Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Revokes Medical Assessor Yu-Tang Shen certificate dated 28 September 2023.
2. Certifies that Ms Noelle Elcheikh's permanent impairment resulting from the injury caused by the accident is 7% permanent impairment arising from a panic disorder caused by the accident, which is not greater than 10%.

1. Noelle Elcheikh also known as Noelle Chahrouk (the claimant) was involved in a car accident on 28 October 2019, when she was on her way to collect her children from school.
2. As she drove through an intersection, a car came from her left and Ms Elcheikh hit the driver's side rear door.
3. She tried to get out of the car but her right wrist was deformed so she could not open the drivers' door. She opened the door with her left hand.
4. The claimant alleges she was injured as a result of the accident as follows:
   • right wrist radius fracture;
   • injury to neck;
   • injury to chest;
   • injury to right shoulder;
   • injury to left shoulder;
   • injury to face and laceration of lips, and
   • psychological injury and panic disorder.
5. Ms Elcheikh claimed statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) the third-party insurer of the vehicle that the claimant says caused her accident. Eventually, Ms Elcheikh also claimed damages.
6. Medical disputes have arisen in connection with the claims and Ms Elcheikh referred the dispute about the degree of the claimant's whole person impairment (WPI) resulting from the injuries caused by the accident to the Personal Injury Commission (Commission) for assessment.
7. Medical Assessor Yu-Tang Shen (the Medical Assessor) conducted a medical assessment and certified on 28 September 2023 that the psychological injury's permanent impairment was 16% arising from post-traumatic stress disorder.
8. The insurer applied to the Commission seeking a review of Medical Assessor Shen's decision. On 8 December 2023, the Commission's President's delegate determined there was reasonable cause to suspect a material in the assessment and allowed the Review.
9. On 2 October 2024, after receiving the delegate's decision relating to Medical Assessor Shen's assessment, the Panel issued directions to the parties.
10. On 4 December 2024, the Panel met to discuss these proceedings and determined that a re-examination was required. The Commission advised the claimant of the arrangements.
11. The Panel noted the insurer refers to the claimant seeking treatment for anxiety shortly before the accident in August and September 2019.
12. There was a note on 23 August 2019 when the claimant presented with a scalded right-hand. The notes refer to anxiety but appears to be in the context of reassuring the claimant about the right hand injury. Although the insurer refers to an entry on 28 September 2019 referring her to a psychologist, the Panel could not discern any reference to an injury. The most recent reference to the claimant's psychological well-being is in a letter from her treating psychologist dated 12 July 2016 at page 237 of the insurer's bundle.
13. There were no records of her doctors prescribing any psychotropic medication until after subject accident. The Panel directed the parties to produce the claimant's treating general practitioner's (GP) records since July 2021, the Benchmarks rehabilitation report and any treating psychological or psychiatric records to the Panel before the examination.
14. The Panel also noted that the claimant recently instructed new solicitors. This has led to the claimant not complying with the earlier directions to provide her submissions and any evidence she relies on, apart from what the insurer included in its bundle. The Panel agreed to postpone re-examining the claimant until after mid-February 2025 in order to allow time for the claimant to instruct her solicitors to provide her bundle and submissions.
15. The medical members of the Panel agreed to meet before re-examining the claimant on

19 February 2025 to discuss any further material the claimant had produced, as well as the rehabilitation and updated clinical records. The claimant attended at 10.00am that day on MS Teams.

" the degree of permanent impairment of the injured person that has resulted from the injury caused by the accident (including whether the degree of permanent impairment is greater than a particular percentage)" is a medical assessment matter

1. If there is a dispute about the degree of permanent impairment of an injured person being sufficient to award non-economic loss damages i.e. greater than 10%, then those damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
2. Division 7.5 of the MAI Act provides for the Commission to assess declared medical disputes including provisions relevant to an original medical assessment and for appointing Panels to review those medical assessments.[1]
3. Parties may apply to the President of the Commission for review of a medical assessment on grounds that the assessment "was incorrect in a material respect" (sub-s (1)). If the President, or his delegate is satisfied "there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect" then the President refers the application to a review panel consisting of a member of the Commission and two Medical Assessors (sub-ss (2) and (2B)) to reassess the dispute.
4. The review is not confined to the issues raised in the application (or the reply) but is "a new assessment of all the matters with which the medical assessment is concerned" (sub-s 3A).
5. Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the rules of evidence do not bind the Panel, which may inquire into relevant matters as it thinks fit, while observing procedural fairness.
6. The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:

"7.21 Assessment of degree of permanent impairment

(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.

(2) Impairments that result from more than one injury arising out of the same accident are to be assessed together to assess the degree of permanent impairment of the injured person.

(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment, or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent."

1. Clause 6.35 of the Motor Accident Guidelines states that psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders' found in cls [6.201]-[6.228] of the Guidelines.
2. Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
3. The Guidelines state as follows with respect to causation of injury:

6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 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 AMA4 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 AMA4 Guides as follows:

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

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

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

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

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The 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. It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

1. Medical Assessor Yu-Tang Shen's certificate dated 28 September 2023, states the following injuries caused by the accident gave rise to permanent impairment of 16% for the condition of post-traumatic stress disorder.
2. The Medical Assessor took the following history:

(a) he noted at that time Ms Elcheikh lived with her partner. She has two children aged 13 and 10 years;

(b) the relationship with her partner had been strained since the accident;

(c) the ambulance took the claimant to Concord Hospital from the site of the accident;

(d) the accident fracture her right wrist, bruised her chest from the seatbelt, lacerated her lip, and caused bleeding in her mouth;

(e) while she was at hospital she had a surgical procedure on her right wrist;

(f) she subsequently avoided driving in tunnels because they caused panic attacks;

(g) she had panic attacks when going to sleep and has twice contacted an ambulance for these attacks;

(h) she feels anxious getting into an elevator;

(i) she prefers to stay at home;

(j) she has recurrent memories of the accident, particularly when she is driving and, dreams on some occasions;

(k) she cannot trust other drivers;

(l) she has persistent fear and anger and loss of interest in previous activities;

(m) she is socially withdrawn and feels more detached from others;

(n) it is difficult to have positive experiences;

(o) she is irritable and easily angered and is generally more hypervigilant;

(p) she has initial and middle insomnia, and

(q) her concentration and focus is impaired.

