Issued under Division 7.5 of the Motor Accident Injuries Act 2017

(a) revokes the certificate of Medical Assessor Yu Tang Shen dated 26 June 2024, and

(b) certifies that the psychological injury caused by the accident is a threshold injury for the purposes of the Motor Accident Injuries Act 2017.

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

1. On 3 December 2022, Benjamin Babak[1] (claimant) was involved in a motor accident when his vehicle was rear ended by another vehicle at the intersection of Bennelong Parkway and Marjorie Jackson Parkway in Olympic Park (accident).
2. Mr Babak made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer).
3. A dispute has arisen between the insurer and the claimant as to whether Mr Babak's psychological injuries are "threshold injuries" within the meaning and for the purposes of the MAI Act. Whether a person has suffered threshold injuries as a result of a motor vehicle accident affects their entitlement to both statutory benefits and damages.[2]
4. The dispute was referred to Medical Assessor Yu Tang Shen. On 24 June 2024, Mr Babak was assessed by Medical Assessor Shen, who issued a certificate dated 26 June 2024. Medical Assessor Shen certified that Mr Babak's post-traumatic stress disorder caused by the motor accident was a non-threshold injury for the purposes of the MAI Act.
5. The insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Shen's assessment. On 23 August 2024, a delegate of the President determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, on the basis that Medical Assessor Shen did not put inconsistencies to Mr Babak. Accordingly, the delegate referred the application to a Review Panel.
6. This Review Panel (the Panel) has been constituted to conduct a review of Medical Assessor Yu Tang Shen certificate dated 26 June 2024.

Threshold injury (formerly minor injury) provisions

1. The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023, the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries". The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
2. The accident occurred and the original liability notices were issued by the insurer when the relevant term was "minor injury" which, because of the MAI Amendment Act, is now described as a "threshold injury". Any reference in these reasons to "minor injury" is taken to be a reference to a "threshold injury".
3. A threshold injury is defined in s 1.6 of the MAI Act and includes a "soft tissue injury" or a "psychological or psychiatric injury that is not a recognised psychiatric illness".
4. Section 1.6(4) of the MAI Act provides that the regulations may exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury as follows:

"4 Meaning of "threshold injury", section 1.6(4) of the Act

(2) Each of the following injuries is included as a threshold injury for the purposes of the Act -

(a) acute stress disorder,

(b) adjustment disorder.

Note - See section 1.6 (5) of the Act in relation to the making of Motor Accident Guidelines for or with respect to the assessment of whether an injury is a threshold injury.

(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013."

1. Sub-section 1.6(5) provides that "[t]he Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act".
2. The Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. Version 10 of the Guidelines is effective from 15 September 2025 and replaced version 9.3, except for claims arising from accidents before 1 April 2023.[3] For such accidents, such as Mr Babak's, certain clauses of version 10 do not apply, and specific clauses from version 9 of the Guidelines continue to apply.
3. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act, and provide the following general provisions for assessment:

"5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

5.4 Insurers must not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.

5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person's current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. Relevantly, cls 5.10 to 5.12 regard threshold psychological or psychiatric injury assessment and provide:

"5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.

5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.

5.12 Where the symptoms associated with the injured person's psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury."

1. Pursuant to Schedule 2, cl 2(e) of the MAI Act, whether the injury caused by the accident is a threshold injury for the purposes of the Act is a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act, at first instance by a Medical Assessor,[4] and on review by a review panel.[5]
2. Section 7.26(5A) of the MAI Act provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
3. The review of the medical assessment is not limited to a review of only that aspect that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. The function of the medical assessors is to form his or her own opinion on the medical question in dispute by applying their experience and expertise; it is not to choose between competing opinions, nor to assess the correctness of such opinions.[6]
4. Part 5 of the Personal Injury Commission Act 2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.

1. On 21 May 2025, the Panel was convened in this matter. Also on 21 May 2025, the Panel made directions for provision of a bundle and written submissions from each of the parties for the purposes of the Review.
2. On 10 September 2025, the Panel met to discuss the proceedings. It was determined that a medical examination of Mr Babak was required, and Mr Babak was informed of the details. Further documents potentially relevant to the Panel's Review were also requested to be produced by Mr Babak.
3. On 15 September 2025, a teleconference was held between the Member on the Panel and the legal representatives of the parties, as the Panel had been informed that Mr Babak had been certified to have non-threshold physical injuries caused by the accident. The insurer's legal representative confirmed that a further medical assessment was being sought by the insurer in respect of Mr Babak's physical injuries and both parties agreed that the Review should proceed.
4. On 13 October 2025, the additional documents requested by the Panel were produced by Mr Babak.
5. On 5 November 2025, Mr Babak was examined by the medical members of the Panel. The medical examination report prepared following this examination was provided to the legally qualified member of the Panel. This report appears in full later in these reasons.
6. On 19 November 2025, the Panel reconvened to discuss the medical examination report and to make its findings.

1. On 24 June 2024, Medical Assessor Shen examined the claimant via video conference and issued a certificate on 26 June 2024. The threshold injury dispute to be assessed was noted by the Medical Assessor as "Psychiatric injury". The Medical Assessor concluded that the accident caused post-traumatic stress disorder, which is not a threshold injury for the purposes of the MAI Act.
2. It was noted that Mr Babak had separated from his partner of a year since the accident. This was due to his physical injuries, including his back injuries and sciatica. He denied any pre-existing psychiatric condition or requiring any psychiatric treatment. He denied any substance or alcohol abuse, and reported drinking alcohol (Tequila) twice per week to get to sleep. He also reported using non-prescribed Tramadol 50-100mg daily, IGF-3 and steroids.
3. In terms of the circumstances of the accident, it was reported that Mr Babak described being rear-ended by a car travelling approximately 60-70kmph while he was stationary. He reported his head hitting the steering wheel and that he lost consciousness for ten minutes. He said that, when he came to, he saw the police and ambulance then was taken to Concord Hospital. He also reported that he felt he might have died. He said he could not self-extricate. He said the ambulance report, which reports him self-extricating, is not true.
4. He reported developing psychological symptoms, including having to remove all social media as he couldn't cope as he no longer received positive comments and attention. He said he now has to take medications and steroids to regain his muscles, which affects his sexual function. He reported waking up remembering the accident for the first eight months, but he would not see the accident as it occurred from behind.
5. He reported having seen a psychologist for two sessions, but he did not find it of any benefit as the only outcome he wanted was to be return to the gym. He reported that not being able to return to the gym has negatively impacted on his mental state.
6. He has not seen a psychiatrist for treatment and has not been on any psychotropic medications.
7. He reported showering every two days since the accident as he remains at home, so does not need to shower as much. He has been able to drive, usually after 8pm for his work as an Uber driver, but cannot drive to far away destinations. He reports having poor concentration which he attributes to taking Tramadol that he buys from the black market.
8. He reported having to stop watching news or social media if there is any mention of an accident as it causes significant distress. He reported nightmares every two to three nights, and that he is now more hypervigilant of another rear collision when driving. He also reported poor concentration and disturbed sleep. He said he stays home all day until 8pm as he is not motivated to leave the house as he no longer receives positive feedback on his physique.
9. He reported that, if he was able to return to the gym, he would feel much better. He had some suicidal ideations, without any plans, at the thought of not being able to return to the gym again.
10. It is noted that he is not seeing a psychologist and has not seen his general practitioner in a long time.
11. The Medical Assessor opined that Mr Babak presented "following a significant motor vehicle accident, which was significant with perceived risk of serious injury, and has as a result caused significant symptoms". It was noted this included nightmares, initial avoidance of driving, detachment from friends, diminished interests in previous activities, hypervigilance, impaired concentration and sleep disturbances. The Medical Assessor diagnosed post-traumatic stress disorder, which is a non-threshold injury.
12. In respect of causation, it was opined that there is "a plausible mechanism of injury from the circumstances of the subject accident and the development of his psychiatric injuries, and there is a temporal and thematic association with his psychiatric symptoms and the subject accident".

