REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel revokes the certificate dated 10 July 2024 and issues a new certificate determining that:

(a) all the injuries referred for assessment have been assessed and determined not caused by the motor accident, and

(b) an assessment of the degree of permanent impairment of these injuries is therefore not required.

1. On 17 March 2021 at about 4.30pm, the claimant was driving home from work with a friend as his passenger. There was mild rain. The claimant stopped his car at red traffic lights on Parramatta Road at Homebush. The insured driver was travelling behind and failed to notice that the claimant's vehicle had stopped. The insured vehicle rear-ended the claimant's vehicle at speed. The claimant thinks he lost consciousness briefly. After regaining consciousness, he got out of his car, took photos and exchanged details with the other driver. He was able to drive himself home. His vehicle subsequently was written off for insurance purposes.
2. Insurance Australia Limited t/as NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (Act). The insurer wholly admitted liability for the damages claimed.

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Christopher Canaris for assessment of his psychological injury.
2. Medical Assessor Canaris certified on 10 July 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:

1. Medical Assessor Canaris could not find any evidence to suggest a pre-existing psychiatric condition. He made no apportionment. He made no adjustment for treatment effects as he found no evidence that treatment has had a significant impact on the claimant's level of impairment.
2. Utilising the psychiatric impairment rating scale (PIRS), Medical Assessor Canaris assessed whole person impairment (WPI) as follows:

% Whole Person Impairment: 7% whole person impairment (WPI)

1. Medical Assessor Ian Cameron certified on 26 August 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:

• cervical spine - soft tissue injury;
• lumbar spine - soft tissue injury;
• left and right shoulder - soft tissue injury;
• abdomen - gastrointestinal pain and discomfort; and
• skin - scars.

1. Medical Assessor Cameron found 5% WPI for the cervical spine soft tissue injury and 4% WPI for the bilateral shoulder soft tissue injuries.
2. President's delegate Melinda Drew refused the insurer's application for review of Medical Assessor Cameron's certificate.
3. Medical Assessor Christopher Grange certified on 17 December 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 3% and IS NOT GREATER THAN 10%:

• sleep apnoea - sleep disorder - difficulties sleeping, significant insomnia due to pain and severe sleep disordered breathing

1. In making that assessment, Medical Assessor Grange allowed 3% WPI for treatment effects.
2. Medical Assessor Christopher Grange issued a Combined Certificate dated

8 December 2024 to the effect that the claimant has 12% combined permanent impairment arising from his accident-related physical injuries. 3. President's delegate Ashley Payne decided on 14 March 2025 that there is reasonable cause to suspect that the medical assessment of Medical Assessor Grange was incorrect in a material respect. Accordingly, the insurer's review application was accepted and a Panel is yet to be constituted.

1. The claimant sought a review of Medical Assessor Canaris' certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relied on the particulars set out in the application and supporting documentation.
2. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
3. The claimant submits it appears from the certificate that Medical Assessor Canaris may have focussed on the claimant's physical impairments or otherwise confused the questions relating to the claimant's physical and psychological treatment.
4. Whilst noting that there had been a contention between the parties regarding purported inconsistencies, the Medical Assessor considered that there was an overall consistency in the documentation available to him.
5. The claimant submitted there is no evidence that the Medical Assessor asked the claimant any questions concerning his capacity to work from a psychological perspective.
6. The claimant took issue with the Class 2 rating given by the Medical Assessor with respect to the Adaptation category of the PIRS. The claimant submitted that a Class 3 rating was more appropriate having regard to sections 6.220 and 6.221 of the Motor Accident Guidelines (the Guidelines). The claimant took no issue with the ratings made by the Medical Assessor under the other Categories of the PIRS.
7. As to the Class 2 rating under the Adaptation category, the claimant made the following observations with regards to the assessment:

(a) there are no findings as to how the claimant's psychological impairment impacts his capacity to work;

(b) there are no findings in relation to what type of work the claimant can do, including whether he could return to his pre-injury employment, from a psychological perspective;

(c) there are no findings in relation to whether there are limitations on the number of hours or days the claimant would be capable of working from a psychological perspective;

(d) whilst the Medical Assessor assigns Class 2 for Adaptation, he does not in fact express an opinion or make a finding that the claimant can work from a psychological perspective, and

(e) it is not apparent how the Medical Assessor was able to "take into account the contribution of his pain to his ongoing unemployment" and the claimant contends this was the incorrect approach, in any event.

1. The claimant contends that the Medical Assessor failed to adequately explain the basis upon which he assigned Class 2 for Adaptation. The claimant notes that changing Adaptation to Class 3 rather than 2 would result in an assessment of 15% whole person impairment.
2. The claimant's review application was opposed by the insurer on various grounds. It is not necessary to summarise the insurer's submissions in detail as they were not accepted by the President's delegate. Briefly, insurer submitted that the Medical Assessor's assessment was not incorrect in a material respect and submitted that the claimant's Application for Review should be dismissed.
3. President's delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 12 September 2024 which stated the satisfaction of the President's delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor's failure to make findings about how the claimant's psychological impairment impacts his capacity for work.
4. Accordingly, the review application was accepted and was referred to the Panel, which is to reassess all of the injuries referred to Medical Assessor Canaris, unless the parties otherwise agree.
5. The evaluation should only consider the impairment as it is at the time of assessment:
   1. The Court of Appeal in Mandoukos[1] stated at (78):

"..... the medical dispute about a medical assessment matter will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made.";

1. what has been referred for assessment in these proceedings is Psychiatric condition - persistent depressive disorder (dysthymia);
2. the Panel notes that the Medical Assessors on the Panel are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychiatric injury caused by the accident and then make a diagnosis of that injury;
3. the Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnosis of the original Medical Assessor, or the diagnoses of the treating doctors or Medico-legal experts, or the particular diagnosis that may have been included in the application or reply form, or referred for assessment, and
4. having made a diagnosis, the Panel will then proceed to undertake an assessment of the WPI, resulting from that injury.

