in receipt of a disability support pension since 2024 in regard to a work related injury of his right elbow.
Personal history.
Mr Khaled was born in Sydney and reported normal birth and achievement of milestones. He is the second eldest of 5 siblings, the only son of his parents.
He described a good relationship with his parents and denied any childhood trauma. He attended Belmore Boys High School where he completed up to year 10. He made a lot of friends and was not bullied. He reports above average academic performance but left school as he preferred to enter the workforce.
He initially enrolled in TAFE and trained as an apprentice fitter and machinist, but did not continue after about 3 years as he lost interest and the combined demands of work and study were, “too much for me”.
He worked for Optus in door-to-door sales for about a month, was unemployed for about 2 years, on Jobseeker, before obtaining a job at Tip Top Bakery, where he worked in the warehouse, in pick/packing and loading. He had his end rider and pallet jack ticket.
He met his former wife through his sister, and they became engaged at 21 years old, and married at 22 years old, before divorcing at 33 years old. At assessment, he declined to respond to questions about the reason for the end of the relationship. He reported they remained amicable for the sake of their children, now aged 15 and 13 years old.
He identifies as having been raised in the Islamic faith, which he maintains.
He denied any forensic history.
He is a smoker, 20 cigarettes/day. He previously quit but restarted in about 2021 in the context of stressors. He has previously trialled Champix, but ceased as he thought it increased his use of cigarettes. He denied the use of alcohol or other drugs. He denied gambling.
He denied any family psychiatric history.
Prior to the workplace injury, he was a, “happy person”, “I was a socialised person”, “People loved being around me” and that he enjoyed going out.
He sustained an injury to his right elbow (as a right-handed man) while working at Tip Top Bakery. He alleges that the injury resulted from overuse due to an unreasonable workload and the impact of poor-quality equipment, noting that former acquaintances have informed him the machinery has been updated since he left. He first experienced symptoms in 2016 and was diagnosed with a right ulnar nerve injury causing carpal tunnel syndrome. He received treatment through physiotherapy, underwent a first surgery in 2017/2018, which was a “clean up” procedure, but did not benefit from it, and then had a second surgery in 2021, which also yielded no benefits. He tried Nurofen, with no benefits as well.
He acknowledged that prior to the motor accident, he was in constant pain and unable to bend his elbow. He needed assistance with some dressing tasks, such as pulling up his pants or putting a jumper over his head, but he could toilet and shower independently. He had never been responsible for laundry, cleaning, or cooking tasks, so there was no change in his involvement in those activities. After the 2017/2018 surgery, he returned to work at Tip Top Bakery performing light duties like bagging bread. He tried to work up to 6 hours but found himself unable to continue due to pain, leading him to reduce his work hours, which he maintained for about 6 to 8 months. He did not return to work after the second surgery, explaining that the employer stated they had no light duties available, while also acknowledging he was, “in a lot of pain and didn’t want to go back”, saying, “I didn’t want to do it.” He had worked for 3 days as a hospital security officer in 2019, but, “No, that’s it. I cant do it. Too boring.”
He reported that after the first surgery in 2017/2018, he became embarrassed by the appearance of his operative scars and was no longer comfortable wearing a short-sleeved shirt. "Every time I look in the mirror, see my scars."
It was very difficult to obtain a clear understanding of Mr Khaled’s psychiatric state prior to the subject accident. He initially responded, “I don’t know”. When the records of his treating GP, Dr. Shams, which detailed symptoms of insomnia, irritability, poor motivation, low mood, anxiety, and isolation, which the GP postulated was due to the duration of his symptoms, unemployment, resultant financial stress, and marriage break-up, were raised with Mr. Khaled, he responded, “maybe”, but agreed the GP’s entries were likely to be accurate.. He had seen a psychologist, “long time ago”, for about a month but stated it, “Didn’t help”. He had refused the suggestion of psychotropic medication, explaining, “I’ve heard stories”, “I don’t take medication”.
Mr Khaled did not cooperate in responding to questions about his pre-accident functioning. Some time was spent explaining the purpose and importance of these questions, but he refused to answer, including questions about where he was living prior to the subject accident, stating that he did not recall, “I was everywhere”, and then adding, “I don’t want to answer”. He expressed, “I don’t like talking about my past”, “You don’t know how I’m suffering”, “No one knows what I’m going through”, “If I have anxiety and depression, how can I sit and talk about my past?”, “None of them know what I’ve been through”. Attempts were made to discuss with him the contents of the document bundles relating to his pre-accident functioning, but he declined to address these issues. He was advised that if he did not respond to questions, including possible inconsistencies in the documents, the Panel would have to rely on the information contained in those documents. He maintained his refusal to cooperate with these questions.
History of the motor accident.