1. The insurer relies on submissions dated 22 July 2025.
2. The insurer refers to the records of Dr Youssef and submits that Mr Babak first attended upon Dr Youssef on 12 April 2016. The insurer submits that, at the consultation on 5 January 2017, it was recorded that Mr Babak had depression and was prescribed Lexapro. It was also recorded that Lexapro had been prescribed by Dr Shazia. The insurer submits this is a reference to Dr Shazia Shinwari of Bridgeview Medical Practice.
3. The insurer also refers to complaints made by Mr Babak regarding back pain, right sided sciatica and buttock pain throughout 2019 and 2020. Reports of leg pain in 2020 and neck pain in 2021 are referenced, as well as referrals to an orthopaedic surgeon, neurosurgeon, physiotherapist and chiropractor. Mr Babak also attended Burwood Back Pain and Merrylands Rehab Centre in 2020.
4. The insurer notes that several of the records refer to Mr Babak as being known as "Ali Ahmad" and that he has several alias', including Ali Ahmad, Benjamin Babak, Murtaza Ahamad Hussein, and Murtaza Hussein.
5. The insurer submits that the accident occurred when the vehicle travelling behind Mr Babak collided with the rear of his vehicle after attempting to break. An ambulance attended and paramedics observed minor damage to the rear of Mr Babak's vehicle. Mr Babak reported he had been travelling at 20km/hr and the other vehicle travelling at 60km/hr. It was reported that Mr Babak self-extricated and that he denied a loss of consciousness. His Glasgow Coma Scale (GCS) was 15 (fully awake). Mr Babak reported back pain which was "not new", cervical spine pain and lower back pain with shooting pain down his right leg.
6. The insurer refers to the certificate of Medical Assessor Alan Home dated 14 June 2025 which regards Mr Babak's physical injuries. Medical Assessor Home found that Mr Babak's physical injuries were limited to soft tissue injuries of the cervical and lumbar spine, and were threshold injuries for the purposes of the MAI Act.
7. The insurer notes that the certificate of Medical Assessor Home was subject of a review by a medical review panel. Mr Babak was examined by Medical Assessor Rosenthal on behalf of that panel on 12 February 2025. That panel accepted that Mr Babak experienced new symptoms following the accident. There was now an annual tear reported rather than a fissure and the disc protrusion had extended. That panel disagreed with Medical Assessor Home that the annual fissure represented a pre-existing degenerative fissure. That panel was of the view that the lumbar spine became significantly symptomatic with new symptoms after the accident. That panel found that Mr Babak's injury to the lumbar spine was a non-threshold injury.
8. An Amended Certificate issued confirmed that the physical review panel had subsequently had regard to the MRI report dated 8 July 2019 and that this did not alter their opinion.
9. The insurer refers to the certificate of Medical Assessor Shen dated 24 June 2024. The insurer submits that Mr Babak's denial of relevant psychiatric history is not consistent with Dr Youssef's records which refer to a history of depression for which he had been prescribed Lexapro. The insurer also submits that Mr Babak denied other pre-existing medical conditions.
10. The Panel notes the insurer's submissions in support of an application for review of Medical Assessor Shen's certificate. While these submissions have been considered, they are not summarised given this determination has been made by the delegate.
11. The insurer submits that, contrary to the ambulance report, Mr Babak advised Medical Assessor Shen that he hit his head on the steering wheel, lost consciousness for ten minutes and that "when he came to, he felt he might have died". Mr Babak also reported that he was unable to get out of the vehicle.
12. Medical Assessor Shen informed Mr Babak that this was inconsistent with the ambulance report. Mr Babak maintained that he had lost consciousness and was unable to self-extricate following the accident.
13. The insurer refers to the ambulance report that records Mr Babak denied a loss of consciousness and advised he was able to recall events. His GCS was 15. There was no altered conscious state. He was reported to have been repeatedly asking for tablets for pain.
14. The insurer also refers to the discharge summary of Concord Hospital, where it was noted that Mr Babak was able to self-extricate following the accident and there was no loss of consciousness. He was observed as being able to ambulate after the accident. It was also reported that Mr Babak's chest hit the steering wheel in the accident.
15. The insurer refers to the observations made by paramedics at the scene of the accident that there was no damage to the steering wheel.
16. The insurer submits that the inconsistencies regarding Mr Babak's loss of consciousness are critical in assessing the extent of any psychological injury and whether criterion A of the DSM-5 criteria for post-traumatic stress is satisfied. The insurer submits that the Medial Assessor's conclusion as to causation is entirely inconsistent with the contemporaneous medical evidence which indicates that there was only minor damage to the rear of Mr Babak's vehicle, that there was no loss of consciousness experienced by Mr Babak, and that he was observed to have been mobilising immediately after the accident.
17. The insurer further submits that Mr Babak's demeanour and interactions with paramedics immediately following the accident were also not demonstrative of an individual who "felt he might have died in the accident", as reported to the Medical Assessor. The insurer says that, rather, he appeared to be in no obvious distress, was observed to be "calm and quiet", and expressed to paramedics that the "pain is not new".
18. The insurer references Mr Babak's request for more pain medication from paramedics despite being advised that he had been given the maximum dose possible, and is reported to have said "that's okay, I won't tell anyone, just give it to me". He is also reported to have stated that he takes six tablets of Lyrica per day but is only prescribed two per day. The insurer also references the summary of Concord Hospital where he asked for IV analgesia despite having been given the maximum dose possible in a four-hour period.
19. The insurer submits that this substance intake and need for medication is inconsistent with Mr Babak's denial of substance and alcohol use to the Medical Assessor. The insurer submits that Mr Babak's report that the accident is the sole cause for him to take medication is entirely inaccurate.
20. The insurer refers to the history of diagnosis and prescription of Lexapro by Dr Shinwari prior to the accident.
21. The insurer submits that Mr Babak had a significant pre-existing lumbar spine condition that required medication, cortisone injections, chiropractic treatment and referral to a neurosurgeon prior to the accident. He was also requiring "an excessive amount of pain-relieving medication due to his ongoing symptomatology" prior to the accident.
22. The insurer submits that Mr Babak's reported 20 years of exercising and not having to use medications pre-accident is inconsistent with his experience of a significant degree of pain due to his lumbar spine condition requiring him to take six Lyrica tablets per day. The insurer questioned how he maintained his physique pre-accident in these circumstances.
23. The insurer refers to Mr Babak's report of his distress regarding his inability to go to the gym and the consequential impact this has had on his ability to leave his home or engage in social activities due to the reduction of positive feedback he has towards his physique. The insurer submits that this is inconsistent with his report to the Medical Assessor that he takes steroids to maintain his muscular appearance. The insurer also refers to the Medical Assessor's observation that Mr Babak had a "muscular build".
24. The insurer submits that, despite the Medical Assessor recording that Mr Babak was no longer going to the gym since the accident due to his pain and physical injuries, on examination the Medical Assessor noted Mr Babak had a muscular build.
25. The insurer submits that Mr Babak's post-accident psychological complaints are limited to the following:

(a) in February 2023, Dr Youseff referred Mr Babak to Ms Elham Nashed, psychologist, for management of stress and depression. The insurer submits that, while it has approved this referral, it has not received a treatment request from Ms Nashed;

(b) in a certificate of capacity dated 17 March 2023 completed by Dr Richard Lee at Enmore Medical Practice, the diagnosis includes "situational anxiety/adjustment disorder". Reference is also made to Mr Babak's physical injuries;

(c) the certificates of capacity completed by Dr Lee dated 2 June 2023 and 7 September 2023 relevantly diagnoses "situational anxiety / adjustment disorder, flashbacks have decreased in frequency". Reference is also made to Mr Babak's physical injuries;

(d) the insurer submits that on 30 October 2024, Mr Babak referred to Dr Lee and reported that Valium had been helpful for two days and that he was continuing on Endep and Valdoxan, Tramadol and Celebrex.

(e) the insurer submits that Mr Babak returned to Dr Lee on 28 November 2024 and reported he was struggling to cope both mentally and physically. He was continuing to take Endep but was not undergoing any physiotherapy or psychological treatment. He was having difficulty remembering things but sleeping well. He was also receiving treatment for alopecia at the time. He returned to Dr Lee on 24 December 2024 and reported finding it difficult to sleep and having trouble concentrating. Dr Lee ceased Tramadol and prescribed Palexia, another opioid analgesic.

(f) on 24 January 2025, Mr Babak attended Dr Lee and reported symptoms of anhedonia. He reported to be sleeping well on Endep but had difficulties with right trapezius myalgia, for which his dosage of Palexia was increased. He was advised to see a psychologist and referred to Elham Momeni.

(g) on 5 April 2025, Mr Babak attended Dr Lee and requested a referral to a different psychologist. He was referred to Roshanak Vahdani.

(h) a psychotherapist report dated 24 April 2025 by Ms Azita Abdollahian was prepared following an initial video consultation with Mr Babak on 23 April 2025. It was reported that Mr Babak presented with symptoms indicative of severe and persistent mental health concerns, including suicidal ideation over the past seven months, a marked decrease in ability to function, and sleeping approximately 20 hours per day. He reported being unable to leave the house and requiring prompting to attend to self-care. Ms Abdollahian opined he was presenting with symptoms consistent with a major depressive disorder and required immediate and ongoing psychological intervention.

(i) in a Medical Case Conference on 13 May 2025, Mr Babak reported ongoing fears of driving independently, but that he is able to travel as a passenger with limited anxious symptoms. He also described self-harm and suicidal ideation, and

(j) an AHTR 1 dated 17 June 2025 completed by mental health social worker, Ms Nila Abbasyan, sought approval for eight sessions and diagnosed Mr Babak with major depressive symptoms with unresolved grief and trauma. Reported losses included his career, physical fitness and identity as a body builder.

