QBE Insurance (Australia) Limited v Al-Fartoosi

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Al-Fartoosi [2025] NSWPICMP 419
CLAIMANT:	Ahmed Al-Fartoosi
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Surabhi Verma
MEDICAL ASSESSOR:	Melissa Barrett
DATE OF DECISION:	13 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; threshold injury dispute; psychological/psychiatric injury; previous accident and psychological/psychiatric injury; issues of diagnosis and causation; Held – diagnosed an adjustment disorder; new injury or aggravation injury caused by the accident; either way injury is threshold injury; MAC revoked; new certificate issued; Todev v AAI Limited t/as GIO, and AAI Limited t/as GIO v Hoblos applied.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Hong dated 19 January 2024. 2. Certifies that the psychological or psychiatric injury sustained by the claimant in the motor accident on 9 July 2022 is a threshold injury for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Ahmed Al-Fartoosi was involved in a motor accident on 9 July 2022. The claimant’s vehicle was hit from behind and then the side by a speeding vehicle which did not stop.
Mr Al-Fartoosi says he injured his neck and lower back in the accident and made a claim for statutory benefits against QBE, the third-party insurer of the vehicle he says caused his accident.
A medical dispute about whether the claimant has threshold injuries or non-threshold injuries has arisen in connection with that claim and Mr Al-Fartoosi referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 8 May 2023, Medical Assessor Menogue assessed the claimant’s physical injuries and determined that his neck injury was a soft tissue and therefore a threshold injury for the purposes of the Act. The Panel understands that there has been no application for review lodged in respect of that assessment.
On 19 January 2024, Medical Assessor Hong determined that the claimant had a

post-traumatic stress disorder which was a non-threshold psychiatric injury for the purposes of the claim. The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 14 March 2024, Ms O’Carroll 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 3 February 2025 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Al-Fartoosi’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] Amendments made to the MAI Act 2017 included a change of terminology from the previous phrase “minor injury” to the current “threshold injury” and amended the period of time for which no fault benefits were paid from 26 weeks to 52 weeks. While the terminology change applies to Mr Al-Fartoosi’s claim, the benefits change only applies to accidents occurring after 1 April 2023.

Threshold injury

A threshold physical injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” for psychological or psychiatric injury, a threshold injury is one “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 other words, the Guidelines provide the method of recognising a psychiatric illness (thereby excluding unrecognised psychiatric illnesses from the recovery of benefits and damages under 1.6(3) of the MAI Act). The prescribed method 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 psychiatric injuries in accordance with cl 4(2) of the Regulation).

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[3].
[3] Schedule 2, clause 2(e) 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 Samuell’s, further medical assessments and the review of medical assessments by this Panel[4].
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

The Medical Assessor examined the claimant on 17 January 2024 and issued his certificate two days later. The Medical Assessor confirms at [2][5] that he was asked to assess the following, “Cause to and / or aggravation of previous psychological condition yet to be diagnosed in accordance with DSM-5 criteria.”
[5] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
Medical Assessor Hong noted difficulties with language as the examination was done without an interpreter.
The claimant advised he had travelled to Australia in 2007 as a refugee from Iraq but has not been exposed to trauma or war experiences. His father is deceased, and his mother remains in Iraq as is one of his brothers. He has two siblings in the UK.
The claimant gave a history of the 2017 accident (also a rear-end collision). He said he did not recall seeing a counsellor, sustained a neck injury, made a compensation claim and was given money for a new car. He says he lost consciousness briefly and felt shocked and anxious but did not go to hospital. He reported being afraid to drive for a few months but returned to full time driving after that.
The claimant reported that shortly before the 2022 accident he had some sleep problems and might wake up two or three times a night and he had some bad dreams about the 2017 accident and felt afraid but did not know why.
The claimant reported the circumstances of the current accident. The claimant says he was hit twice by a car speeding at 120 kms per hour in a 60 km per hour zone. He says the police were called and an ambulance took him to Campbelltown Hospital where he stayed for two days. Police advised him the car that hit him had been stolen.
The claimant said he injured his neck and right shoulder and that his Glasgow Coma Scale (GCS) at hospital was 15 out of 15 and that he did not lose consciousness. He reported having seen a surgeon who wanted to operate.
The claimant said he could not drive for three months due to anxiety but returned to driving although for not more than 40 – 60 minutes at a time. He described anxiety and needing to get off the freeway or motorway. The claimant said his relationship with his de facto wife broke up after the accident because of him “waking up too much” and they were not intimate.
On specific questioning, Mr Al-Fartoosi said his symptoms were similar to those from the 2017 accident but more severe. The history taken suggests the claimant recovered from his psychological symptoms after the 2017 accident within a year and that his current symptoms have persisted for longer than that.
The claimant said he had five psychological counselling sessions after the 2017 accident but has had none after the current accident due to funding issues.
The claimant reported a 30% reduction in his work, he does some domestic duties, cooks and shops skips meals but has gained weight and then lost weight. He talks to his family on the phone and has one friend who visits with his friend’s wife and children.
Medical Assessor Hong reviewed the evidence noting:
(a)    the 28 July 2022 certificate of capacity certified the claimant fit for 6 hours a day, 4 days a week;
(b)    the Campbelltown Hospital discharge summary has a history of a rear-end collision at 80 -90 kms but no head injury;
(c)    the report of Dr Teoh diagnosed an adjustment disorder and Dr Mahfoud recorded a provisional adjustment disorder, and
(d)    the certificate of Medical Assessor Menogue had been considered.
Medical Assessor Hong diagnosed a post-traumatic stress disorder caused by the first accident which had improved or was in full remission before the second accident. After the second accident the claimant developed post-traumatic stress disorder symptoms.
Medical Assessor Hong accepted that the accident met criterion A in that the accident occurred at 120kms per hour, the claimant developed intrusive memories and nightmares, persistent avoidance of reminders of the accident and so on.
At [19] Medical Assessor Hong found the “major contribution” to the post-traumatic stress disorder was the current motor accident.

ISSUES FOR DETERMINATION

Insurer’s submissions[6]

[6] The numbers in square brackets are a reference to the paragraph number in the submissions.

