Ul Haq v Transport Accident Commission

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ul Haq v Transport Accident Commission [2025] NSWPIC 277
CLAIMANT:	Ul Haq
INSURER:	Transport Accident Commission
MEMBER:	Susan McTegg
DATE OF DECISION:	30 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of claim part heard; application to refer matter back for medical assessment under section 7.24(1) to consider causation of injury to the lumbar spine; claimant conceded dishonesty in history given to medical practitioners and to his college; Held –Trazivuk v Motor Accidents Authority of New South Wales and Ors cited; no injustice to the insurer; Medical Assessor (MA) reviewed scans and concluded change in pathology post-accident; causation not limited to claimant’s subjective complaints of pain; determination of MA and Review Panel made in light of knowledge of claimant’s dishonesty; Allianz Australia Insurance Limited v Bell, and Allianz Australia Insurance Limited trading as Allianz v Susak cited; concept of procedural fairness does not require medical assessor to test credibility of claimant; application refused.

INTRODUCTION

I am asked to consider an application by the insurer to refer the matter back for an assessment of whole person impairment under s7.24(1) of the Motor Accident Injuries Act, 2017 (MAI Act).
The application is opposed by Amar Ul Haq (the claimant).

THE RELEVANT LEGISLATION

Section 7.24 of the MAI Act provides:
“(1)    A medical dispute referred for assessment under this Division may be referred again for assessment under this Division at any time by a court, a merit reviewer or the Commission.
(2)    A medical dispute referred for assessment under this Division may be referred again for assessment under this Division by the claimant or the insurer, but only on the grounds prescribed by the regulations (if any) in relation to the medical assessment matter to which the dispute relates.
(3)    A medical dispute may not be referred again for assessment by the claimant or the insurer on more than one occasion.
(4)    Referral of a medical dispute under this section by a claimant or an insurer is to be by application to the President.
(5)    The President is to arrange for the medical dispute to which the application relates to be referred to one or more medical assessors for a further medical assessment, but only if the President is satisfied that the application meets the requirements for referral under subsection (2).
(6)    This section does not affect the final assessment of the degree of permanent impairment of an injured person after an interim assessment of permanent impairment.”
Regulation 13 of the Motor Accident Injuries Regulation 2017 (the Regulation) provides:
“(1) A medical dispute may be referred again for assessment under Division 7.5 of the Act on the grounds of deterioration of the injury or additional relevant information about the injury.
(2) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.”

BACKGROUND

The claimant sustained injury in a motor vehicle accident on 18 July 2019. His vehicle was stationary at a red light when the insured’s vehicle reversed into the front of his vehicle.
The insurer has admitted liability for the common law claim for damages.
The claimant underwent a discectomy of the lumbar spine in Pakistan in 2012. He came to Australia in November 2016.
On 7 July 2017 the claimant consulted Dr Lakshman Prasad in respect of low back pain “worse since last night, gradually improving with rest”. Dr Prasad reported difficulty in studying because of chronic pain. The records of Charles Sturt University record a leave of absence because of chronic back pain.
On 15 January 2019 the claimant saw Dr Zhao who recorded “since 2016 has had slow increase in back pain with right leg radiculopathy exacerbated”. The claimant underwent an MRI of the lumbar spine on 22 January 2019 which showed the previous laminectomy at L4/5 and a broad based minor posterior recurrent disc bulge abutting the right L5 route as it emerges from the thecal sac. On 24 January 2019 the claimant was referred to a specialist. The claimant did not consult the specialist because, he says, his symptoms resolved.