1. The insurer submits that the medical evidence does not disclose any significant psychological complaints following the accident.
2. The insurer submits that most of the symptoms referred to by Medical Assessor Shen are not referred to in the treating medical evidence. The insurer further submits that the contemporaneous documents contradict the severity of the accident as reported by Mr Babak.
3. The insurer submits that the medical evidence establishes that the accident was not as severe as alleged by Mr Babak, that Mr Babak has a history of both physical and psychological complaints, and there is very little record of psychological complaints post-accident.
4. The insurer submits that the contemporaneous evidence does not support criterion A being satisfied for a diagnosis of post-traumatic stress disorder.
5. The insurer submits that any psychological injuries sustained as a result of the accident are limited to threshold injuries for the purposes of the MAI Act.

1. Mr Babak's legal representatives requested an opportunity to put on further submissions at the teleconference on 15 September 2025 and was provided with an opportunity to do so. Despite this, Mr Babak's legal representatives later confirmed that they did not wish to put on any further submissions and relied solely on his submissions dated 24 July 2024. It is noted that these submissions are directed to the President's delegate. However, the Panel has considered them in so far as they relate to the Review.
2. Mr Babak's submissions summarise the certificate of Medical Assessor Shen and submit there is no error. Mr Babak submits that it is clear Medical Assessor Shen has taken any inconsistencies into account, or otherwise considered them to be irrelevant, and notes that the assessment was directed to Mr Babak's psychiatric, not physical, state.
3. It is submitted that, although the ambulance report indicates that Mr Babak was able to "self-extricate", he was "observed to be seated in the driver's seat". It is submitted that it isn't clear how Mr Babak self-extricated if he was observed in the driver's seat. While he may have been conscious at that time, it was clearly some period after the accident as the ambulance took time to be called and arrive. Mr Babak is noted to have immediately asked for pain relief.
4. It is submitted that "it is common for people to report 'unconsciousness' after MVAs, when they really mean that they are in a state of shock or reduced awareness".
5. It is submitted that the Concord Hospital records which report a history of self-extrication and consciousness were drawn from the ambulance report, which are submitted to be "questionable".
6. It is submitted that the records deny a loss of consciousness, rather than deny an altered state of consciousness.
7. It is submitted that the Medical Assessor's task is not to assess whether Mr Babak suffered a head injury, and "whether he struck his head or chest is neither here nor there".
8. It is submitted that Mr Babak has consistently alleged that the insured vehicle was travelling at 60kmph and, as such, there was a collision of significance. If that is accepted, it is submitted there can be no doubt that criterion A of the DSM-5 was satisfied. Mr Babak submits that it is sufficient that he perceived threatened serious injury, and submits that the test is not an objective one. It is further submitted that a loss of consciousness and significant damage to a vehicle are not prerequisites to post-traumatic stress disorder.
9. Mr Babak notes the insurer submits that he was mobilising immediately after the accident, however he submits is not stated where this evidence arises. Mr Babak submits that the ambulance report states that he was in the driver's seat when it arrived.
10. It is further said by Mr Babak that the insurer's submission that his "demeanour and interaction" with paramedics was not demonstrative of an individual who felt he may have died is inappropriate and meaningless.
11. Mr Babak submits that any pre-existing medication intake for pain, even if true, does not diminish the circumstances of the accident or the psychological impact of it. Further, Mr Babak says the insurer makes no attempt to describe how this could have affected a diagnosis of post-traumatic stress disorder.
12. In respect of his prior medical records, Mr Babak submits there is a single prescription of Lexapro, some six years prior to the accident. He submits there is no history of any consultation for psychological or psychiatric conditions before or after, and no records relating to post-traumatic stress disorder pre-accident.
13. Mr Babak submits that the references to pain medication are irrelevant to the post-traumatic stress diagnosis. Mr Babak further submits that the existence or otherwise of pre-existing physical injuries have no bearing on the causation of post-traumatic stress disorder.
14. Mr Babak notes the medical records confirm the presence of flashbacks. There are limited records of his condition as Mr Babak said he has only seen a psychologist once or twice as he did not find it of benefit.
15. Mr Babak's bundle includes his submissions regarding his application for referral to the dispute resolution service dated 8 September 2023. These submissions have been considered and evaluated. These submissions provide a chronology of Mr Babak's treatment and care referrals and approvals, as well as a summary of the medical evidence. Relevantly, Mr Babak acknowledges that his adjustment disorder falls within the definition of threshold injury. However, he submits that situational anxiety is a specific phobia, being a recognised psychiatric injury as per the DSM-5, and therefore meets the definition of a non-threshold injury.

1. In accordance with the directions issued by the Panel, Mr Babak and insurer have both provided a bundle of documents which contains material relevant to the Review. Mr Babak also lodged a supplementary bundle on 13 October 2025 per the directions of the Panel. These bundles have been considered and evaluated by the Panel.
2. In conducting this medical review, the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd (t/as NRMA Insurance) [2022] NSWSC 1079, where his Honour noted, at [63], that the Court of Appeal has remarked on the volume of material routinely provided to medical assessors, and noted there is no general principle requiring an assessor to refer to all the documentation to which they have access.
3. Accordingly, and in endeavouring to carry out its statutory function and promote the objects and guiding principles of the Commission, the Panel has not referenced or summarised all records relating to Mr Babak's symptoms or injuries: see ss 3 and 42 of the PIC Act. If a document is not referred to in the Panel's review, it should not be assumed that the Panel was unaware of that material or that the Panel failed to take the material into account.

1. Mr Babak's application for personal injury benefits is dated 22 December 2022 and describes the accident as follows:

"I was stationary on Bennelong Pwky wiating for my way to be clear from the opposite direction so I can dturn right, as I was turning continue my car on Bennelong Pwky all the sudden another car rear ended me from the back very hard" [sic].

1. The description also includes a diagram.
2. Mr Babak reports his injuries to be "neck, whiplash mid to lower back, right leg".
3. It was noted he was taken to Concord Hospital in an ambulance and discharged that day.
4. In terms of pre-existing illnesses or injuries affecting the same or similar body part, Mr Babak has listed "3 years ago lower back but have recovered".

1. The Certificate of Determination - Internal Review dated 25 July 2023 issued by the insurer has been considered. This affirmed the decision dated 14 April 2023 that Mr Babak's injuries met the definition of threshold injury for the purposes of the MAI Act.

1. The treatment and care request responses from the insurer have been considered.

1. The NSW Police report under cover letter dated 22 January 2023 notes a "major traffic crash" that was reported at 00:56am.
2. The insured driver was recorded to have a "pre-crash speed" of 60kmph. The "pre-crash speed" of Mr Babak's vehicle was not recorded.
3. The accident was described as follows:

"... Near the intersection of Bennelong Parkway, [Mr Babak's vehicle] began to slow in an attempt to turn right onto Bennelong Pwky. [The insured driver's vehicle] continued in a northerly direction at a speed of approximately 60kmph. Upon sighting [Mr Babak's vehicle] stopping to turn right, [the insured driver's vehicle] has attempted to break however has collided with the rear of [Mr Babak's vehicle] causing damage to the rear bumper of [Mr Babak's vehicle]".

1. The ambulance report dated 3 December 2022 notes that the call was received at 00.56am and paramedics arrived at the scene at 01.10am.
2. The case description records:

"Ct: 2 car + 2 pt MVA c/o back injuries. O/A: NSWPF on scene. Pt 2 - 34 YOM seated in drivers seat of car, conscious and breathing, perfusing well. Minor damages to rear end of car. No steering wheel damage, no other damage noted. HPC: Pt states he was travelling "20km/her when a car travelling approx. 60km/hr rear ended him". Pt now c/o back pain. Pt was able to self-extricate and had been seen to be mobilising immediately after incident. Pt immediately requesting "tablets for pain". Pt also states he has a 2 year hx of same pain as today and states "pain is not new". PMHx: L3/4 mild disc degeneration - sees a chiro for it and takes lyrica. Pt states he is "prescribed 2 tablets per day but takes 6 instead". O/E: NEURO - GCS 15, PEARL 3, FAST-ve, denies LOC and is able to recall events, denies headache or dizziness. Pt c/o thoracic midline tenderness, but unable to differentiate if acute or chronic pain. Denies motor or sensory deficits. RESP - normal RR and O2, nil SOB, lungs clear, nil signs of chest trauma, nil obvious seatbelt injury. ... pt c/o crhonic pain to thoracic region, described as tight/cramping. When asked about the severity of his pain, pt is non-compliant in answering. Pt repeatedly asking for tablets. Pt able to mobilise on scene without assistance. Nil obvious DCAPTBLS. ... Rx: pt given 1g paracetamol and 400mg ibuprofen and immediately asks for more of the same. Pt advised that the above administration is the max does in the 4 hour time frame and more would have the potential for OD/liver damage/loss of paramedic license and pt states "that's okay I won't tell anyone just give it to me". Paramedics feel uncomfortable giving S8s after this comment and question pt seeking , poor competency around drug administration, pts personal OD on lyrica ... Tx. Pt tx to concord for further assessment, stable on route" [sic].