The subject accident occurred on 20 August 2022. Mr. Khaled was driving a 2015 model A45 AMG Mercedes-Benz. He was uncertain about the specific location of his children; that is, whether his son or daughter was in the front passenger seat and who was in the rear passenger seat. They had been to Brighton for dinner and were returning home. He was turning right on a green arrow at a set of lights when a car failed to obey the signal and collided with his driver’s side. The airbags did not deploy. His door was initially stuck. He reported that he was fearful the collision had damaged the car’s petrol tank. He “panicked,” took off his seatbelt, and pushed his door open with his foot. His son and daughter self-extricated. He lay in the middle of the road. Police and ambulance were called by passers-by. He declined to go to hospital, stating, “I wasn’t up for going to hospital,” because he had his children with him and also because he wasn’t feeling up to going to the hospital, stating, “I was traumatised.” It was put to him that it is unusual for people to decline going to hospital because they are not well enough to do so, but he maintained his position. His car was towed from the scene and then written off, for which he received a sum of $41,000. His brother-in-law collected him and his children from the scene and drove them all home.
History Of Symptoms Following the Motor Accident.
Physical Symptoms
He saw his GP the day after the accident for pain in his back, neck, and right knee. He was referred for further investigations. He has not received any specific treatment.
He has been using Nurofen, taking two tablets every six hours since the accident.
He acknowledged that the pre-existing elbow pain was not affected by the accident.
Currently, he continues to experience pain in his back, neck, and right knee, averaging a severity of about 6 to 8 out of 10, on a scale where 10 is the most severe.
Due to the pain, he is unable to walk for more than five minutes before he needs to sit down, cannot stand for more than ten minutes, and struggles to turn his neck, which affects his ability to drive long distances. His sleep has also been impacted; he previously slept in the supine position but now needs to sleep on his side, struggling to initiate or maintain sleep due to pain.
He has not attended a pain clinic or consulted a pain specialist.
Psychiatric Symptoms
He reported, “There’s things I used to do that I don’t do anymore”, “I used to socialise a lot with people, now I don’t want to”. He stated that since the accident, he does not want to talk to anyone or go to watch football games. He doesn’t want to take his children out, but he says he forces himself to for their sake. He reported that he is always anticipating bad news, providing the example, “If I get a phone call, I feel like the phone call will be bad news”. He recognises his response is disproportionate and that it is, “Just the anxiety kicking in”. He reports that he stopped driving for 3 months after the accident, saying, “I don’t want to drive”. When he resumed driving, he reported, “I get fears and stuff”. He did not have a car for 6 months after the accident, then bought a second-hand Lexus sedan, but sold it after 6 months as he reported, “Didn’t want to drive”, “Didn’t need it”. He reports that his sleep has been reduced to 4 hours a night, due to, “just thoughts”, “sit there thinking”. His appetite has decreased, and he reports a weight loss of 10kg since the accident, which he attributes to, “probably depression”. He described his energy as, “very lazy” and his concentration as poor, mentioning that his friends complain that he no longer listens to them and only talks about himself. He has been more irritable but denied physical altercations. He reported that he has no enjoyment since the accident but denied suicidal ideation, protected by his religious beliefs. He states that his GP recommended referral to a psychologist or psychiatrist, but he declines, saying, “They sit there and bring up childhood. It’s a waste of time”. He has not been offered psychotropic medications, stating his GP knows he would not take them.
Details of any relevant injuries or conditions suffered after the 2020 motor accident.
He did not report any subsequent injuries. He denied any subsequent accidents.
Current symptoms
He drives about three times a week, using his mother’s car. He will drive for journeys of up to 10 minutes, locally. If he needs to travel a greater distance, he calls a friend to drive him.
Overall, he considers that his symptoms have worsened over time, stating, “The older I get, the worse I’m getting,” “My anxiety and depression is getting worse.”
Current and proposed treatment.
He is receiving no treatment.
Mental state examination.
Mr Khaled was assessed via videoconferencing.
He presented as a casually dressed man of stated age with a thick, neat beard. He displayed a full range of facial expressions and gestures, and his speech was normal in rate, volume, and rhythm.
He interacted confidently and assertively. Although not overtly irritable, he did not cooperate with answering questions he chose to avoid. While some questions he refused to answer, he responded to others, but when asked to elaborate, he remarked, “I’m starting to get irritated.” However, he provided detailed responses to questions on different topics. He spoke at length about his rationale for not addressing inquiries regarding the period before the accident, needing interruptions at times. He could smile and laugh warmly when appropriate to the content. He made jokes; for example, when asked about his usual eating habits, he said that he eats three meals a day, with additional snacks in between, laughing that he was, “a normal human being.” He concluded the assessment when it was near its natural endpoint, agreeing to answer only one further question from the other Panel member. He confidently offered, “If you want to continue, I can continue tomorrow.” He described his mood as depressed and anxious.
He reported anticipating bad news and having less interest in others. He expressed a fear of driving, stating, “I don’t drive like I did before. I don’t enjoy life.” He did not describe experiencing re-experiencing symptoms, nor did he report delusions, perceptual abnormalities, or thought disorder.
He denied any suicidal ideation and did not express risk to others.
He participated in the assessment for over 1.5 hours, providing detailed answers to the questions he agreed to address.
He has refused a trial of psychotropic medications and reports that psychological treatment is a “waste of time.”
Current functioning
Mr. Khaled lives with his parents in their home. He eats three meals plus snacks each day. He has never had responsibilities for cooking, cleaning, or laundry. He showers daily and gets his haircut at the barber every three weeks. He has always worn a beard.
