Sam v QBE Insurance (Australia) Limited

[2025] NSWPICMP 722

DETERMINATION OF REVIEW PANEL

CITATION:

Sam v QBE Insurance (Australia) Limited [2025] NSWPICMP 722

CLAIMANT:

Sam Sam

INSURER:

QBE Insurance (Australia) Limited

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Ronald Gill

MEDICAL ASSESSOR:

Christopher Rikard-Bell

DATE OF DECISION:

18 September 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury disputes; claimant was stationary waiting for a vehicle in front to park; insured vehicle collided with the rear of the claimant’s vehicle; claimant went to hospital later that day initially with few complaints; diagnostic scans were performed and he was sent home for treatment by his GP; claimant was complaining of severe neck pain, pain between his shoulders, and severe lower back injury with numbness/pins and needles extending down both arms; claimant was working as a cleaner; claimant ceased work about two months after the subject accident after suffering a fall at work; Medical Assessor certified that claimant did not suffer a psychological/psychiatric injury as a result of the accident; Held – Review Panel found claimant suffered chronic adjustment disorder secondary to chronic pain with anxiety and depression; certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate dated 11 April 2024 and issues a new certificate determining that:

(a)    The following injury caused by the motor accident:

(i)     chronic adjustment disorder secondary to chronic pain with anxiety and depression,

is a THRESHOLD INJURY for the purposes of the Act.

(a)     

STATEMENT OF REASONS

INTRODUCTION

1. On 25 September 2018, Sam Sam (the claimant) was driving home from the RTA office in Bankstown. He was stationary on Belmore Road at Riverwood waiting for a vehicle in front to park. The insured vehicle collided with the rear of the claimant’s vehicle. The accident happened near his home. The other driver said that he would lose his licence if police were called. The vehicle being driven by the claimant was leased by his son. It subsequently was repaired with the bumper bar being replaced.

2. The claimant went to St George Hospital later that day initially with few complaints. Diagnostic scans were performed, and he was sent home for treatment by his general practitioner. Within six months, the claimant was complaining of severe neck pain, pain between his shoulders, severe lower back injury with numbness/pins and needles extending down both arms. He may have consulted a psychiatrist.

3. The claimant was born in Beirut of Kuwaiti extraction. His family fled the civil war in Lebanon. The claimant lived in several countries before coming to Australia in 1991/1992. He has been in receipt of the disability support pension for many years. At the time of the subject accident, he was also working as a cleaner. He ceased work about two months after the subject accident after suffering a fall at work.

4. QBE Insurance (Australia) Limited (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accident Injuries Act 2017 (the Act). The insurer declined liability for payment of statutory benefits after twenty-six (26) weeks on the basis that the claimant had suffered a minor soft tissue injury. That decision was confirmed upon internal review.

OTHER ASSESSMENT

1. The claimant was involved in a subsequent motor accident on 9 December 2019 which was a head-on collision. A separate threshold injury dispute arose from that accident. It also was referred to Medical Assessor Mathew Jones for determination. He certified on 11 April 2024 as follows:

The following injury caused by the motor accident:

• Adjustment Disorder with Depressed Mood and mixed Anxiety

is a THRESHOLD INJURY for the purposes of the Act.

That certificate is the subject of a separate review before this Panel.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred for assessment by Medical Assessor Matthew Jones who certified on 11 April 2024 as follows:

The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:

• Psychological injury

A decision as to whether these injuries are a threshold injury is not required or the purposes of the Act.

Medical Assessor Jones said there were no major inconsistencies in the claimant’s reported narrative or presentation at assessment. In the Medical Assessor’s opinion, there was no psychiatric injury caused by the subject accident.

THE REVIEW

1. The claimant sought a review of Medical Assessor Jones’ certificate, on the basis that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect.

2. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).

3. The claimant’s submissions detail his pre-existing psychosocial and pre-accident history which included a previous motor accident on 29 July 2009 and a subsequent motor accident on
   9 December 2019. The claimant says that his current symptoms were described by the Medical Assessor as including stress, anxiety, panic and confusion.