1. In the admission summary it is noted "travelling around 10km/hr car went into back going around 60-70km/hr; air bags not deployed; able to ambulate after accident; chest hit steering wheel; 30 mins following accident noticed pain in C spine and lower back; also some sharp shooting pains down leg; prev history slipped L3L4 disc with same back/leg pain 3 years previous; otherwise no change in sensation; not noticed any limb weakness; denies any ETOH" [sic].

1. The Emergency Department Discharge Referral from Concord Repatriation General Hospital dated 3 December 2022 notes Mr Babak presented following "RTA", which the Panel assumes is a reference to "road traffic accident". It was noted that the accident occurred around 11.00pm, and:

"...travelling around 10kmph car went into back going around 60-70kmph; airbags not deployed; able to ambulate after accident; chest hit steering wheel; 30 mins following accident noticed pain in C spine and lower back; also some sharp shooting pains down leg; prev history slipped L3L4 disc with same back/leg pain 3 years previous; otherwise no change in sensation; not noticed any limb weakness; denies any ETOH".

1. The Patient Procedure Checklists notes the reason for exam as "car accident 11pm since had c spine pain, unable to rotate head to right side please scan to r/o CSPINE injury".
2. The Triage & History notes comment "acute on chronic thoracic pain post involved in MVA rear ended, approx. 20kms, self-extricated, nil LOC/c-spine, given 1g Panadol / 400mg ibuprofen, o/e, alert, strong rad pulse, well perfused, mild whole body aching, asking for IV analgesia".
3. The Progress Notes record "Pt attended CT, awaiting result. Obs BTF, GCS 14 as disorientated to exact location and date. Reorientated will check recall on next assessment. Less power in R) leg, patient reports this is due to pain. Attempting to PUIB at present. oxycodone administered as prescribed, awaiting effect."
4. The observations at 3.14am note a Glasgow Coma Score of 14. Subsequent observations at 4.45am notes a Glasgow Coma Score of 15.
5. It was noted "reviewed by Cam ED reg- advised lumbar/leg pain likely due to previous issue for C spine CT, in immobilising collar"
6. He was admitted at approximately 1:43am and discharged at approximately 5.00am on 3 December 2022.

1. The clinical notes of Dr Edward Youssef have been considered.
2. These include attendances pre-accident, including Allied Health Services referrals to a chiropractor on 7 December 2020 and a physiotherapist on 4 July 2019, and an Enhanced Primary Care Program Allied Health Services referral to a psychologist dated 14 May 2020.
3. The referral to Dr Maniam dated 28 June 2019 notes Mr Babak has severe lower back pain which has been getting much worse lately, and the referral dated 12 July 2019 notes that Mr Babak has "been complaining of lower back and legs pain which has been getting much worse lately even after the cortisone injection".
4. There are GP Management Plans and Team Care Arrangements dated 4 July 2019 and 7 December 2020, with the "eligibility" noting "obese, NIDDM and CHD (High BP, cholesterol)". Management goals focus on controlling hypertension, decreasing cholesterol, decreasing weight and decreasing blood lipids, as well as 5-10% weight loss in 6-12 months, and increasing physical activity. Under "Exercise" it is noted "Action: Advise regular walking exercise and activities". The December 2020 plan refers to medications for back and buttock pain.
5. A letter from Dr Omprakash Damodaran, neurosurgeon and spine surgeon, dated 23 August 2019 notes that Mr Babak presented with a 10-week history of back pain and right sided L5 radicular pain, with his symptoms having started after a gym session. He reports persistent right-sided leg pain.
6. There are also pre-accident referrals to other specialists, such as to an orthopaedic surgeon and a dermatologist for severe cystic acnes vulgaris and rashes.
7. The progress notes on 29 July 2022 refer to dietary and exercise advise being provided, and note that Mr Babak had rashes over the chest and back, and severe cystic acne vulgaris.
8. The post-accident records include referrals to various providers for Mr Babak's physical injuries alleged to have resulted from the accident, including to Merrylands Rehab Centre for opinion and assessment of his low back and leg pain. This includes referrals to Professor Ali Ghahreman, Dr Balsam Darwish, Dr Paul Weller, and unspecified physiotherapists.
9. The progress notes dated 5 December 2022 refer to the accident and that he is complaining of right leg and lower back pain. He was referred for an MRI scan.
10. The progress notes dated 15 December 2022 refer to an MRI revealing a disc lesion at the lower lumbar spine. A referral to hydrotherapy was provided and a prescription for Anaprox 550mg.
11. The progress notes dated 22 December 2022 refer to Mr Babak being involved in a motor vehicle accident on 3 December 2022 and that he was taken by ambulance to Concord Hospital. It notes that Mr Babak is still complaining of lower back pain and legs pain and requested to see a specialist. He was referred to Dr Darwich. He also reported he has lost his previous medication and needs a replacement for his back and legs pain. A prescription for Anaprox 550mg was provided.
12. On 17 February 2023, a referral to Ms Elham Nashed states Mr Babak has been "very stressed an unwell since he was involved in a MVA on 03/12/2022".
13. The letter from Associate Professor Ali Ghahreman, neurosurgeon and spine surgeon, to Dr Youssef dated 10 March 2023 refers to Mr Babak's alleged physical injuries and has been considered.
14. The progress notes dated 15 February 2023 refer to a history of lower back pain and depression. It notes a referral was provided to a psychologist, and counselling provided regarding tramadol.
15. The progress notes and referral dated 15 March 2023 to Dr Weller, dermatologist, notes severe cystic acnes vulgaris and rashes over the chest and back.