The claimant asserts he injured his cervical and lumbar spine in the accident on 18 July 2019. He underwent an L4/5 anterior lumbar body fusion on 8 August 2020 and a L4/5 posterolateral interbody fusion surgery on 24 May 2023. He subsequently had a spinal stimulator inserted.
A Medical Review Panel found causation for the lumbar spine established and assessed a 20% whole person impairment (WPI). The Review Panel found the cervical spine injury was not related to the accident. Medical Assessor Curtin assessed 3% WPI in respect of scarring.
The claimant also sustained a psychiatric injury. Medical Assessor Hong issued a certificate dated 8 March 2024 in which he certified a major depressive disorder with anxiety was caused by the accident and resulted in a WPI of 18%.
The claim was listed for assessment conference on 6 March 2025. Mr Dean-Lloyd Del Monte of counsel appeared for the claimant instructed by Mr Stephen Matthews, of Turner Freeman Lawyers. Mr John Turnbull of senior counsel appeared for the insurer instructed by Ms Wendy MacDonnell of Holman Webb Lawyers.
Mr Del Monte did not seek to rely upon any further oral evidence of the claimant but relied upon the claimant’s statements dated 14 November 2019, 26 March 2020, 12 April 2021, 30 November 2021, 11 May 2023 and 14 February 2025.
The claimant was cross examined by Mr Turnbull. At the conclusion of his cross-examination Mr Turnbull sought an adjournment to obtain a transcript of the claimant’s evidence to determine if an application was to be made to the Personal Injury Commission (Commission) to refer the matter for further medical assessment as to WPI pursuant to s 7.20 of the Motor Accident Injuries Act 2017 (MAI Act). Any application would be in relation to both physical and psychological injury. On the basis the insurer agreed to pay Mr Ul Haq an advance of $30,000 to help remedy his financial difficulties the claimant did not oppose the adjournment. The insurer also agreed there would be no further cross examination of Mr Ul Haq if the application for further assessment is refused.
During the assessment conference the claimant sought to rely on additional documents in support of the claim for economic loss. The insurer objected to the admission of those documents. The adjournment also provided the claimant with an opportunity to provide further evidence of his employment which is relevant to the calculation of his entitlement to damages for economic loss
I made the following directions:
·        on or before 3 April 2025 the insurer is to advise if it intends to make an application to the Commission for the matter to be referred for further medical assessment.
·        On or before 1 May 2025 the insurer is to upload to the portal submissions in support of the application for further medical assessment.
·        On or before 15 May 2025 the claimant is to upload to the portal submissions in reply to the insurer’s submissions.
·        On or before 5 June 2025 I will provide a decision on the application to refer the matter for further medical assessment.