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (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 Medical Assessor.[2]
3. Rules 127 to 130 of the PIC Rules are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[3]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[4]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

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

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. See Briggs v IAG Limited t/as NRMA Limited.[5] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[6] wherein his Honour Justice Wright stated at (35):

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

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

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

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

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant relied upon the following material which the Panel has considered:

Claimant's submissions in support of review application

Certificate and Reasons of Medical Assessor Christpher Canaris

Collated progress notes of psychiatrist, Dr Blagoje Kuljic from 24 July 2024 to 27 February 2025

The Panel notes that the claimant has not complied with the directions made on 4 April 2025 in the following terms:

"If the parties wish to rely upon clinical notes and/or other treatment records, they are to specify with particularity (by reference to page and paragraph numbers in their respective paginated bundles of documents), the entries that are said to be relevant to the matters in issue."

The foregoing scans relate to the claimant's physical injuries and are not of direct relevance to the Panel.

Normal conduction study of bilateral elbows and wrists.

Report of Dr Blagoje Kuljic (treating psychiatrist) to Dr Hawi (GP)

"He reported no psychiatric history or compensation cases prior to the motor vehicle accident in March 2021. The onset of symptoms was short after the accident. He complains of having very upsetting memories related to the accident, especially to the short loss of consciousness with bright light of his eyes. He is trying to forget these details, but the memories are hounding him and making him upset. He avoids talking about it, driving car or passing close to the place of accident. He has been feeling irritable, argumentative, and he is afraid it will affect his marriage fearing divorce. He prefers to stay alone and not communicate with others. His attention and memory became poor. His eating is impaired and he eats only if reminded by his wife and the same applies to his hygiene..... Initial psychoeducation about his issues was provided to him. he was informed about pharmacological treatments of his condition."

He presented symptoms consistent with post-traumatic stress disorder related to a car accident in March 2021. There was no psychiatric history or genetic load for mental disorders, but the index accident as a near death experience caused psychological trauma. There is a discussion of the application of the DSM-5 post-traumatic stress disorder diagnostic criteria to the claimant's case. There is a description of planned initial management.

"He has been continuing to engage in psychiatric treatment for PTSD and continues reporting good compliance with the medication."

The foregoing reports describe the claimant's continuing treatment under Dr Kuljic which ceased.

Report of Dr David Freiberg (consultant physician in respiratory and sleep medicine) to Dr Hawi

Dr Freiberg reports that the claimant's sleep has been significantly affected since the motor accident. There is a Diagnostic Sleep Study Report and a CPAP Titration Sleep Study Report.

Report of Dr David Manohar (interventional pain physician and consultant physician) to Dr Jonanthan Herald

Dr Herald describes moderate to severe discovertebral changes at C3/C4, C4/C5, C5/C6, ongoing supraspinatus tendinosis in the right shoulder and tendinopathy changes in the left shoulder. Dr Herald recommends neural infiltration in those areas, as well as a pain management program, "as he has had constant pain for two years now."

"He complains of neck pain and shoulder pain. I understand that the insurer has denied that the neck symptoms are due to the motor accident. His right shoulder injury has been accepted. He will undertake an initial assessment for a pain management program."

The foregoing reports described Dr Manohar's continuing treatment leading up to right shoulder surgery on 12 December 2023 at the hands of Dr Herald.

Report of Dr Jonathan Herald, orthopaedic surgeon, to Dr Hawi

Right shoulder possible SLAP lesion or impingement syndrome.

Cervical disc prolapse with right upper limb radiculopathic symptoms.

I have referred him for MRI scans of his shoulders as he has pain to both shoulders as well...... We may have to consider Cortisone injections or a referral to a pain specialist.

Further reports regarding treatment leading up to arthroscopic rotator cuff repair surgery and SLAP lesion repair right shoulder. For his left shoulder, we may have to send him to a neurosurgeon or pain specialist. At this stage, however, he said that he in so much pain that he is getting depressed. I said I will await approval for the right shoulder before proceeding. His post-operative recovery is described in detail. Dr Herald recommended a revision arthroscopic rotator cuff repair surgery for a high-grade partial-thickness tear that is not healing.

Treatment plan for his teeth relating to stress induce bruxism. Dr Antoun accepts that the emotional and psychological stress of the accident is likely to have contributed to damage to the teeth.

Report of Multifidus Health - physiotherapy progress report

Report of Shayma Almoty registered psychologist to insurer

"He suffers from post-traumatic stress disorder as per the diagnostic and statistical manual of mental disorders 5th Edition 2013.

He satisfies the diagnostic criteria for this condition that cannot be adequately explained by any other condition.

He satisfies one or more symptoms from Criterion A, B, C and E of the Diagnostic Criteria for PTSD. He has been suffering with the condition for more than one month, there is significant functional impairment as a result of both physical and psychological symptoms. His symptoms are not due to medication, substance abuse or any other illness."

There is a discussion of the proposed treatment plan and a separate ongoing worker's compensation claim for a back injury and return to pre-injury duties.

