Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Revokes the certificate issued by Medical Assessor Canaris dated 23 April 2024.
2. Certifies that the psychological or psychiatric injury caused by the motor accident is a threshold injury for the purposes of the Act

A statement setting out the Panel's reasons for the assessment is included with this certificate.

1. [BTG] was involved in a motor accident on 8 July 2023. [BTG] was a rear seat passenger in a ride share vehicle the driver of which ran into the vehicle in front before [BTG] had time to fasten her seat belt.
2. [BTG] says she sustained physical and psychological injuries in the accident. She made a claim for statutory benefits with AAMI the insurer of the vehicle alleged to be at fault. In time, [BTG] also made a claim for damages against AAMI.
3. A medical dispute about whether the claimant's injuries were threshold injuries or not arose between [BTG] and AAMI and [BTG] referred that dispute to the Personal Injury Commission (the Commission) for assessment.
4. The Commission arranged for a medical assessment of [BTG]'s psychological injuries. On 23 April 2024 Medical Assessor Canaris determined [BTG] sustained an adjustment disorder with mixed anxiety and depressed mood which was a threshold injury and a somatic symptom disorder with predominant pain which was not a threshold injury.
5. The insurer lodged an application with the Commission seeking a review of the Medical Assessor's decision. On 4 July 2024, Ms Brittliff, a delegate of the President determined there was reasonable cause to suspect a material error in Medical Assessor Canaris' assessment and allowed the Review and on 6 March 2025 the President's delegate convened this Panel to conduct the Review.

1. [BTG]'s claims are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
2. While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits payable. One of these restrictions is that if the only injuries sustained by the injured person are "threshold" injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident[1].
3. For those persons injured due to the fault of the owner or driver of a motor vehicle in the use or operation of that vehicle, a claim for damages can be made however, damages cannot be recovered if the claimant's only injuries are "threshold" injuries[2].

1. A threshold injury is defined in s 1.6(1) of the MAI Act as:

(a) for physical injuries, a "soft tissue injury" and

(b) for psychological or psychiatric injuries, an "injury that is not a recognised psychiatric illness".

1. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury as a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says that a threshold injury includes an acute stress disorder and an adjustment disorder.
2. Section 1.6(5) of the MAI Act says that the Motor Accident Guidelines (the Guidelines) may provide the method for assessing whether an injury is a threshold injury of not. The Guidelines[3] 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."

1. The Guidelines provide the method of determining whether an injured person's mental health disorder is a recognised psychiatric illness or not. If an injured person has a disorder that is not recognised in the DSM-5-TR, that injury must be a threshold injury. The method prescribed by the Guidelines (DSM-5-TR) also provides criterion for the diagnosis of an adjustment disorder or acute stress disorder. While they are both recognised psychiatric illnesses, they are both threshold injuries in accordance with cl 4(2) of the Regulation.

1. If there is a dispute about whether an injured person's injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Canaris', further medical assessments and the review of medical assessments by this Panel[5].
3. Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment "was incorrect in a material respect" (s 7.26(1)). If the President, or his delegate is satisfied "there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect" then the President arranges for the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
4. The review then proceeds, not as an appeal looking for error in the original assessment because that has been dealt with by the President or his delegate. The review is also not confined to the issues raised in the application (or the reply). The review proceeds as an assessment de novo that is, "a new assessment of all the matters with which the medical assessment is concerned" (s 7.263A).
5. Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

1. While the assessment of whole person impairment (WPI) requires the assessment to be undertaken as the claimant presents on the day, the assessment of whether there is a threshold injury is not limited to the claimant's current presentation. A finding of

non-threshold injury must be made even if the injury has healed, or the claimant has recovered from the injury, or the condition is in remission at the time of the medical assessment[6]. 2. If the claimant has a pre-existing non-threshold psychiatric condition (such as post-traumatic stress disorder) and the evidence establishes that a later accident caused or materially contributed to a worsening of that pre-existing condition, that aggravation will be also be a "non-threshold" injury[7].

1. Medical Assessor Canaris examined the claimant on 23 April 2024 and issued his certificate on the same day The Medical Assessor confirms at [2][8] that he was asked to assess a "PTSD" that is a post-traumatic stress disorder.
2. The Medical Assessor reports the claimant's history at [8] - [10] as follows:

(a) she is 30 years of age;

(b) she was one of the earliest Sudanese refugees and has been welcomed warmly into Australia;

(c) she is studying for a PhD having obtained a BA and Masters degree from the University of New South Wales.

(d) she was a rear seat passenger in a rideshare vehicle which collided with the rear of the vehicle in front at a speed of 50 kms per hour;

(e) the claimant did not have her seatbelt securely fastened at the time, as she had only just got into the vehicle, there was a cover on the seat belt and the driver has started driving away;

(f) she went to her GP the next day because of a migraine, and she has had headaches ever since. She has been referred to a neurologist;

(g) the claimant developed anxiety including panic attacks and was referred to a psychologist;

(h) she lost her job due to anxiety and was "constantly having arguments with the insurer";

(i) she has given up her PhD;

(j) she has not got a lawyer and she and her partner are trying to deal with the insurance company on their own;

(k) her mood is low, and she struggles with motivation, she has had suicidal thoughts, lacks motivation, feels helpless and hopeless and has loss of self-esteem, and

(l) her sleep is bad, her appetite varies, and she has been prescribed an anti-depressant but has not yet filled the prescription.