The insurer submits at [8] – [12] that the claimant had an earlier accident in 2017, that the claimant had psychological symptoms after that accident, and that there is inconsistency in the claimant’s history.
The insurer submits at [15] – [22] that while the claimant told the insurer’s expert that he had a pre-accident history of anxiety, the claimant did not disclose the current accident. The insurer notes the claimant’s GP’s diagnosis of an adjustment disorder and notes the claimant has had no treatment for any psychological injuries.
The insurer submits that the Medical Assessor has made an incorrect diagnosis citing various criteria of the DSM 5.
The insurer’s submissions in relation to the original medical assessment noted at [3.13] that the claimant had not yet been diagnosed with a psychological condition but at [3.14] had received a diagnosis on 2 December 2021 in respect of his previous accident from Dr Teoh (adjustment disorder with depressed mood).

Claimant’s submissions

The claimant submits he has provided his best account of his symptoms and that he has relied on the report of Dr Teoh. He notes the Medical Assessor took a detailed history of his psychological symptoms.
The claimant notes that there has been a history of a 2017 accident, symptoms and the 2022 accident which led to more severe symptoms. The claimant has said he had recovered or nearly completely recovered at the time of the 2022 accident. Medical Assessor Hong has explored this with the claimant and come to his own decision.

Procedural matters

On 14 March 2024 and 23 January 2025, President’s delegates O’Carroll and Ho admitted additional documents into evidence.
On 3 February 2025, the Panel issued directions to the parties seeking bundles of documents that the parties relied on in the review:
(a) the insurer’s bundle of 157 pages was received on or about 28 February 2025, and
(b) the claimant’s bundle of 170 pages was received on or about 13 March 2025.
The Panel met to discuss the Review on 26 March 2025 and reported to the parties on the same day.
The Panel alerted the parties to the Panel’s approach and that the Medical Assessors may diagnose a condition the same as or different to the original Medical Assessor or any of the treating doctors or medico legal experts.
The Panel sought documentation from the police and the damage to the vehicles for purposes of having an accurate history of the mechanism of the accident.
The Panel requested pre-accident records and copies of any medical assessment decision in respect of the 2017 accident and claim and any available documents from Dr Raji.
The parties were advised of the re-examination date.

Claimant’s response

On 4 April 2025 the claimant provided his response. He identified 19 separate treatment providers since 2017. Mr Al-Fartoosi provided a copy of the police report, an updated report from Dr Teoh and advised the claim arising out of the 2017 accident settled.

Insurer’s response

The insurer advised on 28 April 2025 it has requested a copy of the police report but holds no documents concerning the damage to the vehicles.
In respect of the documents requested the insurer advised:
(a)
the claimant had provided details of his treatment, and the insurer had sought signed authorities to enable it to obtain documents from five hospitals and

Dr Diwan a spinal specialist;
(b)    clinical notes from four specialists had been requested;
(c)    Dr Awada, general practitioner had been unable to locate her records, and
(d)    Dr Raji, who the claimant had apparently seen the day after the accident had not yet been identified and no notes had been provided.
The insurer submitted that the Panel should not proceed to the re-examination of the claimant without the notes of Dr Raji. The insurer did not suggest the Panel wait for any of the other documents.
In the light of the Panel’s views about the nature and extent of the claimant’s injury, the Panel is not of the view the Panel should wait for the insurer’s additional documents including the additional records from Dr Raji.

REVIEW OF THE EVIDENCE

General comments

The directions issued to the parties for bundles of documents included a direction to the claimant to avoid as far as possible duplication with documents provided by the claimant. The claimant has provided a bundle of 170 pages almost all of which were included in the insurer’s bundle.
The documents not included in the insurer’s bundle were:
(a)    an allied health recovery request form for physiotherapy dated 12 August 2022 which is of no assistance in this dispute about psychiatric injury;
(b)    a referral from Dr Mahfoud to Dr Diwan dated 7 November 2022 which includes in the history “5/9/2022 adjustment disorder post MVA ? (provisional)” but which is otherwise not relevant to this dispute. Attached to the referral was a copy of the report of the lumbar spine CT scan dated 2 November 2022 and the MRI of the claimant’s cervical spine of the same date, and
(c)    the insurer’s internal review decision dated 17 November 2022.

Pre-accident records

The claim form regarding the 15 November 2017 accident was signed and dated 26 May 2020. The claimant said he was a self-employed shuttle bus driver but had been totally unfit to work from 30 August 2019. He disclosed a hernia operation in 2000 and said he has had treatment since the accident from Dr Camille (in Arncliffe) and Dr Ahmed (in Bradbury).
Mr Al-Fartoosi said an ambulance came to the scene and the police took his details at the scene, but he does not provide any details of injuries and says he was not treated at hospital.
The insurer uploaded two bundles of documents relevant to the claimant’s previous accident which include:
(a)    a mental health plan was developed by Dr Ahmad (First Care Medical Centre Bradbury) on 31 May 2020 for mixed anxiety and depression and a referral was given to Ms Dang, psychologist on 31 May 2020 “for an opinion and management of depression/anxiety;
(b)
the claimant was referred by Dr Aung (of Queen Street Campbelltown) to

Dr Sringeri on 1 June 2020 noting “he has been having some psychology problems since the accident in 2017 (Nov). I would like him to see you for further management;
(c)    the claimant was referred by Dr Aung to Ms Dang, psychologist on 3 June 2020 “for psychology assessment and further management as he has been experiencing some mental health issue since the accident in 2017 (Nov);
(d)    Ms Dang reported to Dr Aung on 5 June 2020 that the claimant had experienced depression and anxiety since a car accident in November 2017. She said he had not yet made a claim. The claimant reported a 30 second period of unconsciousness and that while police and ambulance attended, he did not feel the need to go to hospital and went home to sleep instead. The claimant said he was fearful of driving but managed to drive for an hour o two if needed. He said he stopped working as a shuttle bus driver due to pain. He reported that his “long term girlfriend left him about a year after the MVA.” She recommended psychoeducation and cognitive behavioural therapy (CGT) and suggested a mental health plan be developed;
(e)
a certificate of capacity was dated 25 June 2020 and completed by Dr Mo indicating the claimant had no capacity to work, had “?PTSD” and required psychological intervention. Further certificates were completed by Dr Mo on

