Taleb v Allianz Australia Insurance Limited
[2025] NSWPICMP 654
•29 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Taleb v Allianz Australia Insurance Limited [2025] NSWPICMP 654 |
CLAIMANT: | Ali Ahmad Taleb |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
SENIOR MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Melissa Barrett |
MEDICAL ASSESSOR: | Himanshu Singh |
DATE OF DECISION: | 29 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) found the claimant sustained an adjustment disorder with mixed anxiety and depressed mood caused by the accident; a threshold injury; claimant sought review; Held – claimant was an unreliable historian; claimant had sustained an adjustment disorder with mixed anxiety and depressed mood of chronic nature caused by the accident; certificate of MA confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel affirms the certificate of Medical Assessor Shen dated |
STATEMENT OF REASONS
INTRODUCTION
Mr Ali Ahmed Taleb (the claimant) sustained injury in a motor vehicle accident on
17 February 2022 (the accident).Mr Taleb is now 50 years of age and was 47 years of age at the date of the accident.
Mr Taleb lodged an Application for personal injury benefits dated 5 May 2022 in relation to injury allegedly sustained in the accident.
Allianz Australia Insurance Limited is the relevant insurer with liability to pay statutory benefits to Mr Taleb under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Taleb’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the accident were threshold injuries.
On 25 July 2022 the insurer issued a Liability Notice - Benefits after 26 Weeks declining the claim for statutory benefits on the basis the injury sustained by the claimant was a minor (threshold) injury for the purposes of the MAI Act.
On 23 January 2023 the claimant requested an internal review of the minor (threshold) injury decision.
The insurer issued a Certificate of Determination – Internal Review dated 10 February 2023
affirming the decision that the injuries met the definition of minor (threshold) injury for the purposes of the MAI Act.[1][1] Claimant’s documents p 46.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
The dispute as to threshold injury in respect of the psychological injury was referred by the Commission to Medical Assessor Shen.
The claimant has sought a review of the certificate of Medical Assessor Shen.
DOCUMENTS BEFORE THE REVIEW PANEL
On 7 March 2025 the Panel noted the claimant had uploaded to the portal an indexed bundle of documents paginated from pages 1 to 147 on 18 July 2024 (claimant’s documents). The Panel directed the claimant to confirm by 28 March 2025, if those documents constituted the entirety of the documents sought to be relied upon by the claimant in the review. If that was not the case the claimant was directed to upload to the portal a supplementary indexed and paginated bundle of documents sought to be relied upon in the review. In response to that direction the claimant uploaded a supplementary bundle on 28 March 2025 being the updated clinical records of Austral Medical Centre paginated from pages 1 to 25 (claimant’s supplementary documents).
On 10 April 2025 the insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 456 (insurer’s documents).
At the request of the Panel the claimant uploaded to the portal four photographs of the claimant’s vehicle and one photograph of the insured vehicle.
The Panel also had regard to the Certificate of Medical Assessor Cameron dated
29 April 2022.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
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”.
A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury.
Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)acute stress disorder,
(b)adjustment disorder.”
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. 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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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)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, and
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
CERTIFICATE OF MEDICAL ASSESSOR CAMERON
Medical Assessor Cameron issued a certificate dated 29 April 2024 in which he certified the following injuries caused by the accident were threshold injuries:
· head – soft tissue injury;
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· left and right shoulder – soft tissue injury.
In relation to the head injury Medical Assessor Cameron administered a mini mental state examination (MMSE). He reported the claimant scored 18/30 which was an inconsistent score because it was not consistent with him living independently in the community. He concluded Mr Taleb was inconsistent with reference to his cognitive functioning.
ASSESSMENT UNDER REVIEW
In a certificate dated 19 June 2024 Medical Assessor Yu Tang Shen determined the following injury caused by the accident was a threshold injury for the purposes of the MAI Act:
· adjustment disorder with mixed anxiety and depressed mood.[3]
[3] Claimant’s documents p 8.
Medical Assessor Shen stated the claimant denied any pre-existing psychiatric condition, asserting he was well prior to the accident. When asked about two previous motor vehicle accidents, one in 2008 with frontal lobe contusion and one in 2014 with physical injuries assessed at greater than 10% whole person impairment (WPI) the claimant was only able to recall his involvement in one prior accident.
Mr Taleb described the accident as a major crash, he lost consciousness, his car was written off and he feared he was going to die. Medical Assessor Shen noted the Police Report referred to a minor traffic crash and both the Ambulance Report and the hospital record noted he was conscious with a full recollection of the accident.
Medical Assessor Shen reported the claimant said he was depressed and worried, he had intrusive recollections of the accident and pessimistic thoughts of guilt. He also reported the claimant was alert, appeared grossly cognitively intact and was able to sustain concentration for the entirety of the assessment. Mr Taleb reported he avoided seeing anyone, he has lost friends, he no longer showers daily, he no longer helps his wife cook, he no longer shops, and he is anxious driving. He reported his concentration was poor and he had not been able to return to work since the accident.
