MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; motor accident; rear-end collision; assessment of whole person impairment (WPI) for psychological injury; original medical assessment of 19%; Supreme Court revoked previous Review Panel determination; Buestami v Allianz Australia Ltd applied; deterioration in functioning over past three years; relevance of subsequent incidents and clause 1.34 of the Motor Accident Permanent Impairment Guidelines; Slade v Insurance Australia Ltd applied; isolation directly attributable to motor accident; no objective evidence of incident resulting in permanent impairment; Held - original assessment revoked due to change in diagnosis; higher assessment; certificate issued; WPI greater than 10%.

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act 1999 is as follows:

1. The Review Panel revokes the certificate of Medical Assessor Shen dated 28 September 2022 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10%:
   • aggravation of post-traumatic stress disorder.

1. Mr Buestami (the claimant) was injured in a motor accident on 5 October 2017. The claimant was stationary at red traffic lights when the insured vehicle rear-ended the claimant's vehicle.
2. Allianz Australia Insurance Ltd (the insurer) insured the other vehicle liable to pay Mr Buestami any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
3. The present dispute between the parties is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
4. Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
5. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
6. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was issued by Medical Assessor Shen on 28 September 2022 (the medical assessment).[3] Medical Assessor Shen assessed the permanent impairment of the psychological injury caused by the motor accident at 19%.
7. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
8. The delegate of the President 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.[5]
9. Pursuant to s 63(3) of the MAC 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).

1. The claimant was involved in a motor accident in 2002. A previous Review Panel found that the claimant was suffering 17% whole person impairment for his psychological condition resulting from the 2002 accident.

1. This review is from the Medical Assessment Certificate issued by Medical Assessor Shen when it was determined that the motor accident caused an exacerbation of major depressive disorder with current major depressive episode.
2. The Medical Assessor noted a pre-accident history as follows:

"Prior the subject accident, he denied any prior anxiety or depression until he had a previous MVA in 2002. He said that he was a taxi driver, and he had an accident, and the other driver may have nearly died. He said he was scared and had PTSD, with recurrent recollections of the accidents, with nightmares, with changes to his appetite. He said that he was also depressed, and anxious. He said that he was suicidal ideations, and he said that he had pointed a knife to his heart. He said that he had suffered from that for many years, and he said that he improved just before returning to work in 2012, at the Iraqi Consulate. He said at the time, he had no symptoms of depression, anxiety, or PTSD. He said his treatment included psychological treatment, with relaxation and breathing treatment and imaginal calming techniques, and he was treated with medications including Efexor, Cymbalta, and others that he cannot recall. He said he was not hospitalised at that time. He said that he had not continued to see a psychologist nor saw his psychiatrist or was on any medications prior to the subject accident. He denied any psychotic symptoms in the past."

1. The Medical Assessor noted the symptoms following the accident.[6]

"After that accident, he said he had recurrence of symptoms similar to his first accident. He was having vivid nightmares about a black monster trying to harm him. I asked if he had recollective memories, and he was confused about the question and said that it reminded him of his mother who had passed away and his father at the time, back to his childhood again. He said that he would go to sleep at 11pm and it would be restless and his mind would be racing. His appetite wasn't affected. He said that his focus is really bad. He said that his energy levels have been poor. He said he was feeling hopeless and guilty. He said that he was feeling suicidal often, a lot of thoughts that it would be easy way with a tablet. He would have recurrent panic attacks. I asked him what would trigger him, and he said 'it would be anxiety and if he was scared by something, like I'm dying', and he has called the ambulance twice for this. He said he couldn't enjoy things as much. He said he would feel depressed."

"Prior to the subject accident, he was independent with self-care and meal preparation. He would enjoy socialising with his friends and he enjoy singing, on a weekly basis. He would have no issues with travel. He had a good relationship with his wife and children as well. He had no issues with his concentration. He was employed full-time as a driver.

He said that now his wife cooks for him and he occasionally skips meals often, because he is 'not normal anymore', with no structure now. He says he showers every three days.

He said that he no longer goes out to see friends, but he is stuck at home, and when I asked why, he said 'no motivation', and his wife is busy looking after his grandchildren. He said that he doesn't want to contact his friends, as he said he looks unkempt. He said he has no friends, but when I asked if that meant he had no friends at all, he said he has a lot of friends, and he doesn't contact them at all, even by text, social media or by phone, as he has been more withdrawn. He said watches TV, and plays games on the computer, which he enjoys. He said he also sings, as he was a singer, and he said that tries to sing online with a recording, for TikTok. He said that he fills his time at home when he is bored with watching TV, and he has good mood. He said he does that two to three times a week. I told him that he appeared to be singing to a crowd in February 2018, which he said might have been undertaken prior to the subject accident, and he uploaded after the accident. I said that he appeared to be communicating with friends on Facebook, and he said that maybe he plays a game through Facebook. I asked him why he was not going to the mosque anymore, and he was not able to answer, and he has not been to the mosque since being discharged from hospital.

Since the subject accident, he lost his libido and there has been less intimacy with his wife. They separated about 3 years ago. He had a good relationship with his children prior to the subject accident, and since then there has been some strain in the relationship with his daughter and he was irritable towards her. His relationship with his son is still ok.

He said his concentration is so poor that he cannot read a book, and only watch Mukbang. I said that he appeared to concentrate enough to do the duet in February 2022.

I asked if he wanted to return to work, and he said 'why not', but he said that he doesn't think he can work anymore as he was already terminated."

1. The Medical Assessor noted a number of inconsistencies. The Medical Assessor stated:[7]

"There were internal inconsistencies with his account, regarding his mood such as not being able to enjoy anything at all, yet also saying he has enjoyed the singing and company among people, and lack of clear correlation of his symptomatology of recollections of trauma to the subject accident, and lack of plausible mechanism of the subject accident leading to him developing the current psychiatric syndrome in isolation, though likely his pre-existing condition has been re-activated, compounded by the social isolation from COVID restrictions. There were also inconsistencies with his capacity to enjoy his leisurely pursuits, with the surveillance report showing social exchanges on social media and him enjoying it, contrasting with his more negative impression of his social media activities. However, this could also be explained by an effort by his psychologist to engage him in meaningful activities online at home.

He also failed a performance validity test for psychiatric symptoms (M-FAST, with a 100% likelihood of this being accurate; and he also underwent a cognitive screening (RBANS), with an embedded performance validity test (Effort Index), which demonstrated suboptimal effort."

