1. Confirms the certificate of Medical Assessor Christopher Canaris dated 19 January 2024.

1. Mr Prabin Sapkota (the claimant) is a 51-year-old man who alleges injury from a motor accident that occurred on 17 April 2020.
2. A claim was lodged upon AAI Limited t/as GIO (the insurer) who is the compulsory third party insurer of the vehicle considered at fault. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act 2017 (MAI Act).
3. The subject issue in dispute is whether certain treatment is causally related to the motor accident and reasonable and necessary. This is a medical dispute for the purposes of the MAI Act.[1]
4. This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Christopher Canaris. In a certificate dated 19 January 2024, the Medical Assessor certified that "eight sessions of psychological counselling" relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances.

1. An application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer. In a determination dated 17 May 2024, the President's delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
2. Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
3. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[3]
4. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
5. The review is by way of new assessment of all matters with which the medical assessment is concerned.[5]
6. The Panel met via videoconference on 13 March 2025 and it was determined that a re-examination of the claimant was necessary. This was arranged to occur with both Medical Assessors via Microsoft Teams on 5 June 2025. The examination proceeded as scheduled.
7. The Panel reconvened via videoconference on 10 July 2025 to discuss the clinical examination findings and material provided by the parties. At that conference it was decided that a further examination of the claimant was necessary to ensure that all relevant matters were adequately considered. A further examination was arranged to occur between the claimant and all three Panel members on 4 September 2025.

1. Pursuant to Part 3 of the MAI Act the insurer is liable for the payment of statutory benefits, including treatment and care benefits as set out under Division 3.4.
2. Section 3.24(2) of the MAI Act provides that:

"No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned."

1. The test of whether the subject treatment and care is reasonable and necessary is generally considered a stricter test than the corresponding test in the New South Wales workers compensation benefits scheme that requires a worker to establish that the treatment is "reasonably necessary".[6]
2. The cases relating to the workers compensation scheme, whilst not binding, provide some guidance. In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:

(a) the appropriateness of the treatment in dispute;

(b) the availability of alternative treatment;

(c) the cost effectiveness of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the appropriateness of the treatment.

1. The words "did not relate to the injury resulting from the motor accident" contained in s 7.26 of the MAI Act require the Panel to determine the issue of causation of the subject injury before determining whether the treatment relates to that injury.
2. The Panel has considered the case of AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 (Phillips), when determining the issue of whether the treatment is related to the injury caused by the motor accident. The case of Phillips involved a claimant involved in three separate motor accidents and the Court, dealing with the issue of causation for surgical treatment found at [28] and [29]:

"The requirements in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel's assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to 'the injury caused by the motor accident'.

I accept the plaintiff's submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered."

1. Causation of injury is addressed from cl 6.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment, they are relevant.[7] Clauses 6.5 and 6.6 provide:

"6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.

This, therefore, involves a medical decision and a non-medical informed judgement.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[8]

(1) A determination that negligence caused particular harm comprises the following elements -

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent -

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

1. Following examination on 19 January 2024, Medical Assessor Canaris, in a certificate and reasons dated 19 January 2024, diagnosed the claimant as suffering a somatic symptom disorder with predominant pain. He found:

"this diagnosis does not imply that his pain is without pathophysiological basis but rather reflects the extent to which it dominates his life. His somatic symptom disorder is associated with anxiety, low mood, irritability, loss of motivation, loss of concentration, and social withdrawal which is consistent with a diagnosis of persistent depressive disorder."

1. He found that both conditions were substantially caused by the subject motor accident, while accepting that at various times other factors have contributed to the depression such as "vilification he experienced in his workplace." A history of depression between 2002 and 2009 was noted.
2. The Medical Assessor found that the eight sessions of psychological counselling were related to the injury caused by the accident and were reasonable and necessary.