1. She spends her days at home, trying to work on material her psychologist has given her. She showers daily, skips some meals and rarely goes out. She reports her relationships are strained and there is no intimacy with her partner. She no longer drives and suffers panic attacks when in a car.
2. She has poor concentration and has been working with her psychologist on getting back to work with no success.
3. In terms of diagnosis, Medical Assessor Canaris:

(a) excluded a post-traumatic stress disorder as he did not feel the accident qualified as a Criterion A stressor;

(b) documented the criteria for an adjustment disorder and indicated how the claimant satisfied the criteria, and

(c) diagnosed a somatic symptom disorder with predominant pain saying:

"She suffers first and foremost from a somatic symptom disorder with predominant pain. This diagnosis in no way implies that her reported migraines are without pathophysiological basis but reflects rather the extent to which they have come to dominate her life undermining her functioning in multiple ways."

Submissions filed with the application for medical assessment and reply[9]

1. The Panel has not been provided with a copy of any submissions lodged by the claimant with the original application for medical assessment.
2. The insurer in its reply submissions suggests that the application for medical assessment indicated only one injury was being referred for assessment (the brain). However, the insurer submitted to the Commission that based on the claimant's description of her injuries the following injuries needed to be assessed:

(a) injury to the cervical spine ("whiplash injuries");

(b) injury to the head ("development of migraines"), and

(c) psychological injury ("PTSD").

Insurer's submissions filed with the reply to the application for medical assessment

1. The insurer's submissions were dated 26 February 2024.[10]
2. The insurer submitted that the accident occurred at a slow speed and "was not severe" [10] and relies on evidence from its insured, and the Uber driver, noting airbags did not deploy and both cars were driven from the scene.
3. At [11] - [13] the insurer submitted in respect of the claimant's cervical spine injury that it was a soft tissue whiplash injury. At [14] - [23] the insurer submitted there was no evidence that the claimant sustained a head or brain injury and that [BTG]'s headaches or migraines do not relate to the accident.
4. In respect of the claimant's psychological injury the insurer submitted that the accident was not severe enough to satisfy Criterion A for a post-traumatic stress disorder in accordance with the DSM-5-TR [24] - [28].
5. The insurer also submitted [31] - [32] that there was insufficient evidence to satisfy a diagnosis of a major depressive disorder.
6. The insurer submitted at [29] - [30] that the claimant may have an adjustment disorder, which is a threshold injury.

1. The insurer says at [6] and [14] - [21] that the claimant referred a post-traumatic stress disorder to the Commission, and it was not open to the Medical Assessor to consider any alternate diagnosis and that in doing so he failed to afford the insurer procedural fairness.
2. The insurer submits at [22] - [38] that the Medical Assessor has made a finding of causation based on an incorrect history. The incorrect history is said to include the likely forces involved in the accident, that the claimant's headaches had been diagnosed by two neurologists and that the only neurologist who has seen the claimant has referred to a "possible link" between the accident and the headaches.
3. The insurer also submits at [39] - [46] the Medical Assessor did not consider the evidence and in particular did not engage with the insurer's submissions.
4. Finally, the insurer submits at [47] - [54] that the Medical Assessor did not explain how the claimant fulfils the criteria for a somatic disorder with predominant pain.

1. On 21 June 2024 the claimant uploaded several documents to the electronic file including a letter to the Commission which appears to be her reply to the insurer's application. It is not dated, and the paragraphs are not numbered but it says this:

(a) Medical Assessor Canaris has fulfilled the task of assessing her injury "by providing his professional opinion";

(b) she disagrees with the insurer which has disputed the severity and "implications" of her injury which she says suggests the insurer has greater expertise that the medical professionals who have treated and examined her;

(c) the insurer has issued a liability notice accepting Medical Assessor Canaris' opinion that she has a non-threshold injury;

(d) Medical Assessor Canaris "conducted his assessment professionally and diligently, meticulously considering all the medical evidence provided";

(e) the insurer's lack of support has exacerbated her mental health challenges and have contributed to her trauma;

(f) she described having treatment with a sports physician on 7 May 2024 and recounts an incident involving the insurer's claims advisor. The claimant alleges the claims advisor interfered with the consultation, and this has added to her depression, anxiety and fear about her future, and

(g) her partner was in the accident and has also made a claim and the insurer's behaviour is affecting him too.

1. She says she trusts the Commission "will conduct a fair and impartial review of my case, taking into account [Medical Assessor] Canaris' expertise and professionalism."
2. After this Panel was convened, on 14 March 2025 the claimant wrote to the Commission "formally withdrawing from these proceedings" and requesting the matter be discontinued. On 18 March 2025 the claimant advised the Panel she did "not intend to engage in any further proceedings." On 21 March 2025 the claimant advised the Commission in similar terms saying, "I consider this matter closed."

1. On 8 April 2025 the Panel determined[11] to proceed with the Review because:

(a) the applicant in the Review proceedings was the insurer and only the insurer can discontinue proceedings. The insurer has said it wishes to proceed with the Review of Medical Assessor Canaris' decision, and

(b) the proceedings should not be dismissed as there is utility in continuing the proceedings in the light of the certificate which gives the claimant certain rights and entitlements which the insurer continues to dispute.

1. The Panel advised the parties of the next steps as follows:

(a) the insurer was directed to upload to the portal an indexed and paginated bundle of all documents by 18 April 2025;

(b) the insurer was to provide to the claimant a copy of the index and, if requested by the claimant, the bundle of documents;

(c) the claimant was by 30 April 2025 to upload to the portal any additional documents the claimant wishes to rely on in the Review proceedings, and

(d) the claimant was advised that if she wished to engage with the Review proceedings, she should upload a message to that effect by 30 April 2025.

1. The Panel advised the parties that if the claimant did not wish to engage with the Review proceedings:

"The Panel will on or before 29 May 2025 undertake the review of Medical Assessor Canaris' decision on the information and documentation provided by both parties, without a re-examination and issue its decision to the parties as soon as possible thereafter."