1. Medical Assessor Shen opined that the accident's mechanism was of sufficient severity to apprehend that she was in danger of losing part of her right arm, which satisfied Criterion A of the diagnostic threshold for post-traumatic stress disorder. There was a plausible mechanism of injury from the accident and developing psychiatric injuries, plus a temporal and thematic association with those injuries and the accident.
2. The Medical Assessor assigned a WPI of 15% and added 1% for the effect of treatment with Ativan, giving a final WPI of 16%.
3. A score was undertaken in accordance with the psychiatric impairment rating scale (PIRS) under the Guidelines. Medical Assessor Shen assigned Class 1 to self-care and personal hygiene, Class 2 to travel and Class 3 to the remaining four categories.
4. As the claimant's condition persisted for over four years the Medical Assessor considered her condition permanent.

1. The documentary evidence before the Panel consists of the insurer's bundle of 436 pages and an additional claimant's bundle of 52 pages filed in accordance with the Panel's directions. The Panel has considered all this material.

1. Psychiatrist Dr Ben Hooi-Beng Teoh's report dated 10 February 2021, regarding this accident, states that Ms Elcheikh, recorded as Noelle Chahrouk, was a 35-year-old accounts clerk/receptionist, living with her two sons then aged 8 and 10 years.
2. She had last worked in October 2019 and was looking for a job. The right wrist fracture had delayed healing.
3. She had ceased her usual activities, including the gym. She experienced palpitations, hyperventilation, and dizziness.
4. On one occasion she had a panic attack and presented to Concord Hospital at 3.00am.
5. She was apprehensive about driving and still had periodic acute anxiety attacks. She had dreadful thoughts of dying and that something bad is going to happen to her or her children.
6. She feared driving and worried about further accidents.
7. She consulted her GP and was referred to a psychologist whom she consulted every two weeks. The treatment included antidepressant medication.
8. Dr Teoh diagnosed panic disorder.
9. Dr Teoh's additional report dated 9 February 2021, assigned a WPI of 15% for the condition of panic disorder arising from the accident.
10. Dr Teoh assigned Class 1 to self-care and personal hygiene, Class 2 to travel, and Class 3 to the remaining four categories.
11. Psychiatrist Dr Aman Suman's report dated 11 June 2021, assigned a WPI of 0%, assigning Class 2 to adaptation and Class 1 to the remaining five categories.
12. The report notes the claimant developed what was probably a panic attack about three weeks following the wrist surgery when she was alone at home as her children were with her ex-partner.
13. She telephoned for an ambulance about 3.00am.
14. She had further panic attacks three to four weeks later and went to the emergency department.
15. She was subsequently prescribed Lexapro 10 mg daily, which she has been compliant with since the end of 2019.
16. She was referred to a psychologist in early 2020.
17. She had recovered since 2021 but is not back to her usual self. She remains anxious and lacks confidence.
18. She had not experienced any panic attacks since early 2020, but when faced with a difficult situation gets anxious, which is different from previously.
19. She had lost her confidence, worried about her personal safety, physical health, and personal well-being. She worries who will look after her children if she gets unwell.
20. She is particularly concerned about her son's thalassaemia minor.[2]
21. She was able to manage activities of daily living and household chores.
22. Her family provided her with significant input and assistance.
23. She denied any ongoing pain issues or functional deficits related to her right wrist injury.
24. Dr Suman diagnosed panic disorder following the subject accident on 24 October 2019.
25. Dr Suman's supplementary report dated 28 June 2021, stated she was not restricted in her capacity to work as a result of the injuries following the accident. The doctor opined it is purely her choice if she decided to limit her work to part-time in the future.
26. Occupational physician, Dr Andrew Keller's report dated 5 March 2021, states that at the time of the accident, she was employed doing accounting and administrative work. She worked for MAKK Plumbing, where she had started work in 2017. She worked eight hours each day, five days each week.
27. The accident occurred when a vehicle failed to give way at a stop sign, crossing in front of her so she hit it head-on. The airbags deployed. The vehicle was written off.
28. She did not lose consciousness and was able to walk at the scene of the accident.
29. Her job was terminated in January 2020.
30. She was assessed as having capacity to work three hours per week in February 2020, which has been upgraded to a current capacity of four hours a day, three days a week with a 5kg lifting limit in the right hand.
31. She had physiotherapy on her right wrist until March 2020 and has had exercise physiology since January 2021.
32. The diagnosis is a fractured right distal radius treated with internal fixation, which is now healed and causing no physical disabilities or work restrictions.