At paragraph 16 of his certificate Medical Assessor Shen reported a number of inconsistencies as follows:
“Comments of consistency
There are various areas of inconsistencies.
He denied any pre-existing injuries, including his previous motor accidents and head injuries, which he continued to minimise even when this was pointed out, then later attributed to poor short-term memory, which is more consistent with long-term memory failures, though he did not have any difficulties with long term memory recall in other areas such as the particulars of his pre-existing functioning. In addition, he was able to recall details of the subject accident, such as how the accident occurred.
He complained of significant inattention and distractibility, such that he cannot pay attention in a conversation longer than a few minutes. However, he was able to sustain his conversation and was able to engage with the interpreter without significant difficulties up to an hour.
He said he lost consciousness at the time of the accident, only coming to when he was at the hospital, whereas this was contradicted by the ambulance officers.
He said the crash was a major crash, which was contradicted by the police report. There are some unusual aspects of his description of his psychological symptoms, such as having a good sleep only on medications, otherwise waking up and yelling all throughout the night, which is an unusual description in terms of the severity of the symptoms, and how remarkably effective the medications are for his sleep. Furthermore, he emphasized a few times that discussing the accident would make him significantly nervous and very distressed, which was not observed in the assessment, apart from mild discomfort from pain for which he stood up and walked around for a brief period and he was able to continue engaging in the assessment.
Overall, there are significant discrepancies which raise the concern of a moderate degree of symptom exaggeration and makes the validity of the assessment suspect, without corroborating evidence.”
Medical Assessor Shen concluded there was a degree of symptom exaggeration and given the inconsistencies of the accident concluded the accident was not severe enough to meet Criterion A of a post-traumatic stress disorder diagnosis. He stated he agreed with the General Practitioner’s (GP) diagnosis of an adjustment disorder with mixed anxiety and depressed mood, given the discrepancies made his account less relatable.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Shen on 18 July 2024 within 28 days of the date on which his certificate was made available to the parties.
On 19 August 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.
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 review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 10 June 2025 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Police report
The police report states vehicle 2 (the claimant’s vehicle) proceeded straight ahead on a green light when vehicle 1 (the at fault vehicle) made a right-hand turn and collided with the front offside of the claimant’s vehicle.[5]
[5] Insurer’s documents p 153.
The report states the claimant attended Green Valley Police Station where a late report was taken although the report notes Fairfield Police attended the accident. The accident was reported as a minor traffic crash although it was also noted to be a tow away, ambulance attended, and the claimant was conveyed to hospital.
Application for personal injury benefits
In the application dated 5 May 2022 the claimant provided the following description of the accident:
“I was travelling on Hume Highway when a black jeep travelling in the opposite direction turned right on a red light into Cabramatta Road and in doing so collided into my white ute. The driver of the black jeep is at fault.”[6]
[6] Insurer’s documents p 170.
He described his injuries as follows:
“Neck – headaches, concussion, dizziness
Neck
Lower back radiating to legs
Bilateral Elbow/Arm pain
Psychological injuries (nightmares, stress, anxiety).”
Pre-accident medical evidence
On 12 June 2008 Associate Professor Mark Sheridan reported the claimant had been admitted under his care at Liverpool Hospital on 27 February 2008 following a motor vehicle accident.[7] The Discharge referral diagnosed the claimant with a frontal lobe contusion. A Glasgow Coma Score (GCS) 15 was assessed throughout the admission and post-traumatic amnesia testing was satisfactory. It was not anticipated that the claimant would require neurosurgical review.
[7] Insurer’s documents pp 65 and 69.
He was reviewed by Associate Professor Sheridan on 3 June 2008 who recorded ongoing complaints as to persisting headaches, neck pain, back pain, and problems with his
short-term memory. Associate Professor Sheridan thought the claimant had sustained a simple concussion with a whiplash type injury.A Personal Injury Claim Form dated 15 October 2014 in respect of a rear end collision on
3 July 2014 documented injuries to the neck, back, right arm and right shoulder, together with psychological and psychiatric injuries.[8] The claimant reported difficulty bending, twisting, standing for prolonged periods of time, lack of concentration and mood swings.[8] Insurer’s documents p 119.
Dr Bosanquet provided a report dated 20 January 2016.[9] He diagnosed aggravation of underlying degenerative changes in the cervical and lumbar spine and the right elbow.
[9] insurer’s documents p 137.
On 24 October 2016 Medical Assessor Bodel assessed a greater than 10% WPI in respect of injury to the cervical spine, the right upper extremity, the left upper extremity and the lumbar spine arising out of the 2014 accident.[10]
Post accident treating medical evidence
[10] Insurer’s documents p 140.