1. On 17 April 2025 the insurer uploaded a bundle of 1,425 pages including a letter to the claimant dated 17 April 2025 which included a list documents that the insurer said it intended to rely on in the Review proceedings.
2. Also on 17 April 2025, the insurer uploaded a bundle of 1,522 pages to the portal which incorporates the 1,425 pages sent to the claimant as well as other documents including submissions, medical assessment certificates and claims documentation.

1. The claimant lodged three messages in the portal on 28 April 2024 and these have been relayed to the Panel.
2. The first and longer message was received at 4.37pm and is said to be "a final message on the record". The report takes issue with attachments to the insurer's bundle namely a "desktop report" from Quantumcorp, which the Panel notes is close to 1,250 pages. While the claimant says, "I have lawfully withdrawn from these proceedings and will not be participating further" she says the Quantumcorp report is "based on inaccurate, unverified, and contextually misleading assumptions about social media content."
3. [BTG] says that she has a communications team in respect of her charity work and that her social medical posts are not always made by her. She distinguishes between "memory" posts (old posts automatically reposted as a memory) and live posts and that the publication date of posts are not the same as the actual date of the event depicted in the post. [BTG] submits that having an injury does not preclude mobile phone use or social media engagement. She says she goes to events because her psychologist has encouraged her to do so.
4. [BTG] raises concerns that the insurer has uploaded more than 3,000 pages of documents and says this is beyond the 500-page rule provided for in the Commission's rules. She asks, "Given my lawful withdrawal from these proceedings and the disproportionate nature of the material submitted, I respectfully request that this objection be formally recorded and considered."
5. [BTG] also refers to the certificate of Medical Assessor Mitchell which had been provided by the insurer which she says, "includes several statements and assumptions that are factually incorrect and raise serious concerns regarding accuracy and procedural fairness." Despite these the claimant says she does not wish to challenge the certificate "because I do not wish to prolong proceedings, nor do I seek any benefit from the insurer."
6. [BTG]'s final remarks in this email were, "I am withdrawing from these proceedings and will not be pursuing any claim."
7. A shorter message received at 5.35pm advises the Panel that the insurer's letter of

17 April 2025 was received by email at 1.38pm on that day but that no documents were attached to it at the time and that the documents were not made available to her until

24 April 2025. The claimant says she has advised the insurer that she did not consent to the inclusion of any documents, "as I had formally withdrawn from the claim." 8. She says she has not been given a reasonable opportunity to review the documents, and the insurer had not complied with rule 67C(1)(a). 9. At 6.58pm another message was sent by the claimant to the Commission which has been relayed to the Panel which raises:

(a) several issues of a systemic nature in the proceedings. The Panel has passed on a copy of this correspondence to the Commission for consideration, and

(b) concerns about insurer behaviour. The Panel has no power to consider insurer behaviour issues as this is a matter for the State Insurance Regulatory Authority (SIRA). SIRA provides a complaints procedure, detailed on their website.

1. [BTG] takes issue with a number of the Panel's remarks made and decisions taken during the course of these proceedings. The Panel notes:

(a) the claimant has been without a lawyer representing her at all times since the Panel was convened. The Panel was concerned that the claimant had discontinued the original proceedings and cancelled her physical injury assessment at a time when she may not have understood the full implications of doing so in the light of the insurer's review application;

(b) there is no mechanism in the Personal Injury Commission Act (the PIC Act) or its rules for a claimant to "withdraw" from proceedings commenced by an insurer;

(c) there is no process or mechanism prescribed in the MAI Act for the withdrawal of a claim for statutory benefits or damages once a claim has been made, and

(d) the Panel is not conducting an appeal looking for error in the original assessment and is conducting a fresh assessment hence the Panel's directions for a bundle of documents relevant to the current proceedings.

1. The insurer has commenced the Review proceedings in respect of a decision of Medical Assessor Canaris. That decision was adverse to the insurer's interests and the insurer wishes to pursue the proceedings. The Panel must therefore undertake the statutory task required of it, which is to determine the proceedings. The Panel will do so pursuant to the guiding principle established by s 42 of the PIC Act that is, justly, quickly and cost effectively.
2. The Panel requested the claimant notify us if she wishes to engage with the Review proceedings and advised in the absence of such notification that the Panel would determine the matter without a re-examination and on the material currently before the Panel.
3. The Panel met on 29 May 2025. As the claimant has not advised the Panel that she wishes to engage with the proceedings and has sent three messages to the Panel advising she is of the view she has withdrawn from them, the Panel determined that the Review should proceed as the Panel advised because:

(a) just - the Panel was of the view that a fair assessment of the matters in dispute could be done on the papers;

(b) quick - the Panel determined we should not list the matter for a re-examination with one or both of the Medical Assessors on the basis the claimant had made it clear that she would be unlikely to attend. Listing the matter for a re-examination would delay unnecessarily the finalisation of the proceedings, and

(c) cost effective - listing the matter for a re-examination that the claimant was unlikely to attend would incur additional costs for the Commission.

1. The Panel notes the objection by the claimant to any of the additional documents (being the 1,425 pages attached to the letter to the claimant dated 17 April 2025) being admitted into evidence citing the 500-page rule established by the Rules of the Commission.
2. The 500-page rule in r 67B applies to the initial documents lodged under r 67A with an application and reply[12]. It does not apply to additional documents lodged for the insurer for example after the insurer's application for review, and it does not apply to Medical Review Panel proceedings.[13]
3. The documents in the bundle lodged by the insurer (1,522 pages) were lodged in accordance with the Panel's directions issued on 8 April 2025. The claimant was provided with the opportunity of providing any additional documents she wished to put before the Panel and was given an opportunity to engage with the Review process but has declined to do so.
4. The Panel notes that some of the documents included in the insurer's bundle were obtained after the assessment by Medical Assessor Canaris (for example Medical Assessor Mitchell's decision and the Desktop reports from Quantumcorp). As the Panel is required to undertake a fresh assessment of the matter in dispute, and in the light of the claimant's unwillingness to engage with the process, the Panel has decided to allow all the documents within the insurer's bundle into evidence.