1. The Concord Hospital discharge referral for the admission 28-30 October 2019 states she sustained a right distal radius fracture in an accident confirming the operation took place. She was taking vitamin C, ibuprofen, oxycodone, and paracetamol at discharge.
2. The Concord Hospital discharge referral for the presentation on 9 November 2019, states she presented with palpitations, which had started at 4.30am in the morning, accompanied by tachycardia, left-sided chest tightness and light headedness, but no loss of consciousness. All investigations were normal. It appears that was thought to be a panic attack.
3. The clinical notes from My Health Wentworth Point from 2011 to 27 July 2021 include the following entries:
   • the current medications are listed as Citalopram, 10mg daily, Retin-A Cream, and Yasmin oral contraceptive;
   • the previous history includes high-grade squamous cell intraepithelial lesion treated with a LLETZ procedure;[3]
   • the list of prescriptions shows that she was prescribed citalopram on

27 May 2020 and 19 June 2020; * she has the condition of thalassaemia minor;

the entry dated 21 November 2015 states she has marital issues with emotional abuse and her husband takes drugs. A mental health care plan was completed;

the entry dated 18 April 2016 states she has anxiety issues and was referred to a psychologist in November 2015. She consulted another psychologist twice. She was going through separation from an abusive relationship and is living with parents with her two children;

the entry dated 3 August 2016 states she is about to get divorced, is consulting a psychologist and currently lives with her parents;

the entry dated 13 October 2016 states she continues to consult the psychologist;

the entry dated 2 December 2016 states she is consulting a psychologist and needs a new mental health care plan;

the entry dated 8 November 2019 states she was in this accident on

28 October 2019 and fractured her right wrist. She was taken to Concord Hospital and had open reduction internal fixation surgery on 29 October 2019. The plaster was getting loose, which is causing discomfort and pain in the right wrist, palm, and arm;

the entry dated 27 November 2019 states she had a panic attack two weeks after the accident and presented to the emergency department with palpitations. She is now scared to drive a car and has anxiety. It was suggested she consult a psychologist;

the entry dated 18 December 2019 states she was married six weeks ago;

the entry dated 13 March 2020 states she still suffers from anxiety. The X-ray showed early bone fusion;

the entry dated 9 April 2020 states she wants to consult another psychologist, Alexander Saunders, and has had one session. The referral was completed;

the entry dated 13 May 2020 states she has been recently engaged to a new partner;

the entry dated 27 May 2020 states she had a panic attack last night. She was hyperventilating, had paraesthesia in her upper limbs and palpitations. This lasted four hours and she called an ambulance. She cannot handle bad news. She was prescribed citalopram 10mg at night;

the entry dated 2 June 2020 states she has not started taking the antidepressants. She has spoken to the psychologist. She is trialling an herbal remedy first;

the entry dated 19 June 2020 states she is not coping well emotionally. She has started the antidepressant medication one week ago and wants to reduce her days at work;

the entry dated 15 July 2020 states her psychologist is taking parental leave and she needs to see a new psychologist. A new referral was completed. She has ceased taking the SSRI;

the entry dated 11 August 2020 states she had right wrist pain. She has not had any more panic attacks. She has not seen the new psychologist. Her hours will be increased to nine hours each week;

the entry dated 23 October 2020 states she is looking for an admin job. She has some lingering pain in her right wrist at certain times;

the entry dated 15 December 2020 states she is doing well and has commenced with an exercise physiologist, but one session only so far;

the entry dated 9 February 2021 states she is consulting the psychologist and should continue with the SSRI. She has had four sessions with the exercise physiologist;

the entry dated 7 May 2021 states she is still getting anxiety attacks and is continuing to consult the psychologist and looking for a job;

the entry dated 22 June 2021 which was a case conference with the rehabilitation provider states that the IME psychiatrist feels she is capable of returning to work. She said she was looking for work;

the entry dated 13 July 2021 is a case conference with the rehabilitation provider. The supplementary report from the IME psychiatrist states she can return to pre-injury duties, which the patient disputed. She has interviewed for a job and will work for 20 hours, and

the entry dated 15 July 2021 states she has had three episodes of sleep paralysis in the last two months and is concerned. She was referred to a sleep clinic. The GP mental health treatment plan review dated 3 August states that she has symptoms of anxiety.

1. Psychologist Bestegul Tundangame's report dated 12 July 2016 states Ms Chahrouk has an adjustment disorder following a recent family breakdown.
2. She had recently separated from her husband, is feeling sad and anxious and has a lot of self-blame. She was a victim of domestic violence, felt lonely and alone most of the time, drifted apart from her husband and sought attention from others.

1. Department of Human Services records show that at various times she has been receiving a parenting payment, whether single or when partnered.
2. The single parenting payment had commenced on 4 April 2016 and was cancelled on 12 November 2019.
3. The Department of Human Services records for details of earnings from employment show that from 24 April 2019 up to and including 11 November 2019 MAKK Plumbing Services employed her.
4. Noelle Elcheikh's statement dated 10 September 2021, regarding the accident on

28 October 2019, states that she completed a certificate in business studies and business services whilst at school. 5. She subsequently worked for the Commonwealth Bank for five years. 6. She obtained a certificate in front line management financial services and subsequently worked at Macquarie Bank in their collections department for two years until around 2010. 7. She married in 2010 and was on parental leave for about two years with her first child and had a second child in 2013. 8. She worked casually as a waitress from 2014 to 2016. 9. She commenced working 18 February 2019 as an account clerk/receptionist at MAKK Plumbing Services, initially part-time, and then full-time from September 2019, earning a gross amount of about $950, working 38 hours per week. 10. Rehabilitation counsellor Lisa Murgatroyd's report for Benchmark Rehabilitation dated

15 July 2021 for the period 16 December 2019 to 20 July 2021, states Ms Chahrouk was certified to work 38 hours each week and is able to independently seek employment. She remains unmotivated to engage in job-seeking activities. 11. She is able to independently perform the following: * vacuuming the floors; * mopping the floors; * cleaning the bathroom/shower, and * hanging out larger loads/bed sheets on a clothesline. 12. Domestic assistance services ceased on 27 March 2020 and she has maintained her independent capacity for domestic tasks. 13. Her GP Dr Adnan Khan's referral to Dr Fatima Omar, apparently a psychologist, dated