8 September 2020, 1 October 2020, 15 October 2020 and 29 October 2020, and
(f)    a report from Dr Griffith, neurologist dated 9 July 2020 where the claimant “emphasised the severity of the accident”. Airbags were activated and the claimant lost consciousness, and fire and police were called. Dr Griffiths has a history of a recent diagnosis of bladder cancer. The claimant was said to be “quite stressed, his girlfriend has left him and he lives alone”. He had poor sleep due to pain.
The claimant had counselling with Mr Nielsen at the Workers Doctors practice on 3 July,

14 and 28 September, 19 October and 30 November 2020 as well as 4 January 2021. Symptoms of post-traumatic stress disorder were reported including poor sleep, nightmares, low mood, driving difficulties, social functioning deficits and withdrawal from recreational activities and delays with personal hygiene.
The claimant attended Dr Lim of Workers Doctors before the current accident. It appears that the claimant may have been last seen on 25 April 2021, but it is more likely the last consultation was on 19 January 2021 where Dr Mo records head trauma, cervical radiculopathy, left finger problems, lumbar spine radiculopathy and a possible post-traumatic stress disorder. Dr Mo notes the claimant had seen two rheumatologists (Dr White and Professor Pile) in 2019 and 2020 and an orthopaedic surgeon, Dr Smithers.
The claimant has attended the Bradbury First Care Medical Centre with records commencing on 22 November 2018. There were multiple attendances for pain in the left 2nd or ring finger. Th claimant saw a hand surgeon and had investigations. Panadeine Forte had been given. There was no mention of the motor vehicle accident in 2017 at this time. A referral was provided on 22 January 2019 to Dr White, rheumatologist. A second opinion was requested and a referral to Professor Youssef was given.

There were regular attendances from April 2019 for ear infections and ear issues and later in 2019, heel pain and plantar fasciitis.
On 23 May 2020 the claimant attended Dr Nguyen at Bradbury “to report that he has massive car accident on 15 November 2017 in Mascot area.” On 26 May 2020, Dr Ahmed records urological issue and back pain and Endone was given. On 29 May 2020 physical complaints of neck, lower back and right shoulder were recorded.
On 31 May 2020 the claimant reported symptoms of low mood, reduced interest in activities, reduced concentration and a mental health plan and referral to Ms Dang, psychologist was given.
Physical complaints of pain are made thereafter and on 9 October 2021 the claimant sought a referral to Dr Singh, spinal surgeon and a referral was given. On 5 December 2021 the claimant reported an assault causing neck pain. The claimant attended in March 2022 for COVID vaccinations but there are no further attendances until 5 January 2023.
The claimant reported a right toe injury on 24 September 2024 after falling over in the mall. There is a final attendance on 14 November 2024.
There are no references to the car accident of 9 July 2022 or any symptoms after that date reported to this practice that might be connected to the car accident.

Claim form and claim documents

The claim form is dated 12 July 2022. The claimant disclosed his previous accident and claim and that the following injuries were affecting him at the time of the accident:
“Neck, lower back, left hip, anxiety.”
The claimant gives a consistent history of the accident and lists his injuries as follows:
“Head, neck, right shoulder, left shoulder, middle back, right knee, lower back, hips, psychological sequelae, anxiety.”
The police report records the claimant was driving at 15kmph and that the other driver was travelling at 60 kmph saying:
“ At 5:56am on Saturday the 9th of July 2022 [the claimant] was travelling east on St Johns Rd, Campbelltown. DRI 1 has approached the rear of [the claimant’s vehicle] making contact with the rear bumper. DRI 1 has than caused VEH 1 to side swipe the offside of [the claimant’s vehicle] causing significant damage to the painted surface of both doors and causing the offside mirror to brake off. VEH 2 than drove over the median strip and sped away from the scene.

Treating medical records and reports

The Discharge summary from Campbelltown Hospital reports cervical spine tenderness and headache and that a CT scan of the brain and cervical spine was negative. The claimant had an MRI due to continued cervical spine tenderness and developed a reaction to the contrast dye. He was advised to see his GP in two to three days for follow up and to take simple pain relief (Panadol).
The summary also records “42 [year old male] walk in MVA, rear-ended approx. 80 – 90 km/hr, car written off.”
The claimant attended a telehealth appointment with Dr Lim on 26 July 2022 at the Workers Doctors Practice. The doctor records “patient wants to withdraw CTP claim as he wants to return to drive a taxi.” Dr Lim diagnosed a cervical spine aggravation, bilateral shoulder aggravation, lumbar spine aggravation, hips strain and posttraumatic stress disorder. Dr Lim records the claimant was hit from behind, taken to hospital and that he had not worked. The claimant reported sleep disturbance due to pain and nightmares and he had lost confidence to drive and drives locally only. The claimant’s pre-accident GP was listed as Dr Aung. Previous injuries of neck, shoulder and low back were noted from the previous accident on 15 November 2017.
Referrals were written by Dr Lim for physiotherapy, psychological therapy, Dr Khong, neurosurgeon and an MRI.
There are no further notes from Dr Lim after this.
Dr Mahfoud provided the first certificate of fitness which is dated 27 July 2022. He diagnosed “neck pain / cervical soft tissue injury.”
He said he first examined the claimant on 27 July 2022 and said there were no relevant pre-existing factors. He said treatment included medication (Panadeine Forte and Nurofen) as well as physiotherapy.
Dr Mahfoud said the claimant had no capacity to work from 9 July to 27 July 2022 but some capacity to work for 6 hours a day 4 days a week.
The GP records from Dr Mahfoud are consistent with the certificate of fitness. The claimant first attended on 27 July 2022, had neck pain to the right side with a good range of motion and no radiculopathic signs. There is another attendance on 24 August 2022 (for the next certificate of fitness) and physiotherapy was to continue.
On 5 September 2022 the claimant next attended reporting poor sleep, early morning wakening, low self-esteem, normal mood, anxious, no stress at work, no relationship problems, no financial problems, no recent bereavement. Irritability, Irrational fears, no panic attacks. No compulsory behaviours, no delusions. No auditory or visual hallucinations. No suicidal thoughts. No suicide attempts. No substance abuse. The diagnosis was “Adjustment Disorder post MCA ? (provisional).” A referral to a psychologist was offered but the claimant “opted out.”
On 3 May 2023 Mr Al-Fartoosi had been overseas as his brother had died in Germany. He was grieving.
On 30 January 2024 the claimant visited Dr Mahfoud and it was noted he had not “been for CTP claim since last year” and that he spoke with his lawyer Ivan about return to work and his post-traumatic stress disorder injury.
On 8 February 2024, Dr Mahfoud reviewed Medical Assessor Hong’s report.
On 27 February 2024 the claimant attended because he was going overseas.
On 24 April 2024 the claimant visited to discuss “surgical options for the cervical radiculopathic pain / PTSD”. The claimant was tender in the right side of the neck.