1. The claimant has referred to there being 3,000 pages of documents. This is not correct because on 17 April 2025 the insurer served 1,425 documents on the claimant before uploading those same documents with some additional documents comprising the 1,522 pages of the insurer's "indexed and paginated bundle". The Panel is not considering the separate bundle of 1,425 pages sent to the claimant and is only considering the insurer's indexed and paginated bundle along with the documents uploaded by the claimant in these proceedings.
2. Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[14] said at [63]:

"The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers' compensation legislation. ... Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. ... The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration."

1. The Panel has considered all of the documents in the bundle but has included in this evidence review only those documents the Panel considers relevant to the issues in dispute. The Panel also notes that of the 1,522 pages provided by the insurer, more than 1,250 of them relate to the claimant's social media. The insurer has provided no submissions drawing the Panel's attention to any of these documents or any particular page or pages of the 1,250 pages. The Panel has therefore not considered them in any great depth.

1. The claimant's claim form was completed on 18 July 2023. The accident had occurred on

8 July 2023 at 10.00am and she gave a history of the accident consistent with other histories. 2. The claimant identified that she had shoulder and head pain after the accident. She says she was not taken to hospital and was not suffering from an illness or injury or condition affecting the same parts of her body at the time of the accident. 3. The claimant said she had been away from work for four weeks as a facilitator and trainer at the University of New South Wales. 4. The insurer provided a copy of its internal review decision dated 2 November 2023[15]. That lengthy decision refers to the medical evidence and says:

(a) there is no evidence of a fracture of the bones in the head, or the complete or partial rupture of tendons, ligaments or cartilage in the head and that any head injury is a soft tissue injury;

(b) the claimant sustained a whiplash injury with right sided neck pain which is a threshold injury as there is no evidence of radiculopathy, fracture or the complete or partial rupture of tendons, ligaments or cartilage in the cervical spine, and

(c) right shoulder there was shoulder pain but no evidence of a fracture or the complete or partial rupture of tendons, ligaments or cartilage.

1. In terms of psychological injury, the insurer noted the claimant's GP diagnosed a post-traumatic stress disorder with depressive symptoms and reports that Ms Agugu records "symptoms" of post-traumatic stress disorder. The insurer also submits that Ms Seraskeris, mental health social worker provided a "provisional" diagnosis of an adjustment disorder which was revised to a "provisional" diagnosis of a post-traumatic stress disorder at a later date. The insurer submits that the claimant had not been "formally diagnosed with a recognised psychiatric illness" in accordance with DSM-5-TR.
2. The claimant provided the following documents with her reply to the original application for assessment:

(a) a copy of an email (from Michelle[16]) dated 16 May 2024 which advises the claimant she is eligible for benefits and care beyond the first 52 weeks. A "subsequent liability notice - English" was attached to that email;

(b) the liability notice refers to the previous denial of liability and now accepts liability relying on the decision of Medical Assessor Canaris in support, and

(c) an email dated 5 July 2024 which attaches the Notice of Discontinuance (sealed and issued by the Commission) and the parties were advised the appointment with Medical Assessor Cameron was cancelled[17].

Statements and insurer's investigation material

1. The insurer's investigator took a statement from the driver of the ride share vehicle the claimant was in. The statement was taken on 18 August 2023. He:

(a) he picked the claimant and her partner up in Haymarket;

(b) he says he told them to put their seatbelts on and he saw the claimant start to put her belt on, so he started to drive off;

(c) he was distracted by the claimant who he says was touching him on his arm with her phone, and

(d) he hit the rear of the car in front which had stopped;

(e) he did not look at his speedo but thinks he was driving at 20 to 25kms at the time;

(f) he rated the impact at 2 out of 10 and described it as "a minor bump";

(g) he asked the claimant and her partner if they were ok, got out of the vehicle, exchanged details with the driver of the other vehicle and drove off to the end destination, and

(h) he asked the claimant and her partner a couple of times if they were OK and they did not say anything about being hurt.

1. The insurer's investigator took a statement from the driver of the vehicle the insured ran into. The statement is dated 22 August 2023 and includes the following information:

(a) there were two friends in the car with him;

(b) he had stopped behind a taxi which had also stopped at traffic lights;

(c) a vehicle came up behind him and stopped;

(d) they had all been stopped for about 30 seconds before the vehicle behind bumped into him;

(e) the car that ran into him could have been doing only 5 - 10 kms;

(f) no one in his car was hurt;

(g) he rated the impacts as 4 or 5 out of 10 describing it as "very light";

(h) he exchanged details with the driver and noticed two people in the back seat looking at their phones, and

(i) photos were taken of the cars.

1. Photographs have been provided.[18] The rear of the vehicle the insured ran into shows deformation of the bumper bar and the panel above. There is quite a dent in the right hand (driver's side) of the bumper bar. It is not apparent that there is any other damage to the car.
2. The insured vehicle has damage to the front bumper bar and drill and the bonnet on the centre-left hand (passenger) side.
3. Dr Griffiths, a bio-medical and mechanical engineer provided a report to the insurer on

3 September 2024[19]. His summary of his opinion is found at page 4:

"On the basis of the sound physical evidence of the photographs depicting the damage to both the struck vehicle and the striking vehicle, it is deduced that the 5 to 10 km/hr reduction in forward velocity for the vehicle in which the claimant was travelling was well below the threshold for injury, particularly to two occupants seated in the rear of this 2012 model vehicle.

The above summary of the physical evidence is further substantiated by the descriptions of the 20 minor severity of the incident from the driver of the 'not at fault' vehicle struck by the vehicle in which the claimant was travelling."