4. The claimant submits that Medical Assessor Jones dismissed his psychiatric injury based on his having a complicated medical and psychiatric history.

5. The claimant submits that the Medical Assessor failed to provide adequate reasons and an adequate path of reasoning as to why he disagreed that the claimed psychiatric injuries were caused or aggravated by the subject motor accident. It was submitted for the claimant it is not uncommon for persons such as the claimant to have pre-existing injuries and also have accident-related injuries, either by way of primary cause, and/or aggravation.

6. The claimant submitted that the reasons of the Medical Assessor are opaque and that the psychiatric issues mentioned by the claimant were not examined properly by the Medical Assessor as there was no proper discussion. The claimant queries why causation was not found, what is the diagnosis in each area and what is the cause of the claimant’s apparent psychiatric injuries. The claimant says the Medical Assessor did not consider nor discuss those questions.

7. The claimant finally submits that the Medical Assessor did not consider the common law test for causation, nor refer to the Motor Accident Guidelines (Guidelines) on causation. The claimant specifically referenced clauses 6.5 to 6.7 of the Guidelines.

8. The claimant’s review application was opposed by the insurer on various grounds. Briefly, the insurer submitted that the Medical Assessor made clear in the certificate his reasoning for the determination that the alleged psychological injury was not caused by the subject accident.

9. The insurer submitted that the Medical Assessor obtained and documented an extensive history from the claimant, both in relation to his prior medical history, and post-accident history. Particulars of that history are given.

10. The insurer then referenced Medical Assessor Jones’ findings in relation to the claimant’s current functioning and his comments with respect to causation of the alleged psychiatric injury. The insurer responded to each of the claimant’s rhetorical questions relating to causation and diagnosis in each area.

11. President’s delegate, Tajan Baba, issued a Determination of an Application for Review of a Medical Assessment on 11 November 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s failure to provide adequate reasons, and an adequate path of reasoning, in respect to causation.

12. Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the threshold dispute that was referred to Medical Assessor Jones, unless the parties otherwise agree.

13. Pursuant to cl 128(1) of the Personal Injury Commission Rules2021 (the PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.

14. What has been referred for assessment in these proceedings is psychological condition/injury.

15. The Panel notes that the Medical Assessors on the Panel are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychiatric injury caused by the accident and then make a diagnosis of that injury.

16. The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnosis of Medical Assessor Jones, or the diagnosis of the treating doctors or Medico-legal experts, or the particular diagnosis that may have been included in the Application or Reply, in accordance with DSM-5.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel (Panel) consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the Act.

5. All members of the Panel had no previous involvement with the claimant or with this matter.

THRESHOLD INJURY

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.

3. Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.

4. A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.

5. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the Act.

6. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, 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    Diagnostic imaging is not considered necessary to assess threshold injury.

   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.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

1. The parties have presented their respective bundles of documents upon which they rely. The Panel has 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, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Panel has considered:

   Claimant’s Documents

Document Name	Date	Page No
PIC review submissions (See previously)	13.05.2024	10
Certificate of Medical Assessor Matthew Jones (See previously)	11.04.2024	15
Decision of President’s delegate Tajan Baba (See previously)	11.11.2024	28

Accident Documents

Claimant’s application for personal injury benefits	21.03.2019	38
Certificates of Capacity (x6) by Dr Awada	26.09.2018 – 06.03.2019	44 – 59
Police report	03.07.2019	62
Discharge Summary of St George Private Hospital	22.03.2021	68
Insurer’s Liability Notice after 26 weeks	11.10.2019	71
Insurer’s Internal Review Decision regarding threshold injury	22.12.2023	73

Clinical Notes

Clinical notes of Dr Monir Younan	16.11.2023	81
Clinical notes of Dr Ali Ghahreman	Various	86
Clinical notes of Dr Glenn Partners Medical Imaging	Various	94

Medical Reports

Report of A/Prof Ali Ghahreman, neurosurgeon and spine surgeon, to Dr Awada 23.12.2023 97

“Sam had a significant car accident in 2018 whilst his car was stationary…. His car was collided from behind by another vehicle…… travelling at 60 km/hr ….. Sam fell forward and sustained significant flexion and extension and rotational movements during this accident leading to severe neck pain and radiating to the trapezius and the shoulders. Sam also developed lower back pain.