Medico-legal reports

Dr Keller provided a report dated 24 November 2021 to the insurer in respect of the earlier accident.
He has a history of the claimant continuing his shuttle bus driving business until 2020 but ceasing this due to pain. He received Centrelink benefits at this time (Job Keeper) during Covid. He had seen a Dr Hsu, spinal surgeon, was reviewed by Dr Singh in 2020 and surgery was recommended. After Job Keeper benefits ceased, the claimant commenced work as a taxi driver,
The claimant complained of intermittent pains in his neck and back of between 3 and 10 out of 10. He also reported pain in his hip and neck and that his “psychological status is not normal.”
Dr Teoh provided a report to the claimant’s solicitors on 5 December 2021 also for the first accident. The claimant had an Arabic interpreter present.
He has a report of the police, ambulance and fire brigade attending the accident. He reported that “a woman he was living with left his house.” He reported problems with lawn mowing, cooking and attending to personal care and sought help from friends. The claimant could not go to the gym or do weightlifting.
The claimant reported insomnia, intrusive memories of the accident, worry about his future and staying at home. The claimant reported three or four sessions of counselling in 2020 and prescription medication.
Dr Teoh has a history of the claimant migrating from Iraq in 2011 as a refugee.
Dr Teoh diagnosed a chronic adjustment disorder with depressed mood noting his prognosis was poor as his condition is chronic. He assessed the claimant’s WPI at 15%.
Dr Teoh provided a report to the claimant’s solicitor, dated 26 August 2024. Dr Teoh has a history of the 2017 accident. In respect of the current accident, he notes the claimant injured his neck, back and shoulder and that an orthopaedic surgeon has recommended surgery. He is unable to do the gardening or cleaning and cannot return to work. The claimant complained of insomnia, irritability and being argumentative. He reports that his partner left the relationship and he was worried about his future and physical condition. He was having intrusive memories of the accident.
Dr Teoh records at page 2 the claimant “has no past history of psychiatric injury” however at page 4 he documents a pre-existing psychiatric condition which he appears to be suggesting is related to the motor accident.
Dr Teoh diagnoses chronic pain, physical disability and depression which he says was caused by the accident. He notes the claimant has not had any psychological treatment since this accident including medication.
Dr Teoh diagnosed a major depressive disorder noting his prognosis was poor as his condition is chronic. He assessed WPI at 20% but did not apportion any of this to the claimant’s pre-existing condition.
Dr Antoun provided a report to the insurer on 18 January 2023. He was asked to provide a report in respect of the causation of the pathology in the claimant’s cervical spine. His view was there were no reported acute or traumatic features but that there was “progressive degenerative cervical pathology.”
Dr Synnott, psychiatrist provided a report dated 28 November 2024 to the insurer.
He has a history from the claimant that in the 12 months before the accident Mr Al-Fartoosi had no psychiatric difficulties and that since the accident there has been no other contribution to his psychiatric difficulties other than the accident.
The claimant said the accident occurred at 120 – 130kms per hour and that after the collision the driver fled the scene. The claimant said he drove the car home (which was 100 – 200m away). He saw his GP later in the day and went to Campbelltown Hospital for two days.
The claimant complained of neck, right shoulder pain, back pain and headaches. He says these symptoms prevent him from working and restricts his personal life.
The claimant reported disturbed sleep, nightmares and upset since the accident. He is cautious and apprehensive when driving. The claimant reported seeing his GP but not seeing a psychologist or psychiatrist, and he has not been prescribed medication.
The claimant said his current symptoms are worse how because of his physical symptoms and pain and he lives near the accident scene and is reminded of it.
The claimant reported working full time five to six days a week, 10 to 12 hours a day before the accident, return to work after two to three months on reduced hours and days. The claimant said he was off work and had not worked since about eight months after the accident (this is not clear) and he is living on insurance payments.
The claimant reported depression, disturbed sleep, anxiety and nervousness, impairment concentration and memory, loss of motivation and interest, loss of appetite, excessive drinking, upset by reminders, flashbacks. He was said to no longer drives a car.
The claimant reported the demise of a previous relationship. He says he currently sleeps on and off throughout the day and does little else.
He had not seen his GP for the last three months or anyone about his mental health issues. The claimant reported that his previous motor accident was in 2016, was minor and he had no psychiatric difficulties.
Dr Synnott diagnosed an adjustment disorder with anxiety and depressed mood. He noted the claimant’s history of minimal symptoms after the earlier accident was inconsistent with the medical records. He did however suggest this would have left the claimant vulnerable to and predisposed him to further psychiatric difficulties. However, Dr Synnott was concerned about the veracity of the claimant’s account.