1. The Oxford Village Medical Centre records commence with the first attendance on

Dr Rassam after the accident on 18 July 2023. Dr Rassam completed the first certificate of fitness on 18 July 2023. He diagnosed "light headaches, neck and right shoulder pain after [road traffic accident]." He recommended physiotherapy and analgesia and was to review the claimant on 15 August 2023. He certified her fit for some work until then but gave no further details. 2. The next attendance on 25 July 2023 was also for neck and right shoulder pain and physiotherapy was recommended. A script for Panadeine Forte was given. 3. The claimant attended for physiotherapy at the Oxford Street practice on 2 August 2023. 4. On 3 August 2023 the claimant saw Dr Rassam and reported neck and shoulder pain and "feeling stressed whenever inside the car" and she was referred to Ms Lye Tan. The referral letter was changed the next day. 5. Dr Rassam had requested an X-ray of the claimant's right shoulder and a CT of her cervical spine. The result was said in a report dated 5 August 2023[20] to be "no injury involving the right shoulder or cervical spine is evident." 6. On 9 August 2023 the claimant attended for physiotherapy for headaches, neck and right shoulder pain. On 10 August 2023 the claimant saw Dr Rassam with her radiology and she was to continue physio and counselling. 7. Further physiotherapy occurred on 16 and 23 August 2023. 8. Faith Agugu psychotherapist counsellor Bondi Junction letter 28 August 2023 provided a "to whom it may concern" report[21]. Some details blanked out. She reports symptoms of

post-traumatic stress disorder impacting sleep and flashbacks, headaches, agitation and panic attacks. The claimant had been unable to work, her relationship was affected, and she rated extreme in symptoms of anxiety, stress and severe depression. She recommended ongoing counselling was required. She also notes "[BTG] is an active member of her community". 9. The claimant returned to Dr Rassam on 29 August 2023 and the claimant scored high on depression, anxiety and stress and was referred for medication, but she did not wish to take any. 10. Further physiotherapy occurred on 30 August and 6 and 29 September 2023 and 18 and

25 October 2023. 11. An Allied Health Recovery Request form (AHRR) was completed by Mr Kang, physiotherapist in Darlinghurst on 20 September 2023[22]. He requested a further eight sessions to address neck and shoulder pain. The claimant reported headaches and "she is suffering from PTSD due to MVA ... she can't drive a car or any public transport." 12. Ms Seraskeris, an accredited Mental Health Social Worker submitted an AHRR dated

5 October 2023[23] after what appears to have been three sessions and requested seven further sessions of counselling. There is no information on her AHRR of a referring doctor and she indicates she has not liaised with a referring doctor. 13. The claimant reported a variety of symptoms including flashbacks, disturbed sleep and inability to drive and avoidance with being a passenger or driving a vehicle. The claimant was said to have not worked since the accident and has been unable to pursue her PhD. 14. Ms Seraskeris says:

"[BTG]'s progress has been disrupted since returning to her full time job two weeks ago. Her symptoms have increased and she is struggling with the demands of her role. Her employment status is at risk (as this is a new role and is currently on probation). [BTG] will benefit from counselling to assist with her recovery and address symptoms impacting on her daily functioning at work and at home."

1. The claimant saw Dr Rassam again on 26 October 2023. The claimant had low iron but declined iron tablets. Dr Rassam referred the claimant to Ms Temler, psychologist on

3 November 2023, "for counselling sessions - PTSD following MVA". 2. Further sessions of physiotherapy occurred on 10, 15, 22 and 29 November 2023. 3. Dr Rigney, neurologist saw the claimant on 22 November 2023 on referral from Dr Rassam. She has a history of the claimant's full-time work, the PhD and the claimant's modelling agency, charity and keynote speaking work all of which were said to be on hold as a result of the accident and her condition. 4. Dr Rigney has a history of the accident occurring at 50 kms per hour, that the claimant hit her head when they were struck because her seat belt was not properly fastened and that headaches began two days later (over the temples) and she had neck pain (right side). 5. The claimant reported daily headaches, on waking, getting worse at midday. The pain was aching and throbbing with photophobia, phonophobia, blurred vision and occasional nausea and vomiting. Th headaches were aggravated by screens and fluorescent lighting. 6. The headaches responded to Paracetamol. 7. Dr Rigney has a history of a post-traumatic stress disorder diagnosis, and that the claimant was having counselling and physiotherapy. 8. She diagnosed migraine without aura "which may be related to her accident." She requested scans, prescribed medication and discussed with the claimant a proposed staged return to work. Dr Rigney wrote a letter "to whom it may concern" regarding the proposed staged return to work. It appears this may have been provided to the claimant's employer as one page of it is included in the bundle (at page 1,477) with the claimant's request to her employer vary her hours. 9. The claimant attended Oxford Village on 6 December 2023 for physiotherapy. 10. The claimant saw Dr Rassam on 7 December 2023 to discuss a specialist's letter, presumably Dr Rigney's. 11. An MRI of the claimant's cervical spine was done on 9 December 2023 and there was no evidence of any cervical spine injury, and the brain MRI was said to be normal[24]. 12. Further physiotherapy occurred in January 2024 with some improvement, but the right upper shoulder was reported to be still painful. 13. Ms Temler wrote a report to Dr Rassam on 16 January 2024[25]. Ms Temler records a history from the claimant of how she was before the accident:

(a) she was active, social and happy;

(b) she was an extrovert, independent and able to multitask;

(c) she led a highly active purposeful lifestyle organising charity galas, serving on committees, running a modelling agency, public speaking, working on her PhD, working full time;

(d) she was in a loving supportive relationship;

(e) she actively socialised with friends and was healthy in an exercise routing playing in a soccer team and going to the gym, and

(f) she was satisfied with her life.