1. The Medical Assessor assessed psychological impairment at 19% comprising assessments of moderate impairment (Class 3) for social and recreational activities, travel and social functioning and severe impairment (Class 4) assessment for adaptation.
2. The Medical Assessor noted a pre-existing condition of anxiety although assessed this at 0% impairment.
3. The Medical Assessor made no allowance the effects of treatment.

1. Medical Assessor Jager issued a certificate dated 16 October 2020[8] when he found that the motor accident caused a recurrence of post-traumatic stress disorder and major depressive disorder and assessed whole person impairment at 9%. There was no assessment for the pre-accident post-traumatic stress disorder, described by the Medical Assessor as "reportedly quiescent at the time of the accident".

1. A previous Review Panel concluded that the motor accident caused a post-traumatic stress disorder and assessed impairment at 5%. In those reasons the Review Panel stated:[9]

"He developed an adjustment disorder after a dog bite, and developed further psychiatric impairment which has been set aside as it was unrelated to the subject accident."

1. In Buestami v Allianz Australia Ltd[10] the Court set aside the certificate issued by the Review Panel due to jurisdictional error and ordered that the medical assessment be remitted to a differently constituted Review Panel.
2. We have not summarised the reasons of the previous Review Panel in detail as that certificate has been set aside.
3. The Court found that the Review Panel did not, contrary to cl 1.21 of the Guidelines, determine whole person impairment at the time of the assessment. Secondly, the Review Panel did not comply with cl 1.34 of the Guidelines as it purported to "set aside" any impairment related to the subsequent dog bite event.
4. The Court described the "somewhat complex submission" surrounding causation concerning, the application of common law principles and the construction of cl 1.34 of the Guidelines. Reference was made[11] to the decision of Malcolm CJ in the Supreme Court of Western Australia in State Government Insurance Commission v Oakley,[12] the decision of the New South Wales Court of Appeal in Falco v Aiyaz; Falco v Falzon[13] and the decision of Wright J in Slade v Insurance Australia Ltd t/as NRMA.[14]
5. Despite the Court in Buestami not determining the first ground, we are obliged to follow the construction of cl 1.34 discussed in Slade. We return to this issue later in our reasons.

1. 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.[15]
2. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts the proceedings and may decide it solely based on the written application.[16]
3. The review is by way of new assessment of all matters with which the medical assessment is concerned.[17]

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accident Injuries Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[18] In Raina v CIC Allianz Insurance Ltd[19] Campbell J stated:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

"There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible."

Insurer's submissions dated 17 February 2022[20]

1. These submissions opposed the claimant's application seeking a further assessment for alleged deterioration following the previous medical assessment.
2. The insurer submitted that the treating evidence demonstrated that the deterioration in symptoms since October 2020 is not accident related.
3. The insurer noted that there were substantial gaps in the medical evidence and there was no treating evidence available after September 2021.
4. The insurer noted that the further application failed to include critical records particularly pertaining to the 2002 motor accident and subsequent treatment. It otherwise referred to the need to obtain further information and updated qualified medical opinion.
5. The insurer referred to the pre-accident condition which included:
   • - a long history of sexual abuse, domestic violence, marital issues and prior trauma;
   • - substantial psychiatric conditions and symptoms following the motor vehicle accident in May 2002;
   • - psychiatric conditions from various causes as early as 2002 recorded by Dr Walker;
   • - reported of treating psychologist Alyson Evans dated 12 August 2002;singing
   • - Dr Selwyn Smith in February 2003 recommended psychiatric hospitalisation and assessed whole person impairment at 30%;
   • - Dr Selwyn Smith assessed 19% whole person impairment in July 2006;
   • - Medical Assessor Skinner in June 2006 diagnosed major depression and assessed 17% whole person impairment;
   • - the review panel in November 2006 diagnosed major depressive disorder and assessed 17% whole person impairment;
   • - Sutherland Hospital notes on 30 March 2014 noted anxious and stress issues, and
   • - the history in the Sutherland Hospital notes dated 15 April 2021 addressed pre-accident factors which stated:

"First car accident in 2002... First diagnosed with PTSD after this by Dr Chee (psychiatrist). Suicide attempts started then by stabbing himself in the chest or hanging himself in the garage...", "Separated from his wife afterwards because of sexual dysfunction, but still living in the same house", a past history with his "father who used to beat him with a belt", and "guilt over not bringing mother to Australia for medical treatment. She passed away 10 years ago (2011)", and "uncle and aunt both had depression and committed suicide".

1. The insurer submitted that there were post-accident causal factors contributing to the alleged deteriorating psychological condition which were not accident related, these events included:
   • - not able to care for his mother whilst alive (clinical note - Mr Fizzio dated 6 August 2018);
   • - family difficulties with daughter and son-in-law and difficulties with wife (Australian Health care centre notes dated 4 June 2019);
   • - fear of COVID and resulting isolation (Keeping U on Track Psychology notes in 2020 and 2021);
   • - prior sexual assault and guilt about not being with mother when she died (Sutherland Hospital notes 12 April 2021);
   • - isolation leading to breakdown in relationship with wife ((Sutherland Hospital notes 22 April 2021), and
   • - St John of God Hospital notes dated 22 April 2021 regarding 2002 motor accident and isolation at home.
2. The insurer referred to social media material which suggested greater functional capacity reported by the claimant including:
   • - undertaking live/group singing and playing instruments prior to October 2020 and continuing on online singing activities as recently as 1 February 2022;
   • - participating in online game tournaments, and
   • - active Facebook engagement.
3. The insurer suggested there was an unexplained gap in pre-accident medical records from 2007 to March 2014 from April 2014 to July 2017.
4. The insurer submitted that the report of Dr Kamara stated 30 September 2021 failed to consider the material pertaining to the documented impact of COVID-19 and other aggravating factors.
5. The insurer submitted that the alleged deteriorating symptoms are unrelated to the motor accident.