1. The consultation notes of Dr Richard Lee, general practitioner, and Dr Wei (Sandra) Zhang, general practitioner, have been considered.
2. Dr Lee's consultation notes of 17 March 2023 note Mr Babak had a car accident on 3 December 2022. It states "stationary; was going to turn right; was hit from behind; maybe going 60-70k/hr; taken to Concord Hospital; was admitted for 1 day". There is reference to Mr Babak's reported physical injuries. There is no reference to any psychological symptoms or injuries.
3. Dr Lee's consultation notes of 3 April 2023, 24 April 2023, 5 May 2023, 2 June 2023, 30 June 2023, 3 July 2023, 6 July 2023, 28 July 2023, 7 September 2023, 2 August 2024, 2 September 2024 and 30 October 2024 do not refer to any psychological symptoms or injuries.
4. The GP Management Plan dated 24 April 2023 prepared by Dr Lee regards "1. Acne; 2. Neck pain with right C4 nerve root compression; 3. Mechanical Lumbar back pain with L3/4 sciatica; 4. Adjustment disorder". In respect of the adjustment disorder, the plan notes Goals as "manage symptoms and maintain function", with treatments being "mindfulness, meditation, counselling", provided by "Gp / Nurse".
5. On 5 July 2024, Dr Lee's consultation notes record "has to see IME for psychological injury as was rejected by insurer".
6. The Centrelink Medical Certificate prepared by Dr Lee dated 28 July 2023 diagnoses "right C4 nerve root compression following MVA; Bilateral L3-5 sciatica" and certifies Mr Babak with incapacity from 28 July 2023 to 27 October 2023. There is no reference to any psychological symptoms or injuries.
7. On 30 September 2024, Dr Lee's consultation notes record "has been taking friend's Avanza 30mg; adv to stop; for valdoxan 25mg; for Valium 5mg q3d weekly prn, 5 tabs given, adv not to drink alcohol; then next week incr endep to 25mg; check LFTs".
8. Dr Zhang's consultation notes of 28 April 2023 and 30 October 2024 do not record any psychological symptoms or injuries.
9. On 30 October 2024, Dr Lee's consultation notes record "Valium was helpful for 2 days; continuing 25mg endep and Valdoxan; on 50mg bd tramadol; prn celebrex; and 5mg Valium 5 tabs". There is no reference to any psychological injuries or symptoms.
10. On 28 November 2024, Dr Lee's consultation notes record "going to PIC in February 2025; struggling to cope mentally and physically; incr endep 25mg to 50mg; not doing physio or psychology; has trouble remembering things; sleeping ok; check LFTs as on valdoxan; has noticed more hairthinning on the top of his head; was getting prp injections at burwood hair and skin science; states he must get biotin IV; trial steroid cream" [sic].
11. On 24 December 2024, Dr Lee's consultation notes record "results discussed; transamintis; Worker's Compensation certificate; ALT 59; stop Valdoxan; check LFT in a few weeks; for abdo US; on endep 50mg-75mg; hard to sleep; Valium weekly prn, avoid alcohol; alopecia; court appt 40 days away; for WCC; has noticed trouble concentrating; change Tramadol to Palexia SR 50mg bd" [sic].
12. On 4 January 2025, Dr Lee's consultation notes record "Results discussed; fatty liver; court in 30 days; mild fatty liver ... start valxoan 12.5mg daily" [sic].
13. On 24 January 2025, Dr Lee's consultation notes record "Worker's Compensation certificate; Tribunal in 2-3/52; anhedonia; sleeping well on endep; ... adv to see psychologist" [sic].
14. On 24 February 2025, Dr Lee's consultation notes relevantly record "... tolerating palexia 100mg bd; needs to see psychologist..." [sic].
15. On 5 April 2025, Dr Lee's consultation notes record "referral letter; worker's compensation; would like to see a different psychologist under workcover..." [sic].
16. On 15 April 2025, the consultation notes record "... disturbed sleep; waiting for report; needs scripts; needs referral to another psychologist".
17. The consultations on 20 March 2025, 21 April 2025 and 29 April 2025 do not refer to any psychological symptoms, injuries or referrals.
18. The letter from Dr Parisa Fatemeh Arianejad, dermatologist, to Dr Wei Zhang dated 28 April 2023 notes Mr Babak presented with truncal acne and seborrheic dermatitis over the face. It states he has had this issue for several years and has been treated with multiple courses of antibiotics with no improvements. Noting the severing of scarring acne, Mr Babak was commenced on Oratane 20mg daily increasing to 40mg daily after the first six weeks. The side effects of this medication were noted to include mood changes and depression.
19. The letter from Dr Lee to Dr Saeed Kohan, adult and paediatric neurosurgeon, dated 5 May 2023 regarding a second opinion for his bilateral L4/5 compression has been considered.
20. The letter from Associate Professor Ali Ghahreman to Dr Lee dated 30 May 2023 notes Mr Babak presented for a review of his cervical spinal imaging.
21. The letter from Dr Arianejad dated 17 July 2023 notes that she has reduced Mr Babak's dose of Oratane to 20mg daily. He was also commenced on medication to assist with his concerns about Melasma over his face.
22. The referral letter from Dr Lee to Elham Momeni, psychologist, dated 24 January 2025 refers to situational depression / adjustment disorder under Workcover.
23. The referral letter from Dr Lee to Roshanak Vahdani, dated 5 April 2025 refers to situational depression / adjustment disorder under Workcover.
24. The referral letter from Dr Lee to Azita Abdollahian, dated 15 April 2025 refers to situational depression / adjustment disorder under Workcover.
25. The letter from Dr Kohan dated 13 June 2025 refers to Mr Babak presenting for a second opinion regarding his right arm and right leg pain. It is noted that Mr Babak reported there was significant damage to both cars which were not driveable, and that "he did strike his head as well as severe shaking to left and right and front and back".
26. The letter from Dr Kohan dated 1 July 2025 refers to Mr Babak reporting a significant psychological impact, including a diagnosis of deep depression from his psychologist. This is attributed to the prolonged recovery period without positive milestones, leading to the loss of his job and relationship. In terms of medication, it was noted he takes Endep 50mg, Valium 5mg, Gabapentin, Panadeine Forte and Tramadol. The combination of Endep and Valium causes him to sleep for up to 20 hours at a time.

1. The report of Farid Zahraei, senior physiotherapist at Merrylands Rehab Centre, dated 31 March 2023 has been considered. This notes that Mr Babak has been attending on a twice weekly basis since late January 2023 and that he has shown steady improvement in this time. It is noted that Mr Babak can drive short distances up to 15 minutes. There is no reference to any psychological symptoms or injuries.

1. The clinical records of MVMT Sports Medicine printed 27 October 2023 have been considered. These focus on Mr Babak's alleged physical injuries and do not reference any psychological symptoms or injuries.

1. The clinical records of Bridgeview Medical Practice, printed on 18 September 2025, have been considered. These note current medications to be Lexapro 10mg 1 tablet daily.
2. The records commence on 13 October 2016 with an attendance on Dr Shazia Shinwari, general practitioner. It notes Mr Babak is generally healthy, recording memory loss and lack of concentration, low motivation, sleep of 6 hours maximum, and pain in his arm, wrist and finger due to work, for which he has received two previous cortisone injections.
3. On 20 October 2016, Mr Babak attended upon Dr Shinwari. It was noted he had low mood, bad memory and concentration, no motivation, and was not functioning well. He reported had a history of the same symptoms which spontaneously resolved previously, however this time they were said to last longer and be affecting his daily life. A Mental Health Care Plan was prepared and Lexapro 10mg was prescribed. A referral letter to Mr Hameed Attai is for depression / anxiety under a mental health care plan.
4. On 21 February 2017, Mr Babak attended upon Dr Shinwari for a repeat prescription for Lexapro. It was noted he was feeling better and sleeping well.

1. The Allied Health Treatment Request dated 17 June 2025 refers to services from a mental health social worker, referred by Dr Lee. It is noted the injury date is recorded as "2012". Under injury/illness, it is recorded "major depressive symptoms, unresolved grief and trauma". Under "current clinical signs and symptoms", it is recorded:

"Client reported significant deterioration in physical and psychological functioning over time. He described major depressive symptoms, unresolved grief and trauma, and a marked decline in quality of life. Reported losses include his career, physical fitness and identity as a body builder, relationship and social life. He stated he has become isolated".

1. A DASS undertaken on 16 June 2025 has the results of depression 21, anxiety 17 and stress 19.
2. Other Allied Health Treatment Requests, such as to physiotherapists for Mr Babak's physical injuries, have been noted and considered.

1. The CT lumbar spine scan dated 26 June 2019 has been considered.
2. The MRI report of the lumbar spine dated 8 December 2022 has been considered.
3. The MRI report of the cervical spine dated 30 March 2023 has been considered.
4. The CT cervical spine scan dated 28 June 2023 has been considered.
5. The MRI report of the cervical spine dated 14 August 2024 has been considered.
6. The upper abdominal ultrasound dated 3 January 2025 has been considered.
7. The MRI of the right shoulder dated 22 April 2025 has been considered.
8. The MRI of the cervical spine dated 27 May 2025 has been considered.

1. The certificate of capacity dated 5 January 2023 completed by Dr Youssef diagnoses "law back pain and legs pain" [sic]. Mr Babak was certified to have no capacity for work from 3 December 2022 to 5 January 2022, then capacity for eight hours a day, three days per week from 9 January 2023 to 3 February 2023.
2. The certificate of capacity dated 10 February 2023 completed by Dr Youssef diagnoses "law back pain and legs pain" [sic]. Mr Babak was certified to have capacity for eight hours a day, three days per week from 10 February 2023 to 17 February 2023.
3. The certificate of capacity dated 17 February 2023 completed by Dr Youssef diagnoses "law back pain and legs pain" [sic]. Mr Babak was certified to have capacity for eight hours a day, three days per week from 17 February 2023 to 17 March 2023.
4. The certificates of capacity dated 17 March 2023, 3 April 2023 and 5 May 2023 completed by Dr Lee diagnose "situational anxiety / adjustment disorder", as well as physical injuries. Treatment includes "psychologist Dr Elham Momeni". Mr Babak is certified to have no work capacity from 17 March 2023 to 31 March 2023, then some capacity for three hours per day, three days per week from 1 April 2023 to 2 June 2023.
5. The certificates of capacity dated 2 June 2023, 30 June 2023, 6 July 2023, 28 July 2023 and 7 September 2023 completed by Dr Lee diagnose "situational anxiety / adjustment disorder, flashbacks have decreased in frequency", as well as physical injuries. Treatment includes "psychologist, Dr Elham Momeni". Mr Babak is certified to have some capacity for work from 2 June 2023 to 28 July 2023, being three hours per day, three days per week, and then three hours per day, two days per week from 28 July 2023 to 1 November 2023. This decrease in capacity was noted to be due to ongoing pain. The certificates note under "comments" "2/6: ... not seeing psychologist any more after 3-4 sessions".
6. The certificates of capacity dated 5 July 2024, 2 August 2024, 2 September 2024, 30 September 2024, 30 October 2024, 28 November 2024, 24 December 2024, 24 January 2025, 24 February 2025, 20 March 2025, 15 April 2025 completed by Dr Lee diagnose "situational anxiety / adjustment disorder, flashbacks have decreased in frequency", as well as physical injuries. Treatment includes "psychologist, Dr Elham Momeni", which was amended to include "Azita Abdollahian" in the 15 April 2025 certificate. Mr Babak is certified to have some capacity for work from 1 November 2023 to 13 May 2025, being one hour per day, four days per week.