1. Ms Temler records that they had been to a gala, she and her partner were returning home in a ride share vehicle when they were hit from behind. The claimant said she did not have her seat belt on and struck her head and shoulder on the seat in front of her. She said she developed a headache and shoulder pain the next morning which progressed over the next few days. She said she was referred for physiotherapy and told to take Panadol and Panadeine Forte.
2. The claimant said her headaches intensified and she became agitated, anxious and her sleep deteriorated. She took two months off work. During this time, she developed a racing pounding heart and difficulty breathing.
3. The claimant said she experienced flashbacks, avoid situations, recurrent dreams of being trapped in a car and waking in a panic. She was unable to drive at this time and was relying on her partner and this was causing stress in the relationship. She felt fear when in a car or as a pedestrian but was fine when riding a train.
4. The claimant reported she had severed ties with all her friends, stopped going to the gym, put her PhD on hold.
5. She expressed feelings of a low mood and when she returned to work struggled with concentration and felt overwhelmed.
6. The claimant said she had consulted two other counsellors who suggested she could be suffered from post-traumatic stress disorder "as these were counsellors and not registered psychologists, they were unable to provide a recognised formal assessment."
7. Ms Temler administered a number of tests as follows:

(a) the Depression Anxiety and Stress Scale - 21 (DASS 21) which suggested the claimant had extremely severe levels of depression, anxiety and stress;

(b) the Primary Care PTSD screen - the claimant scored 4 and reported avoidance, hypervigilance and detachment from activities;

(c) PTSD checklist (PCL) - the claimant scored 77 indicating a "high severity of PTSD symptoms"

(d) The personality Assessment Inventory (PAI) - the claimant's scores indicated a major depressive disorder (single episode) and for posttraumatic stress disorder (unspecified.)

1. Ms Temler says these tests support the claimant's self-report. She then lists the criteria of post-traumatic stress disorder from DSM-5 (not the text revision version) and says the claimant meets the diagnosis criteria for such a disorder.
2. Ms Temler says they have had six sessions to date, and she has approached the treatment on the basis of cognitive behaviour therapy with a focus on psychoeducation.
3. While some improvement was noted Ms Temler considered the claimant need further consistent sessions on a weekly basis.
4. Dr Bandara, of Main Street Family Medical Practice, Blacktown completed a certificate of fitness for the claimant on 8 February 2024. He says the claimant was first seen at the practice that day and diagnosed a "suspected trapezius muscle strain, PTSD, migraine (referred headache)". He certified the claimant fit for work four days a week, seven hours a day.
5. Ms Temler wrote to Dr Bandara, of Blacktown on 16 February 2024[26] at which time there had been 10 counselling sessions. While she did not include any of the history or test results she appears to have repeated her treatment record, the claimant's progress and attitude and her earlier recommendations for ongoing treatment. She does note that the claimant's termination from work led to a decline in her mental state.
6. Dr Azar of the Bondi Junction Medical Practice referred the claimant to Ms Temler on

16 May 2024 for "ongoing pain headaches, depressed and anxious mood. Things are not improving for her especially in terms of her physical injuries. Her mood continues to be low. She will need ongoing psychological therapy." 7. Ms Temler wrote to Dr Azar of Bondi Junction[27]. The claimant had been progressing and had applied for jobs and her mood was increasing. However, at the end of April 2024 the claimant declined due to stress associated with the claims process. The DASS test was administered on 8 May 2024 and the claimant was still recording severe scores in depression, anxiety and stress. Ms Temler recommended a further eight sessions. 8. Three AHRR forms for psychological treatment were completed by Ms Temler. 9. There is in the bundle, a change of work hours from 16 November 2023 to 2 February 2024. The claimant wanted to work four days a week seven hours a day and this was approved. 10. Dr Andrew McDonald, sports and exercise physician saw the claimant on 7 May 2024 and reported to the insurer. The claimant described her main activity as walking for 20 minutes twice a week. 11. He has a history of the accident and says that the claimant was thrown forward and then fell backwards and "struck her head over the front passenger seat headrest, her right shoulder struck the front passenger seat, and both knees hit the back of the front passenger seat". The claimant says she was driven home, she was in shock and her whole body was sore. 12. The claimant reported ongoing headaches and that she had consulted Dr Rigney. The claimant said she had pain over the right side of the neck and trapezius and headaches. 13. Dr McDonald also noted significant right shoulder symptoms and left thigh pain which he did not have time to assess. 14. After examining [BTG], he diagnosed "subacromial impingement" and recommended rotator cuff strengthening with physiotherapy and a subacromial corticosteroid injection.

1. Medical Assessor Mitchell examined the claimant on 11 December 2024 and issued his reasons on 2 January 2025. He was asked to determine a dispute about a referral for a specialist consultation for a left thigh injury said to have been sustained in the accident.
2. Medical Assessor Mitchell refers to additional documents including a witness statement from the clamant, the report of Dr Griffith, an email from the insurer's solicitor and a letter from UNSW and the claimant's response to Dr Griffith's report.
3. Medical Assessor Mitchell takes this history at [8], [9] and [10]:

(a) the claimant was sitting in the back seat on the passenger side of a ride share vehicle;

(b) she had difficulty applying her seatbelt;

(c) the vehicle struck the car in front;

(d) she was thrown forward and then fell backwards, hitting her head on the front passenger seat headrest, her right shoulder on the front passenger seat and both knees hit the back of the seat;

(e) the claimant attended Dr Rassam for treatment and there is no mention of thigh pain in his records;

(f) she was referred by Dr Azar to a sports physician Dr Taylor who on 19 March 2024 said she had suspected tears in her left thigh and right shoulder and on

20 March 2024 she had MRIs which confirmed these tears;

(g) Dr Azar referred the claimant to Dr McDonald which was cancelled as the insurer apparently refused to pay for it. Medical Assessor Mitchell notes there is a report from Dr McDonald dated 7 May 2024 in the records and he does not refer to symptoms in either leg, and

(h) the claimant denied any relevant new or subsequent injuries or conditions after the car accident.