Insurer's submissions dated 25 October 2022[21]

1. These submissions sought leave to review the Medical Assessment Certificate.
2. The insurer submitted that the Medical Assessor noted internal inconsistencies with the claimant's account concerning his account and activities shown on Facebook.
3. The insurer noted the comments by the Medical Assessor of a lack of clear correlation between symptomology of recollections of trauma in the subject accident and also noted that the claimant failed validity tests for psychiatric symptoms and demonstrated sub optimal effort.
4. The insurer submitted that the Medical Assessor said nothing about whether these factors influenced or did not influence the assessment of whole person impairment.
5. The insurer submitted that there were errors in connection with the calculations of whole person impairment. With respect to social and recreational activities the claimant's history that he had not been to the mosque since 2021 was contradicted by a medical report from July 2022 that the claimant attended his mosque.
6. The insurer referred to video surveillance of singing and failed to explain why this was not addressed in the assessment.
7. The insurer submitted that there was no description of the reasons for the assessment of adaptation. It also submitted that the Medical Assessor observed poor results under cognitive screening and evidence of suboptimal effort under symptom validity testing but failed to explain how this influenced assessment of cognitive function.
8. The insurer noted there was no substantial deterioration since the assessment of 9% in September 2020 but then associated the change to decompensation in the context of COVID, ongoing social isolation and likely a cry for help in the context of those circumstances.
9. The insurer referred to several casual factors underlying the psychiatric diagnosis, some of which were not accident related. These included COVID and the social isolation that are not consequences of the accident and failed to apportion or explain the deterioration.

Insurer's submissions dated 24 April 2024[22]

1. The insurer referred to the entries of Australian Healthcare Centre dated 14 September 2023 and 17 October 2023 which noted improvement in psychological symptoms.
2. The insurer noted the handwritten notes from Dr Chee covered the period from August 2022 to January 2024 and the doctor's notes showed psychological symptoms unrelated to the accident.
3. The insurer referred to post-accident accident factors contributing to the psychological conditions including:
   • - feelings about the loss of his mother;
   • - difficulties with daughter and fearful of grandchildren (Australian Health care dated 25 June 2019);
   • - fears relating to COVID and associated isolation, and
   • - childhood abuse (Sutherland Hospital dated 12 April 2021).

Claimant's submissions dated 15 November 2022[23]

1. These submissions were filed opposing leave to review the medical assessment.
2. The claimant noted that he had recovered from the May 2002 motor accident and commenced working as a driver in August 2011. He was not receiving any treatment for the pre-accident psychiatric injury at the time of the motor accident.
3. The claimant submitted that he suffered neck stiffness as a result of the motor accident but the psychological symptoms took precedence. He referred to the clinical records of the Australian healthcare Centre dated 12 November 2017 and the return to the care of Dr Chee, psychiatrist in January 2018.
4. The claimant noted that he was assessed by Medical Assessor Jager who issued a certificate dated 16 October 2020 assessing permanent impairment at 10%. There was a deterioration of the claimant's psychological condition evidenced by the treating records of the Australian healthcare Centre in April 2021 and the opinion of Dr Canaris, psychiatrist on 30 September 2021.
5. The claimant submitted that the Medical Assessor had considered pre-existing conditions properly set out in the assessment provided by Medical Assessor Jaeger in September 2020.

Claimant's submissions dated 11 November 2021[24]

1. These submissions supported an application for a further assessment of permanent impairment based on a deterioration, evidenced by various records and opinions since the certificate issued by Medical Assessor Jager on 24 September 2020.
2. The claimant referred to a worsening of symptoms in April 2021 evidenced by the clinical records of the Australian healthcare Centre and Sutherland Hospital. The claimant noted the re-examination by Dr Canaris on 30 September 2021 who provided a significantly higher assessment of whole person impairment.

1. The parties filed bundles of substantial documents for the Panel's consideration.

1. The following is a brief summary of the claimant's pre-accident psychological condition:

3 July 2002 - Noel Walker (consultant psychologist) - intrusive thoughts affecting sleep pattern. History of attempted robberies, assaults and abused in the 20 years as a taxi driver.[25]

30 July 2002 - Dr Chee - emotionally brittle, anxious.

12 August 2002 - Alyson Evans - verbal abuse from passengers/knife pulled on claimant, feelings of estrangement, diagnosed post-traumatic stress disorder and major depressive episode.

20 August 2002 - Dr Chee - able to drive, irritable, hits his own head, pull his own hair, screaming at home.

22 August 2002 - Sutherland Family Practice - claimant depressed with minimum eye contact, not getting on with wife.[26]

19 September 2002 - Alyson Evans - claimant hasn't driven for a month.[27] Dr Chan - crying, relationship with father who belted him and claimant left home at 16 years of age.

24 September 2002 - Dr Selwyn Smith assessed whole person impairment at 17%.[28]

3 October 2002 - taking to Effexor at night, calmer, more positive, but anxious whilst driving (Sutherland Family Practice).[29]

31 October 2002 - only driving with company in local quiet streets, can't cope with traffic (Sutherland Family Practice).

26 November 2002 - diagnosed post-traumatic stress disorder and Major Depression; claimant unfit for work (Dr Chee).[30]

21 February 2003 - Dr Smith - suggested psychiatric hospitalisation and assessed whole person impairment at 30%.[31]

4 March 2003 - fortnightly counselling sessions to address driving avoidance, treated for depression and generalised anxiety, remained on antidepressant medication (Gymea Lily Psychotherapy).[32]

8 April 2003 - shaking in the car after 10 to 15 minutes (Dr Chee).

30 September 2003 - claimant unable to unfit to drive at present, a lot of bad experiences and anxiety associated with taxi driving (Dr Chan).

9 December 2003 - claimant too anxious to drive and has not returned to work (Sutherland Family Practice).[33]

19 December 2003 - Dr Selwyn Smith - claimant has not worked since the motor accident - persistent depression - unable to perform pre-injury duties as a taxi driver.[34] Impairment assessed at 30%.[35]

17 February 2004 - Driving but nervous and depressed and not able to work (Sutherland Family Practice).[36]

16 March 2004 - Dr Chee[37] - claimant suffers Major Depression and post-traumatic stress disorder ready for a graded return to part-time work of low stress.