Other assessments

Medical Assessor Menogue examined the claimant on 20 April 2023. He confirms at [2] he was asked to assess a lower back and cervical spine injury.
He has a history from the claimant at [8] – [10]:
(a)    he came to Australia in 2007, working as a bus driver until 2017 and then as a self-employed taxi driver in 2021. The claimant reported driving 6 – 8 hours per day, 4 -5 days per week but has neck pain and stiffness which sometimes prevents him driving;
(b)    he performs internal domestic chores slowly but has assistance with the gardening;
(c)    he had a previous accident on 15 November 2017 and a claim made against NRMA but all injuries had resolved and at the time of the current accident he was having no treatment for any physical ailment;
(d)    Mr Al-Fartoosi said he had medication 3 – 4 days a week but did not recall the name of it;
(e)    the mechanism of the accident was a rear-end collision and side swipe of the claimant’s taxi by a vehicle that did not stop;
(f)    a friend came to the accident and drove the taxi home and it was repaired;
(g)    he experienced neck pain and headaches, could not get an appointment to see his GP so went to another GP (Dr Raji) before going to the Emergency Department at Campbelltown Hospital where he was admitted for investigation (including an MRI of the spine) over two days and was discharged;
(h)    he rested at home, his symptoms increased, and he saw his usual GP (Dr Mahfoud);
(i)    the original certificate of fitness mentioned neck pain only but the clamant had physiotherapy for his neck and lower back which was not helpful according to the claimant, and
(j)    repeat scans were done and on 17 November 2022 the claimant saw Dr Diwan who recommended conservative treatment but who now has suggested surgery.
The claimant reported no lumbar spine pain at the time of the examination suggesting that injury had resolved. The claimant’s neck pain was said to spill over to the right shoulder, there was no pain in the right upper limb, nighttime neck pain with neck stiffness and inability to work the day after. There were some symptoms of pain and sensory change in the left upper limb.
The claimant was fearful of aggravating neck and back pain with movement.
The claimant was diagnosed as having sustained a neck injury with no verifiable radiculopathy and insufficient evidence to support a finding that the claimant had injured his lower back. While there was evidence of a previous injury, there was no objective evidence of a pre-existing impairment immediately before the accident.
The claimant’s neck injury was found to be a threshold injury as there was no “hard evidence” of nerve root impingement, no radiological evidence of acute disc injury and no evidence of radiculopathy.
Medical Assessor Wallace examined the claimant on 11 June 2024 and certified on

19 June 2024 that the claimant’s proposed surgery (C5/6 disc replacement) did not relate to the injury caused by the motor accident and was not reasonable and necessary in the circumstances.
Medical Assessor Wallace notes at [8] that four years after the 2017 motor accident (and

8 months before the current accident) the claimant was still complaining of significant ongoing cervical spine symptoms.
Medical Assessor Wallace has a history of the claimant driving at 40kms per hour when his vehicle was hit from the rear, spun and hit again on the side. Police are said to have attended but not an ambulance. The claimant was taken to hospital by his friend and his car was driven home from the accident scene.
Medical Assessor Wallace has a history of the claimant seeing Dr Diwan, spinal surgeon on 16 January 2023 and that the Doctor was not given a history of the previous accident or the symptoms in late 2021. On 16 January 2023, Dr Diwan recommended disc replacement surgery.
The claimant complained of constant aching in the trapezius radiating to the arms and intermittent paraesthesia and weakness of the arms.
The claimant reported taking analgesia but could not name the medication.
The claimant was 178 cm and weighted 82 kgs and was left-handed.
Medical Assessor Wallace expressed the view that the claimant’s cervical spine injury caused by the motor accident had resolved and that any residual symptoms were due to

pre-existing symptomatic degenerative cervical spondylosis at the C5/6 level.
He found the proposed surgery not reasonable and necessary and not related to the accident. The claimant applied for a review and the insurer responded and President’s delegate Ms Baba on 30 August 2024 rejected the application on the basis she was not satisfied there was reasonable cause to suspect an error in the original assessment.

RE-EXAMINATION FINDINGS

Mr Al-Fartoosi attended the re-examination with Medical Assessors Barrett and Verma. An Arabic interpreter was present throughout.
The re-examination took place by MS Teams. The connectivity was excellent, and the Medical Assessors were able to conduct the re-examination without issue.

History provided by the claimant

Psychosocial history and pre-accident history

Mr Al-Fartoosi told us he was born in Baghdad, Iraq and grew up with his four brothers and three sisters, he being the sixth in sibling order. His father worked as a high-ranking soldier in the Iraqi army, while his mother was a housewife. He reported having a good relationship with his family and denied exposure to any traumatic incidents or adverse events. He stated that he was in the capital and was not significantly affected by the civil war.
We sought clarification regarding any traumatic incidents, he said, “it is something we lived with, we see rockets and it was like seeing a bird in Australia.” He completed high school in Iraq and immigrated to Australia in 2011 as a refugee. We asked how he got here, and he explained that he first went to Malaysia, then Indonesia, and finally to Australia by boat, which took less than three days and which he described as “not particularly dangerous.” He clarified that his father was a higher-ranking officer in the Iraqi army, which put his life at risk when the Saddam Hussain led government fell. His siblings now live in various places; most have left Iraq for London, one is in Sweden, another lived in Germany but has since passed away, and one still resides in Iraq.
He began working at age 31 after being granted the right to work, initially starting at Coles, before becoming a driver at Sydney International Airport and then for airline crews, eventually working as a subcontractor. He denied experiencing any mental health issues resulting from his experiences during the war, the immigration process, or the Gulf War situation with Iran.

He said he was involved in a previous motor vehicle accident in 2017 near the airport while driving the shuttle bus. Another driver was reversing in the driveway and hit his vehicle in the centre. He sustained “minor neck injuries” and was treated, returning to his normal life shortly afterwards. He made a claim for “neck injuries,” stating he had symptoms of pain in the neck and was prescribed pain relief medication. We asked him to clarify the symptoms he experienced, to which he reiterated that he had “minor symptoms.” We then took him to the report by Dr Teoh, psychiatrist, dated 5 December 2021, which mentioned, four years after the accident social withdrawal, irritability, and intrusive memories. Mr Al-Fartoosi’s response was simply that, “I return to work without any problems.” He indicated that he resumed work after about a week. Dr Teoh’s report also suggested he was working part-time, but he clarified that he later began working full-time. He did not recall seeing any psychologist or psychiatrist for treatment after the 2017 accident.
Mr Al-Fartoosi then said that he improved completely after December 2021. He said, “my physical symptoms got better, and I had no problems physically and I went to work to my normal life.” We asked him about Dr Teoh’s history of his relationship breakdown after the 2017 accident. Mr Al-Fartoosi clarified that he was in a relationship with a different girlfriend prior to the 2017 accident which broke up after that accident. He mentioned having another relationship with a lady named “Raha” which started a few months before the current accident and which ended about five to seven months after the accident. We tried to clarify why the relationship ended, he said, “she did not say anything”, but he offered that he thought she left due to his experience of pain.
At the time of the accident, Mr Al-Fartoosi worked as a taxi driver since his former employer had closed down during COVID. He drove a taxi and usually drove rental taxis full-time. He clarified that his mental health was “very good” and that he had overcome all the symptoms from 2017. He denied seeing any psychiatrist or psychologist at the time of the accident. The panel then asked him to clarify the symptoms mentioned in Dr Hong's report, dated

19 January 2024, concerning pre-accident symptoms, to which he said, “maybe I did not have the interpreter, and I was talking about this accident.”