1. On examination the claimant had normal neck motion with no guarding or increased muscle tone. The shoulder joint movement of each shoulder was normal.
2. The claimant was reported at [16] to have told Medical Assessor Mitchell that she had not played sport for at least 10 years however he notes the claimant's psychologist Ms Temler recorded a history on 16 January 2024 of the claimant "being part of a soccer team and also regularly going to the gym" before the accident. He also notes the history taken by Medical Assessor Canaris of the claimant becoming a football player and receiving a football scholarship to the University of New South Wales.
3. Medical Assessor Mitchell considered the left thigh MRI of 8 April 2024 which reported a focal area of chronic injury with localised atrophy of the musculotendinous fibres of rectus femoris" and that there was no evidence of muscle oedema or haemorrhage which might indicate an acute injury. Medical Assessor Mitchell has suggested there is "very minor atrophy" in keeping with an old injury.
4. Medical Assessor Mitchell noted there was no mention of thigh pain documented at the time of the accident, in the claim form or the records from Dr Rassam. He says the first mention of thigh pain was seven months after the car accident. He therefore considered any symptoms in the left anterior thigh do not relate to the accident and therefore he did not allow the disputed treatment.

Employment, business interests and social media

1. The claimant changed her full-time working hours to part time (four days a week) effective on 16 November 2023[28]. This was supported by Dr Rigney[29] and Dr Bandara[30].
2. The claimant's partner wrote to the insurer on 19 February 2024[31] concerning the claimant's cessation of work before the expiration of her one-year contract. He says:

"... [BTG] hasn't had the opportunity to fully establish herself in her role and hasn't been able to meet the agreed-upon full-time hours due to her ongoing recovery. Despite returning to work, she hasn't received the necessary support from her employer and has been subjected to undue pressure, as evidenced by the attached email exchange between [BTG] and her Director within a week of her return. It's evident that [BTG]'s employment has been significantly impacted by the aftermath of the accident."

1. The insurer's investigator's report 24 July 2024 that the claimant is the director and shareholder of a registered company which has two business names associated with it. One of those, a modelling business is said to have no social media activity after the accident and the other business was deregistered before the accident. The report also indicates the claimant is the head of a charity and there have been posts of the claimant attending functions and events with her partner after the accident.
2. The claimant has her own website and has presence on several social media platforms after the date of the accident. The claimant has also engaged with traditional publications and television after the date of the accident.

Does the claimant have a post-traumatic stress disorder?

1. [BTG] is reported to have developed some post-traumatic symptoms after accident, such as nightmares, flashbacks and some avoidance of driving. Some of her health care practitioners have indicated she has post-traumatic symptoms, and Ms Templer was of the view the claimant satisfied the criteria for such a disorder.
2. It is, however, the clinical judgment of the Medical Assessors that [BTG] has never fulfilled all the diagnostic criteria for a post-traumatic stress disorder, in particular Criterion A which requires "exposure to actual or threatened death, serious injury ..."
3. The commentary within DSM-5-TR about Criterion A says:

"The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war ... threatened or actual physical assault ... threatened or actual sexual violence ..., being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents [emphasis added]."

1. While the Medical Assessors accept that the claimant was involved in a motor vehicle accident and she may have been physically injured, she does not report she saw what was going to happen (understandable as she was a rear seat passenger focussed on fastening her seat belt). There was no report of immediate injury and the claimant, and her partner continued on the drive home.
2. The Medical Assessors have viewed the photographs showing the damage done to the two cars and have reviewed the statements of the drivers of the two vehicles involved and notes no airbags deployed and no windows were broken. No police or emergency services came to the scene, no person was required to be extricated by fire and rescue and there is no evidence of anyone else involved in the accident being injured and taken to hospital. The claimant went to a doctor 10 days after the accident. In terms of [BTG]'s injuries, no bones were broken and there were no lacerations or abrasions and therefore no exposure to the sight or smell of blood.
3. The Medical Assessors are of the view that the motor accident was not a "severe motor vehicle accident" as required by Criterion A and that the claimant was not exposed to actual or threatened death or serious injury.
4. The Medical Assessors note the diagnosis of Ms Temler and the tests she administered. It does not appear that Ms Temler had the statements from the drivers or the report of Dr Griffiths and therefore it would appear she had insufficient information upon which to base any opinion in regards to Criterion A.

Does the claimant have a somatic symptom disorder?

1. Medical Assessor Canaris diagnosed a somatic symptom disorder. No other health practitioner has diagnosed this disorder. The Medical Assessors note the criteria for such a disorder are as follows:

(a) Criterion A - one or more somatic symptoms that are distressing or result in significant disruption of daily life;

(b) Criterion B - excessive thoughts, feelings, or behaviors related to the somatic symptoms or associated health concerns as manifested by at least one of the following:

(i) disproportionate and persistent thoughts about the seriousness of one's symptoms;

(ii) persistently high level of anxiety about health or symptoms, and

(iii) excessive time and energy devoted to these symptoms or health concerns;

(c) Criterion C - although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than six months);

(d) with predominant pain - this specifier is for individuals whose somatic symptoms predominantly involve pain, and

(e) persistent - a persistent course is characterized by severe symptoms, marked impairment, and long duration (more than 6 months).