Eventually, in 2020, he had an MRI of the cervical spine that showed disc injuries at C5/C6 and C6/C7, but these represented early injuries which have overtime evolved into significant areas of discovertebral disease with recent MRI confirming uncovertebral hypertrophy, facet changes and discovertebral degeneration….. at C5/C6 and C6/C7. The MRI and bone scan both suggest evolution of the injury sustained in 2018 progressing to severe discovertebral disease at this levels. Historically, I am of the opinion that the disc injuries at C5/C6 and C6/C7 occurred in 2018 and then Sam has experienced progression of these changes over time.”

Radiological investigations

Ultrasound and X-ray left ankle	13.09.2019	100
Ultrasound and X-ray left shoulder	15.10.2019	101
MRI cervical spine	27.02.2020	102
MRI lumbar spine	04.09.2020	103
X-ray right shoulder and right elbow	25.01.2021	106

The Panel notes that the claimant provided no expert evidence from qualified or treating mental health practitioners.

INSURER’S DOCUMENTS

1. The insurer relied upon the following material which the Panel has considered:

Doc No. Document Description Page No

Section A: REVIEW DOCUMENTS

1	Insurer’s review submissions dated 20 May 2024	1 – 3
2	Decision of President’s delegate dated 11 November 2024 accepting review application	4 – 6

Section B: ASSESSMENT DOCUMENTS

1 Insurer’s threshold injury submissions dated 21 February 2024 7 – 20

The insurer references a prior motor accident on 29 July 2009. It provides a summary of the relevant reports contained in the clinical notes of Dr Saeed Kohan, neurosurgeon:

(a)    a pre-accident medical summary of the clinical notes from Dr Monir Youan, psychiatrist; and a pre-accident medical summary of the clinical notes of Dr Camille Awada, general practitioner;

(b)    the insurer notes the last pre-accident Mental Health Plan was generated just five months prior to the subject accident. It submits the claimant had an extensive history of psychological issues prior to the subject accident;

(c)    the insurer notes that no psychological injuries or symptomatology was reported in the claim form; and

(d)    the insurer submits that any psychological symptoms suffered by the claimant relate to his long-standing history of psychiatric injury and/or unrelated events post-accident and are not related to the subject accident, and

(e)    alternatively, the insurer submits that the claimant did not sustained a recognised psychiatric injury in accordance with DSM-5, as required by the Act, in the subject accident.

2 Certificate of Assessor Jones dated 11 April 202 21 – 33

Section C: ALL DOCUMENTS RELIED UPON

1	Report of Dr Bosanquet, orthopaedic surgeon, dated 25 May 2025	34 – 35
2	Supplementary report of Dr Bosanquet dated 2 March 2022	36 – 43
3	Clinical notes of Dr Saeed Kohan	44 – 55
4	Clinical notes of Camille Awada	56 – 299
5	Personal Injury Claim Form dated 22 October 2009	300 – 316
6	Clinical notes of Dr Monir Younan as at 24 August 2022	317 – 356
7	Discharge Referral of St George Hospital dated 25 September 2018	357 – 365
8	X-ray and CT of the cervical spine dated 22 October 2009	366
9	Report of Joseph Montuoro, chiropractor, dated 8 October 2010	367 – 369
10	Discharge Referral from St George Hospital dated 9 December 2019	370 – 373
11	CT scan lumbar spine dated 29 July 2009	374
12	Discharge Referral from Canterbury Hospital dated 31 July 2012	375
13	St George Private Hospital Discharge Referral dated 12 March 2021	376 – 379
14	Report of Dr Ali Ghahreman dated 19 March 2021	380
15	Discharge Referral from St George Hospital dated 29 June 2019	381
16	Discharge Referral from St George Hospital dated 24 September 2012	382 – 385
17	X-ray of the left knee dated 24 June 2019	386
18	Discharge Referral from St George Hospital dated 29 April 2018	387
19	Ambulance Report dated 9 December 2019	388 – 394
20	Progress Note from St George Hospital dated 20 May 2013	395 – 397
21	Clinical Note of Southern Pain Management	398 – 422

1. The Panel notes that the insurer has not provided any expert evidence from qualified or treating mental health practitioners.