He was off work for a month, stating that he returned to work after about a month and only worked short hours. He stopped working completely in mid-2024. He explained that the reason for stopping work was “pain and was getting worse.” He added that “pain in both arms and neck restricted movement and not being able to turn and look over the shoulder.”

Mr Al-Fartoosi also reported that his “sugar levels went up after the second accident,” but later he was unsure whether this was before or after the accident. He was prescribed medications for his blood sugar but has been trying to control it with diet. He has been experiencing urinary incontinence for about four to five months and has also had falls.
We discussed with him the documents mentioning bladder problems, including bladder cancer, and he then informed us that he was diagnosed with bladder cancer about four to five years ago. He has blood in his urine and has been sent to specialists. He has had

check-ups and follow-ups since then. The panel went over Dr Ahmed's notes, which indicated no mention of the accident in 2022. Mr Al-Fartoosi explained that instead he went to Workers' Doctor immediately as he was advised to see a workers' compensation GP.
He currently lives alone in Bradbury and has no children or dependents. He is receiving insurance payments, has also received workers' compensation, and has been paying off loans, including three credit cards. He has not received any NDIS or disability payments and lodged a workers' compensation claim related to the 2022 accident, as he was employed at that time.

History of the motor accident

Mr Al-Fartoosi was involved in a motor vehicle accident on 9 July 2022. He was driving alone in Bradbury, near his house, at around 40km per hour in a 60km per hour zone. The other car was speeding, he thinks at approximately 120km per hour, and rear-ended him before striking his vehicle from the side again. He noticed the driver laughing and they did not stop after the initial collision. His airbags did not deploy, but his car was damaged at the rear and on the side.
The car was later written off, as it would have cost more than $2,000 to repair. The police and ambulance arrived, and he was taken to Campbelltown Hospital, where he was admitted for two days. He was informed that the other driver was possibly driving a stolen vehicle.
He says he suffered a neck injury, a right shoulder injury, and pain in his neck, upper back, and shoulder. He received treatment in the hospital for bruises and soreness but there were no fractures or lacerations.

History of symptoms and treatment following the motor accident

Mr Al-Fartoosi reported that he experienced pain on the right side of his face, neck, and arm immediately after the accident. Movements of his neck and shoulder were restricted. He later experienced numbness in his arm, and these symptoms have fluctuated. He also had back pain and had to use extra pillows for support while sitting for long periods. He was no longer able to “work to do chores at home, gardening, had difficulty picking things from floor.”
He tried returning to work after about a month and was able to resume driving but felt able to only “drive short distances.” When driving, the pain in his neck was exacerbated. He added that the “pain in his right side, back, restricted movement, lack of sleep and nightmares” all impacted his ability to drive. He lost confidence and felt anxious when he drove because of his physical difficulties and because he was fearful of getting into another accident.
He described his mood as “hating himself most of the time.” He was not able to do most tasks, which impacts his sense of identity and self-confidence, and he found it very frustrating. He was unable to sleep well, because of pain. excessive thinking and nightmares. However, he reported he did not remember his dreams but would often wake up from them.

History of any relevant injuries or conditions sustained since the motor accident

Mr Al-Fartoosi reported a history of multiple falls and that he loses consciousness before he falls. He has had about eight falls in the last year. He once fell while crossing the street. He said that he did not have energy and could not communicate with others, but he did not lose consciousness at that time. He has however, had another episode of falling when he lost his consciousness and was incontinent and he injured his head, causing a laceration which was glued. His specialist has advised that he needs an operation.

Current state

Current symptoms

Mr Al-Fartoosi says his mood has been getting worse. In the first year, he was able to sleep “on and off,” but now he only sleeps for about “four hours altogether.” He experiences pain and nightmares, and he jumps from sleep. But he still does not remember the content of his dreams. He also experiences “neglecting himself and not looking after himself.” He added that the insurance company used to send people to clean his house occasionally and look after the garden. He buys pre-prepared food that is ready to be put in the microwave and oven. He handles the grocery shopping from a fruit shop nearby. Initially, he put on weight, but now he is losing it. His pre-injury weight was 88 to 89 kg, and now he weighs 76kg. He is not exercising, nor is he on any weight loss medication, and he said the weight loss was unintentional.
He experiences death wishes but denies having any particular suicidal ideas, plans, or intent. He drinks alcohol occasionally and denied using it regularly. He denied using any illicit drugs or gambling. He smokes about two to ten cigarettes a day.
He has been able to go to the accident site, as it is close to his home, and he sees it every time he leaves home.
On a typical day, he wakes up, goes back to sleep for about half an hour, and then sleeps on and off all day. He does not sleep at night. He goes to the nearby shops two to three times a week and spends time at the shop. Sometimes, he watches TV, including Australian and Arabic channels.

Current and proposed treatment

He is on pain relief medication. He is not taking any anti-depressant or anti-anxiety medication. He reported that he is waiting for approval to start treatment although he is not clear what treatment this is. He did not remember seeing a psychologist after the current accident and then said that he might have talked either to a psychiatrist or psychologist, “once or couple of times over the phone,” but had forgotten who it was.

Clinical Examination

Mental State examination

Mr Al-Fartoosi engaged well during the assessment and was cooperative. He presented as a 45-year-old male who looked slightly older than his stated age. He had short hair, frontal baldness, and a neatly trimmed beard and moustache. He yawned at times during the assessment; however, he was able to provide detailed information regarding the accident. He reported that his mood was low and his affect was slightly dysphoric. His speech was spontaneous and normal in volume and tone. His thoughts were logical and goal-directed. He currently reported ongoing nightmares, low mood, and a lack of interest in activities. There was no evidence of any manic, psychotic, or perceptual abnormalities. He was able to focus and pay attention during the assessment (about one and a half hours). He had insight into his condition, and his judgment was intact.