Ambulance report
The report states:
“CT 47y/o M post MVA. Pt involved in a low-speed, TBONE MVA. Pt denying LOC, full recollection of events, seatbelts worn, nil airbags deployed, extensive damage to front of vehicle - nil intrusive damage to driver's compartment, pt self-extricating. Initially, pt refusing assessment, asking paramedics to go away, before changing his mind. Pt not forthcoming with information, not answering questions, difficult to obtain hx. Pt presenting with c-spine tenderness on palpation… Pt also CO generalised chest pain … seatbelt contusions evident - as well as back pain to the lumbar region…GCS 15 … refusing pain relief throughout interaction …”[11]
[11] Insurer’s documents p 158.
Liverpool Hospital
The claimant was admitted on 17 February 2022 and discharged on 18 February 2022. The Discharge Referral describes the presenting problem as confusion and the diagnosis as concussion.[12]
[12] Insurer’s documents p 163.
Austral Medical Centre
On 9 March 2022 Dr Abdul Kader El Mohsen, GP recorded the following history:
“Had MVA on Hume highway on 17/2/2022 other car hit him from the passenger side airbag did not open hit his head against the glass and lost his conscioussness found himself at liverpool hospital was drowzy, taken there by ambulance stayed one day Discharged second day … [sic]
headache more occipital area came suddenly follow by intensive feeling to sleep
memory issue, forgetting a lot, missing things, unable to concentrate …
unable to drive distance even sometimes cannot sit with anybody in the car …
recurrent images about the accident with nightmares feeling scared even from the noise of the car
mood down, short temper, anger episodes, poor tolerance to people fatigue recurrent chest pain, dizziness cannot remember things from the hospital admission.”[13]
[13] Insurer’s documents p 185 and 232.
Dr El Mohsen noted poor sleep, early morning wakening, low self-esteem, depressed mood, anxious, irritability, irrational fears, and panic attacks. He diagnosed adjustment disorder with mixed anxiety and depressed mood.
On 26 May 2022 Dr El Mohsen undertook a MMSE and reported:
“… no signs of tremor or abnormal movements
… patient did not exhibit any formal thought disorders, … no negative thought disorder was detected.
Content the patient was depressed and anxious, the patient was also feeling guilty … no other positive symptoms, such as delusions, phobias or compulsions.
Suicidal ideation was not detected.”
On 18 June 2022 Dr El Mohsen reported a problem with sleeping, difficulty initiating sleep, early wakening, and waking up several times because of stress and nightmares.[14]
[14] Insurer’s documents p 192.
In a report dated 20 June 2022 Dr El Mohsen diagnosed adjustment disorder with mixed anxiety and depression although he also commented “developing PTSD is well identified in such cases”.[15]
[15] Insurer’s documents p 247.
On 21 June 2022 the claimant saw Dr Bassel Hassan, neurologist.[16] He reported the claimant did not recall the accident, how he got out of the car or the first day in hospital. He complained of headaches, dizziness, lower back pain and cognitive problems particularly problems with short term memory and concentration. He noted a background history of hypertension. He was on Micardis 80 mg, Mobic, Panadeine Forte, Duloxetine 30 mg and Prazosin 2 mg. He had a MMSE score of 22 out of 30, including 0/3 recall. However,
Dr Hassan stated the MMSE was difficult to interpret as the claimant was quite irritable often answering “I don’t know” to many questions. Dr Hassan concluded the claimant’s symptoms most likely related to concussion, however, the cognitive symptoms seemed out of proportion to what would have been expected four months on from a mild head injury.[16] Insurer’s documents p 427.
An MRI of the brain dated 16 December 2022 did not disclose any abnormalities.[17]
[17] Insurer’s documents p 428.
On 1 July 2022 Dr El Mohsen diagnosed adjustment disorder with mixed anxiety and depressed mood. On 21 July 2022 Dr El Mohsen reported headache, dizziness and poor concentration and insomnia. He described the reason for visit as cognitive impairment. On
28 July 2022 Dr El Mohsen reported an inability to sleep for the last few days, fogginess, fatigue, dizziness, excessive worry, mood swings and poor concentration.[18]On1 August 2022 Dr El Mohsen reported the claimant had become forgetful, some days he was disoriented and confused and lacked concentration.[19][18] Insurer’s documents p 196.
[19] Insurer’s documents p 196.
On 21 December 2022 Dr El Mohsen reported a C4/C5/C6 cervical disc prolapse, an L4/L5 lumbar disc prolapse, pain, insomnia and post-traumatic stress disorder.