EXAMINATION REPORT

1. The report of Medical Assessors Rikard-Bell and Gill is as follows:

   “SAM SAM – EXAMINATION FINDINGS

   The claimant attended unaccompanied for re-examination on 7 August 2025 and was assessed via video conference by Medical Assessors Rikard-Bell and Gill. An Arabic interpreter was provided who facilitated the assessment.

   PSYCHOSOCIAL HISTORY

   1.     Mr Sam Sam is a 56-year-old man who resides with his wife, aged 56, both of Lebanese origin. Mr Sam arrived in Australia in 1992 with his wife. There are six children to the marriage; the eldest is aged 31 and is married with one child. They returned to Lebanon in 1993 when his daughter was born; however, she died at 4 months old from SIDS. They returned to Australia and there was some mental health support over approximately 6 months after his daughter’s death. One son, aged 27, has recently married and another son, aged 25, suffered a seizure with some developmental delay and works at Woolworths. There is a 17-year-old son who is attending high school and the youngest son has spina bifida with bowel and bladder issues and has had an operation on his back. Mr Sam receives the Disability Support Pension, although there was a period over four years when he was working as a cleaner, 4 hours per day, 5 days per week. Mr Sam said he ceased work two months after the motor vehicle accident of 25 September 2018, as he was unable to carry a vacuum cleaner on his back or do the heavy work involved with cleaning.

   PRE-ACCIDENT FUNCTIONING

   2.     Before the motor vehicle accident of 25 September 2018, Mr Sam stated he could dress, feed and manage himself well. He related well to his wife and children. He enjoyed reading and would visit family and friends. He would socialise and enjoyed ice-skating and going to the beach or pool. He would attend his children’s sports events and he was working 4 hours per day, 5 days per week as a cleaner and was transitioning to more permanent work. In addition, he could travel without restrictions.

   PAST MEDICAL HISTORY

   3.     There is a complex medical history with two heart attacks when aged in his early 30s and 13 stents inserted, including three in 2024. Following the heart condition, Mr Sam was awarded the Disability Support Pension. There was a period of paid employment from 2014 to 2018 until the first motor vehicle accident on 25 September 2018. The second motor vehicle accident occurred on 9 December 2019. In 2021, there was surgery for his lower back. In 2013, there was a diagnosis of diabetes and kidney stones in 1992, for which a stent was inserted and subsequently removed. He was prescribed Endone and there have been no issues with kidney stones over the past 10 years. Mr Sam is on a range of medication and treatment, such as insulin for diabetes, cholesterol lowering and heart disease medication, as well as painkillers. There is no family history of psychiatric illnesses and no drug or alcohol issues.

   PAST PSYCHIATRIC HISTORY

   4.     After a motor vehicle accident in 2009, there was treatment with Endone, after which he became dependent for approximately 10 years, resulting in a psychiatric hospital admission in 2013, possibly related to a psychotic episode or in relation to detoxification from opioid dependency. He may have stayed in the hospital for a week or two at this time. The Panel noted the history obtained by Dr Jones that the episode in 2013 was potentially psychotic and he was unwell for six months; however, he fully recovered and there were no ongoing symptoms suggesting a psychotic illness or any other major psychological conditions. There have been no opiate dependency episodes since 2013 and there was treatment with Dr Younan. There was no other history of anxiety, depression or need for treatment from mental health care providers.

   PAST FORENSIC HISTORY

   5.     Mr Sam was involved in a motor vehicle accident in 2009 and became dependent on opiates, resulting in a psychiatric hospital admission in 2013. There were no other motor vehicle accidents, Workers’ Compensation claims, insurance claims or legal issues.