9 November 2004 - driving within 10km radius of home, some volunteer work (Sutherland Family Practice).[38]

27 September 2005 - sometimes wants to end his life (Dr Chan, clinical notes).[39]

27 September 2005 - MAS certificate - Medical Assessor Skinner - claimant suffering form depression due to family situation.[40]

13 October 2005 - more depressed in the past 12 months, high risk of suicide, requires intensive treatment and stabilisation, totally unfit for work (Dr Chan, report dated 13 October 2005).[41]

25 November 2005 - Dr Chee - claimant suffers Major Depression and post-traumatic stress disorder - unfit for driving and any work.[42]

29 March 2006, 31 March 2006 - cannot drive and feels isolated, gets nervous in the car (Dr Chee).

26 May 2006 - anxious about driving; unfit for any work (Dr Chee).[43]

7 June 2006 - safety issues when driving taxis, does not drive at nights or weekends. Diagnosed with major depressive attributable to family/personal problems and pre-existing anxiety in relation to employment as a taxi driver (MAS certificate of Medical Assessor Skinner). Assessed whole person impairment at 17%. Motor accident aggravated underlying anxiety disorder (assessed at a 1% contribution).[44]

11 July 2006 - Dr Smith - assessed whole person impairment at 19%, diagnosed with chronic major depressive episode with anxiety, unfit to engage in preinjury duties, unable to muster the energy to engage in work.[45]

20 November 2006 - (Review Panel certificate) - whole person impairment assessed at 17% due to previous motor accident. Diagnosed Major Depression and post-traumatic stress disorder; family difficulties where issues of vulnerability.[46]

19 December 2006 - depression the same, some concerns for children (Sutherland Family Practice).[47]

8 October 2007 - Driving up to 20km. Settled motor accident case. Money exhausted, unable to apply for Centrelink payment (Sutherland Family Practice).[48]

11 December 2007 - ongoing psychological symptoms, cease medication and counselling ongoing problems with driving (Sutherland Family Practice).

30 March 2014 - episode of diaphoresis, anxious and has stress issues (Sutherland Hospital note).[49]

1. The claimant attended his general practitioner on 9 October 2017 reporting the motor accident and suffering neck pain. The claimant reported he self-extricated, there was no ambulance or police, he felt fine and had not taken anything for the pain.[50]
2. A CT scan of the cervical spine dated 9 October 2017 showed left sided disc protrusion at C6/7.[51]
3. On 7 November 2017 the general practitioner (GP) noted that the claimant was suffering from post-traumatic stress disorder flared up by the recent motor accident.[52]
4. Sutherland Hospital discharge notes for 7 December 2017 recorded the following:[53]

"64 yo male presenting with palpitations in the context of likely panic attack.

Awoke at 5am for morning prayer. Was half-way through when began thinking about his mother who died this time a few years ago. Started becoming concerned that he too may die. Then noticed his heart beating hard, felt it radiating up her neck. Some assoc SOB. Resolved after 10 minutes when CDA arrived.

This has happened a couple times since October when he was involved in a car accident. Was rear ended by another vehicle. Did not attend hospital. Had an outpatient CT through GP who found a neck injury ?C6 Receiving physio.

Had a car accident approx 15 years ago and has suffered PTSD following this. Was seeing a psychiatrist Dr Chee(?) regularly. Not on any medications. Has not seen a psychiatrist for approx 9 years as has been doing well up until this recent incident. Now preoccupied with dying, unable to drive to due anxiety and panic attacks every couple of weeks. Sleeping poorly, being sedentary, not working.

Denies pain. Symptom free now. Son present - feels this is mostly attributed to anxiety, patient agrees.

Is a driver for the consulate - has been unable to work since the accident

1. Records for January/April 2018 noted physiotherapy treatment for left sided neck pain.[54]
2. Records for the period June to October 2019 noted ongoing physiotherapy treatment for left sided intermittent neck pain.[55]
3. The clinical notes of Keeping U on Track (Helen Austen, psychologist) from 25 November 2019 to 9 September 2021 refer to the following symptoms.[56]

25 November 2019 - highly anxious, not able to drive.

2 December 2019 - significant financial stress, went to gym five times last week.

30 January 2020 - change of medication, poor sleep patterns, attending gym, great improvement in mood, lacks confidence with driving, encouraged social activities such as attending Muslim group.

11 February 2020 - engaging in activities with positive mood impact, unable to drive.

7 April 2020 - withdrawn from all activities due to COVID fears, decline in self-care, relationship strain.

1 May 2020 - feeling depressed, isolated due to COVID fears.

8 May 2020 - COVID fears. Compliant with medication, reminiscing about mother's death - extremely emotional and upset. Loss of pride due to loss of work.

14 October 2020 - hard to change negative thoughts.

9 December 2020 - regularly waking at night, nightmares about people shooting grandchildren, unable to drive due to anxiety, feels abandoned by family, goal setting activities recommended.

19 July 2021 - isolated and lonely at home, fearful of COVID, poor personal care, admitted to hospital re suicidal, sleep patterns have improved.

6 August 2021 - lockdown fatigue, not leaving the house, fears surrounding vaccination.

20 August 2021 - had COVID vaccination, mood improvement, still not driving, poor sleep, improved communication with wife.

26 August 2021 - doing online singing activities, crying, thinking about employment activities.

9 September 2021 - isolated at home due to COVID, still does not drive due to accident and COVID restrictions.

1. Sutherland Hospital notes In April 2021 reported a decline over the previous three weeks with crying daily, unmotivated and thoughts about overdosing in the context an incomplete overdose attempt.[57] The notes include the following history:

"Client reports that he has been feeling depressed for many years, reports that in 2002 has a MVA where the other person in the other car was seriously injured, also had a MVA whilst working in 2017, client was working as a driver for the Iraq Consulate at the time. Currently on Workers compensation for medical for this incident.

Client also reports that he was sexually assaulted when he was about 5 from a family friend, was also physically abused by father.

Has a lot of guilt about not being at his mothers when she passed away in Indonesia about 10 years ago, client crying when talking about this.

Client reports that he is currently in the process of organising an admission at St John of God."

1. In April 2021 the general practitioner recorded that the claimant was severely depressed and suicidal.[58]
2. The claimant was admitted to St John of God Burwood Hospital on 21 April 2024 and discharged on 13 May 2024.[59] The hospital summary was that the claimant received inpatient psychotherapy as well as an increase in the dosage of medication while side-effects were monitored and treated. At discharge the claimant was no longer considered suicidal.
3. A Facebook page dated 24 October 2021 showed the claimant supporting a GoFundMe page for the fight against ovarian cancer.[60]
4. The claimant provided a further statement dated 4 March 2022 stating that the photographs shown on the Facebook page predated the motor accident and he no longer looks like that photograph.[61]
5. The claimant was admitted to St John of God Hospital Burwood on 11 June 2025 and discharged on 2 July 2025.[62] The brief discharge summary provided a principal diagnosis of chronic depression, panic disorder and post-traumatic stress disorder noting the claimant was referred by Dr Chee for deterioration in mood.[63] The substantial medication and dosage was unchanged.[64]

1. Dr Keith Chee, treating psychiatrist, provided a series of reports covering the period from January 2018 to September 2019.[65]
2. In September 2019 Dr Chee noted a recent deterioration in the claimant's depression which was precipitated by a panic attack while attempting to drive against the background of mounting financial distress from loss of work.
3. In July 2021 Dr Chee opined that the motor accident was a substantial contributing factor to the current condition as it was traumatic physically, he recorded being psychologically shocked and the other driver of the other vehicle started harassing him when he was already not coping psychologically.[66]
4. The bundles also contain the treating notes for the period from 19 August 2022 to 4 January 2024.[67]
5. In a report dated 16 December 2024,[68] Dr Chee noted that he was treating the claimant for post-traumatic stress disorder complicated by major depression since the motor accident, the claimant was currently depressed with suicidal ideation despite being on antidepressant medication.
6. Dr Chee noted the claimant had previously benefited from medication review and psychotherapy at St John of God Hospital Burwood and urgently requested approval for a three-week depression treatment program.