On 24 July 2023 Dr El Mohsen reported since the accident the claimant had poor sleep, early morning wakening, low self-esteem, depressed mood, anxiety, irritability and panic attacks. On examination he reported the claimant’s affect was depressed and his range of mood reduced. He also noted he appeared anxious and irritable. He diagnosed adjustment disorder with mixed anxiety and depressed mood.[20] Dr El Mohsen referred the claimant to
Dr Mahmoud Abu-Arab, psychologist.[21][20] Claimant’s documents p 28.
[21] Insurer’s documents p 377.
On 18 August 2023 Dr El Mohsen reported “mood down, becoming socially isolated, panic attack, anxious, irritable, short memory problem”. His opinion as to diagnosis remained unchanged.[22] The claimant reported psychological symptoms on 7 September 2023,
26 September 2023, 17 October 2023, and 12 February 2024.[22] Insurer’s documents p 280.
On 9 April 2024 Dr El Mohsen reported inter alia the claimant was mentally down, feeling drained and unhappy. He was experiencing nightmares with nocturnal awakening, accompanied by shocking sensations and sweating. Dr El Mohsen reported a sleep disturbance with possible post-traumatic stress disorder features.[23]
[23] Claimant’s supplementary documents p 9.
Dr El Mohsen provided the following opinions as to diagnosis:
· 13 August 2024 – ‘adjustment disorder with mixed anxiety and depressed mood’;
· 8 October 2024 - ‘adjustment disorder with mixed anxiety and depressed mood’;
· 20 November 2024 - ‘adjustment disorder with mixed anxiety and depressed mood’;
· 12 December 2024 - ‘adjustment disorder with mixed anxiety and depressed mood’;
· 11 February 2025 - ‘adjustment disorder with mixed anxiety and depressed mood’, and
· 15 March 2025 - ‘adjustment disorder with mixed anxiety and depressed mood’.
On 20 March 2025 Dr El Mohsen reported the following mental health concerns:
· recent low mood;
· persistent depression;
· anger management issues;
· short temper;
· relationship difficulties with family and wife;
· previous treatment with zoloft - self-discontinued;
· previous treatment with prazosin - self-discontinued;
· poor concentration and attention;
· previous psychology attendance;
· no current suicidal ideation;
· no delusions;
· no paranoid thoughts;
· no hallucinations;
· erectile dysfunction;
· difficulty initiating and maintaining erection;
· difficulty initiating sleep;
· difficulty maintaining sleep;
· palpitations;
· chest tightness;
· associated light-headedness;
· tension headaches;
· previous cardiac investigations - reported as normal, and
· headaches worsen by end of day.
Dr El Mohsen reported his impression was of depression with anxiety, erectile dysfunction, insomnia and panic attacks.[24]
[24] Claimant’s supplementary documents p 23.
Centrelink records
Centrelink records show Australian Emergency Pandemic payments at various dates in 2021 and 2022.
The claimant received a Carer Payment from 1 January 2018 to 8 March 2021.
As of 2 February 2024, he was not receiving any payments.
Medico-legal reports
Dr J Brian Stephenson, orthopaedic surgeon
Dr Stephenson assessed the claimant at the request of his lawyers and provided a report dated 25 July 2023 in respect of his physical injuries.[25]
[25] Insurer’s documents p 323.
Dr Stephenson reported the claimant complained of neck pain, low back pain, pain in elbows and arms as well as nightmares, stress and anxiety.
He reviewed photographs of the claimant’s vehicle which he stated showed the complete collapse of all the front of his car with the front engine area completely smashed in and dropped to the roadway. He noted the passenger door of the jeep was impacted by the collision.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 18 July 2024 in support of the application for review.[26]
[26] Claimant’s documents p 2.
The claimant refers to cl 6.41 of the Guidelines and submits that Medical Assessor Shen failed to bring the inconsistencies he reported in the history provided by the claimant to his attention.
The claimant submits Medical Assessor Shen failed to provide a clear path of reasoning to substantiate his diagnosis of an adjustment disorder with mixed anxiety and depressed mood. In concluding that the accident was not severe enough to meet Criterion A, Medical Assessor Shen casually touched upon inconsistencies and symptoms of exaggeration without the claimant having an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.
It is submitted in agreeing with the diagnosis of the GP, Medical Assessor Shen had not taken into account that it is was over two years and four months since the claimant was first diagnosed with an adjustment disorder and that in that time the diagnosis would have developed into something more chronic which was likely to be a recognised psychiatric illness which would not constitute a threshold injury.
Insurer’s submissions
The insurer provided submissions dated 8 December 2023 in respect of the threshold injury dispute.[27] The insurer submits there is no evidence the accident gave rise to a non-threshold injury where the only diagnosis is that of an adjustment disorder with mixed anxiety and depressed mood.
[27] Insurer’s documents p 30.