1 November 2024 states that he is seeking her opinion for management of anxiety and depression through MHCP. 14. The Mental Health Assessment dated 1 November 2024, states the diagnosis is anxiety/depression, with a history that the claimant had been married her first time for 11 years. She has had issues in her second marriage for two years. She had two boys from the previous marriage. 15. Her mother has been diagnosed with dementia and her son has thalassaemia. The assessment refers to the right wrist injury. 16. There is a prescription for citalopram 10 mg tablets, one daily, 28 with five repeats, dated

1. The insurer's submissions dated 18 October 2023 argue that Medical Assessor Shen failed to provide adequate reasons and denied the insurer procedural fairness.
2. Those submissions also state that the claimant had previously received psychological treatment from 2015 onwards.
3. The claimant had been diagnosed as having anxiety and at times depression, complaining of sleep disturbance, tearfulness, and concern about the future.
4. Her treating GP had referred her to a psychologist, on 28 September 2019, one month before the accident, with a request for a further mental health assessment.
5. The insurer submits that the Medical Assessor has not adequately explained his assessment of WPI.
6. The insurer's further submissions seeking review stated Medical Assessor Shen erred when he did not express appropriate regard for the pre-accident medical records of psychological treatment.
7. The further submissions also stated that the Medical Assessor erroneously applied Class 3 for Social and Recreational activities, Concentration, Persistence and Pace, Adaptation and Social Functioning on all the evidence given the claimant's history.

1. The claimant says the Medical Assessor has not erred. There were no further submissions.

1. The claimant was examined online by video teleconference by Medical Assessors Paul Friend and Wayne Mason.
2. The claimant attended unaccompanied from her home.
3. The supplied documents often refer to Ms Elcheikh as Ms Chahrouk.
4. Ms Elcheikh confirmed that Chahrouk had been one of her married names and Elcheikh is her family name.

Psychosocial history and pre-accident history

1. Ms Elcheikh lives in the suburb of Chullora, but she was about to relocate to Lidcombe, because she was separating from her second husband.
2. She will live with her two sons, now aged 14 and 12 years in the new premises.
3. Her 12-year-old son has thalassemia, which was initially diagnosed at five to six months gestation. He commenced blood transfusions for this condition soon before he was five years old and now has them every three to four weeks.
4. Ms Elcheikh was born and grew up in Sydney. She is the eighth in a sibship of eight, having seven older brothers and sisters. She grew up with her siblings and her parents.
5. Her father died in August 2019.
6. Her mother has had dementia for about the past two years. She has a daily carer and her children visit to assist her.
7. Ms Elcheikh stated that she had a normal childhood. Her mother had her later in age in her life. She believes that it was not an intended pregnancy, because after the seventh child was born, the doctor had told her mother that she should not have any more children.
8. Her mother had several miscarriages before falling pregnant with Ms Elcheikh.
9. She believes that she was more raised by one of her older sisters.
10. Her mother stayed at home and her father worked. Her mother never drove a motor vehicle.
11. She had a lot of freedom as a child and teenager. She had no contact with police.
12. Her eldest brother drank alcohol heavily. Another brother was addicted to illegal substances.
13. She was asked about her experiences with them and replied there were "domestics" with them causing trouble.
14. The family was shocked when her brother who was using drugs came home and it was obvious that he had taken something.
15. She was young when that happened. She was not subjected to abuse or any other adverse behaviour by her brother.
16. He has now ceased using illegal substances, lives on his own apartment and is doing well.
17. Her oldest brother, who drank heavily, shocked the family because they are Muslim.
18. Ms Elcheikh completed school to the end of Year 12.
19. Her first job was with the Commonwealth Bank at about age 19 years, working in the city.
20. She worked as a customer service representative. She was the first point of telephone contact for telephone enquiries about starting accounts, credit cards and loans and other bank products.
21. She later moved to collections of credit card debt. She next moved into human resources but did not like the role and returned to collections.
22. She left that bank after five years. During that time, she completed several internal courses, including building services, management, and an accounting course.
23. She obtained employment at Macquarie Bank's Rhodes office in business banking. She worked in a collections role for home, personal and business accounts. This included searching for customers whose details had changed.
24. She was also the first point of contact for incoming calls about these matters. She set up payment plans and followed up those plans.
25. If customers refused to pay or did not accept a payment plan, they were referred on to the next level in the collections department.
26. Ms Elcheikh married her first husband aged 19 years around the time she started work at the Commonwealth Bank. She had her first child after being married for seven years.
27. She stopped working when she became pregnant with her eldest son and believed that she did not work for the next five to six years.
28. The marriage ended when her oldest son was about six years of age.
29. It was difficult to clarify when the marriage ended compared to when she was divorced.
30. She believes that she had a religious divorce in 2015 or slightly earlier and a legal divorce in 2016.
31. She lived separately from her first husband at least by 2015, if not earlier.
32. She returned to work initially part-time as a waitress in a cafe when her children were aged six and four years. She worked 9.00am to 2.00pm, five days each week for three years.
33. She commenced working for MAKK plumbing, doing reception, accounting, and administrative work. This was Initially part-time in 2017 and full-time just before 2019.
34. The owner of the plumbing business also owned a building business. She only worked for the plumbing business.
35. She was working full time until the accident and has not subsequently worked.
36. Ms Elcheikh met her second husband in the beginning of 2019 and was religiously married she believes in about April 2020.
37. Ms Elcheikh was asked about the entry in the clinical notes of MyHealth Wentworth Point, dated 18 December 2019, which states she remarried six weeks before that appointment. She stated that this was inaccurate.
38. Ms Elcheikh was asked about the entry in the same clinical notes dated 13 May 2020, which states she had been recently become engaged to a new partner. She stated that was also inaccurate. She had married in April 2020.
39. This marriage was not registered with Births, Deaths, and Marriages.
40. Ms Elcheikh recently amicably separated from her second husband.
41. She believes that the marriage failed because she was no longer the active, energetic, confident person that she had been before the accident.
42. Before the accident, she went walking, played tennis and went to training camps with her then boyfriend.