1. Dr Thomas Newlyn was qualified by the insurer and provided a report dated 28 July 2022.[69] The doctor opined that the claimant suffered an exacerbation of post-traumatic stress disorder because of the COVID pandemic which was in partial remission due to the 2002 accident.
2. Dr Newlyn assessed impairment at 5%.

1. Dr Christopher Canaris, psychiatrist, was qualified by the claimant and provided a report dated 30 September 2021.[70] The doctor diagnosed post-traumatic stress disorder with comorbid major depressive disorder causally related to the October 2017 motor accident. The doctor opined that the accident caused the reemergence of post-traumatic stress disorder which had previously been in remission linked to childhood sexual abuse and significant post-traumatic symptoms related to this motor accident.
2. Dr Canaris opined that there had been a deterioration in the claimant's condition since the assessment undertaken by Medical Assessor Jager in September 2020. The doctor assessed whole person impairment at 27%.
3. Dr Canaris provided a further report dated 7 June 2023.[71] The doctor stated:[72]

"Mr Heri Buestami continues to be chronically unwell reporting high anxiety around driving, depressed mood, suicidal ideation, social withdrawal, insomnia, nightmares, poor concentration, lack of motivation, and poor self-care. He leads an aimless existence and depends on others for assistance with self-care. He does not go out without the assistance of others and seems estranged from his family.

He remains under the care of a psychiatrist and is on a substantial does of nortriptyline, an antidepressant agent typically used in treatment resistant depression.

At interview, he is a dishevelled, rambling, and disengaged historian who reports what may be psychotic symptoms."

1. Dr Canaris that the claimant was unemployable and the current condition remained inextricably linked to the motor accident in October 2017 noting the continuity of current symptoms. The doctor assessed whole person impairment at 27%.

1. The claimant provided a statement dated 22 June 2020.[73] Relevantly he noted that he commenced employment in August 2011 working as a driver at the Consulate General of the Republic of Iraq.
2. The claimant stated that his life had been destroyed by the motor accident, he was no longer able to function and suffered panic attacks on a regular basis and lived a very isolated life.

1. The claimant was medically examined by both Medical Assessors on 10 December 2025. The examination report is as follows.

"The claimant was assessed in person at the PIC rooms. Although he was accompanied by a support person to the assessment venue, he was assessed unaccompanied.

Mr Buestami is a 71-year-old man who has lived alone in a rented flat from early 2025, after the financial demands of the costs of support and private health insurance forced him to sell his former home. After the sale, his ex-wife moved into his son's home in Melbourne. He has a support worker two days a week, for 5 to 7 hours each day.

Mr Buestami was born in Sumatra, Indonesia, as the eldest of five siblings. His birth was normal and he reached milestones at expected ages. He described significant childhood trauma. He described inter-generational trauma, explaining that from

4-years-old, his father had been raised by his father's aunt who treated his father poorly. Mr Buestami described his father's excessive and humiliating demands of him and harsh physical punishment, which would likely be considered to reach the threshold of physical abuse. He acknowledged the history of childhood sexual trauma. Further, due to unrest in the region, the Army bombed the area and sent in Army troops. He reports the Army killed innocent people and assaulted children and conducted public hangings which Mr Buestami witnessed. On this background, he performed poorly academically at school, where he was bullied. He recalls being scared as a child and reported having nightmares.

He left school in year 11 and then worked in a jewellery shop for 10 months, before migrating to Australia, where an uncle lived, in 1977. After arriving in Australia, he worked in a business that made office furniture, before taking work as a taxi driver. He acknowledged that he was assaulted and threatened as a taxi driver but denied any significant psychiatric impact of the abuse.

In 1979 he travelled back to Indonesia due to visa requirements and formed a relationship with his wife, who he had known from childhood as the beautiful daughter of a wealthy family. They married in 1980 in Indonesia and later had two children together.

He is a former smoker, who quit 3 or 4 years ago. He had previously consumed beer occasionally but denied current alcohol use or other drug use.

There is a significant family history of chronic psychotic illness, impacting his uncle and an aunt beginning in the post-partum period.

He had a history of hypertension and hypercholesterolaemia.

Mr Buestami was involved in a previous motor accident in 2002, which was the subject of a previous CTP claim. He was driving his taxi, when the at-fault driver failed to yield at a stop sign, resulting in Mr Buestami's taxi T boning the other car. As the other driver was slumped over and unresponsive, his immediate concern was that she had died, and that he had killed her. He described the 2002 accident as having a 'big effect' upon his psychiatric wellbeing. He reported nightmares and avoidance of driving, such that he did not work for a period of 9 years. His symptoms and resultant altered functioning caused conflict in his relationship with his wife, whom he regarded as unsupportive and critical, in part as a consequence of reported cultural stigma and lack of understanding of psychiatric conditions. He was treated by a psychologist and psychiatrist, Dr Chee, who prescribed the antidepressant, venlafaxine.

His symptoms settled from about 2007, however did not completely remit until 2011 when he began working as a driver for the Iraqi consulate. He expressed strong pride in his role at the consulate, a prestigious workplace, and in the high regard, respect and trust consulate staff had for him. His self-esteem was bolstered by the gratitude of consulate staff whom he helped.

Prior to the 2017 subject accident, he had minimal psychiatric symptoms. He sometimes thought about the childhood sexual abuse and avoided those news items which would remind him of past incidents. However, there was no avoidance of driving, and he had continued to work at the consulate as a special driver. He travelled to and from work by public transport. He was living with his wife in their own home. His wife was doing most of the cooking, although he cooked occasionally. It was not his habit to do the laundry or cleaning. He socialised with a friend, performing music, sometimes at the Indonesian consulate.