THE INSURER’S APPLICATION

The insurer uploaded submissions dated 15 April 2025 in support of the application.
The insurer submits that the evidence given by the claimant at the assessment conference demonstrates he is prepared to lie to doctors, to medical assessors, to institutions such as universities and to the Commission. The insurer relies on various inconsistencies in the claimant’s evidence.
The insurer submits there was no difference in the pathology found in the claimants back in the MRI scans five months pre-accident and four months post-accident. On that basis the insurer submits any complaints by the claimant relating to his lower back are subjective only without any objective medical basis and therefore the claimants case rests upon his subjective complaints of pain.
The insurer relies on the opinion of Dr Home who compared the MRIs of the lumbar spine both pre- and post-accident. On 12 April 2022 Dr Home stated:
“MRI lumbar spine, 22 January 2019. Clinical history: chronic back pain, previous L4/5 discectomy. There is slight loss of normal lumbar lordosis. At L 4/5, previous right laminectomy is noted at this level. There is a recurrent broad- based posterior disc bulge at this level. It is abutting the right L5 nerve root as it emerges from the thecal sac. No canal stenosis or exit foraminal stenosis is seen at L5/S1, normal appearances.”
And further:
“It is noted that the post-accident MRI scans of the cervical spine demonstrate the same pathology as that evident on the pre-accident scans of January 2019 with MRI scans of the cervical spine demonstrating a left sided disc bulge, narrowing of the left exit foreman at C 4/5. The previous MRI scans of the lumbar spine demonstrate post- surgical changes at L 4/5 associated with a recurrent broad-based posterior disc bulge abutting the right L5 nerve root as it emerges from the thecal sac.”
The insurer notes at paragraph 15 of his statement dated 14 November 2019 the claimant reported he consulted a doctor in early 2019 regarding some low back pain and was referred for an MRI. He stated he did not seek review with a specialist because he did not have any significant ongoing lower back pain.
The insurer submits on 1 June 2020 in the course of an assessment as to threshold (minor) injury Medical Assessor Bodel reported the claimant informed him that within six months of his discectomy in 2012 he had recovered completely. Thereafter he was asymptomatic in relation to his back until the accident. Further, on 24 June 2020 Medical Assessor Newlyn reported that the claimant said he recovered in six to 12 months following the discectomy in 2012.
In his second report of 7 March 2023 Medical Assessor Bodel confirmed that the claimant told him he completely recovered within six months of the 2012 discectomy. However, notwithstanding that history Medical Assessor Bodel concluded the complaint of pain in July 2017 reflected the type of intermittent minor discomfort one would expect given the claimant’s previous laminectomy and discectomy.
During the assessment conference the claimant said his low back pain was no better since the accident and his neck pain has remained unchanged except for a short time after he had undergone injections. He complained of significant restriction of range of motion in his neck and back.
However, on 1 June 2020 Medical Assessor Bodel reported the claimant presented in a wheelchair indicating he had been using the wheelchair for three or four months where he could no longer use a walking frame and had difficulty rising from a chair.
In his report dated 7 March 2023 Medical Assessor Bodel reported the claimant stated that his pain levels had improved by 30% to 40% following pain management treatment.
The insurer also refers to the surveillance footage which it is submitted demonstrates that the claimant can stand and move around for well over 30 minutes. The claimant was also seen to bend and lift a trailer.
The insurer submits the answers given by the claimant during the assessment conference made it clear that he was prepared to lie if necessary. Further it is submitted the claimant was seeking to distance himself from any complaints about pain in his back prior to the accident.
When questioned, the claimant agreed he went to a doctor complaining of low back pain on 7 July 2017 because he wanted time off from college, having failed three subjects. He agreed he had lied to the doctor about pain in his back. He also agreed he lied to the university about the reason he wanted time off. The claimant agreed he lied to Dr Prasad, the university and the college, for his own purposes.
The claimant also agreed he lied when he told Dr Zhao on 15 January 2019 that he had a slow increase in back pain running down his right leg. However, when Dr Home drew the claimant’s attention to the imaging of January 2019, he said he did experience intermittent symptoms of low back pain but could not recall leg symptoms. The claimant, according to Dr Home, stated he had undergone the MRI scan in January 2019 to satisfy requirements to travel to Pakistan and to obtain a clearance certificate in that regard.
The insurer submits the claimant provided many answers that could only be described as dissembling. The insurer submits the claimant’s evidence in relation to lifting the trailer, his evidence about buying a boat but not using the boat, his evidence concerning his visa situation as well as his evidence about his pre accident back pain can all be described as dissembling.
However, the insurer submits it is the claimant’s admission about lying which is critical to this application. The insurer argues the assessments as to whole person impairment were reliant upon the accuracy of the claimant’s history having regard to the subjective nature of his complaints. In respect of his physical injuries the insurer submits his complaints of pain are not supported by any pathological change in his spine subsequent to the accident.
The insurer submits if the medical assessors had been aware of the claimant's tendency to fabricate evidence and his tendency to lie for personal gain it is likely they would have reached a different conclusion about the nature and extent of his injuries and disabilities.