He spends his days playing games on his phone. He goes out with friends once a week to their homes to watch television or a movie but reports this is, “Not as much as I used to. " He has his teenage children visit every second weekend. They, “stay at home”, “They sit on their ipads and I do what I want to do, " but elsewhere in the assessment, he mentioned that he forces himself to take his children out. When there were attempts to clarify, he refused to respond, warning, “I’m starting to get irritated. "
Despite fears of driving, he drives locally, on average, three times a week.
He met his second partner through friends and was in a relationship with her from 2023 for about a year before the relationship broke up in late 2023. He refused to respond to questions about the reason for the relationship break-up. They had a two-year-old daughter together, with whom he reported he has bonded well. He sees his daughter regularly at his former partner’s parents' home. He has not had any relationships since, stating he is, “Just not bothered. "
He last worked for three days in hospital security in 2019 due to his prior injury.
Comments on consistency.
Mr Khaled was uncooperative in providing a history of his pre-accident state. His answers varied from implausible responses, such as not recalling where he lived before the accident, to an unhelpful remark, “I was everywhere,” when the implausibility of his claim was pointed out, followed by refusal to respond further.
It was brought to his attention that his account of his pre-accident mental state and functioning contradicted the records of his treating GP, Dr Shams, as well as previous reports, including that of Dr Khan in 2020. When confronted with the GP’s records detailing pre-accident symptoms of stress, depression and anxiety, he replied, “maybe,” yet insisted he wasn’t as isolated prior to the accident, stating, “How did I go out with kids?”, “I don’t drive like I did before”, “I don’t enjoy life.” Regarding Dr Khan’s report which documented pre-accident impaired functioning, he remarked, “He could have made it up.”
Review Panel Deliberations. Noting the gaps in the information available to the panel due to Mr Khaled’s limited cooperation, the panel determined that Mr Khaled likely suffered from a Somatic Symptom Disorder stemming from the work-related elbow injury. He met DSM 5 criteria, as he exhibited somatic symptoms, specifically elbow pain, which was linked to excessive thoughts, feelings, and behaviours, according to the treating GP’s notes. These included low mood, anxiety, externalised irritability, leading to poor sleep, diminished motivation, and isolation, causing significant distress that prompted the treating GP to refer him to a psychologist and assign a psychiatric diagnosis, albeit one with which the panel does not agree.
The GP entries continue to record these symptoms up until November 2021, a period of four years. Given that the symptoms of somatic symptom disorder were chronic, that the pain was persistent, and that there was no treatment in place, the panel considers that the Somatic Symptom Disorder persisted at the time of the accident.
In the accident, Mr Khaled reports physical injuries causing additional pain and physical restrictions. It is therefore plausible that the additional pain and physical restrictions exacerbated Mr Khaled’s pre-existing Somatic Symptom Disorder, which aligns with his account of worsening severity of DSM 5 Somatic Symptom Disorder criteria B symptoms, including worsening thoughts, feelings, and behaviours related to the somatic symptoms. Notably, Mr Khaled reports increased avoidance behaviours, “thoughts” impacting his sleep, and worsening mood and anxiety.
The panel considered the possibility of alternate diagnoses as proposed by the claimant.
The panel determined that Mr Khaled did not have Generalised Anxiety Disorder, which is a condition occurring in individuals predisposed to anxiety due to temperamental traits, and which leads to worrying and associated somatic symptoms of anxiety in early adulthood. It is not a condition that develops in response to a traumatic event. Instead, his anxiety relates to his physical pain, restrictions, and their resultant impacts, and is encapsulated by the “thoughts” described in DSM 5 criteria B for Somatic Symptom Disorder.
The panel considered the possibility of PTSD. However, Mr Khaled did not describe re-experiencing symptoms or substantial ongoing avoidance, and the mental state examination findings were inconsistent with those expected in PTSD.
The panel also considered the possibility of Major Depressive Disorder. However, he reported few physiological symptoms of depression, noting his account of his excellent eating habits and attention to grooming, which were consistent with the objective findings. His pattern of continuing to see friends weekly and forming a new relationship, which lasted about a year and resulted in a child, is not consistent with the impairments in functioning expected in Major Depressive Disorder. Furthermore, the mental state examination findings, which showed confident, assertive interaction and communication, and reactive affect, were not consistent with those expected in Major Depressive Disorder. Instead, his low mood relates to his physical pain, restrictions, and their resultant impacts, and is encapsulated by the “feelings” described in DSM 5 criteria B for Somatic Symptom Disorder.
Somatic symptom disorder is a recognised DSM-5 psychiatric diagnosis. It does not imply that the person’s complaints are not genuine, nor does it exclude a history of past or present organic pathology. Somatic Symptom Disorder is a non-threshold injury according to the Act.
The Panel met on 17 June 2025 to discuss the Medical Assessors findings on examination. The legal Member of this Panel did not participate in the medical examination but prior to the Panel meeting on 17June 2025, the legal Member had the benefit of reading and considering the Medical Assessors examination report. On 17 June 2025 the Panel met and discussed the examination findings and the issues going to causation and assessment of a threshold injury. It is from this teleconference of the Panel that the Panel has agreed and reached its final conclusion and determination.
The Panel adopts the findings of Medical Assessor Barrett and Medical Assessor Verma.

