Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Confirms the certificate of Medical Assessor Nagesh dated 21 November 2023.
2. Certifies that the injury caused by the accident of 21 October 2021 is not a threshold injury.

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

1. Kryzstof Jaczak was involved in a motor accident on 21 October 2021. He was turning left from the kerbside lane at a major intersection. A vehicle in the lane next to his was also turning left and there was a side swipe type collision between the two vehicles as they turned.
2. Mr Jaczak says he injured his head, neck, right shoulder, back and knees in the accident and says he also sustained a psychological or psychiatric injury in the accident. Mr Jaczak made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that he says caused this accident.
3. A medical dispute about whether Mr Jacsak's injuries sustained in the accident are threshold injuries has arisen in connection with his claims and he referred that dispute to the Personal Injury Commission (the Commission) for assessment.
4. On 2 May 2023, Medical Assessor Cameron determined that the claimant had sustained soft tissue injuries in the accident and that all of the claimant's physical injuries were threshold injuries. The Review Panel (the Panel) understands that this determination has not been the subject of an application for Review.
5. On 21 November 2023, Medical Assessor Nagesh diagnosed the claimant with a Major Depressive Disorder arising out of the NRMA accident. This is not a threshold injury for the purposes of the MAI Act. The insurer has lodged an application with the Commission seeking a review of the Medical Assessor's decision.
6. On 9 February 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 25 November 2024 the President's delegate convened this Panel to conduct the Review.
7. There is a complicating factor in this Review in that the claimant had an accident on 17 October 2021, just four days before the accident that is the subject of the current Review proceedings. Mr Jaczak made a claim against QBE the third-party insurer involved in that earlier accident and a medical dispute about threshold injury was also referred to the Commission by the claimant in that claim. On 20 February 2024, Medical Assessor Nagesh diagnosed the claimant with a Major Depressive Disorder arising out of the earlier accident. No application for review has been lodged by QBE in relation to that matter.
8. While Medical Assessor Nagesh referred to the later (NRMA) accident in his decision issued in respect of the earlier (QBE) accident and claim, Medical Assessor Nagesh did not refer to the earlier (QBE) accident in his decision issued in respect of the later NRMA accident and claim.

1. Mr Jaczak's claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
2. While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are "threshold" injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.[1]

1. A threshold injury is defined in s 1.6(1) of the MAI Act as a "soft tissue injury" and "a psychological or psychiatric injury that is not a recognised psychiatric illness".
2. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulation) says a threshold injury includes an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
3. Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the method of assessment for threshold and non-threshold injuries. The Guidelines[2] provide:

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

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

1. The Guidelines therefore provide the method of determining whether a psychiatric illness is a recognised psychiatric illness or not, thereby excluding unrecognised psychiatric illnesses from the recovery of statutory benefits and damages under 1.6(3) of the MAI Act. The method provided would also include the means of determining whether an adjustment disorder or acute stress disorder had been sustained in the accident, both of which are recognised psychiatric illnesses, but which are threshold injuries in accordance with cl 4(2) of the Regulation.

1. If there is a dispute about whether an injured person's injuries are threshold injuries or not, that matter is declared to be a medical assessment matter which may be referred to the Commission for determination.[3]
2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Samuell's, further medical assessments and the review of medical assessments by this Panel.[4]

1. Medical Assessor Nagesh examined the claimant on 17 October 2023 and issued his decision on 21 November 2023.
2. He certifies the claimant has a Major Depressive Disorder but not a post-traumatic stress disorder.
3. Medical Assessor Nagesh records at [8] a history as follows:

(a) the claimant is 52, lives on his own and is unemployed;

(b) at the time of the accident, he had his own bricklaying business working full-time;

(c) the claimant denied any previous history of mental illness;

(d) he was educated in Poland and came to Australia at the age of 19. He worked as a motor mechanic before working as a builder and obtaining his own license;

(e) he was married briefly 20 years earlier, and

(f) he had no previous personal injury claims.