THE CLAIMANT’S RESPONSE

The claimant provided submissions dated 13 March 2025.
The claimant notes the matter has had a protracted procedural history exemplified by nine separate Medical Assessment Certificates issued in these proceedings. The claimant submits the practical implications of this application are stark. If the application is granted the matter will be delayed by a further 12 months or more, subjecting the claimant to significant prejudice.
The claimant submits the insurer has failed to establish the statutory criteria under s 7.24 of the MAI Act and the application must be dismissed. The claimant submits pursuant to
s 7.24 (5) of the MAI Act and regulation 13(2) of the Regulations, the insurer must establish the presence of additional relevant information that is capable of having a material effect on the outcome of the previous assessment.
The claimant referred to the decision of Lonergan J in AAI limited v Luk [2022] NSWSC 1007 where she stated at [19]:
“The delegate was required to consider and form an opinion... as to whether the material relied upon by the insurer was additional relevant information that was capable of having a material effect on the outcome of the previous assessment.”
However, that was an application made by the insurer pursuant to s 7.24(2) and not an application under s 7.24(1) of the MAI Act.
The claimant submits his prior back complaints, and general medical history was set out in the certificate of Medical Assessor Bodel dated 7 March 2023 and were also acknowledged by Medical Assessor Hong.
Referring to the medical attendances on 15 January 2019, 24 January 2019 and the alleged attendance on 12 March 2019 Medical Assessor Bodel stated:
“Mr Ul Haq clearly indicated to me that there was a very clear reason for these medical attendances, and it had very little, if anything, to do with the status of his back pain. He indicated that the purpose was to obtain medical evidence which he could then present to his educational institution, to allow him to take leave of absence from his coursework for a period of about 3 or 4 weeks, to return home to Pakistan for the purposes of his younger brother’s engagement. He states that because of the patriarchal nature of the family in Pakistan, he was expected by his father to be there, and he couldn't do so without forfeiting the whole semester of study if he could not establish a medical reason for that change.
In addition to that, he also sought medical leave to reduce his subject load from three to one for that semester only. This would allow him to interrupt the studies, continue with his cohort and then return to the three subjects per semester for the second half of the year, which apparently, he had enrolled to do, but that was interfered with by the motor vehicle accident, which is the subject of this claim.
He undoubtedly had some back pain. He had an MRI scan done which was what he felt was needed to be able to justify the claim that he was making to the educational institution and that is the story that he gives as to the reason behind the MRI scan done at that time. That scan shows a minor bulge at the L4/5 level, which has been the previous operated level, which is a central bulge, and there is no evidence of compromise of the lateral recess or nerve root compression. The subsequent MRI scan, which I have also seen, dated 24 September 2019 shows a completely different appearance to the L4/5 disc which has arisen after the motor vehicle accident.”
The claimant submits the insurer’s attack on the psychological assessment of Medical Assessor Hong is fundamentally flawed, noting no challenge was made in cross examination to the matters disclosed to Medical Assessor Hong, the Permanent Impairment Rating Scale (PIRS) criteria applied, or the integrity of Medical Assessor Hong’s assessment. The claimant also notes that Medical Assessor Hong assessed the claimant after reviewing the report of Medical Assessor Bodel.
The claimant submits there is compelling objective radiological evidence of post-accident pathology progression including reports from radiologist Dr Korber. The claimant notes these reports form the foundation of Medical Assessor Bodel’s opinion and the finding of the Medical Review Panel that the lumbar spine injury was accident related.
The claimant submits any application to remit the matter for further assessment must be:
·        justified by additional relevant information;
·        capable of materially altering the prior outcome, and
·        consistent with the statutory objectives, including the promotion of early, cost- effective resolution of claims (s 1.3(2)(g) of the MAI Act).

CONSIDERATION

Principles applicable to the exercise of the discretion

The claimant’s submission that pursuant to s 7.24 (5) and regulation 13(2) the insurer must establish that additional relevant information has come to light that is capable of having a material effect on the outcome of the previous assessment is misconceived.
Section 7.24(1) permits a medical dispute to be referred again for assessment at any time by a court, a merit reviewer or the Commission. The proviso that a medical dispute may only be referred again for assessment on the grounds prescribed by the regulations is only applicable to a referral by the claimant or the insurer under s 7.24(2) of the MAI Act.
Guidance as to the exercise of the discretion pursuant to s 7.24(1) of the MAI Act is to be found in the judgment of Patten AJ in Trazivuk v Motor Accidents Authority of New South Wales and Ors[1] where he was considering s 62(1)(b) of the Motor Accidents Compensation Act 1999 (MAC Act), a comparable provision under the preceding legislation.
[1] Trazivuk v Motor Accidents Authority of New South Wales and Ors [2009] NSWSC1074
Section 62(1) and (1A) of the MAC Act provides:
“(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part—
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or the President.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.”