1. The only submissions provided to the Panel are those relied upon by the insurer. The claimant has not lodged a reply to the insurer's application for review and has also not lodged any documents in compliance with Panel directions that the parties lodge a bundle of documents relied upon.
2. The insurer's review application submissions are undated. The insurer submits that the Medical Assessor confused the histories of two separate motor accidents, and he relates the subject treatment in dispute to the unrelated motor accident of 5 May 2018 which is the subject of a claim with Allianz Australia Insurance Limited.
3. The insurer submits:

"by reason of the assessor relying upon the incorrect accident and factual circumstances it is the insurer's contention the assessor has misdirected himself. By relying on an inaccurate and incorrect history of the accident and the claimant's medical history, this renders his conclusions unsound."

1. In submissions dated 26 August 2022, in reply to the original application, the insurer refers to an Allied Health Recovery Request (AHRR) No. 1 for counselling dated 27 October 2020,

Mr Prasad who completed same refers to the requested services relate to the claimant being exposed to threats of violence and racial vilification from a customer within the workplace. 2. It is further noted that an AHHR no. 2 completed by Mr Prasad, which contains the requested treatment that is the subject of this dispute, Mr Prasad repeats the rationale for the treatment request in exact terms as the previous request. 3. The insurer notes that the claimant's general practitioner (GP) does not diagnose the claimant as suffering a psychiatric injury and made no recommendation for the involvement of a psychologist or counsellor.

1. In directions dated 5 February 2025, the Panel required the parties to each lodge a single indexed and paginated bundle of all documents relied upon. The claimant did not lodge a bundle. In addition, no reply was lodged in response to the insurer's application for review.
2. The Panel has been informed and verily believe that all documents relied upon by the claimant in the original application has been included in the insurer's bundle lodged in accordance with Panel's directions.
3. In making its determination the Panel has considered all documents included in the insurer's bundle lodged on 21 February 2025 consisting of 161 pages - "2025.01.21 - Insurer's Bundle of documents for review of Assessor Canaris".
4. Whilst not every document has been referenced within these reasons, the certificate and reasons have been prepared in the context of all documentation having been considered.

1. In this claim form completed by the claimant on 24 April 2020, injuries are described as: neck pain, back pain, lower back pain, fear of driving, anxiety, flash back and disturbed sleeping.
2. The claimant ticks the "no" box to the question of whether he was suffering from an illness or injury affecting the same or similar part of his body at the time of the accident.

1. The claimant gives a history of a workplace accident occurring on 5 May 2002. He suffered a compound fracture to his right femur after being in a tow truck with failing brakes. The truck fell into an elevator pit and was stuck for a number of hours.
2. The statement suggests that it took time for him to recover from that accident but by around 2014 he had largely returned to normal functioning and had no ongoing significant problems.
3. By 2014 he was working normal duties for Henry Schein Dental Practice as a team leader.
4. He states that he was largely back to normal physically when he had a further motor vehicle accident on 5 May 2018. He states that he was stationary at a roundabout in Wolli Creek when a car speeding behind him collided with the back of his vehicle. He lists a number of physical injuries suffered as a result of that accident including to the back, neck and right knee, together with a psychological injury.
5. In respect of the subject accident he notes that he was driving in Campbelltown when a car coming from his right without stopping collided with the right driver's side of his car. He states that he suffered an aggravation to his back, right knee and neck injury and an injury to his right heel.
6. The statement sets out that prior to the 2018 motor accident he would regularly go out to play football, weight lift and go dancing socially. He no longer does. He states that prior to the 2018 motor accident he had been taking antidepressants and seeing a psychologist on and off for the 5 May 2002 incident. He states that he was however, coping and working full time for Third Eye Entertainment Pty Ltd as an operations manager.
7. He states that by the time of the motor accident on 5 May 2018 he had largely returned to normal. Psychologically, he would prefer to avoid driving if he could and was more careful with driving.

1. The Panel has considered the AHHR documents that the insurer has referred to within its submissions and are summarised above.
2. The Panel notes that the "rationale for services requested" is filled out as follows: "client was directly exposed to threats of violence and racial vilification form a customer at her work place. Since this incident is suffering from psychological issues as mentioned earlier. Client is seeking treatment and is referred by his GP for counselling."
3. The clinical assessment is detailed as "DASS 21 indicates anxiety" and pain in the neck, knee and lower back is noted. It was noted the claimant is taking Adronix, increased to 8mg and he was reporting feeling down, lacking in motivation and energy and had disturbed sleep and poor concentration and worries.