1. Ms Elcheikh stated she had no previous medical history, but then it was pointed out to her that the My Health Wentworth Point clinical notes state that she has had a LLETZ.
2. She replied that she had a pap smear which had pre-cancerous cells and then had the lining of the cervix removed in her early 30s, perhaps age 31 years.
3. The entry dated 24 October 2019, in the My Health Wentworth Point, clinical notes state she consulted a female GP, elsewhere. She had a pap smear which was abnormal, and required coloscopy, but probably meaning colposcopy to examine the cervix and a LLETZ.
4. This is inconsistent with Ms Elcheikh's dating of this occurring in her early 30s, although maybe she had another LLETZ at that time.
5. Ms Elcheikh's only medication at the time of the accident was the oral contraceptive.

Psychiatric/psychological treatment before the accident

1. Ms Elcheikh's first husband started to experiment with illegal substances when she fell pregnant with her first son. He was "introduced" to illegal substances by a friend.
2. He subsequently continued using illegal drugs. He lied about matters, did not pay invoices and accounts, reportedly had repeated driving offences, and would often disappear for two to three days at a time. He was gaoled for six months.
3. Ms Elcheikh, on one occasion, packed up her belongings and went to live with her parents for two to three days because her husband was not at home.
4. She separated from her husband after he came out of gaol. She had thought that he would cease using illegal substances in gaol, but he did not change.
5. Ms Elcheikh was referred to at least one psychologist, Bestegul Tundangame, whose report dated 12 July 2016, states she has an adjustment disorder following recent family breakdown. It states she was a victim of domestic violence, feeling lonely, and felt she drifted apart from her husband.
6. The review panel asked Ms Elcheikh about the domestic violence. She replied there was one occasion of domestic violence.
7. It was difficult to determine when Ms Elcheikh completed the psychological treatment. The last reference to a psychologist in the clinical notes of My Health Wentworth Point is in the entry dated 2 December 2016, which states she is seeing the psychologist. The mental health care plan has "run out" and she will need a new one.
8. The insurer's submissions state that she had a mental health care plan completed on

28 September 2019. This statement reflects that there are two dates 28 September 2019 and 2 December 2016 for that entry. This would indicate that medical records were merged on the later date. The earlier date of 2 December 2016, which would be the date at which the consultation occurred. 9. The following entry, which is dated 24 March 2017, also has a second date of

28 September 2018. 10. The entry in the same clinical notes dated 4 October 2017, states she is about to start work. 11. This is consistent with her statement that she commenced working for the plumbing company in 2017. 12. There is no reference to psychiatric or psychological symptoms, following the accident, in the same clinical notes until the entry dated 27 November 2019 which states she had a panic attack two weeks after the accident and was seen in ED with palpitations. The GP noted she was now scared to drive a car, appeared anxious and the GP offered to refer her to see a psychologist. 13. The insurer's submissions state that the same clinical notes record that Ms Elcheikh was counselled on 23 August 2019 when she presented regarding a burn that she had experienced on her right hand and right wrist after boiling water spilled over her. 14. The burn is first recorded in the entry dated 23 August 2019. 15. The reference to her being counselled, refers to her treatment for the burn including treatment with medication, how to identify pain and the role of anxiety. 16. The counselling would be regarded as part of the burn treatment and not for a psychological condition. 17. The burn was recorded as looking almost fully healed by 2 September 2019. 18. Ms Elcheikh stated that by the time of the accident she believed she had fully recovered from the effects of separating from her husband, and that the psychologist had helped her get back on her feet. She stated that at that stage she needed guidance. 19. She was feeling very well when she started the new relationship in early 2019.

1. Ms Elcheikh does not use tobacco, alcohol, and illegal substances.
2. She has one cup of coffee each day and no other intake of caffeine.

1. The accident occurred close to where Ms Elcheikh was then living. She was on her way to collect her children from school. It was a fine and sunny day.
2. She was proceeding straight through an intersection. A lady came from a side street on the left and pulled out in front of her vehicle. Ms Elcheikh was unable to brake in time and hit the driver's side rear door.
3. The airbags activated. She felt instantly in shock and wanted to get out of the vehicle.
4. She described her right wrist as deformed and she was unable to use it to open the drivers' door. She opened the door with her left hand.
5. She walked quickly away from the vehicle. She was not aware of pain in her wrist at that time.
6. She then realised others did not understand why she had walked away from the vehicle.
7. She went to one of the following vehicles who were all stopped behind her vehicle and asked the female driver to telephone for an ambulance.
8. The other lady got out and helped her. Others, in the following vehicles got out and somebody told her to sit down, at which time she became aware of pain in her right wrist and hand.
9. Two passers-by gave her their business cards, and one left his phone number.
10. She asked the lady who had initially got out of her vehicle to telephone her children's father to collect their children from school. He was working nearby. He collected the children and then came to the site of the accident.
11. The ambulance eventually arrived. She was administered analgesia by inhalation and injection and was taken to Concord Hospital.
12. She particularly remembers that her children saw her either near or in the back of the ambulance when she had blood on her teeth and lower lip.