   HISTORY OF THE MOTOR VEHICLE ACCIDENT ON 25 SEPTEMBER 2018

   6.     On 25 September 2018, Mr Sam was involved in a motor vehicle accident as he was returning home from work when there was a rear-end collision, causing neck and lower back problems. He was transported to the hospital by his son and there was lower bumper damage to the vehicle, which was later repaired with anxiety and depression.

   SYMPTOMS AND TREATMENT AFTER THE ACCIDENT OF 25 SEPTEMBER 2018

   7.     After the motor vehicle accident, Mr Sam developed lower back pain; however, he returned to work after a week. He was able to work for two months, but as he was required to carry a vacuum cleaner on his back, he was unable to continue and ceased work. He said the pain was quite severe and he had presented to St George Hospital on two occasions with acute back pain with anxiety and depression after he would experience spasms and occasionally falls. There was treatment with Dr Ghanem and surgery in 2021 and the main problems were related to pain, which resulted in stress in his life. He was prescribed antidepressant medication by Dr Younan, such as mirtazapine. Mr Sam believes he requires surgery for his neck, which he relates to the accident on 25 September 2018 and said he continues to feel frustrated.

   FUNCTIONING AFTER THE ACCIDENT OF 25 SEPTEMBER 2018

   8.     Following the accident of 25 September 2018, Mr Sam required help at home as he had difficulty showering and managing his self-care. There was some friction in his marriage; however, there were no separations. He was able to read and focus on studying scripture. He was involved with the community, but not to the same extent. He attempted to return to work; however, after two months, he could not continue due to physical restrictions and pain. He was anxious when driving and was restricted due to physical symptoms.

   HISTORY OF THE MOTOR VEHICLE ACCIDENT ON 9 DECEMBER 2019

   9.     On 9 December 2019, Mr Sam was involved in a motor vehicle accident when travelling with his children and there was a head-on collision with another vehicle. He said he was immediately in shock and felt a lot of pain. His children were able to get out of the vehicle; however, Mr Sam was trapped for two hours and was administered morphine.

   SYMPTOMS AND TREATMENT AFTER THE ACCIDENT OF 9 DECEMBER 2019

   10.   Following the accident of 9 December 2019, Mr Sam received treatment with Dr Younan, who prescribed escitalopram for several years and there was psychological treatment. He has not received psychological or psychiatric treatment for the past three years due to financial constraints. There was lower back surgery in 2021; however, he is still waiting for surgery regarding his neck. Mr Sam believes that if the insurance company supported the surgery and if the surgery resolved the pain symptoms, then he would be able to return to work.

   FUNCTIONING AFTER THE ACCIDENT OF 9 DECEMBER 2019

   11.   After the accident of 9 December 2019, Mr Sam described unpleasant dreams about flying and about being trapped. He said the pain continued and was exacerbated by the accident of 25 September 2018. He stated there were difficulties caring for himself and it created strain on family relationships. He was able to read; however, his concentration was reduced due to pain and he was unable to work due to pain. There were restrictions with walking and standing due to pain symptoms and he was restricted from driving due to pain.

   CURRENT ROUTINE

   12.   Currently, Mr Sam goes to bed at 10 or 11 pm and wakes every two hours due to pain. He was asked whether there were any nightmares or dreams; however, it was unclear whether there were specific dreams, although there had been dreams about flying, which he said was somewhat frightening. There were no specific nightmares or dreams that appeared to be related to either motor vehicle accident. Mr Sam will wake up in the morning and will make a coffee and smoke a cigarette. He normally showers in the morning and stays home during the day. Sometimes his wife will remind him to eat at about 2 pm. He enjoys reading and is an elder who is respected in the Muslim community. Mr Sam will spend some time with his grandchild and twice per week he attends physiotherapy. He said the pain in his neck varies from 5-7/10 and the physiotherapy offers temporary relief. Mr Sam has not attended any significant social events, although six months ago, there was a wedding when his son was married, which he attended and was a rare outing.