1. The Medical Assessors note that a somatic symptom disorder is diagnosed when a person's focus is on physical symptoms, such as pain, to the extent that it results in significant distress and problems functioning in their ordinary life. The disorder is characterised by excessive thoughts, feelings and behaviours relating to their physical symptoms. The physical symptoms do not have to be associated with a medical condition that has been diagnosed and can (and often do) relate to an undiagnosed or unexplained medical condition. The person is experiencing symptoms and genuinely believes they are injured or sick and they are not feigning injury or malingering.
2. The Panel notes the report of Dr Griffiths cast doubt on whether the claimant could have sustained any injury in the accident however the insurer has conceded the claimant sustained at least a whiplash injury to her neck. The insurer has also not disputed the diagnosis of headaches but has disputed whether they were caused by the accident. The Panel has also considered the decision of Medical Assessor Mitchell who found there was no thigh injury caused by the accident but did suggest the claimant had sustained an injury to her thigh in earlier years.
3. The symptoms associated with the claimant's physical injuries were distressing to the claimant in the acute phase of her injury, therefore Criterion A of a somatic symptom disorder is satisfied. The claimant was still complaining of symptoms and having treatment in January 2024, six months after the accident therefore Criterion C is satisfied. The Medical Assessors in their clinical judgment are not however satisfied that Criterion B is satisfied. The claimant's thoughts about her symptoms and injuries were not excessive or out of proportion in the acute phase of her injury. The Medical Assessors have also considered the claimant's social media profile and level of social activity, her business and charity work and her continued employment albeit with difficulty. Her level of engagement in all of these things indicates the claimant has been able to function to an extent which is inconsistent with a finding of a somatic symptom disorder.

Does the claimant have a major depressive disorder?

1. The Panel notes that the claimant's psychologist, Ms Temler on 16 January 2024 suggested in a report that the claimant may have had a major depressive disorder (single episode).
2. One of the key features of a major depressive disorder diagnosis is that the person must experience a persistently depressed mood or a significant loss of interest or pleasure in most activities for most of the day, nearly every day. The claimant's ability to work, continue to run her company and charity and attend events would, in the clinical judgment of the Medical Assessors prevent the diagnosis of such a disorder.

1. The Panel notes the provisional diagnosis of an adjustment disorder made by Ms Seraskeris and the diagnosis of an adjustment disorder made by Medical Assessor Canaris.
2. The Medical Assessors are of the view having read the medical material and other evidence that the claimant does satisfy the criteria of an adjustment disorder with mixed anxiety and depressed mood for the following reasons:

(a) Criterion A - she was exposed to a motor accident. While not a "severe" motor accident, the evidence clearly establishes that an accident occurred. The claimant's involvement in it was as a rear seat passenger struggling to fasten her seatbelt. The claimant's symptoms clearly emerged soon after the accident;

(b) Criterion B - her symptoms are clinically significant more so in the early weeks and months after the accident. There is evidence of more significant impairment in social and occupational functioning in the early days. The claimant's own evidence of returning to work and no longer needing treatment suggests her symptoms are no longer clinically significant;

(c) Criterion C - the Medical Assessors have earlier excluded the other suggested diagnoses and there is no evidence in the medical material before the Panel of any other mental disorder;

(d) Criterion D - the Medical Assessors have reviewed the documentation and the histories given by the claimant and are of the clinical judgment that her symptoms do not represent any form of normal or other bereavement, and

(e) Criterion E - the consequences of the stressor persisted for some months in the form of physical pain and headaches which the claimant linked to the accident. Whether the claimant may have recovered from her physical injuries is not necessary for the Panel to determine as, on the basis of the Lynch decision, the claimant's current state (recovered, in remission, healed) is irrelevant to the statutory question that must be answered by the Panel.

1. The Medical Assessors accept that on the evidence before them, including the insurer's concession, that the claimant did sustain physical injury in the motor accident on 8 July 2023. On the evidence including the clinical findings of Medical Assessor Canaris (taken into account in the absence of a re-examination of the claimant) the Medical Assessors are also satisfied that [BTG] did develop psychological or psychiatric symptoms as a result of the accident.
2. The Medical Assessors have diagnosed the claimant with an adjustment disorder with mixed anxiety and depression. While it appears from the claimant's recent communications with the Commission that this disorder may be in remission, in the absence of a re-examination the Panel does not propose to make that finding.
3. As the diagnosis is that of an adjustment disorder, that injury is taken to be a threshold injury by operation of cl 4(2) of the Regulation.
4. As the Panel has come to a different conclusion to Medical Assessor Canaris it follows that his certificate must be revoked.
5. As the claimant has taken no active part in these proceedings, the Panel considers it appropriate to direct that this decision be de-identified in accordance with Rule 132.

[1] Sections 3.11(1) and 3.28(1) of the MAI Act.

[3] The current version of the Guidelines is version 9.3.

[4] Schedule2, clause 2(e) in the MAI Act.

[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.

[6] See Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6 (Lynch).

[7] See Todev v AAI Limited t/as GIO [2023] NSWSC 836 and AAI Limited t/as GIO v Hoblos [2023] NSWPICMP 210.

[8] The numbers in square brackets are a reference to the section number in the Medical Assessor's reasons.

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

[11] A decision was issued to the parties but not published to a wider audience via the Commission's bulletin or Austlii.

[14] [2022] NSWSC 1079.

[16] Provided by the claimant on 19 June 2024 in the current proceedings. Michelle's surname is not disclosed.

[17] Provided by the claimant on 19 June 2024 in the current proceedings.

[19] Page 1041 of the insurer's bundle.

[20] Page 1375 of the claimant's bundle.

[21] Page 1502 of the insurer's bundle.

[22] Page 1376 of the insurer's bundle.

[23] Page 1381 of the insurer's bundle.

[24] Page 1389 of the insurer's bundle.

[25] Page 1299 of the insurer's bundle.

[26] Page 1405 of the insurer's bundle.

[27] Page 1407 of the insurer's bundle.

[28] Page 1475 of the insurer's bundle.

[29] Page 1388 of the insurer's bundle.

[30] A certificate of fitness dated 8 February 2024.

[31] Page 1511 of the insurer's bundle.