Report of Dr Mukesh Kumar, consultant psychiatrist, to claimant's lawyers

"The post-traumatic stress disorder is in context of the motor accident which led to threatened death and serious injury. This incident has led to the onset of intrusion symptoms including distressing memories, dreams, flashbacks and psychological distress. He engages in avoidance behaviour. There are negative alterations in cognition and mood, characterised by persistent distorted cognitions, persistent negative emotional state, markedly diminished interest in significant activities, feelings of detachment and persistent inability to experience positive emotions. There are also marked alterations in arousal and re-activity characterised by irritable behaviour and angry outburst, hypervigilance, exaggerated startle response, difficulties with concentration and sleep disturbances. The duration of these symptoms is more than a month. These symptoms have caused clinically significant distress and impairment in several areas of functioning and are not due to any physiological effect of a substances or another medical condition.

He also fulfils criteria for a persistent depressive disorder as he has had depressive symptoms for more than two years including depressed mood, disturbances in sleep and appetite, low energy, low self-esteem and difficulties in concentration. These symptoms are not better explained by another psychiatric condition and are not due to a physiological effect of a substance. These symptoms have caused clinically significant impairment and distress in several areas of functioning.

There is a clear causal connection between the above diagnosis and the history of the motor accident. There is no previous history of psychiatric condition prior to the accident."

Dr Kumar says that the claimant's past and future earning capacity is totally impaired and that he is unable to work in any capacity.

• He reported that his self-care has been affected severely.
• He added that he neglect himself and his wife has to push him to do basic tasks such as showers or brushing his teeth.
• He says that he does (?) prepare food or do any housework.

• He reported that he does not take part in any social events.
• Though he used to go out and be social, however, this has now completely stopped.
• He does not take part in any recreational activities.

• He has started to drive again, however, he can only drive short distances and becomes anxious on any long distance travel.

• He reported that due to conflicts between him and his wife subsequent to his accident.
• He and his wife have now separated approximately 11 months ago.
• He said that he has also lost contact with his friends and is now completely isolated.

• He reported his concentration is very poor.
• He says that he forgets simple things.
• Even when he walks into a room to do a task, forgets the tasks he is doing.
• He says that reading is difficult, and he has to read the same things over and over and becomes extremely frustrated and angry.
• He says that even watching TV is difficult as he is able to focus on TV programs.

• He is currently unable to work in any capacity and he is totally impaired.

Class and aggregate score in ascending order: 2, 3, 3, 3, 3, 5

As these reports relate to the claimant's physical injuries, they are not of direct relevance for the Panel's consideration.

Further report by Shayma Almoty, treating psychologist

Ms Almoty notes that her treatment of the claimant began in May 2022 and is ongoing. Ms Almoty says that the claimant has remained consistent in his reporting of symptoms and medical history throughout his treatment which is conducted in the Arabic language. Ms Almoty disagrees with the insurer's IME Dr Mason that the claimant is an unreliable historian. Ms Almoty says that the claimant did not suffer any psychiatric or psychological disturbance following his workplace accident. He always maintained that he took three months' off work following his workplace accident and that, once he had recovered sufficiently, he was trialling a return to work when the motor accident occurred.

Ms Almoty maintains her diagnosis that the claimant suffers from post-traumatic stress disorder because of the subject motor accident. Ms Almoty also says that the claimant continues to satisfy the diagnostic criteria for post-traumatic stress disorder and that he has been transparent and consistent with his reporting of symptoms throughout his treatment.

Ms Almoty opines that the claimant's psychological injuries cannot be due to his back injury as this was not experienced as a life-threatening situation by him. His symptoms cannot be adequately explained by the workplace accident and there are no reports of their presence prior to the motor accident. Ms Almoty then describes various factors that (in her view) should be considered when assessing the claimant's reliability including the need for him to be assisted by an interpreter. Ms Almoty says as follows:

"He has been dealing with his injuries, pain, extended periods of unemployment, multiple surgeries and complications due to surgery, with poor recovery and less than optimal results. He often reflects during his sessions that his recovery has become a full-time job for him between multiple appointments for treatments, scans and specialists reviews every month since the motor accident. as a result of these factors, as well as the compounding factors of sleep disturbance, financial difficulties, poor prognosis, limited English language skills, as well as minimal transferrable skills and poor employment prospects, he has developed a genuine psychological condition and symptoms throughout this process."

Ms Almoty also notes the claimant's need to be assisted by an interpreter in the Arabic language.

Supplementary report of Dr Blagoje Kuljic to the claimant's lawyers

Dr Kuljic repeats his previously stated opinion that the claimant presented symptoms consistent with post-traumatic stress disorder related to the subject motor accident. There was no psychiatric history or genetic load for mental disorders, but the indexed accident as a near death experience caused psychological trauma. Dr Kuljic confirms the claimant's belief that his workplace back injury on 25 August 2020 had no psychological sequelae. Dr Kuljic repeats his previous application of post-traumatic stress disorder diagnostic criteria according to DSM-5 to the claimant's case. He reviews the provided psychiatry and psychology-related documents provided to him. Dr Kuljic says his PIRS assessment remains unchanged at 23% WPI including 1% for treatment effects. His opinion on causation and diagnosis remains unchanged.

1. The insurer relied upon the following material which the Panel has considered:

• The insurer highlights inconsistent history given to medical practitioners during the course of the claimant's worker's compensation and CTP claims. Details are given, and
• the insurer calls into question the claimant's credibility and says that affects the opinions expressed by Dr Kumar and Dr Mason who, of necessity, rely upon the claimant's subjective evidence (self-reporting).

The foregoing reports are not of direct relevance for the Panel as they deal with the claimant's physical injuries.