He was working on the day of the accident in October 2017, driving a consulate car. He was stopped at a red light when a Ute hit the car from the rear. When Mr Buestami got out of the car, the passenger of the at-fault vehicle verbally abused him. Mr Buestami felt demeaned and feared he may have a weapon. The consulate official joined the discussion and the other driver's behaviour settled. Then Mr Buestami drove back to the consulate and caught public transport home.

His psychiatric symptoms began immediately after the accident. His sleep was disturbed, with frequent nightmares, including content about the accident and non-motor accident subjects, such as warships. He had initial insomnia through until 2 or 3am and then would wake, sweating, from nightmares. He avoided watching the news in order to avoid bad news. He was fearful of driving, both of the risk of another accident and of encountering another aggressive driver. He attempted to drive, preferring to drive at night when the roads were less busy, but experienced increased anxiety, described as a 'panic attack' when he saw other cars, causing him to pull over. He felt anxious as a passenger, especially when travelling with unfamiliar drivers.

His mood was sad and irritable. His self-esteem was significantly impacted and his appetite reduced.

He returned to see his former psychiatrist, Dr Chee. His first psychiatric admission was in 2021 after a suicide attempt by overdose.

He is currently taking nortriptyline 150mg nocte. He has side effects of constipation, requiring prn Coloxyl. He is prescribed Vitamin D replacement as he is predominantly housebound.

In the last few years, he reported perceptual abnormalities, usually at night. He had previously heard the sound of a baby crying outside his former marital home. He has also seen a large dragon-like figure fly over him as he lay in bed, or a black object out of the left side of the corner of his eye, more frequently this year since living alone. He has chased the object into his kitchen but concluded there was nothing there. He wondered if the experiences were due to a ghost and regarded the instances as unusual, 'so many times strange things happen'. He is confused, disoriented, for 5 to 10 mins on waking.

In the context of his symptoms and inability to work, his relationship with his wife deteriorated. She was especially aggrieved by the couple's financial reversal. The couple separated under the same roof from 2018, after which he reported sexual dysfunction.

His only supports were two friends from his singing group. However, one friend moved overseas, and the other has developed dementia.

This year he has had three psychiatric admissions to the private psychiatric hospital,

St John of God in the context of suicidal ideation due to his preoccupation with the loss of his family and house and was last discharged in October 2025. He reported chronic suicidal thoughts, wishing he did not wake up due to a sense of futility, 'What kind of living like that?'

The medical assessors took substantial time during the assessment to explore potential unrelated stressors after the accident.

He denied having been substantially impacted by the COVID 19 pandemic. The medical assessors raised the inconsistency of his account with the content of documents, and he responded that former assessments had been conducted by video and that he had difficulties hearing and understanding the questions he was asked at times.

The panel explored the incident with the dog. He responded that he was alone, at his local shops, when he walked past a dog and its owner. The dog attacked him, biting his clothing but not breaking his skin. He reflected upon the event as, 'That's nothing'. Mr Buestami reproached the dog's owner, who responded rudely and aggressively, causing Mr Buestami to feel scared and return home. The incident with the dog owner reminded him of the behaviour of the passenger of the at-fault vehicle, which he experienced as racial discrimination. However, he denied any ongoing impact of the incident, replying it was, 'Nothing to me'.

Given his financial reversal and private health insurance costs, he had to sell the martial home. His son helped him find an available rental flat which he moved into early this year. He does not cook meals due to lack of motivation, but he will make simple foods such as rice, and he will go with a carer to buy frozen foods to reheat. He typically does not shower for 3 weeks due to poor motivation but had showered and shaved on the day of the assessment. He does not attend to his dental health and has lost teeth, preventing him from eating solids. During inpatient psychiatric admissions, with the support of staff, he will shower and attend twice daily groups.

He is avoidant of leaving his home alone. If necessary or urgent, he can go to the corner shop alone but would not go to the supermarket alone. Up until 2019, his friend from the music group would collect him and taking him singing, but he could not continue after his friend, whom he relied on for transport, was diagnosed with dementia. At home, he says, 'I don't do anything'. He plays solitaire on his computer. He practices singing 1 to 2 hours a day, including recording on an interactive singing app. He is invited to extended family events, such as weddings, by his aunt, but declines the invitations. He no longer attends the Mosque, citing the reason as lack of available transport, but still prays at home. He does arrange a carer to take him out after Ramadan. He was attending outpatient groups three times a week, an art and craft group, exercise group and a mindfulness group, but was unable to afford the cost of a carer to transport him there three times a week. As a result, he now attends once a week. He made one friend at the Art and Craft group whom he will have coffee with at the hospital café.

He last drove in about 2022. Up until then he was attempting to drive regularly on the advice of his psychiatrist but stopped due to a panic attack. He will not travel by public transport as he is anxious on the bus. He will travel by taxi but only with a familiar driver.

He has never been close with his daughter, who lives in Sydney. His son lives in Melbourne. His aunt occasionally visits him. He avoids answering his phone.

Mr Buestami attended the assessment venue with his carer who remained in the waiting room throughout the assessment.

Mr Buestami presented as a neatly groomed man who had made an effort with his appearance, wearing a neat, pressed striped business shirt and trousers and having styled his hair. He was cooperative throughout the assessment and readily engaged with the assessors. At times throughout the assessment, he displayed anguished outbursts, when discussing his childhood experiences, as well as his current psychiatric symptoms and circumstances.

His affect was restricted to a dysphoric range, becoming tearful at times, appropriate to the content. Although he expressed his gratitude to the assessors, he did not smile at any time during the assessment.

He reported persistent nightmares, including, but not limited to, the subject accident. He described flashbacks of the accident, as well as the at fault driver 'being superior' towards him. He is fearful of driving, due to fears of another accident and of encountering an aggressive driver. He described a profound sense of loss, of role and self-esteem, and of futility. He did not report any delusions. He described nocturnal visual, and previously some auditory, hallucinations, about which he maintained some insight that they were, 'strange', but which aroused fear and he explained by a possible ghost. There was no formal thought disorder.

He has insight into his condition and is compliant with treatment with his psychiatrist and inpatient private psychiatric admission.

The medical assessors found Mr Buestami to be an open historian, without sophistry. He made no attempt to minimise his history of childhood trauma or his past psychiatric history.

The medical assessors accepted his account that the content of previous assessments were impacted by miscommunication. The medical assessors were confident in the reliability of the data obtained during their face-to-face assessment with the claimant, which proceeded for over 3 hours duration.