   CURRENT SYMPTOMS

   13.   Mr Sam’s sleep is interrupted every two hours with pain. His appetite is normal and he has gained 6 kg in weight. Mr Sam’s mood fluctuates, where he can feel good at times but is often angry and feels distressed about his life. There have been suicidal thoughts, as it has been five years since the accident and he still feels unwell and has not received the help he requires. There was surgery in 2021 for his lower back and he was in the hospital for 12 days. Mr Sam feels uncertain about the future and he becomes anxious and worried at times. He said the main problem is pain and stiffness in his neck and there is lower back pain constantly rated at 4/10. Mr Sam can walk for 10-20 minutes and stand for 20 minutes and he said he still has pain and numbness in his legs; however, the main problem currently is his neck, which is a constant difficulty.

   CURRENT FUNCTIONING

   14.   Mr Sam is able to care for himself to a degree; however, he requires reminding to eat and shower and will only shower every few days. He said he finds it difficult to shower himself due to pain in his neck and lower back. Therefore, there is no impairment of self-care and personal hygiene from a psychological perspective.

   15.   In terms of social functioning, Mr Sam argues with his wife; nevertheless, she continues to support him. Therefore, there is mild impairment of social functioning.

   16.   In terms of concentration, Mr Sam stated he is forgetful and can only read for 15-30 minutes, then pain symptoms prevent him from continuing. Therefore, there is possibly mild impairment of concentration, persistence and pace.

   17.   In terms of social and recreational activities, Mr Sam has not socialised or enjoyed coffee or a meal out for about three years due to physical restrictions. Therefore, there is possibly mild impairment of social and recreational activities.

   18.   In terms of adaptation, Mr Sam has been unable to work, although he did attempt to work at a friend’s restaurant; however, he was only able to work for one day due to physical restrictions. Therefore, there is no impairment of adaptation from a psychological perspective.

   19.   In terms of travel, Mr Sam is able to drive for short distances, such as to physiotherapy appointments; however, symptoms of pain restrict him from driving longer distances. Therefore, there is no impairment of travel from a psychological perspective.

   MENTAL STATE EXAMINATION

   20.   Mr Sam presented as a pleasant man of stated age with dark hair and appeared to be of large build. He wore glasses and a beard, which was greying. His speech was normal in tone and volume. There was no abnormality of perception. Mr Sam’s affect was reactive, although he seemed quite serious. His cognitive function appeared normal and his thoughts were logical. There was no evidence of psychotic features. Mr Sam’s predominant preoccupation was with the pain he was suffering after the accident and the perceived lack of response from the insurance company regarding his surgical requirements. He said there was surgery for his lower back in 2021; however, there have been ongoing issues with his neck and no surgical treatment has been offered to date.

   DIAGNOSIS

   21.   Mr Sam Sam is a 56-year-old man with a range of medical conditions, including coronary artery disease and placement of 13 stents, diabetes and kidney stones and was placed on the Disability Support Pension at age 32. There was a tragedy involving a daughter at the age of 4 months who died from SIDS when Mr Sam was aged 22, after which he received mental health support for about 6 months after returning to Australia from Lebanon. Following a motor vehicle accident in 2009, he was prescribed Endone and developed dependency, followed by a mental health admission in 2013 for two weeks, which was possibly related to a psychotic episode or in relation to detoxification from opiate dependency. Mr Sam appeared to recover from opiate dependency and has not used opiates for over 10 years. He was able to return to work in 2014 and was working towards increasing his work hours. At the time of the accident on 25 September 2018, Mr Sam was working 4 hours per day, 5 days per week in a cleaning role. Before the accident, he was functioning reasonably well. His medical conditions were manageable and he was able to work in a physically demanding cleaning role.

   22.   On 25 September 2018, Mr Sam was involved in a motor vehicle accident when there was a rear-end collision by another vehicle. Following this accident, Mr Sam sustained severe pain in his neck and lower back and was unable to continue to work. The main focus was on pain symptoms, which have continued to restrict the ability to function and he has developed a chronic pain condition. Secondary to the pain condition, there is some anxiety and depression relating to the inability to continue to work, which has been frustrating and impacted social and family relationships. Therefore, the Panel formed the view that Mr Sam developed a chronic adjustment disorder secondary to chronic pain.