Certificate issued by Medical Assessor Alan Home

1. Medical Assessor Alan Home assessed Mr Babak on 24 May 2024 and issued a certificate dated 14 June 2024. Medical Assessor Home certified that Mr Babak's cervical spine - soft tissue injury, underlying C5/6 degeneration, non-verifiable radicular complaints, and lumbar spine - aggravation of pre-existing degenerative disc disease are threshold injuries for the purposes of the MAI Act.
2. At the time of Medical Assessor Home's assessment, the records of Dr Shinwari, Dr Maniam, Dr Darwish, Mr Shami and Mr Zahraei were not available.
3. It was noted that Mr Babak's pre-existing low back pain was of three weeks' duration and due to an injury sustained while playing soccer. He said he did not recall taking ongoing medication or requiring chiropractic treatment in the period leading up to the accident.
4. It was noted that Mr Babak disagreed with the mechanism of accident as set out in the reports from the police, ambulance and Concord Hospital, and said he was not travelling at a low speed when he was struck.
5. It was noted he had returned to Uber driving four to five hours daily, five to six days per week.
6. The Medical Assessor opined that, while Mr Babak reported intermittent sensory symptoms in the right upper limb, the objective clinical signs required for a diagnosis of cervical radiculopathy were not present at the assessment. There was no discrete traumatic injury in the cervical spine that would satisfy the criteria for a non-threshold injury.
7. It was also noted that Mr Babak did not present with clinical findings of lumbar radiculopathy at the assessment, and found that this had not been confirmed by previous examiners.
8. The Medical Assessor opined that, on balance, there is a very high likelihood that the annulus fissure seen in the post-accident scans represents a pre-existing degenerative fissure and is therefore not an acute finding.

Certificate issued by Review Panel - Physical Injury

1. The certificate of determination by the review panel dated 16 May 2025, as amended on 4 June 2025, regarding Mr Babak's physical injuries has been considered. For avoidance of confusion, this review panel is referred to as the Physical Injury Panel in these reasons.
2. Medical Assessor Rosenthal examined Mr Babak on 12 February 2025 on behalf of the Physical Injury Panel.
3. The Physical Injury Panel revoked the certificate of Medical Assessor Home dated 14 June 2024 and substituted a determination that the injuries referred to Medical Assessor Home are threshold injuries with the exception of the injury to the lumbar spine, which is a non-threshold injury.
4. The amended certificate was issued as the Physical Injury Panel had not had regard to the MRI report of the lumbar spine dated 8 July 2019. The Physical Injury Panel noted that this document was not before it when arriving at its determination on 16 May 2025. The Physical Injury Panel observed that the MRI reports pathology at both L3/4 and L4/5.
5. The Physical Injury Panel opined that the MRI of 11 August 2024 noted a progression of the annual tear, which was more prominent. The Physical Injury Panel held this was consistent with the new symptoms that had commenced following the accident, and that the 8 July 2019 MRI should be read in the context of Mr Babak's report that his symptoms had settled prior to the time of the accident.
6. The Physical Injury Panel accepted that Mr Babak had experienced new symptoms following the accident. It noted that there was now an annual tear rather than fissure and that the disc protrusion had extended. The Physical Injury Panel disagreed with the opinion of Medical Assessor Home that the annual fissure represented a pre-existing degenerative fissure.

1. The report prepared by Azita Abdollahian, consultant social worker and psychologist at The Project of You, dated 24 April 2025 states she conducted an initial clinical session with Mr Babak on 23 April 2025 via Zoom.
2. Ms Abdollahian states that Mr Babak presented with symptoms "indicative of severe and persistent mental health concerns", disclosing ongoing suicidal ideation over the previous seven months. She notes he described a marked decrease in his ability to function in daily life, sleeping for approximately 20 hours per day and struggling with a pervasive lack of energy and motivation. He expressed profound feelings of loss and grief associated with his current physical limitations and inability to exercise.
3. He reports to receive in-home visits from a hairdresser due to an inability or unwillingness to attend appointments in the community. He also reports that his friends have to prompt him to shower.
4. Mr Abdollahian opined that Mr Babak is currently presenting with symptoms consistent with a major depressive disorder, severe in nature, accompanied by significant functional impairment and chronic suicidal ideation. She further opined that his presentation warrants immediate and ongoing psychological intervention. She recommended a minimum of ten individual counselling sessions.

1. The email summary of the Medical Case Conference prepared by Gianluca Pellegrino, provisional psychologist / rehabilitation consultant at IOH dated 19 May 2025 has been considered.
2. This notes that the conference was attended by Mr Babak and Dr Lee. The diagnosis referred to Mr Babak's physical injuries, and notes Mr Babak reported symptoms consistent with post-traumatic stress disorder and depression.
3. Mr Babak reported fears of independent motor vehicle driving, but confirmed he was able to engaged in driving as a passenger with limited phobia / anxious symptoms. During the conference, he expressed depressive and "possibly alarming" mental health symptoms, stating that he had been experiencing self-harm and suicidal ideation. Dr Lee confirmed he was assisting in managing these symptoms.
4. Mr Babak reported the use of medication for pain management.
5. Mr Babak stated that psychological treatment had been ceased by the insurer, however IOH countered that treatment was still available via psychological therapy. Mr Babak did not agree with this statement.
6. Dr Lee advised that Mr Babak's mental health symptoms were due to his inability to recover from his physical injury, worsening of physical functional capacity and pain symptoms, and inability to complete the requested surgery.
7. The email contained notes of a review with Dr Lee and IOH on 16 May 2025. This was for the purpose of discussing the Commission decisions dated 24 May 2025 and 26 June 2025. It was noted that Mr Babak continues to report that ongoing pain symptoms, physical functional restrictions and mental health symptoms impede him from engaging in any form of employment.
8. Mr Babak was noted not to currently be engaging in psychological therapy as recommended by Dr Lee, and IOH was to liaise with Mr Babak to confirm engagement via psychological therapy on a consistent basis.

1. The report of Dr Truls Bratten, psychiatrist, dated 29 July 2025 addressed to Mr Babak's legal representatives has been considered. Dr Bratten examined Mr Babak via video conference on 29 July 2025 with an interpreter present.
2. It was noted that Mr Babak reported the circumstances of the accident and that he lost his memory for around 30 minutes. He reported having been admitted overnight to hospital.
3. It was reported that Mr Babak stated that, following the accident, his feelings went down and he lost interest in things. He described a loss of appetite with significant weight loss and lost interest in his appearance and socialising. He reported struggling with intrusive memories of the accident and reported feelings of anxiety and emotional upset, particularly when reminded of motor vehicle accidents. He experiences flashbacks and nightmares relating to the accident.
4. He reported being unable to drive the past 18 months due to strong feelings of anxiety. His work as an Uber driver for six months in 2023 was raised with him, and he reported this change was due to there now being "no hope for the future". He described feeling hopeless and a negative self-view. He added that he had lost his job and relationship, and felt he was to blame. He described his overall mental health as "anxious".
5. He previously enjoyed exercising and going to the gym, but no longer does. He described a loss of most of his friendships and reported only having two friends left, being his flatmates. He reported taking strong medication and sleeping between 15 to 20 hours per day due to Valium.
6. He reported occasionally smoking cigarettes, occasionally using alcohol, but that this was minimal, and denied any illicit substance use.
7. He reported showering weekly and said he stopped brushing his teeth in 2022. He no longer cooks for himself and rarely leaves his place of residence.
8. He denied a history of mental health difficulties.
9. The inconsistencies between the statements provided by Mr Babak when compared to the statements provided to Medical Assessor Shen were noted. This included the frequency of Mr Babak's nightmares, his ability to drive, and frequency of showering.
10. Dr Bratten diagnosed Mr Babak with post-traumatic stress disorder. It was noted that psychiatric conditions are usually multifactorial in origin, and Dr Bratten opined that it is reasonable to conclude that the accident has a significant association with Mr Babak's post-traumatic stress disorder. In Dr Bratten's opinion, were it not for the accident, Mr Babak would not have developed post-traumatic stress disorder.
11. Dr Bratten opined 44% permanent impairment.

1. Mr Babak was assessed by Medical Assessors Barrett and Singh on 5 November 2025, via videoconferencing. He was located at his home and was assessed unaccompanied.
2. An interpreter, Hima Armytage, NAATI number CPN4EN31Z was present throughout the assessment.