Report of Dr Wayne Mason, psychiatrist, to the insurer's lawyers

Dr Mason describes the circumstances of the accident which distressed the claimant because he had returned to work only two weeks earlier after three months off work due to a work-place back injury. Dr Mason describes the onset of psychological symptoms and provides a diagnosis of persistent depressive disorder with major depressive episodes. Dr Mason opines that the claimant's prognosis is largely dependent on resolution of his physical injuries and pain.

Dr Mason utilised the PIRS to assess the claimant's WPI as follows:

He said he showers every three to five days because washing and drying himself is difficult with his physical injuries. He said his wife no longer reminds him to do so because of the discord between them. He said basically cannot be bothered. He does not bother to change his clothes. He has gained 15kg due to inactivity. He is moderately impaired.

He said he does not see any friends and he does not participate in any activities such as outings to the beach or barbeques. He said he has been forced to attend a school function for his children. He is moderately impaired.

He is able to drive in the local area. He is able to catch a taxi to attend appointments. He said he can use public transport but has not travelled by air. He is mildly impaired.

He said there were difficulties in his relationship with his wife but they have not separated. He avoids contact with the family and with friends. He is mildly impaired.

He said he has no interested in watching television. If he does so, he is not able to follow the program. He has no interest in reading. He said he is unable to persist with tasks. Some difficulties with concentration were evident throughout the interview due to pain. He is moderately impaired.

He is totally impaired due to a combination of physical and psychological problems. From a psychological point of view he is mildly impaired.

List classes in ascending order: 2, 2, 2, 3, 3, 3

Dr Mason made no apportionment for pre-existing or subsequent injury nor any adjustment for treatment effects.

"I diagnosed a persistent depressive disorder arising from neck and bilateral shoulder pain causing inability to work as a consequence of the motor accident. I was informed by the claimant that he had injured his back in December 2020, had been off work for three months and had successfully returned to work two weeks prior to the subject motor accident. I recorded the claimant said he had been certified fit to work 20 hours/week in relation to the back injury sustained in December 2020.

From the documentation provided, it is clear the claimant was working in March 2021 when his GP had declared him unfit for any form of work until April 2021 (Certificate of Capacity of Dr Hannah).

It is also clear that while attending consultations with Dr McKechnie for the back injury sustained at work, he made no mention of the subject motor accident in March 2021.

In regard to his presentation to me in March 2024, he did not refer to his ongoing treatment with Dr McKechnie or his significant ongoing back problems.

In general terms, the claimant is an inconsistent historian and I am unable to base any firm diagnostic opinion on the history he has provided.

I do not remain of the view that he suffers from a persistent depressive disorder with major depressive episodes caused by the accident. This is largely because he is an unreliable historian.

It is most likely that most, if not all, of his psychiatric symptoms are attributable to his work injury rather than to the subject motor accident. However, given his unreliability as an historian, he could also be doubtful that his work injury is genuine."

1. The report of the Medical Assessors is as follows:

The Panel examination was conducted via audio-visual link through the MS Teams platform organised by PIC. Present were Lead Assessor Dr Matthew Jones, Medical Assessor Dr Ronald Gill and Arabic Interpreter in the Lebanese dialect: Rose Haddad (NATTI No.: CPN:1LJ74N). The interpretation appeared smooth and there were no apparent difficulties with translation or communication. The assessment had a duration of two hours and ten minutes, for which Mr El Helwe concentrated well.

Mr El Helwe indicated that he understood the appropriate limits of confidentiality with respect to the assessment. He confirmed that he was not there in a treatment capacity and the content of the assessment would be recorded and presented to other parties.

Mr El Helwe is a forty-six-year-old man living in Guildford, where he has lived since 2020. It is rental accommodation. He lives with his wife, Rayan, who is not currently working. Mr El Helwe reported that she has no source of income, including Centrelink, because she and Mr El Helwe are not yet permanent residents of Australia. They were married in Lebanon in 2008.

Also living with Mr El Helwe and his wife are four children: a seventeen-year-old who left school in Year 10 and wanted to commence a plumbing apprenticeship, however is currently working in his uncle's pizza shop. Their fourteen-year-old is currently studying at Salama College in Chester Hill which is a private Islamic school. Mr El Helwe reported that he enjoys it. Their nine-year-old child is at the local primary school and their three-year-old is at home with them and is not able to attend childcare centres because they have no access to Medicare.

Mr El Helwe is currently on a bridging visa. He has had no income since February 2025, at which time his worker's compensation payments for a back injury (which Mr El Helwe reported were approximately eighty percent of his pre-injury wage) ceased. Mr El Helwe reported that the back injury at work occurred a few months before the motor vehicle accident. He said he had returned to work approximately a week before the car accident because he said that he needed to provide money for his family. Mr El Helwe reported that he put in a claim for his work injury after he had had the subject motor vehicle accident. As such, Mr El Helwe received worker's compensation payments for almost four years because he was unable to work due to his work-related back injury. Mr El Helwe reported that during 2024, his work capacity certificates were upgraded with respect to number of hours, over the course of that year. Mr El Helwe was somewhat vague with respect to his answers around this topic, and it took the Medical Assessors some effort in clarifying the details.

Mr El Helwe reported all his children are well except his nine-year-old, Yousef, who has autism. He attends a mainstream school but has doctors looking after him.

Mr El Helwe came to Australia in 2015 on a work visa. He had a job lined up through a company doing formwork and construction. His current visa, a bridging visa, has been from 2018 or 2019. Mr El Helwe reported he started to have problems with his employer, who stopped sponsoring his visa. He said he also had issues regarding his wife, and they ended up divorcing. He reported he had some problems with his wife's family, they were threatening him, his life was in danger, and that was why he applied for a bridging visa. He said that her siblings were threatening to kill him. Mr El Helwe reported that when they divorced his wife went to Lebanon with the children, he went back to Lebanon, his "children cried", and they got back together behind her family member's backs. He said her family became angrier and there were more threats. He confirmed that they were divorced in 2017 and got back together in January 2018.