History of symptoms and treatment following the accident

1. Ms Elcheikh was examined in the Emergency Department of Concord Hospital. Her top was cut off and she was helped to take her jeans off.
2. She had urinary frequency and had to use a toilet pan in the bed, which she found difficult.
3. Her right arm was scanned and/or X-rayed. A plaster cast was applied to her right arm.
4. Her ex-husband had followed her to the hospital and took a photograph of her; he remembers her having the cast on her arm with blood on her lower lip and teeth.
5. She had surgery the next morning for an open reduction and internal fixation of the fracture of the right wrist and was discharged the following day with her right arm in a cast.
6. Her sisters drove her home to her apartment.
7. A niece, who was then aged 18 or 19 years, stayed with her for two weeks.
8. Her children stayed with their father for the first two nights that she was home and then came back to her apartment.
9. She arranged for the niece to pack clothes for her children while they were living with their father.
10. She was initially in a lot of pain and could not do much because she was right-handed. She tried to use her left hand which was difficult.
11. She required assistance from her niece who came around after work, most if not every night, after the initial two-week period of living in her apartment.
12. Her ex-husband took her children to and from school.
13. The cast was removed after six to eight weeks.
14. Her right hand and wrist were very sore, after the cast was removed. She could not lift, pull, or push and it was impossible to close the boot on a vehicle.
15. Ms Elcheikh was referred for physiotherapy soon after the cast was removed. It is unclear how long she had physiotherapy.
16. She stated that her right wrist remained deformed and continued to have pain and swelling.
17. She resumed driving about one week after the accident and at some point, commenced driving her children to and from school.
18. She had bruising on the left side of her chest, which she described as going green.
19. Ms Elcheikh as stated previously had blood on her teeth and lips. The lower lip healed with a scar.
20. She had a dental checkup after the accident and was told there was no damage to her teeth.
21. She had bruising on the left side of her chest, which was caused by the seatbelt. It went green after a while and then gradually healed.
22. Early in 2020 Ms Elcheikh was told that the wrist fracture had delayed healing and that she might need further surgery.
23. She was subsequently referred to Dr Richard Lawson whose report dated 3 March 2020 states she has only mild swelling and a well healed scar. She has almost full range of motion. He told her that it was very unlikely that the fracture would not heal considering her youth and excellent health.
24. Ms Elcheikh developed various psychiatric/psychological symptoms following the accident.
25. She became very anxious. She stated she never previously felt anxious in this way.
26. She became more anxious when she was getting ready to go to bed. She could be tearful.
27. She worried excessively. The anxiety became very intense. She felt cold in fingertips and feet, despite wearing two pairs of socks and covering herself with a blanket. She was tremulous and could shake uncontrollably. She had palpitations.
28. She felt stressed and was scared that every strand on her head could fall out.
29. This could occur all through the night so that she had little if any sleep.
30. After five to six nights of not sleeping, she felt very tearful, felt her vision was adversely affected and did not trust herself to drive on the M4 to take her son for his transfusions.
31. When she did drive, her palms were very sweaty, she had her windows wound down and she repeatedly wiped her palms.
32. She was hypervigilant and fearful of all kinds of vehicles including trucks around her.
33. She avoided driving through tunnels even if it meant taking a longer route.
34. She drove into a tunnel soon after the accident and had to pull over because she had a panic attack and could not drive any further. She was anxious and trembling. She felt similarly, but with less intense anxiety, if she had to change lanes.
35. She presented to Concord Hospital on 9 November 2019. The Emergency Department discharge referral from Concord Hospital for that date stated she had palpitations since 4.30am and felt her heart was continuing to beat faster. She had some left sided chest tightness which was associated with light headedness but no loss of consciousness. She described having chills in the morning and also some sweatiness.
36. It appears that the doctor felt that she had a panic attack since all investigations were normal.
37. The entry in the clinical notes of Myhealth Wentworth Point dated 27 November 2019 states she had a panic attack two weeks after the accident and presented to the emergency department with palpitations. She appeared to have anxiety.
38. Ms Elcheikh has two further panic attacks for which she telephoned for an ambulance. She was examined and told that she did not need to go to hospital. One ambulance officer reportedly recommended that she take Ativan when she was having a panic attack.
39. Ms Elcheikh's doctor was reluctant to prescribe Ativan but eventually agreed to do so.
40. She described Ativan making every muscle in her body relax but it also made her feel drowsy the next day. She therefore only took it for panic attacks.
41. She was later prescribed melatonin to help her sleep and was also prescribed Cipramil.
42. She was referred to a psychologist whom she consulted three times until that person went on parental leave.
43. She next consulted Dr David Turner psychologist as noted in the referral from Myhealth Wentworth Point dated 16 December 2019.
44. She was referred to Dr Fatima Omar on 1 November 2024, has had one appointment and is waiting for another appointment.

Details of any relevant injuries or conditions sustained since the accident

1. Ms Elcheikh has not been involved in subsequent accidents or accidents of any kind and has not developed any new medical conditions or undergone any surgery unrelated to the accident.

1. Ms Elcheikh stated the anxiety and panic attacks are the worst symptoms. She continues to have panic attacks from time to time. She has lost confidence in herself, has disturbed sleep and needs to take medication to the point where her second husband told her that she was reliant on medication.
2. She feels that she is not performing at her best.
3. The disturbed sleep causes her to be more tearful for no reason, to be short tempered and to feel like she has had too much caffeine. She is very impatient with her children, is bossy and feels stressed. She continues to have panic attacks during the night from time to time which wake her from sleep.
4. She wakes feeling unrefreshed even when she takes melatonin and magnesium at night.
5. Ms Elcheikh continues to have pain in her right wrist.