1. Mr Babak is a 37-year-old man who lives in a rented home with two housemates who have been friends for about seven years. He is supporting himself on a compulsory third party (CTP) payment.
2. Mr Babak was born in Tehran, Iran, as the second-oldest of four siblings. He reported normal birth and development. He noted a happy childhood, enjoying growing up with his siblings and many cousins. He completed high school, with average results. He denied any exposure to childhood trauma. After completing school, he worked in money exchange and construction in Iran.
3. His family's background was Kurdish Iraqi, and as a result, he reported discrimination in Iran, limitations to work and citizenship privileges. Supported financially by his parents, in 2010 he travelled to Malaysia, where he expected to proceed to Europe, but ended up travelling to Indonesia, then by boat to Australia, where he was taken to the Christmas Island detention centre. He denied any traumatic events during the sea journey or in the detention centre. He was then granted a permanent resident visa.
4. He initially lived in Wagga Wagga for two years, where he worked in an abattoir. He completed a TAFE course as a car detailer but did not enjoy the work. Before the accident, from 2021, he had been self-employed, supplying products to hair salons. By 2022, he was working full-time, five days a week, in his business. In addition, he was also driving for Uber on weekends, 20 to 30 hours a week.
5. He denied any known family psychiatric history.
6. He is a non-smoker who denied any alcohol or drug use before the accident. He denied the use of steroids, testosterone or other illicit supplements. He was using dietary supplements and amino acids.
7. When asked by the Medical Assessors, he denied any past medical history and reported that he used to exercise twice a day. He was asked a second time and responded that he had experienced four to seven days of back pain only. It was put to him that this was inconsistent with the ambulance and past medical records. He responded that the ambulance officers had recorded false information, asserting that after the accident, he did not talk to the ambulance officers, "I didn't talk to anyone in the ambulance. Why didn't the police talk to me? I was in such a state" and arguing that the journey from the accident scene to the hospital, of only seven minutes, would have been insufficient to obtain the information recorded.
8. He denied being prescribed any regular medication before the accident. The records of pre-accident prescription of Lyrica were raised with him. He responded that his GP prescribed him Lyrica to take as required for pain following exercise, and that he took it on average twice a week. He acknowledged having a steroid injection for back pain before the accident. He asserted that he asked his GP for an MRI because, "I just wanted to know if I had a serious problem".
9. When asked by the Medical Assessors, he denied any past psychiatric history. He responded, "Not at all". He was given a second opportunity to recall if there had been any pre-accident psychiatric symptoms or psychological or psychotropic treatment, asked in lay language, and responded, "No - not at all. The way you are asking questions is stressing me".
10. It was put to him that his pre-accident medical records revealed some mood symptoms and the prescription of an antidepressant. He responded that he had "pimples on my back", and that his GP thought they were caused by stress and gave him medication for "stress". He added that this GP was not his usual GP, he only saw him twice and the symptoms were not significant, arguing, "How come that doctor gave me only one prescription?", "Why didn't he send me to a psychologist?" It was put to him that the records showed the GP provided two prescriptions, completed a Mental Health Care Plan and had referred him to a psychologist. He responded, "Whatever I explain is not accepted. If you don't believe me, you can ring that Doctor and ask if I saw a psychologist or not".
11. Prior to the subject accident, Mr Babak reported that he was well, "It was great". He was living in North Parramatta with two other friends. He was independent in completing all chores. As he was bodybuilding, he was preparing six to seven meals a day. He was showering twice daily. He went to the gym daily. He enjoyed weekends spent with friends, at concerts and at the beach. He was in a relationship for one year and would have contact with his girlfriend two to three times a week. He denied any previous accidents. He was working full-time in his business and an additional 20 to 30 hours/week driving Uber.

1. The subject accident occurred on 3 December 2022. He was driving a 2016 model Toyota Camry, alone. He had stopped at an intersection and was waiting to turn right when he was hit from the rear. He reported that it was a "massive crash", "It was like an explosion" and that, "for a split second, I thought the end of life". He reported that his head hit the steering wheel and "everything went dark". He maintained that he was unconscious and that when he opened his eyes, emergency services were already on the scene. He reported that he was completely frozen and could not move, and that the only person he talked with after the accident was the tow truck driver. He was taken by ambulance to the hospital. He reported that the car was very badly damaged and written off, for a value of about $19,000 to $20,000.

History of symptoms and treatment following the motor accident

1. As a result of the accident, Mr Babak reports physical injuries causing pain in his right leg, back and neck. He showed the medical assessors the heat pack he was using for his back and his crutches. He has had multiple investigations by MRI.
2. Currently, he described severe pain, averaging about nine to ten out of ten, "so bad, "like I can't move". Pain prevents him from activity, "I can't do anything", including simple tasks recommended by the psychologist, such as going out for coffee, and that he needs crutches to walk.
3. He uses multiple analgesics: Tramadol 100mg nocte, Panadeine Forte one to two daily, Palexia 100mg bd and Amitriptyline 45g daily.
4. He reports that he has had two recent assessments by neurosurgeons who recommended urgent surgery.
5. He was asked to describe how the accident had impacted his mental health. He reported, "I have a lot of stress", "No real reason for it", "I can't relax", "I live with fear - I feel I live in a dark bubble and see everything through that", "I always feel someone is behind me or following me and I don't know why I have that", "I lost some of my personality", "I always blame myself - I shouldn't have gone that way", "I feel alone when amongst people", "I have bad dreams - nightmares all the time", and gave an example of a dream where he was at a concert and a car hit everybody, "I get really stressed by loud noises and fast moving cars", "before extraverted, now introverted and always at home", "Feel like I should have died - better than die gradually this way".
6. The Medical Assessors then sought to clarify his symptoms. He reported the onset of symptoms three to four months after the accident. He says these were triggered by the insurer refusing funding for neurosurgery, having been given hope of returning to body building by a neurosurgeon, and his girlfriend ending their relationship four to five months after the accident because of his physical restrictions and reliance upon her to provide him care, "She had to do everything for me", "She said she couldn't be with someone sick all the time".
7. He reported sleeping at least 15 hours a day. When asked how this was consistent with his capacity to have returned to driving Uber in 2024 up to five hours a day, up to six days a week, he responded that his hypersomnia, "started bit by bit" and had only been present for the last 18 months.
8. He reported eating only one meal a day but denied weight loss.
9. He reported that he could drive for only 10 to 15 minutes before he had to rest, and mostly at night, impacted by pain in his leg and back and reliving the accident when he heard sudden noises. The Medical Assessors pointed out to him that this seemed inconsistent with his 2024 capacity to work up to 30 hours a week (up to five hours a day, up to six days a week) as an Uber driver. He responded that he was not driving for five hours continuously, rather that he was available to take Uber jobs for five hours, but within that time would only take short jobs of about 15 minutes.
10. For a few months in 2024, he was using two shots of tequila, two to three nights a week, to aid sleep. He has since ceased. He reported using illicit drugs on a single occasion since the accident.
11. He sought treatment from his GP. He was previously prescribed mirtazapine, 30mg nocte, but this was ceased. He has now been taking agomelatine, 25mg daily, and diazepam, 5mg daily, for the last eight months. He was referred to a psychologist, whom he saw every one to two weeks for six months.
12. No other psychiatric treatment is planned, explaining, "All the doctors are waiting for my operation".
13. He reports no improvement in his mental health. Rather, he described worsening, especially in the last 18 months, apparently due to worsening pain. He reported that he did not want to go out, "lost any liveliness". He noted that he is "neutral to anything and everything". In addition, his mental health was affected by an incident of sexual dysfunction eighteen months ago, after which he was "really upset".
14. He reported that he did not think his mental health would improve if his pain resolved because if he had the recommended surgery, a spinal fusion, he would be permanently restricted from returning to bodybuilding at the gym.
15. He spends all of his time at home. He oversleeps as a means of escape. His friends shop at the supermarket for him, buying pre-prepared "My muscle chef" meals. His friends wash his clothes for him. He asserted that he does not know who in the household does the cleaning because he is asleep most of the time. He showers only once every two weeks. The barber comes to the house to cut his hair, "because I don't like to go out". He has had no relationships since. He has not worked since late 2024 because of worsening pain, explaining, "because I got worse", that his right leg is numb, such that he needs a walking stick to walk, and that he needed his right leg to drive.

1. Mr Babak was assessed via video conference.
2. He was seated, wearing a long-sleeved black t-shirt. His upper body appeared of strong build and he had a neat and freshly cut and styled hairstyle. He was recently shaven. He displayed a full range of facial expressions and gestures. He was animated in interaction. His style was assertive and became defensive, dismissive and frustrated when inconsistencies were raised with him. His speech was normal in rate, volume and rhythm. He provided detailed responses to questions, such that he did need to be interrupted at times, which he complained prevented him from expressing himself despite the assessment being of two hours duration.
3. His affect was dysphoric, and he became irritable when inconsistencies were raised. His mood was described as anxious and depressed. He did not appear anxious or distressed when recalling the subject accident or describing re-experiencing symptoms.
4. He was preoccupied with his experience of pain and especially concerned that his bodybuilding and sexual function had been impacted. He reported nightmares and reliving the accident. He did not express delusions, report perceptual abnormalities and had no formal thought disorder.
5. He reported suicidal ideation, but that he had revealed his thoughts to his GP, who had prescribed him medication.
6. He appeared able to concentrate and focus well for the duration of the assessment. He was able to recall information very specifically, such as the cost of the MRI and content of multiple reports and recommendations. However, at the outset of the assessment he reported difficulty recalling his age, responding, "I don't know exactly. 36? 37 years old? Because of the medication I'm on, I'm not good with numbers".
7. He had some insight into his condition and had sought treatment.