The Medical Assessors asked Mr El Helwe why there were threats, and he initially said it was because "The problems between the families were very big." He said it "started with loud words" and then her family did not want them to get back together. The Medical Assessors questioned further, in an attempt to understand this situation and Mr El Helwe reported he was somewhat embarrassed because he had caught his wife cheating on him behind his back, which was why he divorced her. He said her family did not believe him.

The Medical Assessors asked if their marriage was now functioning well and he said "Yes, at the moment we are good." He said they are living together, there are a few small problems after the accident, "but we are good."

Mr El Helwe reported he is not currently working and last worked in March 2021. He said he has not worked since he had the car accident. He said that before the accident he hurt his back and had stopped work for three months, but went back in December, then had the accident and "stopped work completely." The Medical Assessors noted the vague timeline, given Mr El Helwe reported he went back to work one or two weeks before the accident, however Mr El Helwe later explained that he had been put off work over the summer period.

Mr El Helwe confirmed he had had no income since February 2025. The Medical Assessors asked how he was surviving financially, and he said that he asked his lawyer to obtain two loans from the insurance company and now he owes them money. He said he will pay back the loans "after the claim resolves." On further questioning, he explained that there were two $5000 payments (which the Medical Assessors assume is part of some form of hardship mechanism).

We asked Mr El Helwe about his income until February 2025, and he reported that that was for compensation, that he hurt himself at work and he received compensation payments for almost four years. He said he was paid eighty percent of his pre-injury weekly wage. The Medical Assessors attempted to clarify with Mr El Helwe that he had been receiving four years of compensation at eighty percent of his pre-injury wage because he was unable to work because of his work injury and he clearly responded, "Yes." He went on to say that as time passed he would have to have his capacity to work assessed. He said he saw an independent doctor who assessed him as having zero percent impairment, just prior to February 2025.

The Medical Assessors enquired more about the work injury, and he said that in 2020, which from the documents was 25 August 2020, he suffered a work injury. We asked him more about the work he said he did between December 2020 and March 2021. He said that when he hurt himself at work his employer allowed him to do some easy jobs until December, however in December they ceased his employment. He said then in March he had to go back to work because he "needed money." The Medical Assessors asked why work was ceased in December and he said he did not know why, and he said something about work not being busy at that time. The Medical Assessors asked whether he was not able to work like he did before the injury and he confirmed this in the affirmative. He said that for three months, he stayed at home, and his back was hurting and he was not receiving any worker's compensation.

The Medical Assessors asked him when he lodged the worker's compensation claim and he said it was after he had the car accident. During the process of discussing the accident with his lawyer, he told his lawyer that he had hurt his back at work and the lawyer suggested he could receive compensation for the days he missed at work. He confirmed that he "Didn't get paid anything for the car accident, just medical treatment."

The Medical Assessors put to Mr El Helwe that the car accident did not have a major effect on his ability to work, as he was receiving substantial worker's compensation payments related to his work injury, and he simply responded that he "went back to work after the work injury," referring to the brief period where he returned to work because he needed money. In reference to the time he went back to work, he said he had to go back to work to pay for his family's needs and added that he was on painkillers.

The Medical Assessors asked what was preventing Mr El Helwe from working currently and he said that mentally he is not ready to go back to work, he cannot bear people shouting at him, or working with anyone. He confirmed that his back was now "ninety percent" and "back to normal."

The Medical Assessors asked Mr El Helwe what had happened to improve his back between receiving eighty percent of his pay in compensation for almost four years and his back returning to ninety percent. He said that this was because he was undertaking physiotherapy and taking medicine for pain.

Mr El Helwe was speaking about the period covering 2024 and it was not entirely clear ultimately what his understanding was, however he said that his doctor was certifying him fit for work and this progressed from four hours to eight hours and ultimately up to forty hours per week during 2024. He said when he was receiving treatment his back was getting better. The Medical Assessors attempted to confirm that Mr El Helwe was certified as able work in late 2024, however that he was not working. All we could ascertain was that at some stage in 2024, he was certified as fit to work for forty hours per week by his general practitioner and that he was not working. He also confirmed that at some time during that year, he got to the point where he had no capacity to work mentally. The Medical Assessors asked him what changed in that year and he responded it was because of his mental health. He said if it was not for his mental health he would be working forty hours per week. The Medical Assessors tried to clarify again with Mr El Helwe what happened with his mental health in 2024, and he responded that with the car accident he had it was a very big shock, he developed PTSD, and he was always scared. He said in the accident he was unconscious, and he woke-up and felt like he had come back from the dead. He then confirmed that from the end of 2021, he started having problems.

The Medical Assessors attempted to clarify some of this narrative. Mr El Helwe confirmed that he had the motor vehicle accident in March 2021 and that he had problems around the end of 2021 and the beginning of 2022 related to PTSD. Mr El Helwe re-confirmed this was the case. Mr El Helwe spontaneously added that "many things happened" and that he was having nightmares, he was waking up screaming and he was "pushing on [his] teeth."

The Medical Assessors attempted to understand the circumstances of the accident. Mr El Helwe commenced a free-flowing narrative about the accident occurring on

17 May 2021 at about 4.30pm. He said he was coming back from work on Parramatta Road, it was a rainy day, and he was sitting at a red traffic light with his friend sitting next to him. He said he felt something like a big light turned on and off, he was unconscious for about fifteen seconds, and when he woke-up he knew that something had happened, and that a car had hit him from behind, perhaps because of the rain. He said he will "always remember it."