1. The claimant gave a history of the accident, saying that the claimant's vehicle was hit on the driver's side door. Medical Assessor Nagesh records at [9]:

(a) there was no loss of consciousness, and no airbags deployed;

(b) police attended but not an ambulance;

(c) he went home and saw his general practitioner (GP) the next day as he was in pain and scans and x-rays were performed;

(d) he was uncertain as to his diagnosis, and

(e) he has had physiotherapy and pain relief.

1. The claimant reported being in pain, was less active than before the accident and depressed. He felt worthless and could not sleep, stopped driving for a while, lost appetite, felt tired and lacked energy and motivation. He was anxious and worried about his future. The claimant reported occasional flashbacks and was worried about having another accident.
2. His GP referred him to a psychologist who he has been seeing regularly, and he receives medication.
3. On examination the claimant was anxious but co-operative. His mood was described and said to be depressed. The claimant says he spends time at home, occasionally goes shopping, does not cook, relies on takeaway, struggles with cleaning, showers, rarely attends social events, cannot travel without a support person and his concentration, attention and memory is poor.
4. The Medical Assessor refers to documentation including the certificate of Medical Assessor Cameron, records of Dr Kuljic, Certificates of capacity, his GP records and the claim form.
5. Medical Assessor Nagesh notes the criterion for Major Depression and explains how the claimant meets these. He indicates why he is of the view the claimant does not qualify for a post-traumatic stress disorder.
6. The Medical Assessor again notes there is no previous history of mental illness and that the current accident caused physical injuries which has led to the claimant's depression.

1. The insurer's submissions argue that Medical Assessor Nagesh failed to make any mention of the claimant's previous accident on 17 October 2021 and records a history of no previous mental health conditions and no previous claims.
2. The insurer notes the Medical Assessor records that at the time of the accident the claimant was a full-time bricklayer however the claimant was not working at the time of the accident because he had ceased work due to the 17 October 2021 accident.
3. The insurer also submits that the Medical Assessor has an incorrect history of the claimant seeing his doctor the day after the accident and being referred for scans and X-rays. The insurer says the records suggest the claimant was first seen on 5 November 2021 which is two weeks after the accident and that he had scans on 12 November 2021.

1. The claimant has lodged submissions saying the documentation filed with the application included details of the 17 October 2021 accident and as Medical Assessor Nagesh has referred to the documentation filed, he must have been aware and considered the earlier accident.
2. The claimant says Medical Assessor Nagesh found no inconsistencies and he was entitled to make that assessment.
3. The claimant says there is no inconsistency in the documentation in any event.

1. The claimant filed an application to admit late documents on 10 October 2024 with consent from the insurer and the documents have been admitted by the Panel into evidence.
2. On 9 December 2024 the Panel issued directions to the parties seeking a bundle of the documents the parties relied on in the Review. The claimant's bundle was due on 17 January 2025 and a bundle 500 pages of documents was received on 8 January 2025. The insurer's bundle was due on 31 January 2025 and bundle of 60 pages was received on 29 January 2025.
3. The Panel met on 25 February 2025 and reported to the parties the same day. The Panel noted the two accident dates, the two claims and the status of the various medical assessments.
4. The Panel requested:

(a) details of the claimant's treatment from Dr Canaris and any previous reports;

(b) confirmation of the "joint" report from Dr Hong;

(c) confirmation of whether there is a second set of notes from Dr Kuljic;

(d) photographs of the vehicles from the earlier (QBE) accident, whether police attended and whether court proceedings occurred, and

(e) confirmation of an apparent error made by Dr Zaki.