1. It was put to Mr Babak that his account of medication-induced difficulty recalling his age was inconsistent with the clinical features of any psychiatric condition. He responded by repeating his date of birth and stating, "I know my date of birth, I just don't remember by age".
2. The Medical Assessors assess that the inability to recall basic demographic information is not a feature of any psychiatric condition that could plausibly be caused by the accident. It was also inconsistent with his observed capacity to provide a very detailed history.
3. There were a number of inconsistencies between the medical and psychiatric history and the circumstances of the accident contained in the documentation, compared to those reported by Mr Babak at assessment. These were raised with Mr Babak, but his responses did not resolve the inconsistencies. Whilst the Medical Assessors' role was to assess his psychiatric injury arising from the accident, the inconsistencies regarding his reporting of his pre-accident physical health are relevant in regard to the reliability of the data he provided and the weight the assessors should place upon it. The Medical Assessors formed the judgement that, where available, data from contemporaneous records and objective signs are preferred.

1. The Medical Assessors accept that there was no pre-existing psychiatric condition. In the period prior to the accident, Mr Babak was asymptomatic, functioning well, and had not reported any symptoms. He had any psychotropic treatment for approximately two years prior to the accident, noting the last referral to a psychologist was in 2020.
2. The circumstances of the accident, as described by Mr Babak, are inconsistent with those recorded in the contemporaneous records of the hospital. The Medical Assessors note the extensive submissions by the insurer and claimant about this issue. However, the Medical Assessors did not attempt to resolve this because irrespective of whether the accident would fulfill the DSM-5-TR criteria A for post-traumatic stress disorder, his other symptoms do not satisfy the criterion. Relevantly, Mr Babak does not meet the threshold for a diagnosis of post-traumatic stress disorder because he did not have substantial avoidance symptoms, which would be required to fulfill criterion C, noting that he was working as an Uber driver about 30 hours a week up until 2024. His reason for cessation of driving Uber in 2024 did not relate to psychiatric symptoms but instead was due to physical symptoms.
3. The Medical Assessors instead opine that Mr Babak fulfills the DSM-5-TR criteria for an adjustment disorder, with anxiety and depressed mood. This is because, in the context of stressors, the psychological effects of pain and loss of roles resulting from his physical restrictions, he has symptoms of depressed mood, reduced interest and motivation, reduced appetite and feelings of hopelessness, as well as symptoms of anxiety (criterion A).
4. He fulfills DSM-5-TR criteria for adjustment disorder as he reports emotional and behavioural symptoms in response to a stressor, with distress that is out of proportion and associated impairments in social and other areas of functioning (criterion B). The symptoms do not meet criteria for another psychiatric condition and are not due to bereavement (criterions C and D).
5. The Medical Assessors consider this diagnosis best explains his psychiatric condition, noting that an adjustment disorder is a condition that arises in response to a stressor. In this case, there is a clear relationship between his symptom onset and stressors (pain and losses arising from his physical condition), and between the worsening of his psychiatric symptoms and functioning from 2024, two years after the accident, and the worsening of the initiating stressors for the adjustment disorder.
6. A diagnosis of adjustment disorder, arising as a consequence of losses, is consistent with the account of Azita Abdollahian, consultant social worker and psychologist at The Project of You, dated 24 April 2025, who described Mr Babak as having expressed profound feelings of loss and grief associated with his current physical limitations and inability to exercise.
7. It is also consistent with the diagnosis of his treating GP.
8. A diagnosis of adjustment disorder does not automatically imply that the individual's severity of symptoms, distress or impairment in functioning is less than in other diagnoses. For example, one person may be severely impacted by an adjustment disorder and another person may have mild impact from a Major Depressive Disorder or post-traumatic stress disorder. Instead, the different diagnoses reflect different aetiologies and symptom profiles of different diagnostic categories.
9. Psychiatric diagnosis is made by a process of combining the findings at assessment, on psychiatric history and mental state examination, and collateral history in contemporaneous treatment and other records, with the application of clinical judgment. After doing so, the Medical Assessors considered, but excluded, whether Mr Babak had a Major Depressive Disorder. Mr Babak does not describe physiological symptoms of depression, such as insomnia or diurnal mood variation. At the mental state examination he was noted to have at least average self-care, no psychomotor features, a confident, assertive and animated style, detailed speech and no objective signs of impaired concentration or focus. The Medical Assessors therefore excluded a diagnosis of Major Depressive Disorder.

1. The Panel adopts the reasons and findings of the Medical Assessors of the Panel following their medical examination as set out above. Reliance has been placed on the combined clinical expertise of the Medical Assessors on the Panel and their clinical judgment.

1. A medical review panel is a new assessment of all matters with which the medical assessment is concerned. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7]
2. The Panel adopts the reasoning in Lynch v AAI Limited t/as AAMI that the psychological condition can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act. [8]
3. The Panel also notes that Mr Babak bears the onus of establishing that any injury is not a threshold injury for the purposes of the MAI Act.[9]
4. The Panel adopts the diagnosis of its Medical Assessors of an adjustment disorder with anxiety and depressed mood. The Panel adopts the findings and conclusions of its medical members that Mr Babak does not and has not satisfied the DSM-5-TR criteria for post-traumatic stress disorder or major depressive disorder.

1. Causation is not specifically addressed in Part 5 of the Guidelines. However, it is accepted that the test of causation in Part 6 applies to threshold injury disputes.[10] in Part 6, which deals with assessing the degree of permanent impairment arising from an injury caused by a motor accident, cls 6.5 to 6.7 set out how causation of injury is to be assessed:

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.' [emphasis in original]

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. The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining the issues of negligence and causation.[11] It is therefore necessary for the Panel to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[12]
2. The Panel notes that there is debate around the circumstances of the accident, including whether Mr Babak's vehicle was stationary and whether he hit his head on the steering wheel and/or lost consciousness. However, regardless of the precise circumstances of the accident, the Panel notes the clinical records of Mr Babak's treating medical practitioners following the accident and the certificate of the Physical Injury Panel that the accident did cause him physical injuries. The Panel also notes Mr Babak's reports of pain and loss of roles resulting from his physical restrictions caused by the accident. On balance, the Panel is satisfied that the accident circumstances could have caused or materially contributed to the development of an adjustment disorder.
3. The Panel further opines that Mr Babak's adjustment disorder with anxiety and depressed mood was caused by the accident. Mr Babak was asymptomatic, functioning well, and had not reported any symptoms in the period prior to the accident. Subsequent to the accident, Mr Babak has developed psychological symptoms, recognised by his treating GP, Dr Lee. On balance, the Panel finds there is a temporal connection between Mr Babak's psychological symptoms and the accident.
4. The Panel therefore finds that Mr Babak's adjustment disorder with anxiety and depressed mood was caused by the accident.

1. The Panel notes that Part 1, cl 4(2)(b) of the MAI Regulation provides that adjustment disorder falls within the definition of "threshold injury" for the purposes of the MAI Act.
2. Accordingly, the Panel finds that Mr Babak has sustained a threshold injury for the purposes of the MAI Act.

1. The Panel finds that Mr Babak has a threshold injury for the purposes of the MAI Act.
2. Accordingly, the Panel revokes the certificate of Medical Assessor Yu Tang Shen dated

26 June 2024 and issues a new certificate, certifying that Mr Babak's psychological injuries caused by the accident is a threshold injury.

[1] It is noted that the claimant has several aliases. The documents produced refer to the claimant's various names. To avoid any confusion, the Panel has referred to the claimant as Mr Benjamin Babak throughout its reasons.

[2] See ss 3.11, 3.28 and 4.4 of the MAI Act.

[6] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2012] HCA 43 at [47]. See also Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.

[7] Insurance Australia Group Ltd t/as NRMA Insurance v Keen (2021) 399 ALR 765; [2021] NSWCA 287; Insurance Australia Ltd v Marsh (2022) 99 MVR 1; [2022] NSWCA 31.

[8] Lynch v AAI Limited t/as AAMI [2002] NSWPICMP 6 (Lynch).

[10] Briggs v IAG Ltd (t/as NRMA Insurance) [2022] NSWSC 372 at [35].

[11] Sections 5D and 5E CL Act; Raiana v CIC Allianz Insurance Ltd [2021] NSWSC 13 at [65].

[12] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].