Current functioning

Self-care: He showers three times a day and at night due to urinary incontinence (related to his bladder cancer) and brushes his teeth once or twice a day. He maintains an adequate level of personal hygiene.
Driving: He leaves home when he needs to buy items from the shopping centre or attend medical appointments. He travels overseas to Malaysia to visit his mother, father, and brother. He has travelled about once a year to see them, with his last visit occurring approximately three months ago for 12 days. During this trip, he stayed with a family friend.
Recreational activities: He previously enjoyed “going out with friends, doing activities,” but he reports that he does not go out much anymore.
Social functioning: He separated from his new girlfriend about six months after the accident. He used to have two or three friends who would visit, but he is unsure why they have stopped coming around. He no longer has contact with them and denied receiving any community support.
Work and education: He stated that work was the most important aspect of his life, and if he could manage his urinary problems and undergo the next surgery (to this neck), he felt he could return to some form of work.

Comments of consistency

There are several minor inconsistencies in the history given by the claimant. For example, Medical Assessor Hong records the claimant did not return to driving for three months after the accident whereas he told the Medical Assessors on the Panel that he was able to return to some driving within a month of the accident.
There were inconsistencies in the history of the accident in particular the speed of the other vehicle. The police have a history (on the day of the accident) of the at fault vehicle travelling at 60kms per hour, the hospital have a history (from the claimant) of 80 – 90kms per hour, Dr Synnott took a history of the vehicle hitting him at 120 – 130kms per hour and Medical Assessor Hong has a history of the other car at 120 kms per hour. Mr Al-Fartoosi told the Medical Assessors on the Panel he thinks the other car was speeding at 120kms per hour.
The Panel notes the claimant downplayed the 2017 accident, saying at first it was a minor accident, causing physical neck injuries only. After the report of Dr Teoh was put to
Mr Al-Fartoosi, he accepted he had psychological symptoms but again attempted to minimise those saying he had recovered completely before the current accident. However, the Panel notes that in his claim form completed on 12 July 2022 the claimant admitted having symptoms of anxiety at the time of the accident.

CONSIDERATION OF THE ISSUES

Did the accident cause a psychological or psychiatric injury?

Under s 3.11 and s 3.28, Mr Al-Fartoosi’s entitlement to statutory benefits beyond 26 weeks after the accident is dependent upon his injuries “resulting from” the motor accident being non-threshold injuries. This requires a decision about what injury or injuries resulted from the accident. In considering a similar issue in a case about entry into the Lifetime Care and Support scheme, Beech-Jones J in Insurance Australia v Milton[7] said at [35]:
“Construed in context the phrases “as a result of” and “due to” most likely correspond with the common law concept of causation.”
[7] [2015] NSWSC 1392.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[8], Walton J in a dispute about “minor” (now threshold) injury said at [40]:
“The second defendant [The Panel] failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[8] [2021] NSWSC 804.
The relevant Guidelines referred to by Walton J are the Motor Accident Guidelines.
Wright J in the later decision of Briggs v IAG Limited t/as NRMA Insurance[9] said:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor[10] injuries.”
[9] [2022] NSWSC 372 at [35].
[10] The terminology in the legislation was at the time Briggs was decided that of “minor” injury. The term since 1 April 2023 is that of “threshold” injury.
The Panel is not aware of, and has not been taken to, any other cases suggesting a different test to the usual test of causation should be applied.
Therefore, in answering the statutory question about threshold injury, the Panel will consider the Guidelines relevant to impairment and the twofold test of causation contained therein at cl 6.6:
(a) whether the accident could have caused or contributed to the injury, which is a medical judgment, and
(b) whether the accident did in fact cause or contribute to the injury, which is a factual or legal judgment.
Mr Al-Fartoosi was involved in a motor vehicle accident on 9 July 2022, during which his car was rear-ended by another vehicle. It is not entirely clear how fast the other vehicle was travelling however the Panel notes the police have called it a “major traffic accident”. The claimant’s evidence is that while he was able to drive his vehicle the short distance to his home after the accident, his vehicle was later written off.
At a speed of 60kms per hour or more, the Medical Assessors accept that the accident would have been a serious one. Damage was done to the vehicle, there was more than one impact and the offending driver apparently sped off without rendering assistance to the claimant. The Medical Assessors are of the view that these circumstances could have caused or contributed to a psychological or psychiatric injury.
The question remains whether the 9 July 2022 accident did in fact cause or contribute to a psychological or psychiatric injury.
Mr Al-Fartoosi included “anxiety” in his claim form completed three days after the accident. Dr Lim records on 26 July 2022, two weeks later, psychological symptoms and referred the claimant for counselling. There is a clear temporal and causal association between the onset of psychological symptoms and the car accident. The Panel therefore accepts that the motor accident caused a psychological or psychiatric injury.

What is the diagnosis of the claimant’s injury?

It is the clinical judgment of the Medical Assessors that Mr Al-Fartoosi's presentation and symptoms since the accident are best explained by a diagnosis of an adjustment disorder.
The diagnosis of adjustment disorder is based on the DSM-5 criteria as follows:
(a)    Criterion A - the development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of the onset of the stressor. Mr Al Fartoosi was involved in an accident on 9 July 2022 and reported anxiety in his claim form completed three days later and symptoms were noted by Dr Lim three weeks after the accident;
(b)    Criterion B - these symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
(i)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 – the claimant was physically injured in the accident although sustained no broken bones or lacerations and on a background of a previous motor accident more than four years previously, and
(ii)significant impairment in social, occupational, or other important areas of functioning – Mr Al-Fartoosi has lost a relationship and ceased working as a result of his physical problems contributed to by his psychological symptoms;
(c)    Criterion C - 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 are of the view there is no other mental disorder and that the claimant’s current adjustment disorder symptoms represent an aggravation (permanent worsening) of his pre-existing adjustment disorder and not a temporary exacerbation of that disorder;
(d)    Criterion D – while other examiners have reported on the claimant’s grief following the death of Mr Al-Fartoosi’s brother, it is the clinical judgment of the Medical Assessors that the claimant’s current symptoms do not represent normal bereavement, and
(e)    Criterion E - once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months. Mr Al-Fartoosi continues to experience pain from his accident-related physical injuries as well as significant symptoms from his bladder cancer. The effect of the motor accident has not ceased.
Mr Al-Fartoosi has a history of mental health symptoms related to a motor vehicle accident in 2017. His treatment for mental health issues following that accident is documented in paragraphs 49 to 61 above. He reported to the Medical Assessors of the Panel experiencing “only minor psychological symptoms which resolved after about four years after the accident.” The panel notes the December 2021 diagnosis of an adjustment disorder by