When asked what his first feelings and thoughts were, he said he felt like he had died and come back to life. He said when he woke-up from his reported period of loss of consciousness, he did not feel pain, however he said he was surprised and shocked at what happened, and then said he did not know what happened. He said he got out of the car normally, he spoke to the other driver and there was no ambulance and no other emergency assistance provided. He said he did not feel any pain and no one was injured badly. He said his friend drove him home.

Once at home, Mr El Helwe developed pain in his shoulder and neck. He said he was unable to sleep that night because of pain and went to his doctor the next day. He spontaneously added that he was very anxious, very scared and shocked.

The next day his general practitioner gave him some painkillers and after a while the pain was increasing, so he underwent some scans a few days afterwards. The Medical Assessors asked what the scans demonstrated, and he said that he had tears in tendons in both shoulders.

Mr El Helwe reported that he had two operations on one shoulder and is waiting for the other shoulder to "heal" before he has surgery on that. He said about a month and a half before the assessment he had an operation where his nerves were burnt, and he has plasma injected into him. He said his other shoulder, until this day, is frozen. He said his shoulders have caused him a lot of problems since the accident. He said he has problems with both his shoulders and his neck. Mr El Helwe reported the insurance company funded all of this treatment.

The Medical Assessors asked him how his shoulder that had been operated on twice was, and he said that the pain is a bit better. He said he does not have much movement however and cannot move his arm back. He also added that he had had steroid injections to the other shoulder and to his neck and neither of these were successful. He thinks this might have been in 2024.

The Medical Assessors tried to ascertain Mr El Helwe's physical limitations with respect to his injuries and he said that he is obviously unable to do formwork. He said he can do easy things at home such as wash his plate. He said however he cannot otherwise help his wife at home and cannot carry anything. He spontaneously added that if he remembers, he showers. He added that he has physical problems with putting jumpers on with long sleeves. He said he can drive for ten to fifteen minutes but no longer than that. He said he is very fearful. He went on to say that because of both shoulders, he cannot hold the steering wheel properly and this causes him fear. He can hold the steering wheel for up to fifteen minutes and when he does drive, he takes rests, alternating hands on the steering wheel.

Mr El Helwe reported he is able to catch public transport, for example he caught a train once when he went to the City, to a doctor's appointment. He then spontaneously added that he does not go anywhere because he has "nowhere to go."

The Medical Assessors enquired as to how Mr El Helwe passes time at home, and he said he will play on his phone, watch TikTok, Facebook, and "all the media." He said he will go to his backyard, he will watch his neighbour's pigeons, and inside, he will "go from room to room." He spontaneously added that he used to have friends, but after the accident they have all gone. He also added that he used to go out and "have lots of fun."

Mr El Helwe has only one brother in Australia who is working. He said he has one friend who calls him once every three months or so. The Medical Assessors asked Mr El Helwe where he gained his friendships from, and he said that they all used to work together. He said not immediately, but eventually, they stopped wanting to socialise. Mr El Helwe said he was busy with his treatment and his pain.

The Medical Assessors asked Mr El Helwe about his spontaneous statement about showering, if he remembers. Mr El Helwe responded that he is "neglecting [him]self." He then added that sometimes his wife tells him to shower, as does his sons. We asked him why he is neglecting himself and he did not know why. He supplicatively said that he was not like that previously and that he used to shower every day. The Medical Assessors asked him what had happened to change this, and he said it was mainly because he feels isolated. He then spontaneously added that he has problems with his wife, and he cannot be intimate with her. He said he cannot be around children and "can't be bothered." He then said, "After that happened with [him, they] sleep in separate rooms." He said he is "always alone." He then stated that he and his wife are "not together." He said that she cooks and cleans for him, but they are not together. He said there have been no big problems that would lead to divorce but conceded that he is not providing for the family. He said that they have stayed with each other for the children. The Medical Assessors attempted to confirm with Mr El Helwe that his wife was frustrated with the effort that he is putting in to looking after the family and he confirmed that this was the case. He then spontaneously added that sometimes he screams and hits the wall.

The Medical Assessors asked Mr El Helwe what work he had thought he might do in the future, during his almost four years off work receiving compensation, and he simply said that he cannot work and he has not thought about it. When asked why he had not thought about it, he said that he would like to work but is very frustrated because he cannot work. He then added that he "cannot be around anyone."

The Medical Assessors enquired about treatment including medication. Mr El Helwe responded he was on "too many." He listed Panadeine Forte, Lyrica, Naprosyn 1000mg. He said he was on Tramadol previously, but is now on Endone, after he has had his nerve ablation treatment. He also reported he takes "something for mental health" and the Medical Assessors confirmed that it was Duloxetine 90mg. He also takes two sleeping tablets at night.

With respect to psychological treatment, Mr El Helwe sees a psychologist, Shayma Almoty, every month or so. He also sees a psychiatrist, Dr Kuljic Blagoje, every month. (The records seem to indicate this was closer to every three months during 2022 and 2023. There is no record of Mr El Helwe seeing Dr Blagoje since March 2023, provided in the claimant's submission dated 12 May 2025. There are progress notes from July, August, October, November and December 2024 and January and February 2025. There is an assessment with Dr Blagoje on 28 May 2025 at the behest of his lawyers to summarise the case. This report is dated 31 May 2025.)

Mr El Helwe reported he started seeing his psychologist in 2022 and confirmed he has seen her for two or three years. He finds that it is helpful to unload with her. He said that he feels comfortable when he speaks to his psychologist and psychiatrist, unloading, but then when he gets home this benefit dissipates.