1. The claimant responded to the questions posed by the Panel as follows:

(a) the claimant recalls seeing Dr Canaris approximately 10 years ago in connection with his psychological struggles following the divorce. He has no reports or records from Dr Canaris;

(b) the report of Dr Hong relates to the previous accident dated 17 October 2021. Dr Hong was jointly qualified by QBE and the claimant. QBE obtained a supplementary report from Dr Hong which was provided;

(c) the claimant did not see any other psychiatrist other than Dr Kuljic after the death of his father;

(d) the claimant has no photographs of the damaged cars from the QBE accident;

(e) police did not attend the scene of the 21 October 2021 accident. There were no court proceedings in respect of either of the two accidents, and

(f) the claimant confirmed he did not have an accident on 27 September 2021. It appears that Dr Zaki made an error with the date of the accident and was referring to 17 October 2021 accident.

(a) NRMA had not retained Dr Canaris;

(b) NRMA was not a party to the joint qualification of Dr Hong and that his report was a matter between the claimant and QBE;

(c) an updated copy of Dr Kuljic's records has now been lodged. Page 60 of those records include records to the claimant's suicidal ideation, and

(d) NRMA had issued a request to QBE for the required documents.

1. The claim form in respect of the QBE accident on 17 October 2021 indicates the accident occurred when a police vehicle undertook a u-turn and hit the driver's side of the claimant's car. The claimant alleged injuries to his neck, right shoulder, back, both knees, head and psychological injuries. He says he did not go to hospital and disclosed left knee surgery 20 years before. The claim form is signed as true and correct and is dated 12 November 2021.
2. The claim form in respect of the NRMA accident was signed as true and correct and is also dated 12 November 2021. The claimant disclosed the QBE accident but did not at that time have a claim number for it.
3. The claimant drew a diagram of the accident and says he "aggravated [his] neck, back, right shoulder, both knees, head and psychological injuries." The claimant lists the same injuries as having occurred on 17 October 2021 and says he had surgery on his left knee about twenty years before.
4. The first Certificate of fitness[5] is handwritten, signed (by both the claimant and Dr Lukaszewicz of Haberfield) and is dated 12 November 2021. It records:

(a) a diagnosis of "multiple injury sustained in MVA";

(b) the claimant first attended the practice on 5 November 2021;

(c) the accident involved "collision of 2 cars. Was hit from the side of the driver and from the front";

(d) the pre-existing history is said to be "neck pain, depression, headache";

(e) the claimant was referred for an X-ray of the full spine and right knee, recommended pain killers, anti-inflammatory, sedatives and anti-depressives, and

(f) the claimant was certified unfit for work from 21 October to 3 December 2021.

1. Dr Lukaszewicz indicated that depression would be a factor impeding the claimant's recovery.
2. The second Certificate of fitness completed by Dr Lukaszewicz in relation to the NRMA accident[6] is typewritten and not signed by either the claimant or the doctor. It records similar matters but does not refer to the right knee X-ray and certifies the claimant as unfit for work for four weeks from 4 December 2021 to 4 January 2022.
3. The Certificate of fitness completed by Dr Lukaszewicz in relation to the earlier (QBE) accident[7] is not signed. It records:

(a) a diagnosis of "multiple injury sustained in MVA";

(b) the claimant first attendance at the practice is left blank;

(c) there are no other details on the first page about the injury or pre-existing factors;

(d) the claimant was referred for physiotherapy and has been recommended pain killers, anti-inflammatory, sedatives and anti-depressives, and

(e) the claimant was unfit for work from 1 December 2021 to 28 December 2021.