In Trazivuk, at first instance, the CARS Assessor stated:
“However, in my view, a further assessment should only be ordered under s 62(1)(b) where it would be unjust not to do so. In other words, a further assessment should be ordered only where I am satisfied that there is a risk that an injustice will be visited upon one of the parties if the existing MAS assessment goes unchallenged.
Given that s 62(1)(b) places no limits on the scope of my discretion, the kind of injustice which may warrant an order for further assessment may include further relevant information, evidence of deterioration, evidence of material error in the assessment or procedural unfairness.
However, in my view injustice only arises where there is a reasonable prospect that the further assessment will result in a change in outcome, vis-a-vis the claimant’s entitlement to non-economic loss.”
The principles espoused by the CARS Medical Assessor in Trazivuk met with approval by Patten AJ. At [36] he stated:
“In my opinion the statement by the assessor in both his reasons of 15 April 2008 and 24 September 2008 as to the matters which would inform the exercise of his discretion were relevant and unexceptionable.”
An appeal from the judgment of Patten AJ was dismissed by the Court of Appeal in Trazivuk v Motor Accidents Authority of New South Wales & Ors[2] where Handley AJA stated at [111]:
“In any event I am unable, with respect, to discern any error in the assessor’s view that there was no risk of injustice to the claimant unless there was ‘a reasonable prospect that the further assessment will result in a change in outcome’”.
[2] Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 in the MRI scans five months pre-accident and four months post-accident have already been considered by the medical review panel.
In Insurance Australia Group Ltd trading as NRMA Insurance v Ilsley[3] Walton J noted “the discretion residing in s 62(1)(b) is wide and limited only to the scope and purpose of the Act”. His Honour referred at [153] to the decision of Adams J in Zurich Australian Insurance Ltd v Mestric[4] where His Honour said at [26]:
“A decision that an assessment was or might be adversely affected by unfairness or even oversight or some other reasonable basis for doubt might well justify a re-assessment. After all, the consequences of a mistaken assessment might well be serious for an insurer but catastrophic for a claimant. The process is not a judicial but an administrative one and the objects of CARS, as stated in the Guidelines include the provision of ‘a timely, fair and cost-effective system’ (cl 1.14.1), to ‘asses claims and disputes fairly and according to the substantial merits with as little formality and technicality as is practicable’ (cl 1.14.2). Fairness in this context is to be considered broadly and not hedged about by legal distinctions.”
[3] Insurance Australia Group Ltd trading as NRMA Insurance v Ilsley [2019] NSWSC 500
[4] Zurich Australian Insurance Ltd v Mestric [2016] NSWSC 187
I am satisfied that, having regard to the decision in Trazivuk, it is necessary for me to determine whether there is a risk of injustice to the insurer if there is a reasonable prospect that a further assessment will result in a change in outcome.

Whether there was any change in pathology post-accident

The insurer submits there was no difference in the pathology found in the claimants back in the MRI scans five months pre-accident and four months post-accident and therefore, the claimants lower back complaints rely upon his subjective complaints of pain.
The insurer relies upon the opinion of Dr Home, occupational physician. In his report dated 12 April 2022 he concluded the pre accident and post-accident imaging demonstrated identical pathology. He relied upon the opinion of Mr. Michael Griffiths, biomechanical engineer to conclude that based on the mechanism of the accident it was implausible that the claimant sustained an acute aggravation of the pre-existing spinal complaint.
The claimant relies upon the opinion of radiologist Dr John Korber. In his report dated 11 September 2022 he compared the pre- and post-accident MRI scans. He concluded:
“In the lumbar spine there has been an alteration in the size of the posterior disc bulge/protrusion at the L4/5 level, with some postero-inferior migration of disc that was not present on the pre accident study.”
Dr Korber provided a supplementary report dated 22 September 2022 after he was provided with a copy of the claim form, and the clinical records of Dr Calvache-Rubio commencing on 29 July 2019. Dr Korber noted the previous low back injury and discectomy in 2012. He concluded:
“It is reasonable that the motor vehicle accident caused a new superimposed injury at L4/5 level when taking into account the contemporaneous record and imaging findings.”
The claimant relies upon the opinion of Medical Assessor Bodel. In his certificate dated 7 March 2023 Medical Assessor Bodel accepted the mechanism of injury was a relatively low speed injury. However, he did not agree with Dr Home that there was no change in the pre- and post-accident pathology. Medical Assessor Bodel reviewed both MRI scans. Referring initially to the January 2019 MRI scan Medical Assessor Bodel stated:
“That scan shows a minor bulge at the L4/5 level, which has been the previous operated level, which is a central bulge, and there is no evidence of compromise of the lateral recess or nerve root compression. The subsequent MRI scan, which I have also seen, dated 24 September 2019 shows a completely different appearance to the L4/5 disc which has arisen after the motor vehicle accident.”
He further states:
“I have also referred to the MRI scan done on 22 January 2019, which shows central bulging of the disc at the L4/5 level but no lateral compression or nerve root compromise on the basis of that MRI scan done prior to the motor vehicle accident.
I have also referred to the subject MRI scan done after the motor vehicle accident, which shows a large L4/5 disc prolapse on 24 September 2019, and the only intervening event that has changed is the effect of the motor vehicle accident.”
In response to the report of Mr Griffiths Medical Assessor Bodel states:
“I respect the engineering expertise that he brings to this matter, but I am satisfied that the previously vulnerable disc at the L4/5 level could have suffered a material aggravation by the forces involved in this motor vehicle accident.”
And he further states:
“The previous pathology is vulnerable to further injury and the forces involved, in my view, are significant enough to cause a material deterioration in the abnormal disc at the L4/5 level, leading to the need for the eventual surgical undertaking.
The important observations from Dr Korber are the change in the appearances of the disc at L 4/5 in January 2017 and again in September 2017, with the only intervening force involved being the motor vehicle accident [sic].”
In their certificate dated 21 August 2024 the Medical Review Panel certificate summarized the available medical evidence in respect of causation including the reports of Dr Korber, the report of Dr Home and the certificates of Medical Assessor Bodel and determined the injury to the lumbar spine - anterior and posterior fusion at L4/L5 was caused by the motor accident. The Review Panel did not conduct a re-examination of the claimant where he had undergone surgery and where the main issue for determination was the question of causation. However, in considering the question of causation the Review Panel noted neither party had challenged the certificate of Medical Assessor Bodel dated 7 March 2023 and whilst his findings were not binding, the Review Panel concluded they should be given considerable weight.
The opinion of Dr Home as to causation was considered by Medical Assessor Bodel and the Medical Review Panel in concluding injury to the lumbar spine and the subsequent anterior and posterior fusion at L4/L5 was caused by the motor accident. Having regard to the expertise of Dr Korber as a specialist radiologist, Medical Assessor Bodel and by implication the Review Panel preferred his opinion over that of Dr Home, an occupational physician.
Where the opinion of Dr Home has already been considered and rejected by Medical Assessor Bodel and the Medical Review Panel I am not satisfied it constitutes further relevant information or evidence of material error in the assessment such that a further assessment will result in a change of outcome.