Causation/reasons

An issue in the present case is whether the claimant’s injury and related impairment, as well as any consequent treatments, were causally related to the 2016 work injury accident or the 2022 motor accident. How an assessor is to approach the issue of causation of permanent impairment is dealt with in various paragraphs of the Permanent Impairment Guidelines.

Paragraphs 1.6 to 1.7 of the Permanent Impairment Guidelines are found under the heading “Causation of injury” and provide;
“1.6 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.
1.7 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.”
How impairment is to be assessed when there is pre-existing impairment or subsequent injury is dealt with in paragraph 1.31, as follows:
“Pre-existing impairment
1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
...”

Subsequent injuries

Paragraphs 1.5 and 1.6 of the Permanent Impairment Guidelines establish that an assessor making such an assessment must:
“determine ‘whether the injured person’s impairment is related to the accident in question’;
in doing so, be aware of ‘the common law principles that would be applied by a court (or claims assessor) in considering such issues’;
determine whether ‘a physical, chemical or biologic factor contributed to the occurrence of a medical condition [or impairment]’ by verifying both that:
the factor could have caused the impairment – a medical determination; and
the factor did cause the impairment – a non-medical informed judgement; and
determine whether ‘the injury (and the associated impairment)’ was caused or materially contributed to by the motor accident, noting that the accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel must also take into account the fact that paragraph 1.17.1 of the Permanent Impairment Guidelines indicates that the question of causation of impairment turns on whether the impairment “arises from” an injury caused by the accident.
In this claim, the Panel is dealing with pre-existing physical injury which occurred in 2016 with its psychiatric overlay, and the effect of the subject accident on 20 August 2022.
In the context of determining questions of causation in relation to motor accidents in accordance with “the … principles that would be applied by a court (or assessor) in considering such issues”, the reference in paragraph 1.5 to “common law principles” is to be understood as referring to the legal principles that courts or claims assessors are required to apply in determining causation. This includes not only common law principles, in the strict sense, but also such principles as modified or explained by statutory provisions, such as s 5D of the Civil Liability Act 2002 (NSW) (CL Act), where applicable. This approach is consistent with Windeyer J’s observation in Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68 that:
“for the present purposes [of that case concerning the law of homicide], it is misleading to speak glibly of the common law in order to compare and contrast it with a statute. In any consideration of common-law rules it is necessary to take one's stand at some point of time. It is necessary too to be clear whether what is being spoken of as the common law at that point of time comprehends all statutory modifications of it then in force or only its pristine form.”
The approach is also consistent with the remarks of Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [27] where it was held that:
“the question to be assessed [under the previous Motor Accidents Medical Guidelines which were relevantly in substantially the same terms as the 2018 Guidelines] is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D. (See s.3B(2)).”
Section 5D of the CL Act relevantly provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
…
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
This review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were threshold or non-threshold as defined under the Act.
The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh [2021] NSWCA 287.
The Panel adopts the reasoning in Lynch v AAI Ltd[2022] NSWPICMP 6that the psychological condition can be present at any time to establish that the injury is not threshold for the purposes of the Act. The Panel notes that this was also applied in QBE Insurance (Australia) Pty Ltd v Chebat [2024] NSWPICMP 611.