1. A second certificate signed by the claimant and his doctor on 14 February 2022 for the QBE accident includes psychological therapy as part of the management plan, notes no driving and there is "no progress of recovery" and certifies the claimant unfit for work from 3 February to 3 March 2022.
2. The insurer obtained a statement from its insured[8] on 27 November 2021. The insured confirms the accident was a side scrape on her left-hand side and the claimant's right-hand side as she and the claimant were both turning left, he from the kerb side bus lane and she from the lane next to that [35]-[36]. She says she was driving at around 20km at the time of the accident [37]. She says they both stopped in the side street, exchanged details and she took photographs [39]-[40]. She says emergency services did not attend [49], she was not injured [50] and that she is an occupational therapist and, in her experience, says the claimant did not appear to be injured [51].
3. The photographs show panel damage to the front door and rear driver's side door of the claimant's Mazda twin cab utility vehicle and the front bumper bar appears to be displaced. The insured's vehicle shows some deformation damage mainly to the rear passenger door.
4. On 8 February 2022, NRMA issued a liability notice confirming Mr Jaczak was not at fault but that he had a minor (now threshold) injury.[9]
5. On 9 February 2022, QBE issued a liability notice to the claimant denying liability to pay ongoing statutory benefits on the basis the claimant had a minor physical and psychological injury. QBE also says the claimant was not wholly or mostly at fault. There is reference to a workers compensation claim and an admission of liability from iCare. As Mr Jaczak was working at the time of the first (QBE) accident, it would appear he made a workers compensation claim in relation to the motor accident.

1. General Practitioner records and a medical certificate from Dr Zaki confirm an accident on 11 August 2012 with the claimant sustaining neck, upper back and right-hand injuries and being unfit for work from 12 to 17 August 2012.[10]
2. Records have been provided by Dr Lukaszewicz which commence with an entry on 16 August 2021. The claimant first attended after the accidents on 28 October 2021 for headache, neck pain, vertigo, right shoulder pain, severe stress and anxiety. She refers to both accidents and prescribed Brufen. The claimant returned to her on 5 November 2021 complaining of neck pain spreading into both arms, lower back ache spreading to the right leg and thoracic spine pain along with difficulty walking. On 12 November 2021 she records additional right and left knee pain and referred the claimant for physiotherapy.
3. On 27 November 2021, Dr Lukaszewicz referred the claimant to Dr Kuljic for "depression, anxiety related to personal multiple injury sustained in MVA." No date for the accident was provided.[11] In her clinical note she suggests the first accident injuries were aggravated by the second accident.
4. Dr Kuljic psychiatrist wrote a letter dated 24 December 2021 relied upon by the insurer.[12] It is not signed but presents his initial findings and a request for 10 further sessions.
5. He says the claimant presented with an adjustment disorder with anxiety and depressed mood after the two car accidents. He notes no previous psychiatric history.
6. The claimant says his "mood changed significantly after the accidents" and that he was sad, lost motivation and interests in activities and self-care. He reports his son reminds him to shower and shave. He complained of impaired sleep, anxiety, decrease in appetite, stress and irritability. The claimant reported anxiety in traffic and feared for other accidents.
7. Dr Kuljic says the claimant would benefit from further treatment and medication.
8. A progress note, from Dr Kuljic dated 10 January 2022[13] refers to "the traumatic event is persistently re-experienced" and says, "bad dreams ... not like before ... about the accident, police, the court, when I was told being at fault ..." The claimant was reported to be upset thinking about the accident, was not driving, was feeling down and unhappy and could not focus. Dr Kuljic says that his impression is the diagnosis "is more suggestive of PTSD" and medication and further sessions (weekly or fortnightly) were recommended. A report of the same date[14] notes improvements of sleeping more but still interrupted and the claimant feels calmer.
9. A progress note, from Dr Kuljic dated 14 February 2022[15] records the claimant was using the medication and was feeling more happy, more interested in self-care, was sleeping well however still had ongoing nightmares, was thinking about the accidents (plural) was not driving and was scared.
10. On 7 April 2022, Dr Lukaszewicz wrote a further referral to Dr Kuljic for "depression and anxiety related to MVA injury."[16]
11. Dr Kuljic wrote a letter dated 14 April 2022[17] revising his diagnosis and addressing the criteria of posttraumatic stress disorder noting the claimant perceived "the index accident" as a traumatic experience and that he was having bad dreams about the accident, police and the court.
12. A progress note on 13 May 2022[18] reports the claimant had an improved mood was more optimistic, was eating better, had started walking and was making efforts to be more active and social. Dr Kuljic was "happy with the progress". The claimant had ongoing nightmares and was still not driving. On 9 June 2022 his sleep had improved but there were ongoing avoidance symptoms. On 1 August 2022 the claimant reported he had no motivation, was not going out much, was not having nightmares but was having intrusive memories and was not driving. His medication was adjusted.
13. The claimant saw Dr Lukaszewicz on 8 July 2022 for left ear pain and on 29 July 2022 for his WorkCover certificate.
14. On 23 August 2022 the claimant saw Dr West of that practice and the consultation reads as follows:

"Patient demands that I give him a certificate so that he cannot work for the rest of his life and there is nothing really with him. He does not wish to see a physiotherpaist or anybody else. He just wants a medical certificate [to] say that he can't work."

1. There are no further records from that practice.
2. On 24 August 2022 Dr Kuljic reports that the claimant did not wish to use a Polish interpreter. Dr West had rung and advised the claimant would not be treated. The claimant said his GP retired and he had issues with Dr West and wanted to change to a Polish speaking GP and Dr Kuljic searched and found one and provided her details to the claimant.
3. The claimant said his mind would go blank if he was upset, he was having difficulties sleeping but he was not having nightmares but upsetting memories of the motor vehicle accident. He was not driving and was having difficulties with Cognitive Behavioural Therapy and exposure therapy was continued.
4. On 26 September 2022 the claimant was still trying to find a new GP and was feeling more motivated and energy but no change to symptoms. He had started exposure therapy driving out of the garage and back into it.
5. The Panel notes that at around this time the claimant starts seeing Dr Zaki of the Liverpool Family Medical Centre. While the claimant had been seen at this practice before (as early as 2008) and in respect of a car accident in 2012, there were few attendances before Dr Zaki records an attendance on 26 September 2022 (headaches, eye issues, neck shoulder spasm and tenderness and his "work related depression and anxiety status"). The first WorkCover Certificate of capacity issued by Dr Zaki was dated 24 August 2022 and that is said to be the date of the first attendance but there is no such attendance recorded in the clinical notes of the Hammondville Medical Centre. All the medical Certificates of capacity issued by Dr Zaki refer to a date of injury of 24 September 2021 and "reactive depression and secondary anxiety." The claimant says the date of 24 September 2021 is an error and is a reference to the 17 October 2021 accident.
6. On 28 October 2022 Dr Kuljic prescribed a higher dose of Duloxetene and reports this had given the claimant more confidence and he was less scared.
7. The claimant returned on 22 November 2022 and was having "crazy dreams" some related to the car accident (singular) similar, to it, but not the same. He could not forget the accident and was not driving. Dr Kuljic wrote a further report to NRMA dated 22 November 2022.[19] In this report the doctor says:

(a) the claimant has a posttraumatic stress disorder "after additional diagnostic clarification and progression of his condition;"

(b) the prognosis is for recovery is three months or 12 months or in some cases lifelong;

(c) the claimant is unfit to work due to his significant symptoms of intrusion, avoidance, irritability, anxiety and depression impacting on his cognition, and

(d) the treatment provided is medication and cognitive behavioural therapy with exposure therapy for desensitisation.