The claimant’s credibility

Having rejected the submission that there was no difference in the pathology found in the claimant’s back in the MRI scans five months pre-accident and four months post-accident I am satisfied there is an objective medical basis for the claimant’s lower back complaints. Accordingly, I reject the insurer’s submission that the claimant’s case rests upon his subjective complaints of pain.
However, I propose to address the insurer’s submissions in respect of the credibility of the claimant.
In his statement dated 14 November 2019 the claimant stated as follows:
“13.   After the surgery to my lumbar spine in 2012 I was coping well.
14.    On occasion I would get some minor back pain following the surgery however for the majority of the time it was OK and it did not prevent me from working or studying.
15.    I note that in early 2019 I did consult a doctor regarding some lower back pain and I was referred for an MRI. However that pain was not ongoing and I did not end up seeking review with any specialist as I did not have any significant ongoing lower back pain.”
In his statement dated 12 April 2021 the claimant stated as follows:
“20.On 15 January 2019 I consulted Dr ChingChing Zhao and complained of back and neck pain as I knew I would need to apply for time off college.
21.At the time, I was experiencing some back pain as a result of my previous injury for which I underwent surgery in Pakistan in 2012. This was not unusual or uncommon and the pain was not constant but only occurred from time to time.
22.I obtained an MRI referral from Dr ChingChing Zhao during my consultation with him on 15 January 2015.
23.On 22 January 2019, I underwent an MRI scan on my back and neck and I returned to Dr Zhao on 24 January 2019 for a review.
24.Dr Zhao referred me to a specialist, Dr Randolf Gray, however I never made an appointment to see him or any other specialist as my back pain was very mild, occasional and manageable. It was not a great concern for me and did not cause me problems.
25.On 13 February 2019, I applied to reduce my study load and continue at one unit per semester instead of three.
26.I knew that I would not be able to manage a full study load while travelling to Pakistan.
27.However, it is very difficult to apply to reduce my study load. It was easier to say that I wanted to reduce my study load due to medical reasons rather than wanting to go overseas to see family for personal reasons.
28.My father told me that I should go to the GP and also get a referral for an MRI to submit to college as he believed it would be easier to get approval for a study load reduction if I had an MRI.
29.…
30.Although it was true that I had some occasional back and neck problems, this was not the main reason why I chose to reduce my study load.
31.I chose to reduce my load so that I could go to Pakistan to satisfy my family commitments.
32.My previous back and neck pain was not constant or extremely painful. It was very manageable and it did not affect my studies, work or daily life in general.”
When cross examined during the assessment conference the claimant conceded that he lied to Dr Prasad, the university and the college, for his own purposes.
In his report dated 12 April 2022 Dr Home reported the claimant stated he was asymptomatic in the period leading up to the accident. When Dr Home drew the claimant's attention to the clinical notes of his general practitioner of January 2019 the claimant advised he had experienced intermittent symptoms of low back pain although he could not recall any leg symptoms. He also informed Dr Home he had undergone the MRI scanning to satisfy requirements to travel to Pakistan. Dr Home concluded this history was somewhat disingenuous and inconsistent with the medical record.
In his Medical Assessment Certificate dated 7 March 2023 Medical Assessor Bodel reviewed the clinical notes of the Gold Cross Medical Centre including the entries of 7 July 2017, 15 January 2019, 24 January 2019 and a possible attendance on 12 March 2019 which he was unable to verify. He reported:
“The claimant again confirms that he was quite well at the time of this motor vehicle accident on 18 July 2019 and was not being treated for other illnesses apart from occasional visitation to a doctor for some medication for back pain.”
Medical Assessor Bodel concluded the episode of back pain in July 2017 reflected the type of intermittent minor discomfort one would expect in normal day-to-day existence, particularly after a previous laminectomy and discectomy five years earlier. He accepted the explanation provided by the claimant in respect of the January 2019 attendances, concluding whilst the claimant undoubtedly had some back pain, he underwent the MRI scan to justify the claim he was making to the educational institution to reduce his study load.
In his certificate dated 7 March 2023 Medical Assessor Bodel not only certified the injury to the lumbar spine was not a minor (threshold) injury but that the L4/5 anterior lumbar interbody fusion recommended by Dr Peter Khong was reasonable and necessary in the circumstances and related to the injury caused by the accident.
In their certificate dated 21 August 2024 the Medical Review Panel certificate summarized the available medical evidence in respect of causation including the reports of Dr Korber, the report of Dr Home and the certificates of Medical Assessor Bodel and determined the injury to the lumbar spine – anterior and posterior fusion at L4/L5 was caused by the motor accident.
In Allianz Australia Insurance Limited v Bell [5] Lonergan J when addressing the failure to explore inconsistencies stated at [47] – [49]:
“47    The Insurer complained that the Panel has not complied with its common law duty to afford procedural fairness to the Insurer because it did not attempt to explore, and if possible resolve, the asserted inconsistencies in Mr Bell’s “reporting” to the Panel as opposed to what is recorded in “the material before the Panel”.
48     Mr Bell does not accept the allegations of inconsistency made, but as Mr Catsanos submitted, correctly, such a quasi-judicial inquiry with an adjudicated outcome would go well beyond any concept of affording procedural fairness and would in fact infringe upon what the High Court said in Wingfoot at [47] was the function of a review panel.
49     This ground is based on a misunderstanding of the Panel’s function in the circumstances of this case and the question referred to it to resolve and is dismissed.”
[5] Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351
More recently the Court of Appeal in Allianz Australia Insurance Limited trading as Allianz v Susak stated at [78]:
“The Act provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: Wingfoot at [47]. Further, the Review Panel did not have to address Allianz’s submission in terms in order to deal with it in a substantive way. Its reasons (and the path of its reasoning as set out above) were sufficient to indicate that it had regard to the claimant’s pre-existing degenerative back condition but considered that the back symptoms which the claimant experienced and reported post-accident, including the radiculopathy which Dr Herald detected on examination, had been caused (or contributed to) by the accident.”[6]
[6] Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91 (Susak)
Having regard to the comments of Adamson J in Susak it is not part of the role of a review panel to test the credibility of a claimant.
I am satisfied Medical Assessor Bodel was aware of the issues regarding the credibility of the claimant, as evidenced in his reasons dated 7 March 2023. Whilst, he accepted the claimant undoubtedly had some back pain noting intermittent minor discomfort would be expected given the earlier laminectomy and discectomy, he also reported the medical attendances in 2019 had very little, if anything, to do with the status of his back pain but instead were designed to obtain medical evidence to present to his educational institution to adjust his study load. Medical Assessor Bodel accepted causation of the lumbar spine even though he was aware the claimant had not been honest in his dealings with his treating general practitioner or his college. I am satisfied this evidence was considered by the Medical Review Panel when it determined causation in the claimant’s favour.
Whilst I have not specifically referred to the certificate of Medical Assessor Hong dated 8 March 2024, his findings as to causation hinge on the physical injuries. Medical Assessor Hong stated
“Mr Ul Haq does not have a past psychiatric history. He reported good psychological functioning prior to the subject MVA, and engaged in regular employment and study and did not experience abnormal psychological symptoms. The onset of his psychological symptoms were delayed and was directly related to the subject MVA, if his physical injuries and pain are considered to be caused by the subject accident. His psychological symptoms have persisted since the subject MVA.
I have not identified other contributing factors unrelated to the accident in the relevant time frame. I concluded that the subject MVA is the major cause of his current psychological condition.”
The claimant has not attempted to hide his dishonesty given it was disclosed in his statement dated 12 April 2021 and readily disclosed to Medical Assessor Bodel. Whether or not the claimant dissembled in his answers at the assessment conference, whether he has been dishonest in his dealings with medical practitioners, with his college and with the Commission and whether he has exaggerated the extent of his disability are matters to be considered by the Commission in the assessment of damages.
I acknowledge there are inconsistencies in the claimant’s evidence, in his statements, in histories obtained by medical practitioners and when questioned during the assessment conference about the extent of his disability and the extent of any pre-existing symptoms. However, the credibility of the claimant falls to be considered by the Commission as part of its adjudicative function in the assessment of damages: Allianz Australia Insurance Limited trading as Allianz v Susak.[7]
[7] Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91 (Susak)
In summary, I am not satisfied refusal of the insurer’s application to refer the matter for further medical assessment will result in an injustice to the insurer where:
(a)    Medical Assessor Bodel, after reviewing the MRI scans pre- and post-accident, considered the competing medical opinions and preferred the opinion of Dr Korber to that of Dr Home in determining there was a change in the pathology shown on the post-accident imaging;
(b)    having regard to the determination made by Medical Assessor Bodel and the Medical Review Panel a determination as to causation of the claimant’s lumbar spine injury is not limited to the claimant’s subjective complaints of pain;
(c)    the determination of Medical Assessor Bodel and the Medical Review Panel as to causation of the lumbar spine was made in light of the knowledge that the claimant had been dishonest in his dealings with his general practitioner and his college as to the extent of his pre-existing symptoms; and
(d)    having regard to the decisions in Bell and Susak the concept of procedural fairness does not require a medical panel or by analogy a first instance medical assessor to test the credibility of a claimant.[8]
[8] Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351; Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91