Mr El Helwe was somewhat evasive and vague when asked what specific problems he was having for which he sought psychological and psychiatric treatment. He said that he wants to be treated and that he wants to be better. He went on to say that he "cannot bear this life anymore." He said he is very tired. The Medical Assessors attempted to clarify further what problems he was having, and he said that he feels like there is something sitting on his chest and he cannot breathe. He said he has memories that are always on his mind, but also that when he is reminded, he is scared. He spontaneously added that until now he has still not been past the accident scene.

The Medical Assessors asked Mr El Helwe why he thought that a relatively minor accident had such a significant impact upon him, and he responded, "It wasn't minor." On further questioning he said that he did not know, but he thinks that it was the "shock [he] was experiencing."

The Medical Assessors asked Mr El Helwe if he was having any re-experiencing visions of the motor vehicle accident and he, somewhat off point, answered that he does not look in the mirror and he does not want to look behind him. He said that the bright light has never left his mind. Mr El Helwe did not provide a response when he was asked a number of different ways whether he was easily startled by noises but ultimately did say that he "can't stand the noise of [his] children."

Mr El Helwe at one point spontaneously added that when he is anxious, he hits the wall. He said he is in pain from his neck and shoulder and that he is tired. With respect to his memory, he said he is getting very forgetful. He added that he had forgotten his own birthday.

Mr El Helwe was a male of stated age and Middle Eastern appearance. He was seen through audiovisual link over a period of over two hours. He appeared to be in a home office and was wearing a salmon t-shirt. He had a very short, salt and pepper beard and short, dark hair which was neat at the sides, but appeared to be messy on top. He came across as pained and tired. He superficially engaged with the assessment and displayed no abnormal movements. At times he appeared to pause at length, contemplating his response to certain questions. At other times he was freely flowing and spontaneous in his speech, for example when talking about his difficulties and disabilities. He denied any thoughts of self-harm or thoughts of harm to others. His affect (expressed emotion) was somewhat supplicative, somewhat despondent, and fairly limited in its range. There was a pattern of increased irritability when he was being challenged on inconsistent statements. There was no evidence of perceptual abnormalities consistent with psychosis. His cognition, insight and judgement appeared grossly intact in the context of the assessment. Rapport was limited but facilitated the assessment.

Overall Mr El Helwe's presentation lacked consistency, and it was difficult to pin him down on some details and hard to clarify certain features of his narrative.

The Medical Assessors discussed with Mr El Helwe his assessment with Dr Mason. The Medical Assessors asked Mr El Helwe about seeing Dr Wayne Mason, Psychiatrist, on 29 February 2024 (report dated 1 March 2024) at which time Dr Mason diagnosed Persistent Depressive Disorder with Major Depressive episodes and opined a whole person impairment of 15%. There is also a supplementary report from Dr Wayne Mason dated 6 April 2024 for which Dr Mason looked at ten neurosurgical reports from Dr McKechnie from February 2022 to February 2023. Dr Mason noted that Mr El Helwe had reported he was working in March 2021 when his general practitioner had declared him unfit for any type of work until 8 April 2021. It was also noted that during multiple consultations with Dr McKechnie, a neurosurgeon, regarding the back injury at work there was no mention of the subject motor vehicle accident in March 2021. Dr Mason also noted that Mr El Helwe did not refer to any ongoing treatment related to his back or his ongoing back problems. Dr Mason came to the conclusion, "In general terms the claimant is an inconsistent historian and I am unable to base any firm diagnostic opinion on the history he has provided." He was of the opinion that, "Given his unreliability as a historian, it could also be doubtful that his work injury is genuine."

The Medical Assessors also put to Mr El Helwe that there was a report from Dr Renata Abraszko, Neurosurgeon and Spinal Surgeon, dated 29 June 2024, for an assessment on 29 February 2024 (the same day that Mr El Helwe saw Dr Mason). In this lengthy report, there is a statement that there is no pre-existing condition that was contributing to his injuries. There is no mention in the past medical history of any back injury. A cursory working history notably indicated Mr El Helwe came to Australia on a work visa and was working as a form worker and that after the accident stopped working and has not worked since. There is no mention of any work-related back injury or having received worker's compensation for this. Significant limitations in his day-to-day functioning are noted and contributed to his shoulder and neck injuries. In a report dated 9 August 2024 Dr Abraszko opines a final whole person impairment of 28%, taking into account injuries to his cervical spine, left shoulder and right shoulder.

When the Medical Assessors asked Mr El Helwe about having seen Drs Abraszko and Mason and the general proposition that Dr Mason found that he was an unreliable historian, Mr El Helwe clearly stated that he had seen many doctors, that he did not remember the details of seeing any of the doctors, and that it was all very confusing. When some of the details were brought to Mr El Helwe's attention such as that Dr Mason was unaware that Mr El Helwe had been seeing Dr McKechnie for his back injury related to work, Mr El Helwe then reported that Dr Mason did not ask him about that, they only talked about the car accident, that Dr Mason did not ask him about any other pain, any other issue or any other claim. He then said that the reason he did not mention these things was unintentional and that he forgot.

The Medical Assessors then asked whether he remembered seeing Dr Abraszko and he said that he had seen so many doctors he cannot remember their names. The Medical Assessors pointed out that there was no mention of the car accident in that assessment, although Dr Abraszko was a neurosurgeon and seemed to take a medical history, and Mr El Helwe simply responded that if they did not ask him he would not tell them. He then said that he had seen so many doctors that he "got sick of repeating the issues." He became irritable at this point and said something that did not quite make sense, stating "That's [his] right." He then said that he "probably forgot or didn't tell them." He then stated that he "never lied and always mentioned [his] back injury."