The insurer provided submissions dated 26 March 2024.[28] The insurer notes the claimant was involved in an accident on 27 February 2008. A Discharge referral from Liverpool Hospital diagnosed the claimant with a frontal lobe contusion.
[28] Insurer’s documents p 32.
The insurer noted an accident on 3 July 2014 was said to be causative of injuries to the neck, back, right arm and right shoulder, together with an unspecified psychological/psychiatric injury. On 24 October 2016 Dr Bodel diagnosed soft tissue injuries to the cervical and lumbar spine, together with a rotator cuff injury to the right shoulder and lateral epicondylitis of the right elbow.
The insurer provided submissions dated 1 August 2024 in response to the application for review.[29] The insurer submits in Wingfoot v Kocak[30] the High Court held that reasons are not to be critiqued ‘minutely and finely with an eye keenly attuned to the perception of error’. Therefore, the insurer submits the certificate of Medical Assessor Shen should be read as a whole.
[29] Insurer’s documents p 5.
[30] Wingfoot v Kocak [2013] HCA 43.
The insurer submits Medical Assessor Shen did bring the inconsistencies in his presentation to the claimant’s attention for comment. The insurer relies upon the decision in Frost vKourouche[31] where the Court of Appeal at [35] stated:
“There is a well-established line of authority for a complementary proposition to that in [Kioa v West (1985) 159 CLR 550] referred to above to the effect that critical facts need to be drawn to the claimant’s attention. The complementary proposition is that it is not necessary, in order to discharge the obligation to accord procedural fairness, to go further.”
[31] Frost v Kourouche [2014] NSWCA 39.
The insurer submits Medical Assessor Shen did bring the inconsistencies pertaining to the critical facts to the claimant’s attention.
The insurer also submits that many of the inconsistencies described by Medical Assessor Shen fall outside the ambit of cl 6.41 noting that cl 6.41 only refers to inconsistencies “between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities”.
The insurer also submits given the objective nature of the police report, ambulance report and other contemporaneous treating medical evidence it was open to the Medical Assessor to rely upon same, irrespective of the history given to him by the claimant, in determining that the circumstances of the accident were ‘not severe enough to meet criterion A of a
post-traumatic stress disorder diagnosis’.Further, the insurer submits Medical Assessor Shen provided a clear path of reasoning to substantiate his diagnosis of an adjustment disorder.
The insurer provided submissions dated 10 April 2025.[32] The insurer submits that whilst
Dr El Mohsen has documented a range of psychological symptoms his opinion as to diagnosis has remained unchanged. His impression has been of an adjustment disorder with mixed anxiety and depressed mood.[32] Insurer’s documents p 3.
THE MEDICAL EXAMINATION
Mr Taleb attended the appointment on his own. The assessment was conducted by video conference through MS Teams. Ms Rose Haddad, an Arabic interpreter, with NAATI number CPN 1LJ74N attended the appointment. The assessment was conducted by Medical Assessors Barrett and Singh, who were located in their respective offices.
HISTORY
Psychosocial history and pre-accident history
Mr Taleb was born in Lebanon. He grew up in Lebanon with both his parents. His father worked as a builder and his mother was a stay-at-home mum. Both of his parents are deceased. He does not remember when his mother passed away. His father passed away around five years ago. There were total of six boys including him and he has three sisters. He stated that his childhood was good. He studied and finished year 12. He studied up until the age of 20. After school, he did a two-year course in hotel management.
He moved to Australia in 1997 with his wife, who is an Australian citizen. He initially learned English and then started to work. He worked in construction, in farm work, as an employee, up to 40 hours in a week.
Mr Taleb denied any childhood abuse or trauma. He denied any mental health issues growing up.
Mr Taleb denied any pre-existing medical conditions or injuries before the accident. When asked specifically about earlier accidents, he stated that he had another accident in the past, but he does not remember the date. He stated someone hit him from the back, whilst he was in his car at work and stationery at a red light at a traffic signal. He injured his right hand. He could not recall any other injuries. There was police attendance after the accident. He went back to work after the accident but had pain in his right arm and felt uncomfortable, so he later saw his GP. He had physiotherapy for his hand and was also prescribed medications. He continued treatment with medications and physiotherapy for two to three years. He did not require any surgeries. He took medication when in pain. He denied any mental health issues arising from that accident. He denied any previous mental health issues before this accident and had no history of treatment from a psychologist or a psychiatrist.
Mr Taleb stated that he cannot remember any other accident and was not sure about his history.
Mr Taleb was reminded that he had put in a claim of permanent impairment greater than 10% after the accident in 2014, however, he stated he could not recall this. He stated any claim was through his lawyers and was for physical health and not for his mental health.