I am not satisfied the evidence relied upon by the insurer as casting doubt on the credibility of the claimant give rise to a reasonable prospect that a further assessment will result in a change of outcome, that is, a finding that the claimant has not sustained a whole person impairment greater than 10% entitling him to recover damages for non-economic loss.
Whilst the discretion inherent in s 7.24(1) is wide and should be exercised where an assessment “might be adversely affected by unfairness or even oversight” I am not satisfied there is any risk of injustice to the insurer in refusing to refer the matter back for further medical assessment. In light of the comments of Adams J in Mestric and where I find there is no risk of injustice I consider a referral for further assessment would not be consistent with the statutory objectives outlined in s1.3(2)(g) of the MAI Act and s 3(c) of the Personal Injury Commission Act2020 for the quick, cost effective and just resolution of disputes.[9]
[9] Zurich Australian Insurance Ltd v Mestric [2016] NSWSC 187.

CONCLUSION

I decline to refer the matter for assessment of WPI pursuant to s 7.24(1) of the MAI Act.
The matter is listed for a further teleconference on Tuesday 17 June 2025 at 2.00pm to set a timetable for the further assessment conference.
In furtherance of the guiding principle of the Commission set out in s 42 of the Personal Injury Commission Act 2020, if any party seeks a variation of these directions, the party seeking the variation is, in the first instance, to contact the other party to ascertain their attitude to the variation and obtain their consent if possible. The party seeking the variation is to then advise the Commission, through the portal of the variation sought and the attitude of the other party.

[2025] NSWPIC 277

30 May 2025