Mr Al-Fartoosi’s own qualified expert Dr Teoh. Dr Teoh assessed a 15% WPI resulting from that disorder which suggests a significant impairment present at that time. Despite this, Mr Al-Fartoosi denied any symptoms at the time of the accident, but the Panel notes this is contrary to what he said in his own claim form.
If the claimant’s evidence at the re-examination is accepted and he had fully recovered from the psychological effects of his 2017 accident and had no psychological symptoms from his bladder cancer diagnosis at that time, it is the clinical judgment of the Medical Assessors that the claimant’s adjustment disorder would be wholly attributable to the motor accident.
If the claimant’s evidence at the re-examination is not to be accepted and the claimant’s evidence in his sworn claim form of 12 July 2022 is accepted, then it would appear Mr

Al-Fartoosi was experiencing symptoms of his previous adjustment disorder including anxiety at the time of the current motor accident. If that is the case, then it is the clinical judgment of the Medical Assessors that the current motor accident would be an aggravating stressor and a more than negligible contribution to his current condition.

Differential diagnoses

A psychological or psychiatric injury results in symptoms. The DSM 5-TR provides a tool for the diagnosis of a disorder based on the symptoms experienced and reported by the injured person. In determining a diagnosis, the Medical Assessors in their clinical judgment have considered various possible diagnoses (including those suggested by other examiners) before settling on the most appropriate diagnosis (differential diagnosis).

Does the claimant have a posttraumatic stress disorder?

Dr Lim on 26 July 2022 identified symptoms suggestive of post-traumatic stress disorder and Medical Assessor Hong diagnosed a posttraumatic stress disorder.
The Panel considers that it is possible the mechanics of the accident satisfy criterion A of a post-traumatic stress disorder if the vehicle that hit Mr Al-Fartoosi’s vehicle was travelling at 120kms pr hour. However, it is the clinical judgment of the Medical Assessors that the claimant does not, and has not, satisfied the criteria for a post-traumatic stress disorder since the accident for the following reasons:
(a)    Mr Al-Fartoosi developed anxiety and was unable to drive for a time but has managed to resume driving within a month;
(b)    although he has reported some post-traumatic symptoms, including experiencing nightmares, he could not recall the content of these dreams. Further, nightmares are experienced in multiple psychiatric conditions, as well as in normal people, and are not pathognomonic for posttraumatic stress disorder;
(c)    there were no avoidance symptoms, Mr Al-Fartoosi says he has been able to pass by the site of the accident daily since it is near his home, and provided a history at assessment that he returned to work as a taxi driver about one month after the accident, 16 hours a week, which he continued up until early to mid-2024, when he stopped work which he said was due to his experience of pain, and
(d)    there are no reported significant changes in his cognition or mood.

Does the claimant have a major depressive disorder?

Dr Teoh diagnosed, in August 2024 a major depressive disorder. Dr Teoh does not have a history of the claimant’s bladder cancer, his urinary incontinence and his numerous falls and episodes of loss of consciousness.

While there is limited information, the Medical Assessors are of the view that Mr Al-Fartoosi’s medical comorbidities, including bladder cancer, may be contributing to his substantial weight loss and the multiple falls he has experienced over the past year are also contributing to his current mental health state.
It is the clinical judgment of the Medical Assessors that Mr Al-Fartoosi does not have a major depressive disorder or an exacerbation of the same. The Medical Assessors note that the symptoms he experienced after the first accident included significant pain symptoms which impacted his mental health. He did not report experiencing significant mood changes after the first accident. He did not face any impairment in social or occupational functioning and continued to work as he had before the first motor accident. He was able to initiate a new relationship and was in a relationship at the time of the current accident. He denied any substantial changes in his socialisation or friendships.
Although he now describes negative self-image, he made it very clear to the Medical Assessors that this arises secondary to his physical restrictions and relationship break-up. It is the clinical judgment of the Medical Assessors that this is more consistent with the finding of an adjustment disorder, where symptoms arise due to a stressor, and are expected to resolve if the stressor were to resolve. On mental state examination, he did not display the signs expected in major depressive disorder, such as, but not limited to, abnormalities of speech or psychomotor changes.

CONCLUSION

In Todev v AAI Limited t/as GIO and AAI Limited t/as GIO v Hoblos,[11] two other Review Panels determined that if an injured person 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 injury is a ‘non-threshold’ injury. The Panel adopts this reasoning and adapts it to Mr Fartoosi’s case. The Panel is of the view that an aggravation of a pre-existing threshold psychiatric condition (such as an adjustment disorder) may be a new injury, but it is a threshold injury.
[11] [2023] NSWSC 836 and [2023] NSWPICMP 210.
The Medical Assessors on this Panel have, in their clinical judgment diagnosed an adjustment disorder. Whether that disorder was caused solely by the 9 July 2022 accident or a pre-existing disorder was made worse by the 9 July 2022 accident, will not affect the outcome. In accordance with s 1.6((4) of the MAI Act and cl 4(2) of Part 1 of the Regulation, an adjustment disorder (including an aggravation of an adjustment disorder) is a threshold injury.
As the Panel has come to a different conclusion to Medical Assessor Hong, it follows that his certificate must be revoked, and a fresh certificate issued.

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Citations

QBE Insurance (Australia) Limited v Al-Fartoosi [2025] NSWPICMP 419

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Insurance Aust v Milton [2015] NSWSC 1392

Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

[2025] NSWPICMP 419

13 June 2025