Mr Taleb stated he had stopped his work in construction a long time ago as he found it hard and did not like it. He cannot remember when he stopped working in construction. He then started to work in car detailing, helping his son at his son’s car detailing shop. He stated that things were good. He had a perfect life. He had a good social life. He was working full time. He spent time at home after work. He played tennis and sports with his wife. He went for walks, although he never went to the gym. He reported he has five sons; two are married and they live on their own and three are still single and they live with him. He has been married to his wife for around 30 years.
Mr Taleb denied any family history of mental health issues.
Mr Taleb denied any significant drug and alcohol history.
Mr Taleb denied any forensic history.
Mr Taleb denied any significant medical history before the accident.
When it was put to Mr Taleb that in the documents there is a record of another car accident in 2008 with a frontal lobe contusion, Mr Taleb denied remembering it and said, “I don't know.” He stated his memory has been affected since the subject motor accident.
History of the accident
Mr Taleb could not remember the date, month or year of the accident. Despite some clues, he could not remember any of the details. The only thing he mentioned was that it was in the beginning of the year. He became quite upset visibly when asked about the accident, he became teary and held his head with his hands. He stated, “when I remember it, I feel it's happening right now.”
Mr Taleb stated on the day of the accident (17 February 2022), he was driving a Mitsubishi Triton. Mr Taleb stopped at red light and his vehicle was stationary. He started to drive when he saw the green light, and someone collided with the front of his vehicle. He stated the other vehicle was “speeding a lot” and when he woke up, he was in the hospital. Mr Taleb stated,
“I can't remember what happened. When I woke up, I was in the hospital. I don't know if I lost consciousness. I don't remember the colour of the other car. It came from the right side and after that, I don't remember anything.”
Mr Taleb continued to add, “I don't know, I can't recall any details. I can't remember if police or ambulance came. The airbags were not deployed; however, they told me that I was taken to the hospital in an ambulance”.
Mr Taleb stated “I knew that I was in an accident, but I could not remember how it happened. The hospital told me all the details I gave about myself at the hospital were wrong.”
When it was raised with Mr Taleb that for someone to give incorrect personal details at the hospital, there must have been a serious head injury, however, the records have noted that it was a minor traffic crash, and he was noted to be conscious with full recollection of the accident by the ambulance officer and at the hospital. Mr Taleb replied that was wrong and again added that he cannot remember what happened.
History of symptoms and treatment following the accident
Mr Taleb stated that he was in the hospital for perhaps one or two days, but he was not sure. He did remember that he was not in the hospital for a very long period. He developed neck pain, back pain and pain shooting down both his legs. He did not require any surgeries. He was prescribed medication by his doctor and attended physiotherapy initially every two weeks.
Mr Taleb stated that he struggled with his mental health. If he was a passenger in a car, he would become scared when another car approached. He does not want to remember the accident and he becomes very scared at the thought of it. He stated, “it was not easy the shock I experienced, and I felt tired mentally.”
Mr Taleb stated in the beginning, his wife was driving, as he felt too anxious to drive but later he started to drive.
Mr Taleb did not report any other issues. On direct questioning of any other symptoms, such as issues with his mood or with sleep, he stated that when he slept, he would remember the accident and when he woke up, he would be wet. He was not sure what was happening, and it was not easy for him. He stated he dreamt of the accident.
Mr Taleb stated that his GP, Dr Abdul Kader prescribed him tablets to help him sleep. He was also told to minimise his medications as it is not good for his health.
Mr Taleb saw Dr Arab in Auburn twice but as he was not getting better, he did not see him any further. He has not seen a psychiatrist for his mental health.
Mr Taleb stated he tried to return to work one to two months after the accident, but he could not work as he experienced pain in his neck and back. He could not bend his neck, and the pain shot to his back and down. He denied any other issues, but he added that he was not like that before the accident.
Details of any relevant injuries or conditions sustained since the accident
Mr Taleb denied any relevant injuries or conditions sustained since the motor accident.
Current symptoms
Mr Taleb stated he is trying to help himself as much as he can. He tries to walk with his wife, but cannot walk, especially in the cold weather. When he feels stressed, he goes to the garden and walks a little. He complained that the insurers have not helped him with the pain in his neck and back. He is not on any payments, including Centrelink, and his children help him financially which he is thankful for. Mr Taleb stated he has not gone back to work since the accident. He never wished for this accident to happen and would like to help himself and provide for his family. He would like to be pain free and feel better. His life is not normal, and he is in pain. He does not like any reminders of the accident. He feels good at home and spends most of the time with his wife and tries not to think about the accident.
Mr Taleb stated not every day is nice or easy. He would prefer that his life be better. When again asked about his mood, whether he feels sad, he stated, “of course I feel sad, but I am not doing anything. My life is not like it used to be before.” He added, “I wake up every day and thank God that my family is supporting me and I am thankful to them.”