Report of Michael Griffiths, biomechanical engineer dated 27 November 2023

1. Mr Griffiths, following analysis of the accident dynamics and photographs of the vehicles involved concludes that "...there was no possibility of any forces being applied to the right knee by way of impact with aspects of the vehicle interior." He also concludes that in respect of the injuries to the neck, lower back and heel, the available research shows that any possible forces were well below the threshold for a new injury.

1. The below is the clinical examination findings summarised from both examinations that were conducted.

1. Mr Prabin Sapkota is a 50-year-old man who resides in Sydney, NSW, with his wife and their two children. He co-owns and manages a bar and conference centre with a business partner, working approximately 25 hours per week. He describes ongoing financial stressors connected with the business.
2. Mr Sapkota has a significant trauma history involving multiple accidents. He provided the Panel with a history of relevant events.
3. In 2002, he sustained a major workplace injury when the brakes on the truck he was driving failed, causing the vehicle to plunge down an elevator shaft. He sustained a right-hand tendon laceration and an injury to his right thigh, both requiring surgical repair. He described the event as life-threatening, with paramedics attending the scene and a 12-day hospital admission following. In the aftermath, he developed psychological problems consistent with post-traumatic stress disorder, including nightmares and intrusive memories. He made two suicide attempts by overdose, one requiring emergency intervention when he was found unconscious by a friend. He received prolonged psychiatric treatment and was prescribed venlafaxine and reboxetine. He recalls an admission to a psychiatric hospital for one week in 2004-2005. By 2009, he had ceased medication and reported significant improvement, with only occasional nightmares and no ongoing physical pain. He gradually resumed socialisation and described himself as largely recovered by 2014.
4. On 5 May 2018, he was involved in a motor vehicle accident when his car was rear-ended. The impact caused him to strike his right knee, and the car was badly damaged. Although able to exit the vehicle independently, his pain worsened overnight, and he sought GP care within days. He was referred to a specialist, recommenced counselling with his former therapist, and was prescribed reboxetine by his GP. He developed disturbed sleep, nightmares of the crash, and a degree of social avoidance, but his symptoms were less intense than in 2002, in part due to stronger family support. He remained able to drive short distances but avoided crowded areas, ultimately relocating closer to work to reduce travel.
5. On 17 April 2020, he was again involved in a collision, this time a side-impact crash in Campbelltown when another vehicle turned into his path. His right knee struck the steering column, aggravating pre-existing pain from 2018. He described feeling fearful and overwhelmed but did not seek immediate hospital care, instead contacting his wife. A few weeks later, as his pain escalated, he consulted his GP, was prescribed analgesia, and referred to a specialist. Compared with 2018, the psychological impact was greater, with heightened anxiety, frequent nightmares, and worsening mood. At the time, he had ceased antidepressants for several months, leaving him more vulnerable to relapse.
6. By early 2020, before the accident, Mr Sapkota considered himself to be functioning better than in earlier years. While some records suggested improvement by 2014, he clarified that meaningful recovery began around 2009, with stabilisation by 2014. He described his emotional state as "significantly better," with occasional seasonal mood changes and pain flare-ups, particularly in colder months. He was actively trying to improve his health, engaging in cycling and gym activity, and was socially reconnecting. Although not fully symptom-free, he was regaining independence and striving for normality.
7. Mr Sapkota denied any incidents of racial vilification or threats at his workplace. He could not recall experiencing discrimination of this nature, and there is no indication that workplace events contributed to his psychological difficulties. His distress is attributable to accident-related trauma and its consequences. He appeared surprised by this query and had no explanation for the inclusion of a mention of racial vilification in the AHHR.
8. Prior to 2018, he was confident with both short and long-distance driving, including for work. After the 2018 collision, his confidence diminished, and he began limiting travel to shorter trips. Following the 2020 accident, this avoidance became more pronounced. He no longer undertakes long-distance driving, instead relying more heavily on his wife for transport. This restriction reflects a combination of chronic pain and driving-related anxiety.
9. Before 2018, he was physically active, attending the gym regularly and participating in sports. After the 2018 accident, pain forced him to reduce such activities, leading to a gradual withdrawal from exercise and some social functions. Since 2020, his functioning has further declined. He now requires assistance with heavier household tasks and is more dependent on his family. Activities that once provided pleasure, such as sport and socialising, are now curtailed by the interplay between physical pain and psychological distress.
10. Since the 2020 accident, Mr Sapkota has remained in counselling, continuing his therapeutic relationship with his psychologist. The sessions primarily address accident-related trauma, chronic pain, and associated anxiety. He does not report workplace stressors as a focus of therapy. He believes that without the 2020 accident, his need for ongoing psychological care would have been reduced. He finds therapy helpful, particularly in managing mood, sleep disturbance, and coping with pain, and regards his sessions as supportive and confidential.
11. Psychologically, Mr Sapkota continues to report significant distress. He describes poor sleep with early, middle, and late insomnia, nightmares, and occasional night terrors. His memory and concentration are impaired, particularly with registering new information, though he compensates with notes and reminders. Motivation and energy levels are low, impacted by both pain and mood. He reports low tolerance for frustration, irritability, and occasional impulsivity, though he denies self-harm or current suicidal ideation. He describes himself as emotionally sensitive, prone to anxious rumination and catastrophising, though he values structure and control. He avoids crowded environments, reports social anxiety, and remains hyperaware of his surroundings. He occasionally experiences flashbacks related to his accidents.
12. Despite these difficulties, he maintains stable relationships with his wife and children, finds moments of enjoyment, and continues to hold a hopeful outlook for improvement through treatment.