Furthermore, an accident can cause a non-threshold psychiatric condition if the evidence establishes that the accident caused or materially contributed to the psychiatric condition, even if only by way of aggravating a pre-existing condition – see Todev v AAI Limited t/as GIO [2023] NSWSC 836 and AAI Limited t/as GIO v Hoblos [2023] NSWPICMP 210. The Panel is satisfied that the accident has caused such an aggravation because in the accident, the claimant reported physical injuries causing additional pain and physical restrictions. It is therefore plausible that the additional pain and physical restrictions exacerbated the claimant’s pre-existing Somatic Symptom Disorder, which aligns with his account of worsening severity of DSM 5 criteria B symptoms, including worsening thoughts, feelings, and behaviours related to the somatic symptoms. Notably, importantly, the claimant reported increased avoidance behaviours, “thoughts” impacting his sleep, and worsening mood and anxiety. This was an exacerbation of his existing somatic symptom disorder.
The Panel also adopts the reasoning in Lynch that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the Act. The Panel is satisfied, following examination of the claimant, that this onus has been satisfied.
The Panel must, amongst other things, consider whether, with the claimant’s Somatic Symptom disorder, the injury and complaints, the disability is causally related when there was on the diagnosis of the Panel, a similar pre-existing condition. The Panel does consider that the accident has had a more than negligible effect on his psychiatric condition due to the mechanism of the accident and ensuing physical injuries.
Scientifically, there is a possibility that the accident could have caused both physical and psychiatric injuries. The Medical Assessors examined the claimant and are satisfied that he did have a Somatic Symptom Disorder before the accident due to his 2016 work-related elbow injury. He met DSM 5 criteria for somatic symptom disorder before the accident including low mood, anxiety, externalised irritability, poor sleep, diminished motivation and isolation. His symptoms were chronic without treatment taking place at the time of the accident. Following the accident, the claimant had additional physical pain and restrictions. These restrictions aggravated his pre-existing Somatic Symptom Disorder and for which the claimant said they were of worsening severity. The Panel is satisfied that the claimant did have worsening severity of DSM 5 Somatic Symptom Disorder criteria B symptoms which included worsening thoughts, feelings and behaviours related to his somatic symptoms. This included increased avoidance behaviours, thoughts which impacted his sleep and worsening mood and anxiety.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
On the balance of probabilities, can it be said that the claimant suffered a recognisable psychiatric injury or an aggravation of such a psychiatric injury? For the reasons discussed above in the report of the Medical Assessors, the Panel does find that this can be answered in the affirmative. The claimant’s pre-existing disorder was aggravated because of the accident.
Would the impairment have occurred, if not for the accident? The Panel is satisfied that the accident and impact has had a more than negligible effect on the claimant’s physical condition suffered by the claimant. This is because at the time of his accident his pre-existing Somatic Symptom Disorder was stable. Following the accident, the disorder was aggravated.

Conclusion

Prior to the accident the subject of this claim, the claimant was involved in a work accident in 2016. The claimant suffered physical injuries in the accident but developed a Somatic Symptom Disorder.
The Panel is satisfied that consequent upon the motor accident which occurred on
20 August 2022, the claimant suffered physical injuries which led to an aggravation of his pre-existing Somatic Symptom Disorder. This is a non-threshold injury.

Determination

The claimant was injured in a motor vehicle accident on 17 December 2023.
Certificate and reasons of Medical Assessor Jones dated 1 December 2023 is revoked.
The claimant suffered physical injuries in the accident which in turn led to an aggravation of his pre-existing Somatic Symptom Disorder.
The claimant has suffered a non-threshold injury.

[2025] NSWPICMP 526

18 July 2025