Mr Taleb reported he cannot sleep; he takes sleeping tablets to help with the pain. He takes Voltaren for pain and then he can sleep. His medication may take an hour to act. He will be asleep by 9.00pm and wake up by around 7.00am. In terms of his appetite, he has two meals a day, and on some days, he does not feel very hungry but forces himself to eat. He has lost weight.
Mr Taleb stated at night when he thinks of the accident he may wake up and has been incontinent of urine. This may happen once a week or once every one to two weeks. His wife will clean for him. She will clean the sheets and the mattress. He stated this started around a year after the accident. He said, “something is happening with me and I wake up. I will be sleeping and have memories of the accident which come to my mind. I told my GP about this and was advised to rely on myself and not to think a lot.” Mr Taleb stated this problem started after the accident.
Current and proposed treatment
Mr Taleb is currently not seeing a psychologist nor a psychiatrist. He has not seen a psychiatrist in the past. He continues to take medications which include Voltaren 50 mg, Amitriptyline 10 mg and a combination of Paracetamol and Codeine when required. There is no proposed treatment under the care of a psychologist or a psychiatrist. The Panel noted that he used to be on Sertraline which has been stopped for quite some time.
CLINICAL EXAMINATION
Mental state examination
Mr Taleb was seen over a video conference with the help of an Arabic interpreter. Mr Taleb at times was able to understand and reply in English. He was wearing a black T-shirt and was casually dressed and well-groomed with his hair neatly done. He had short hair and a light beard. He appeared clean. There were no signs of agitation or retardation. He engaged quite well, a good rapport was established, and he made good eye to eye contact. He often gave answers such as, “I don't know, I don't remember, I am not sure.” He had good use of hand gestures during the assessment.
He reported his mood as anxious and his affect was reactive and mood congruent. He displayed a good range of emotions.
He denied any feelings of hopelessness or helplessness. He reported feeling stressed and anxious, thinking about the accident or talking about the accident. He reported issues with sleep due to pain and he has to take pain medications. He did not report any active or passive suicidal thoughts, intent or plans and there were no thoughts, intent or plans of harming others. He did not report any thoughts of helplessness or hopelessness. He expressed the desire to be pain free and feel better.
There was no formal thought disorder, there was no delusional pattern of thinking and no perceptual abnormalities.
He struggled to recall his children's birthdays and said, “I cannot.” He was able to correctly tell the day and date which he said he saw on the computer. He initially said July as the month and later corrected to August and said it was 2025. He was orientated.
He had an intact judgement and insight into his issues and was help-seeking.
Current functioning
Mr Taleb stated that he is able to manage his self-care. He can look after himself and showers regularly. When he is in extreme pain, he cannot bend, and his wife will help him with his personal care and with other tasks. His wife takes him to places, such as the coffee shop or the water next to the lakes. He is in pain and does not feel good. He feels good at home and spends most of the time with his wife trying not to think or remember the accident. He described a supportive wife and children. He denied any arguments or fights and gets along well with his family. He is not social. He went to his son's wedding but could not recall when. He does not attend birthday parties and on birthdays his family will come to his place. He will sometimes go with his wife for lunch or dinner. He was not very outgoing before and did not go out much. He would mainly go to work and come back home. He did not drive for a brief period after the accident, but he can drive now. He drives mostly with his wife; however, he can drive by himself for around 15 to 20 minutes in the local area. He sometimes watches movies with his wife to keep him entertained, which he is able to enjoy.
The reliability of the claimant’s evidence
When he was assessed by Medical Assessor Cameron Mr Taleb said he could not remember the address of the office and he was unsure of the exact date. He appeared to have difficulty with calculation and recent memory. He scored 18/30 on the MMSE, which is an inconsistent score because it is not consistent with him living independently in the community. The panel notes that disorientation to place and time is not a clinical feature found in even the most severe mood and anxiety disorders. The panel also agrees with Medical Assessor Cameron's opinion that a score of 18/30 on MMSE is inconsistent with his reported functioning.
The Panel also takes notice of the opinion of Dr Hassan, who in his role of treating specialist wrote,
"The symptoms most likely relate to concussion; however, it has been around four months now since the head injury which means the symptoms should have settled. His current cognitive symptoms seem out of proportion to what one would expect 4 months on from a mild head injury."
The Panel was concerned about the reliability of the claimant’s evidence where he frequently reported not being able to remember things from the past, especially about the previous motor vehicle accidents. Mr Taleb stated that hypertension was diagnosed after the accident, however the records show he had a history of hypertension before the accident. The Panel noted Mr Taleb tended to minimise the symptoms from his previous motor vehicle accidents and even when he was questioned specifically, he often answered “I don't know, I don't remember, I am not sure.”
The Panel noted data reliability issues were prominent at the time of the medical examination by Medical Assessors Singh and Barrett and whilst taken individually they may be explicable, the clinical judgment of both Medical Assessors was that on the totality of the evidence the history provided by Mr Taleb was unreliable. The Panel concluded Mr Taleb was not a reliable historian.