1. Mr Sapkota did not report suicidal thoughts, intentions, or plans.
2. He reported a history of attempted suicide requiring hospitalisation due to overdose on two occasions. His children are a protective factor, and there is no known family history of suicide.
3. He denies history of self-harm or risky behaviours.
4. He reported feelings of irritability, poor frustration tolerance, and occasional impulsivity.

1. Mr Sapkota's sleep is described as suboptimal. He sleeps for three to four hours at night. He has early, middle, and delayed insomnia. Anxious ruminations are prominent at night. He has nightmares and night terrors, though infrequently.
2. No 2002 accident nightmares are currently reported.
3. He feels tired and lethargic because of the poor quality of sleep.
4. Mr Sapkota's memory is described as suboptimal. He tends to be forgetful and struggles with registration of information when meeting people or reading. He does not tend to struggle with organising himself. He relies on notes and requires reminders. This has enabled him to complete tasks and follow through with them. His concentration and attention are also described as not optimal.
5. Mr Sapkota's motivation and energy levels are poor. This is impacted by pain and stress. He tries to remain behaviourally active but struggles. When he goes to the gym, he finds it difficult to engage effectively and without much success.
6. His self-care and hygiene are adequate. He does not require assistance with personal ADLs.
7. His ability to drive is intact. He drives short distances but avoids long-distance driving and seeks his wife's assistance. He does not use public transport, but if required, he would force himself to use it.
8. His appetite is described as adequate. His weight fluctuates.

1. Mr Sapkota has been diagnosed with post-traumatic stress disorder by his GP. He was engaged in psychological and psychiatric treatment prior to the subject accident.
2. He has been engaged with psychological support. He sees his counsellor, Ms Mohini Prasad, once a fortnight. He finds engagement with the psychologist beneficial. Historically, he has also engaged with a psychiatrist.

1. Mr Sapkota has no active medical issues. He has no history of head trauma or seizures. He has no known allergies.

1. He takes venlafaxine 150 mg mane. He is also taking pain medications. His adherence with venlafaxine has not been optimal as he had stopped it for a few months. Historically, he has tried reboxetine.

1. Mr Sapkota does not drink alcohol, smoke, use drugs, or gamble. There is no history of excessive caffeine intake.

Salient features of psychosocial and developmental history

1. Mr Sapkota's primary emotional support comes from his wife. They have been married for eight years. She is a part-time nurse working on a casual basis. The couple has two young children.
2. Originally from Kathmandu, Nepal, he has one older brother. His mother is still alive, but his father passed away after falling from a two-storey building. He has a good relationship with his family.
3. He moved to Australia in 1997 as a student.
4. In Australia, he completed a business management degree and later obtained a property management certificate in 2009.
5. After 2009, he resumed full-time work and held various jobs, including working for McDonald's and a dental equipment company. In 2015, he started his own business, which he continues to run today.
6. Mr Sapkota has no criminal record.