1. Ms Elcheikh is waiting for another appointment with Dr Fatima Omar, psychologist.
2. She takes Ativan but only for panic attacks because they make her feel sleepy the next day.
3. She was taking Cipramil but ceased it two months ago.
4. She takes melatonin and magnesium at night and gets five to six hours of sleep.
5. She is not having any treatment for her right wrist.

1. Ms Elcheikh was examined by video teleconference. There was a good audio and video connection.
2. Ms Elcheikh was on time, alert, orientated and tried to cooperate with the examination. Her account was a bit disorganised. She sometimes talked about physical symptoms in the middle of talking about psychiatric/psychological symptoms. There were some inaccuracies as noted in the account of the past history.
3. There was no evidence of thought disorder psychomotor retardation, perceptual disturbance, or other phenomena of psychosis.
4. Ms Elcheikh described ongoing pain in her right wrist.
5. She described ongoing high levels of anxiety which became worse as she was getting ready for bed at which time she could have palpitations, be very apprehensive and struggle to sleep.
6. She had recurrent panic attacks characterised by shortness of breath, palpitations, tachycardia and feeling very cold in her fingers and toes. She had the sensation that her hair would fall out.
7. The anxiety and other symptoms caused severe sleep disturbance which after five to six days had an adverse effect on her vision and made her nervous about driving.
8. She had a loss of confidence and felt that she is not performing at her best.
9. Ms Elcheikh avoided driving into tunnels because she was fearful of having a panic attack.

1. Ms Elcheikh finds it more difficult to do her personal care because she was cautious about her right wrist and is less motivated. She describes not being as fast or efficient but can shower and get dressed.
2. She does not take as much care in her dress or appearance feeling that there was no point in doing so. She sometimes does not want to get out of bed but always does so because she has two sons.
3. She does not put on makeup or do her hair as well as previously because she has less motivation to do so.
4. She ensures that she is presentable when she leaves the house.
5. Her children prepare their breakfast with some assistance.
6. She makes lunch for her 12-year-old son.
7. She drives both children to school which currently takes 20 minutes each way but after they relocate to Lidcombe the drive to school will be 10 minutes each way.
8. She prepares her lunch and cooks the evening meal.
9. Her partner previously did the grocery shopping but she can do it if required.
10. It is more difficult to do the cleaning especially scrubbing the bathroom because she has to use her left hand. She always finds a way to do the cleaning.
11. Ms Elcheikh has ceased going to the gym because she cannot lift heavy weights, as she did before the accident. She goes on walks regularly with her sons, by herself and sometimes with a friend. She goes to restaurants and cafes but less than previously.
12. Ms Elcheikh avoids highways and tollways when driving because high speed driving increases her anxiety when driving.
13. She avoids tunnels unless she cannot avoid them.
14. She tells her children to not talk when she is driving. She worries that she will have a further accident.
15. She can drive her children to and from school and in the local area without difficulty.
16. Ms Elcheikh's relationship with her second husband, which started in early 2019, has recently ended. Her partner has said that she is no longer the bubbly, outgoing and active person that she was before the accident.
17. She continues to have contact with friends but less than before the accident. She prefers to not to go out socially as much as before the accident.
18. Her concentration is good if she is busy because this distracts her thoughts. She has impaired concentration if she feels anxious and finds it more difficult to concentrate on tasks and activities.
19. Ms Elcheikh has a lack of confidence regarding work and finds everything more difficult.
20. She can only type on a keyboard for 15-20 minutes before her right hand aches which is the major factor limiting her ability to return to work.
21. There is also the difficulty of having to take time off from work every three to four weeks to drive her son to the Westmead Children's Hospital for blood a blood transfusion.
22. Ms Elcheikh travelled to Thailand with her partner about two years ago. The trip was "okay." The main difficulty during that trip was getting to sleep.

1. Ms Elcheikh was generally consistent in her account throughout the examination but there were some inconsistencies with the supplied documents which have been noted above.
2. She provided a good account of the accident, her symptoms, and her previous history apart from some minor points about her previous medical history.

1. The Panel considered all the available information including that the Medical Assessors obtained at the examination.
2. The Panel determined that Ms Elcheikh reached DSM-5-TR criteria for the condition of panic disorder.
3. She described sudden onset of intense fear, particularly as she was getting ready for bed, associated with feeling very cold, being tremulous, having shortness of breath and palpitations and tachycardia at times. She had tingling in her fingers.
4. These episodes could last most of the night and caused marked sleep disturbance.
5. The anxiety was out of proportion to any situation in her life.
6. The symptoms have lasted for more than six months.
7. They are causing considerable distress and impairment in her day to day and occupational functioning.
8. The attacks are recurrent and she has an ongoing fear of recurrence of the attacks.
9. Ms Elcheikh did not describe post-trauma symptoms such as intrusive memories and images of the accident or nightmares about the accident or fictitious accident.
10. Ms Elcheikh did not describe significant depressive symptoms. She woke feeling unrefreshed but this was because she had disturbed sleep.

1. The Panel found that Ms Elcheikh had no impairment of functioning before the accident.
2. She had been diagnosed as having an adjustment disorder in 2016 following the breakup of her first marriage but all her symptoms had resolved prior to the accident. She was working full time during 2019 until the time of the accident. She had no previous history of panic attacks.
3. Ms Elcheikh has not been involved in any subsequent accidents, developed any new medical conditions, undergone any surgery or sustained any fractures, unrelated to the accident.
4. There is no other cause for the condition of panic disorder other than the accident on

1. The accident caused the following injuries:
   • panic disorder.

1. Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4 Guides) (p 315) as follows:

"Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.

A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."