DETERMINATION
Diagnosis
The Panel noted that in the absence of a reliable history, a diagnosis is difficult to make, as the Panel cannot rely on his own account of symptoms. Notwithstanding that, the Panel also noted that if it were to rely on the symptoms reported by Mr Taleb, he would not fulfil the criteria of a DSM-5-TR psychiatric diagnosis of post-traumatic stress disorder. Instead, at its highest, Mr Taleb fulfils the criteria for an adjustment disorder, which appears most aligned to the symptoms recorded in the contemporaneous records of the treating GP.
Mr Taleb does not meet the criteria for a depressive disorder. The Panel did not find any evidence of a depressive disorder as there was no pervasive sadness or mood, no pervasive issues with motivation or energy, no reported depressive thoughts such as hopelessness or helplessness and no suicidal thoughts. Objectively, on MMSE, his affect was reactive and congruent with the content of his speech during the assessment. The Panel finds that his MMSE findings were not supportive of a diagnosis of a significant primary mood disorder such as a major depressive disorder.
The Panel finds Mr Taleb also does not meet the DSM-5-TR criteria of post-traumatic stress disorder. He does not meet criteria A as he was not exposed to actual or threatened death or serious injury in the accident. The police reported it was a minor traffic crash, the airbags did not deploy, there was no intrusion into the cabin and Mr Taleb was able to self-extricate.
Mr Taleb was noted to be conscious with full recollection of the accident by the ambulance officer, and at the hospital, where he was conscious. Mr Taleb didn’t describe the accident as an actual or threatened death experience, nor did he remember it as a serious injury. He does not remember the accident, as per his history.Mr Taleb didn’t give a history of flashbacks following the accident. He didn’t report recurrent, involuntary, and intrusive distressing memories of the accident. He stated that he will be sleeping and have memories of the accident which come to his mind at night, following a dream. He didn’t report avoidance of external reminders, and the Panel noted that he can drive. He didn’t report persistent and exaggerated negative beliefs or expectations about oneself, others, or the world. He didn’t mention persistent, distorted cognitions about the cause or consequences of the accident. He didn’t experience a persistent negative emotional state nor any feelings of detachment or estrangement from others.
There was no reported markedly diminished interest or participation in significant activities. He sometimes watches movies with his wife to keep him entertained, which he is able to enjoy. The Panel didn’t find evidence of irritable behaviour and angry outbursts in the form of verbal or physical aggression toward people or objects. There was no evidence of reckless or self-destructive behaviour. There was no evidence of exaggerated startle response.
The Panel finds Mr Taleb meets the following criteria for a diagnosis of an adjustment disorder as per the DSM-5-TR:
A. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
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.
ii.Significant impairment in social, occupational, or other important areas of functioning.
C. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
D. The symptoms do not represent normal bereavement.
E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months.
Mr Taleb currently meets the DSM-5-TR criteria of adjustment disorder with mixed anxiety and depressed mood of chronic nature.
The Panel has noted that in criteria B, the symptoms or behaviours are clinically significant as evidenced by Mr Taleb meeting criteria B.1 for adjustment disorder.
The symptoms reported by Mr Taleb were not better explained by another mental disorder or pre-existing mental disorder, and his symptoms do not represent normal bereavement.
In respect of criteria E, the symptoms of adjustment disorder do not commonly persist for more than an additional six months; however, in some cases, even if the stressors are terminated, the symptoms may persist for more than six months, because the consequences of the accident have not fully resolved. When this occurs, the adjustment disorder is defined as chronic.
Causation
The test for causation is set out in cls 6.6 and 6.7 of the Guidelines. The Panel finds the nature of the accident could cause the psychological injury reported by the claimant where there was damage to the claimant’s vehicle, where ambulance attended the scene and where Mr Taleb was conveyed to hospital.
The Panel finds the accident on 17 February 2022 did cause Mr Taleb to sustain a psychological/psychiatric injury. Having regard to the records of Dr El Mohsen the Panel finds there is a direct temporal relationship between the accident, the onset of the claimant’s psychological symptoms and his current psychological symptoms. The Panel finds those symptoms are causally related to the accident.
Mr Taleb has sustained a psychological injury following the motor vehicle accident, which currently meets the DSM-5-TR criteria of an adjustment disorder of chronic nature.
Threshold injury
An adjustment disorder with mixed anxiety and depressed mood of chronic nature is included as a threshold injury for the purposes of the MAI Act in accordance with part 1, cl 4(2) of the MAI Regulation.
The Panel finds the claimant has sustained a threshold injury.
CONCLUSION
The Panel affirms the certificate of Medical Assessor Shen dated 19 June 2024.
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