There is a letter from Dr McKechnie, Neurosurgeon, dated 31 August 2023, noting that Mr El Helwe was not working and that his back situation was clinically unchanged with persistent pain. There is a report from Neurosurgeon, Dr Vidyasagar Kasikar, dated

10 October 2023. There is no mention of Mr El Helwe's work-related back injury and having received worker's compensation for three or four years, but simply he had not worked since the motor vehicle accident.

There is an IMC File Review from Dr Con Kafataris dated 3 October 2024 related to his lower back pain from work. It is noted that his current work capacity is eight hours a day, five days per week. There is no mention of the motor vehicle accident despite conference with his general practitioner.

The Medical Assessors reassured Mr El Helwe that they did not consider that he was lying, but that his problems with confusion and memory meant that what he was saying was not consistent and could not be relied upon for accuracy, and he conceded that that was the case. He went on to say that he had seen many doctors, he does not know their names, he cannot remember what he was asked or maybe he was asked, or maybe he was not asked. He then again said he could not remember the doctor's names, and he was in so much pain.

The Medical Assessors were unable to place sufficient reliance on the claimant's self-report due to marked inconsistency. These difficulties arose in the context of a prolonged and complex compensation process, which the Medical Assessors considered as background, but did not rely upon as determinative.

Others have noted concerns with respect to consistency including Dr Frank Machart, Dr Canaris in his certificate, and Dr Mason in his psychiatric assessment and supplementary report. The Medical Assessors note there has never been a comprehensive neuropsychological assessment assessing reporting and symptom validity and as such they are left to rely on their clinical judgement and the documentation provided.

The Medical Assessors' findings regarding reliability were consistent with concerns raised elsewhere in the material. The insurer notes that the claimant has not provided a clear clinical picture to his treating practitioners. The timeline provided in the insurer's submissions highlights many of his inconsistencies.

The Medical Assessors formed the opinion that the motor vehicle accident itself, given the photographic evidence, that Mr El Helwe was able to self-extract, that no emergency services attended and that initially he did not consider that he had been injured, all supported the conclusion that the motor vehicle accident did not satisfy criterion A under DSM-5-TR for causing Post Traumatic Stress Disorder. The fact that Mr El Helwe was shocked and surprised and fearful, does not cause the accident to have been one that threatened serious injury or death.

The Certificate under review by Medical Assessor Christopher Canaris dated

10 July 2024, found a diagnosis of Persistent Depressive Disorder due to the motor vehicle accident and a whole person impairment of 7%. Questions with respect to inconsistency were raised by the insurer. The Medical Assessors deliberated and came to the conclusion that there were too many inconsistencies, and such a lack of clarity about the reliability of Mr El Helwe's self-report, that no firm psychiatric diagnosis could be made related to the motor vehicle accident and no reliable assessment of whole person impairment could be made.

The Medical Assessors were unable to place sufficient confidence in the reliability of the claimant's self-report to determine the presence of a psychiatric injury causally related to the subject accident. Hence, no assessment of whole person impairment is required, nor is it necessary for the Medical Assessors to make findings about how the claimant's psychological impairment impacts his capacity for work. The Medical Assessors note that there has been no significant reported improvement in psychiatric status or functioning, despite ongoing treatment. The Medical Assessors note that despite Mr El Helwe's assertion that his back had improved, and he was trialling a return to work (although this itself is not entirely clear given his certification for no capacity at that point) Mr El Helwe continued to receive substantial worker's compensation payments for the next three or four years related to that work related injury."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[7] The Panel adopts the examination findings and opinions of the Medical Assessors who concur with one another.
2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[8] The Medical Assessors have explained the basis and rationale of their findings.
3. The Panel considered but excluded a diagnosis of persistent depressive disorder (dysthymia), as proposed by Medical Assessor Canaris, because the Panel considered the history provided to Medical Assessor Canaris to be unreliable. Whilst the symptoms reported to the Medical Assessors were taken with caution, they did not include physiological symptoms of depression, such as weight loss or anhedonia. Further, given the inconsistencies, the Panel put greater weight on the findings on mental state examination by the Medical Assessors, where there was no objective evidence of impaired concentration, and where his reported difficulties with recalling the doctors he has seen, and what he told them, were not consistent with any mood or anxiety condition.
4. The Panel notes the recent PIC decision in QBE Insurance (Australia) Limited -v- Zafirovski[9] that references the decision of the High Court in Whisprun Pty Ltd-v-Dixon[10] which the Panel thinks has some application to the present case.
5. The Panel is not satisfied, as a matter of medical determination and as a matter of factual non-medical judgment, that the motor accident caused the claimant to suffer the referred psychiatric condition - persistent depressive disorder (dysthymia) or any psychiatric illness diagnosable under DSM-5.
6. The Panel met on 13 June 2025 to consider the following:

(a) the nature of the dispute and the matters in issue;

(b) whether any additional documents were required, and

(c) whether a re-examination was necessary.

1. The Panel reconvened on 24 October 2025 to discuss its findings and to consider relevant issues. The Panel convened again on 15 December 2025 to further discuss its findings and to finalise its decision.

1. For the above reasons, the Panel concludes that the certificate issued on 10 July 2024 should be revoked. The new certificate appears at the commencement of these reasons.

[1] Mandoukos v Allianz Insurance Australia Limited [2024] NSWCA 71

[5] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[6] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

[8] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

[9] [2025] NSWPICMP 856

[10] [2003 HCA 48