The medical assessors identified that Mr Buestami had significant vulnerability to psychiatric illness, arising as a consequence of childhood trauma, including exposure to military action and public hangings, childhood sexual abuse and an insecure attachment to his father, where his father was critical, humiliating and physically abusive. Further, there was a substantial family psychiatric history, conferring a likely genetic vulnerability to psychiatric illness. He was fearful as a child and had nightmares. These experiences had impacted his academic performance at school, further impacting the development of his self-esteem, and impacted his ability to form a positive relationship with his wife. Later, he was exposed to further trauma due to assaults and threats whilst working as a taxi driver.

His positive experiences after migrated to Australia, establishing himself in regular work as a taxi driver and forming a relationship with an admired partner, had been protective and moderating factors.

He was exposed to a previous motor accident in 2002, which involved a T bone collision in which he initially feared that the at-fault driver had been killed. In the context of the pre-existing vulnerabilities, subsequent to the 2002 accident he developed PTSD, with re-experiencing symptoms, nightmares, avoidance symptoms, avoiding driving, depressed mood and sustained anxiety. His symptoms were severe such that they prevented him from working for many years and impacted his relationship with his wife, which further perpetuated his condition. After many years of treatment, including psychotropic medications, psychological treatment and the formation of a long-term therapeutic relationship with a psychiatrist, his symptoms began to settle and by 2011 he was able to return to work as a driver for a consulate, which was a source of positive esteem. His relationship with his wife improved and their relationship endured. By the pre-accident period, he had occasional thoughts of the childhood trauma and avoided new items which reminded him of previous traumas, but he had no significant avoidance, mood or anxiety symptoms. The panel determined that prior to the subject accident his occasional, subthreshold symptoms would not have met all of the criteria for an ongoing, symptomatic psychiatric condition and that therefore the past PTSD was in remission at the time of the subject accident.

The subject accident was relatively minor in nature, but does not need to fulfil PTSD criteria A to be a plausible and sufficient trigger for relapse of PTSD, which can instead be plausibly triggered by salient reminders of previous trauma. The medical panel consider that the reported aggressive and demeaning behaviour of the passenger of the at-fault car was an additional salient reminder of previous trauma and was another cause of the relapse of PTSD. However, the subject accident does not need to be the only cause but must only be a cause that is material. The panel therefore considered that the subject accident was the cause of a relapse of past PTSD.

He fulfills DSM 5 criteria for PTSD, given he reports reexperiencing symptoms, nightmares about the accident as well as other past traumas, avoidance symptoms, avoidance of news items as well as driving or traveling with anyone but familiar drivers, negative affect and cognition, with depressed mood, negative view of self, loss of motivation and suicidal thoughts, and sustained hyperarousal and reactivity, with irritability, insomnia and hypervigilance to the threat of another trauma, either another accident or negative interpersonal interaction.

The panel did not identify any subsequent injuries. The loss of his relationship with his wife is a consequence of the impact of the relapse of PTSD symptoms after the 2017 accident, upon a relationship which was fragile due to the impact of past PTSD and attachment issues.

The dog bite incident was trivial. The dog attack did not involve an actual bite. There was a brief unpleasant interaction with the dog owner, which the medical assessors, after exploring the incident in detail and applying their clinical judgement, consider would not have had any ongoing psychiatric impact had he not been experiencing a relapse of PTSD which resulted in symptoms of hypervigilance and negative self-esteem. There were no new symptoms reported after the dog attack incident, but only worsening of his existing symptoms. As such, this would meet Oakley second principle, where an unrelated subsequent event causes worsening of the pre-existing injury, the resultant additional impairment is considered to be due to the existing injury, the relapse of PTSD caused by the 2017 accident.

The panel accept that Mr Buestami has become increasingly isolated since the 2017 accident, which is perpetuating his condition. However, his isolation is a result of the symptoms of relapse of PTSD, including avoidance, irritability, poor motivation and negative affect, upon his previous relationships and which limit his ability to establish new relationships as would otherwise be possible despite unrelated events such as the COVID pandemic.

Instead, the panel accept that the clinical course of the relapse of PTSD, with progressive isolation and resultant progressive worsening of symptoms, is consistent with that typically seen in chronic PTSD, especially where pre-existing vulnerabilities and past psychiatric conditions have exhausted the individual's own, and supports, psychiatric reserve.

We therefore consider that there is no subsequent psychiatric injury.

The medical assessors found his mental state examination entirely consistent with his reported symptoms.

Mr Buestami's engagement in chores and self-care is affected by his poor motivation. He can reheat frozen meals or cook rice. Although he can rarely go to the local shop if urgent, he needs the support of a carer to go to the supermarket and for cleaning and laundry tasks. He typically avoids showering for 3 week intervals. Considering his reliance on the support of carers two days a week and that his self-care is below minimum standards, he has a moderate impairment.

Although he engages in online singing and gaming, he relies on support people or carers to go out, even to a familiar hospital's day programs. Considering his reliance on support people, there is a moderate impairment.

He no longer drives at all. Although, on the advice of his doctors he continued to attempt to expose himself to driving up to 2022, the medical panel must assess his impairment as he presents at the time of their assessment.

He requires a known familiar taxi driver to travel as a passenger in the car.

He can only rarely, when essential, go alone to the local shops.

Prior to the subject accident, his relationship with his wife had recovered and was intact. The post-accident effects of the relapse of PTSD upon his mood, motivation and capacity to work and financially support the family, caused the loss of the marriage, initially separation under the same roof and now living separately.

Although he had maintained pre-existing friendships until those friends either moved away or became medically unwell, he has not been able to establish many new friendships, except for one friend who he met at a psychiatric hospital day program group.

Considering the break-up of his marriage and partial limitations to capacity to form new relationships and friendships, there is a moderate impairment.

Mr Buestami is able to play computer games which require the capacity to focus and practice singing for 1 to 2 hours a day, indicating the capacity to sustain concentration for at least an hour, consistent with population norms and the absence of impairment.

He has not engaged in any work since the accident. He requires the support of carers to live alone.

He requires the support of attendance at regular psychiatric day program groups.

His current functioning in non-work settings and inability to tolerate stressful circumstances, such that he has required multiple psychiatric admissions for suicidal ideation, is consistent with his adaptation being totally impaired.