Degree of psychiatric impairment rating scale

1. Impairment is assessed following the Motor Accident Guidelines version 9.3 (the Guidelines) which include a chapter entitled "Mental and behavioural disorders." The assessment is to be undertaken in accordance with the psychiatric impairment rating scale (PIRS) and the AMA 4 Guides are to be used as "background or reference only".[4]
2. The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with the current editions of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[5]
3. The PIRS provides[6] for the consideration of any psychiatric condition present before the accident in question:

"In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating."

1. The PIRS provides in cl 6.219 for six areas of function:

(a) self-care and personal hygiene;

(b) social and recreational activities;

(c) travel;

(d) social functioning (relationships);

(e) concentration persistence and pace, and

(f) adaptation.

1. The PIRS then provides at 6.220 for five classes of impairment with a descriptor for each which is "illustrative rather than literal criteria" and which is based on:

"... a history of the injured person's pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury."

1. The impairment may be adjusted for treatment,[7] that is treatment such as medication being taken to treat the psychiatric condition.
2. Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[8]
3. Ms Elcheikh's condition has been ongoing since soon after the accident on 28 October 2019. It is over five years since the accident.
4. The symptoms of panic disorder are continuing and continue to impact her life. She trialled Cipramil but felt that that had no beneficial effect.
5. Ativan is helpful when she has a panic attack, but she only takes it at that time.
6. She has had psychological treatment by three psychologists but there has been no ongoing improvement.
7. Her condition is not improving or deteriorating and is permanent and stabilised. It is unlikely to change substantially and by not more than 3% in the next year with or without medical treatment.

Mild Impairment: Elcheikh struggles to undertake her personal care and takes less pride in her appearance. She finds it more difficult to get out of bed and to generally do activities at home. It is more difficult to do the cleaning, but this is because of the pain in her right wrist. She nonetheless cares for her two children, cooks the evening meal, helps her sons prepare breakfast and makes lunch for her youngest son

Mild Impairment: Ms Elcheikh undertakes fewer social and recreational activities compared to before the accident. She has ceased going to the gym because of the pain in her right wrist. She goes out less to restaurants and cafes and has less contact with her friends. She nonetheless goes out walking by herself with a friend and with her sons.

Mild Impairment: Ms Elcheikh can drive in the local area, including driving her children to and from school. She avoids travelling on tollways and highways where there is high speed driving because she feels too anxious to do so.

She avoids driving into tunnels unless she cannot avoid them.

Moderate Impairment: Ms Elcheikh's second marriage has recently ended albeit amicably. The relationship commenced early in 2019 before the accident. She has less contact with her friends because she is not as interested in social activities.

Mild Impairment: Ms Elcheikh's concentration is impaired if she is not busy.

Her memory of some events, particularly of previous medical events was not as good as would be expected, as noted above.

Mild Impairment: Ms Elcheikh has not returned to work in part because of a lack of confidence about her ability to return to work. The main reason she does not return to work is because of the ongoing pain in her right wrist which limits her use of a keyboard to 15-20 minutes. She has doubts that she will be able to sustain any employment

Apportionment - pre-existing/subsequent impairment

1. Ms Elcheikh had no impairment of her daily functioning before the accident.
2. She has not been involved in and subsequent accidents, accidents of any kind or any unrelated traumatic events. She has not developed any new medical conditions.
3. There is no need to do a pre- or post-accident apportionment.

1. Ms Elcheikh has not had any ongoing benefit from the medication or the psychological treatment.
2. No allowance is made for the effective treatment,

1. The review panel determined that Ms Elcheikh had a diagnosis of panic disorder arising from the injuries sustained in the accident and a WPI of 7%.
2. No allowance was made for treatment effect. There was no pre-existing or subsequent impairment.

1. The Panel has considered the evidence relating to the claimant's pre-accident psychological history that included her family history and marriage breakups.
2. The Panel has also considered the claimant's treating psychologists' opinions and the claimant and insurer's IME.
3. The Panel has given weight to its medical members' opinion who, following a thorough examination of the claimant's pre-existing functioning, were satisfied there was no pre-existing psychiatric condition at the time of the accident. The Panel finds that immediately before the accident the claimant was not suffering from a psychological condition.
4. Given its finding that the claimant was not suffering a psychological condition immediately before the accident the Panel is satisfied there was no pre-existing impairment.
5. The Panel is satisfied that the claimant suffered physical injury as a result of the accident, in particular to her right wrist.
6. The Panel gives weight to the opinion of its medical members that as a result of the accident the claimant developed a panic disorder. The Panel agrees with and adopts the reasons given by its medical members in their re-examination report in support of this finding.
7. The Panel is satisfied that the accident made a material contribution to the development of the panic disorder, and that but for the accident the claimant would not have developed this condition.
8. The Panel has considered the class descriptors for each category of functioning in the PIRS and has evaluated the history provided by the claimant when the Panel's medical members re-examined her.
9. The Panel notes that the clinical judgment of its medical members, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel has given weight to the findings of its medical members with respect to the class they assigned for each PIRS area of functioning, and agrees with and adopts their findings, and the reasons they have given in support of those findings.
10. The Panel has found that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is 7%, and that the permanent impairment is not greater than 10%.
11. Given those findings, the Panel revokes Medical Assessor Yu-Tang Shen's certificate dated

28 September 2023 and issues a new certificate certifying that the degree of permanent impairment of the claimant that has resulted from the adjustment disorder caused by the accident is not greater than 10%.

[2] Thalassemia is an inherited blood disorder that affects the body's ability to produce haemoglobin and healthy red blood cells.

[3] loop excision of the transformation zone (LLETZ), which is a surgical procedure used to remove abnormal cells from the cervix.

[7] See clauses 6.222 - 6.223 of the guidelines.

[8] See clauses 6.225 - 6.228 and table 17.