   23.   On 9 December 2019, Mr Sam was involved in a second motor vehicle accident when there was a head-on collision and he was trapped in the vehicle. There was significant pain and he was administered morphine. Following the motor vehicle accident of 9 December 2019, the Panel formed the view that there was chronic adjustment disorder secondary to chronic pain with anxiety and depression. The criteria according to DSM-5-TR are outlined below:

   A.Development of emotional or behavioural symptoms in response to an identifiable stressor within 3 months of the onset of the stressor (the motor vehicle accidents)

   B.Clinically significant symptoms evidenced by:

   1.     Marked distress that is out of proportion to the severity or intensity of the stressor, with anxiety, dreams, feelings of despondency, worry about life, some suicidal thoughts and significant anger and resentment towards the insurance company

   2.     Significant impairment in social, occupational or other important areas of functioning

   C.Not another mental disorder or exacerbation or pre-existing mental disorder

   D.Not normal bereavement or prolonged grief disorder

   E.Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months

   CAUSATION

   24.   It is the Panel’s view that the first motor vehicle accident of 25 September 2018 caused significant pain and inability to work, consequently leading to inability to pursue a more functional lifestyle and the development of a chronic adjustment disorder. The predominant issue has been symptoms of pain impacting his life. Had it not been for the pain, Mr Sam would have returned to pre-accident functioning. Mr Sam was involved in a second motor vehicle accident on 9 December 2019, which exacerbated pain symptoms, leading to an exacerbation of the chronic adjustment disorder causally related to the first accident of 25 September 2018.

   25.   In summary, the Panel is of the opinion that the chronic pain condition is causally related to the motor vehicle accident of 25 September 2018, and that this condition was subsequently exacerbated by the motor vehicle accident of 9 December 2019. The persistence of chronic pain has been a substantial contributing factor in the continuation of psychological distress, with the psychological symptoms being perpetuated by the ongoing pain symptoms.

   26.   Furthermore, major depressive disorder was considered; however, it is the Panel’s view that Mr Sam’s depressive symptoms do not reach the threshold for a diagnosis of major depressive disorder. Although there is a sleep disturbance, there is no characteristic sleep disturbance that is usually evident in major depression and the sleep disturbance is predominantly causally related to pain. He has been able to maintain a healthy weight and there was a weight gain of about 6 kg; therefore, there has been no major change in weight. He is still able to enjoy activities such as religious beliefs and he is still a respected senior elder within the Muslim community. In addition, there continued to be a great love and interest in his family, his children, and grandchild, suggesting there is no evidence for a diagnosis of major depressive disorder.

   27.   In terms of posttraumatic stress disorder, Mr Sam does not satisfy criterion A for posttraumatic stress disorder as he did not experience a life-threatening event. The major impact of both motor vehicle accidents has been on pain symptoms affecting his neck and lower back. In addition, it is the Panel’s view that the psychological condition is not regarded as a trauma related condition.

   THRESHOLD INJURY

   28.   Section 1.6(1) of the Act states that:

   “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.”

   Section 1.6(3) of the Act states:

   “A Threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”

   Part 1 clause 4 (2) of the Regulation states:

   “2)     Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of -the Act

   a)      acute stress disorder

   b)      adjustment disorder

   3)      In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)”

   29.   The psychological condition is a ‘threshold’ injury for the purposes of the Act.

   The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.

   CONCLUSION – THRESHOLD INJURY

   30.   The following injury is a threshold injury:

   ·Chronic adjustment disorder secondary to chronic pain with anxiety and depression.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another.

   [4] Section 7.26(6) of the Act.

2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[5] The Medical Assessors have explained the basis and rationale of their assessments.

   [5] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

3. The Panel reconvened on 28 August 2025 to discuss its findings and finalise its decision.

CONCLUSION

1. For the above reasons, the Panel revokes the certificate issued by Medical Assessor Jones on 11 April 2024. The new certificate appears at the commencement of these reasons.