1. The review is a new assessment of all matters with which the medical assessment is concerned.
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[74] and Insurance Australia Ltd v Marsh.[75]
3. The Panel has met following the medical examination and adopts the extensive reasons provided by the Medical Assessors supplemented by the following reasons.
4. The Panel accepts that the motor accident caused psychiatric injury. The insurer referred to some delay in complaint of psychological symptoms. However, unlike various physical injuries, the impact on an accident causing psychological trauma is not necessarily felt in the near term. The motor accident was sufficiently serious, and the claimant was of a vulnerable psychiatric nature given his pre-existing condition. His pre-existing psychiatric condition made him more vulnerable to suffering a psychiatric condition caused by the motor accident.
5. The conclusion that the motor accident caused the psychiatric condition is supported by the histories recorded in the clinical records from late 2017 referencing the motor accident in the context of an exacerbation of the claimant's post-traumatic stress disorder.[76]
6. There is reference in the history recorded by the Medical Assessors to the passenger of the at-fault driver's conduct after the motor accident and the claimant's reaction to perceived aggression and verbal abuse. The motor accident and the interaction occurred within a short time frame in circumstances where the insured's conduct was reported to have "settled".
7. In these circumstances we find that the motor accident and its aftermath was a single causative event resulting in the psychological injury suffered by claimant.[77]
8. The insurer referred to the post accident clinical notes referencing other events contributing to the claimant's psychological condition. As the Medical Assessors noted in the examination report, the claimant was vulnerable to further exacerbation of and loss of functioning given his pre-accident psychological history. The nature of the motor accident and the perceived threat were sufficiently serious to trigger a relapse of the post-traumatic stress disorder
9. Despite the subsequent events including loss of family, the motor accident remains a material contributing factor to the claimant's permanent impairment. This is the view of the Pnale based on the detailed clinical examination of both Medical Assessors and the Panel's review of the extensive material.
10. There is a significant period since previous assessments which are somewhat outdated. Whilst histories and clinical observations are relevant, we are required to form our own opinion. Specifically, the assessment of the various Psychiatric Impairment Rating Scale (PIRS) is highly dependent upon the clinical impression of the psychiatrists from the recent examination (see cl 1.217 of the Guidelines). There has been a deterioration in function over the last three years in part exacerbated by the claimant's isolation. Part of the isolation is due to the loss of the claimant's marriage which we directly relate to the motor accident.
11. Clause 1.217 of the Guidelines provides:

"The scale must be used by a properly trained medical assessor. The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience."

1. Clause 1.31 of the Guidelines provides for a deduction if "there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident".
2. We are not satisfied that there is objective evidence of pre-existing impairment within the meaning of cl 1.31 of the Guidelines prior to the motor accident. The conclusion is based on the absence of complaint of psychological symptoms in the years leading up to the motor accident and the fact that the claimant was in full-time employment.
3. The insurer referred to the absence of relevant records in the three years to the motor accident. However, that absence is also consistent with the claimant's version that he had recovered his functionality prior to the subject motor accident.
4. The insurer referenced the various medical reports which assessed significant permanent impairments including a previous Medical Review Panel certificate in November 2006 which assessed whole person impairment at 17%. However, the definition of "permanent" in the Guidelines[78] does not exclude a recovery such as was reported over time by the claimant in this matter.
5. The decision of Bell P (as his Honour then was) in IAG Ltd v Chahoud[79] noted the distinction between the date of the records and the date of the pre-existing impairment. His Honour stated:[80]

"IAG submitted that in so finding, the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated 'at the time of the accident'. It submitted that the clause should instead be read as requiring that there be 'evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident'. What was 'likely still to exist', in other words, were not records of any pre-existing impairment but the pre-existing impairment itself."

1. We are not satisfied that there is objective evidence of a pre-existing permanent impairment at the time of the motor accident. Accordingly, there is no deduction pursuant to cl 1.31 of the Guidelines.
2. The submissions raised the application of cl 1.34 of the Guidelines which provides:

"The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored."

1. The provision was mentioned by the Supreme Court although the decision to remit was not dependent upon this provision. Clause 1.34 of the Guidelines was discussed by Wright J in Slade v Insurance Australia Ltd.[81] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[82] apply in respect of the assessment under that clause.
2. The claimant's psychological condition deteriorated from 2022 in the context of social isolation directly attributable to the motor accident for the reasons provided by the Medical Assessors. Accordingly, the deterioration in functioning due to isolation is not "unrelated" within the meaning of cl 1.34.
3. Furthermore, the dog incident where the claimant was not bitten was trivial and heightened the claimant's symptoms. In the expert view of the Medical Assessor on the Panel the trivial nature of this incident does not form the basis for a deduction under cl 1.34. The claimant was, because of his aggravated post-traumatic stress disorder symptomatology, responding adversely to an event that otherwise would not result in psychological sequelae.
4. There is a documented history of deteriorating functioning since around 2022. This deterioration raised whether a subsequent accident/injury has impacted and caused a deterioration of the claimant's psychological condition. Having considered and accepted the claimant's denials, we are otherwise not satisfied that there is "objective" evidence that the various post-accident events referenced by the insurer result in a deduction in accordance with this provision.
5. We have included no allowance for the effects of treatment because we are not satisfied that the functioning has improved.[83]

1. Whilst the overall outcome is the same, the certificate issued by Medical Assessor Shen is revoked because the Panel has diagnosed a different psychological condition and overall impairment. A replacement certificate is attached at the commencement of these Reasons.

[5] Section 63(2B) of the MAC Act; Insurer's bundle, p 5.

[10] [2025] NSWSC 465 (Buestami)

[12] (1990) 10 MVR 570 (Oakley).

[13] [2015] NSWCA 202; (2015) 71 MVR 454.

[14] [2020] NSWSC 1031 (Slade).

[18] See s 3B(2) of the Civil Liability Act 2002.

[19] [2021] NSWSC 13 (Raina) at [65].

[57] Insurer's bundle, p 343; claimant's bundle, p 46.

[62] Claimant's bundle, pp 1,823-1,944.

[67] Claimant's bundle, pp 1,816-1,820.

[74] [2021] NSWCA 287 at [40], [41] and [45].

[75] [2022] NSWCA 31 at [11], [21] and [64].

[77] See Allianz Australia Insurance Limited v Bell [2025] NSWCA 187 at [12]- [24] (Payne JA) and [117]-[124] (Price AJA).

[78] See cl 1.19 and 1.20 of the Guidelines.

[79] [2019] NSWSC 767 (Chahoud).

[81] [2020] NSWSC 1031 (Slade).