1. On mental state examination, Mr Prabin Sapkota is a male of the stated age. He was appropriately dressed and groomed. He was easy to engage, and I was able to form a good rapport with him. There was no psychomotor agitation or retardation. His body demeanour was anxious. His speech was of regular rate, volume, and tone. The thought form was goal-directed, and the content revolved around his traumatic incidents and the consequences of these on the worsening of his psychological and physical health symptoms. At times, there was ambivalence noted in his responses. There was no evidence of any psychosis or perceptual disturbances. His affect was constricted and depressed. His mood was depressed. He was oriented to person, place, and time. His insight is best described as fair. His judgement at the time of this review was reasonable.

1. Mr Prabin Sapkota presents with a long-standing depressive illness, best described as persistent depressive disorder (Dysthymia), which has been complicated by chronic pain and repeated accident-related trauma. His difficulties noticeably worsened following the motor vehicle accident of 17 April 2020. Since then, his low mood, poor sleep, anxiety, and pain-related distress have become more pronounced, leaving him with reduced capacity to manage day-to-day demands.
2. From a diagnostic perspective, his history and current presentation fit DSM-5-TR criteria for persistent depressive disorder. He has lived with a depressed mood for many years, accompanied by low energy, feelings of hopelessness, and reduced confidence. These symptoms have had a tangible effect on his relationships, work, and general quality of life.
3. While his emotional state is closely tied to the pain he experiences, his concerns about pain are proportionate to his actual injuries and the limitations they create. He does not show the features that would suggest somatic symptom disorder, such as disproportionate health anxiety or excessive pursuit of medical reassurance. His preoccupations are consistent with the reality of ongoing physical impairment and its psychological consequences.
4. The impact of repeated traumatic experiences has amplified his natural anxious temperament. He has a tendency towards worry, rumination, and heightened emotional sensitivity, which, in the context of his accidents, has contributed to further decline in mood and confidence. Alongside this sits a sense of loss - particularly the loss of independence and capacity to participate fully in work, social activities, and family life.
5. His care has mainly been overseen by his GP, with antidepressant treatment prescribed, although adherence has been patchy at times. He has been more consistent with psychological therapy, finding regular sessions with Ms Mohini Prasad both supportive and beneficial. These sessions help him to manage his sleep difficulties, regulate mood, and adjust to living with chronic pain.

1. The above clinical examination findings were discussed by the Panel and it was collectively agreed that they would be accepted by the Panel and form part of these reasons.
2. On balance, the 2020 motor vehicle accident has compounded the claimant's psychiatric condition, both by aggravating existing depressive symptoms and by reinforcing his sense of physical and psychological vulnerability. In this context, a further block of eight psychological therapy sessions is not only reasonable but also clinically justified, given the ongoing need to support his recovery and maintain stability.
3. The Panel accepts that the claimant would likely have been suffering psychological symptoms at the time of the subject accident, which relate to the earlier accidents described. However, the Panel accepts the history of the claimant, and the limited medical evidence available that the subject motor accident has made a material contribution to the claimant's present psychological symptoms.
4. It is well established that psychological counselling in the context of psychological symptoms arising from a traumatic event is beneficial. The claimant is likely to achieve an improvement in his symptomatology if the psychological counselling is received. The counselling should take place in the context of management of his GP.
5. The Panel has had regard to the submissions of the insurer in respect of the rationale set out in the AHHR documents. The Panel has formed the view that on the balance of probabilities, such rationale is an error. In this regard, the rationale uses the pronoun of "she", and when questioned the claimant was surprised by the description read to him. He had no explanation for such inclusion and denied having suffered racial vilification in the workplace.

1. The Panel finds that the eight sessions of psychological counselling is related to the injury caused by the motor accident and is reasonable and necessary.
2. The certificate of Medical Assessor Christopher Canaris is therefore confirmed.

[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.

[6] Section 60 of the Workers Compensation Act 1987.

[7] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].