1. The claimant's father had died on 27 November 2022 and when seen on 28 December 2022, Dr Kuljic could not do a proper assessment due to the claimant's grief. Duloxetine dose was increased to 120mg.
2. The claimant attended on 25 January 2023 and was still grieving and concerned for his mother. The claimant had returned to driving albeit only to the shops.
3. In February and March 2023, the claimant reported fear of having a blood test, but he was driving up to 5kms for shopping and basics.
4. On 25 April 2023, Dr Kuljic refers to the claimant having had an independent medical examination. Mr Jaczak complained of being tired, having no energy, nightmares and nervousness. On 26 May 2023 the claimant was having dreams about the accident twice a week.
5. On 18 July 2023 the claimant reported losing his license because of touching his phone during a double demerits period.
6. On 19 September 2023 the claimant referred to a charge for assault arising in January or February of 2023. He felt ashamed "I landed (lent?) big money years ago, and I needed money now but couldn't get it back. I just pushed the door". Mr Jaczak requested a forensic report, and a list was provided of psychiatrists who would do this as Dr Kuljic said he would not. On 27 October 2023 Dr Kuljic advises the outcome of the court matter was a conviction with a community work sentence order.
7. In the final note in the first bundle there is a reference to the claimant's mood not being stable, depressive ruminations, fewer intrusive memories and he was driving a little bit.
8. There are further progress notes in the file. On 20 December 2023 the claimant was having ongoing trauma related symptoms but there are no further details. On 22 January 2024 the claimant refers to forgetfulness and cutting his finger with a knife. On 5 April 2024 the claimant was reported as having "full range of PTSD symptoms."
9. On 11 June 2024 the claimant says he has some bad days, in winter his pain is worse, he has nightmares "about the accident it's like a horror" and he "cannot forget it" and he is scared on the road.
10. A progress note dated 22 October 2024 refers to intrusive memories from the medico-legal assessment, an accident on the Harbour Bridge and he reported "I get horror dreams that's always in my mind."
11. Dr Kuljic wrote to EML on 23 October 2024 confirming he has been treating the claimant monthly and issuing the certificates of fitness. While he had encouraged the claimant to see his GP for medications and see a psychologist, the claimant had been hesitant to change things and remained under the care of Dr Kuljic.
12. There is a letter to Dr Kirolus[20] dated 19 December 2024 which says the claimant continues to experience post-traumatic stress disorder as a result of the "motor vehicle accident" (singular) and he requires further treatment.
13. A progress note, from 20 December 2024 referred to "suicidal ideation". The claimant explained this was a momentary feeling and Dr Kuljic does not express significant concern about it. The claimant was however expressing stress with the claims process wanting to change case managers because she upset him.
14. Dr Kuljic reported ongoing symptoms of trauma including intrusive thoughts and avoidance behaviour, low mood, depressive ruminations and feelings of low self-esteem and pessimism about the future.
15. Dr Kuljic signed certificates of capacity and fitness[21] on 25 April 2023, 25 July 2023, 25 August 2023 28 September 2023, 27 October 2023, 5 March 2024, 11 June 2024, 22 October 2024, 23 September 2024 certifying a posttraumatic stress disorder and incapacity resulting from the first accident on 17 October 2021 with no mention of the second accident.

1. Dr Hong provided a report dated 21 November 2024. The claimant has confirmed this was a joint report arranged with QBE and not NRMA.
2. Dr Hong refers to GP records and a reference to the claimant receiving workers compensation benefits one or two years before the first accident however the claimant denied any knowledge of this or of any previous psychiatric problems, anxiety or depression.
3. Dr Hong asked the claimant about the first accident and the claimant said the police blamed him, when they were at fault. Dr Hong read to the claimant the history recorded by Medical Assessor Nagesh which was confirmed as correct.
4. Dr Hong read the report of the second accident and the claimant confirmed this as correct. The claimant said he had the same injuries which were aggravated by the second accident.
5. Dr Hong asked him about the loss of his license and Mr Jaczak said he lost 10 demerit points for touching his mobile phone when driving and he went to Hornsby Court. He did not lose his license. He felt none of his accidents were his fault.
6. The claimant reported attempting suicide about a year ago but after seeing his psychiatrist and changing his medication his suicidal thoughts have gone. About a year ago his father had died.
7. The claimant referred to physical problems with his right knee, calf, back of the leg, hip and back pain.
8. The claimant reported seeing Dr Kulic every four weeks since the accident. He denied seeing any other mental health practitioners.
9. The claimant reported anxiety and depressive symptoms, concentration and memory problems since the first accident. He reported sleep problems, no change of weight, nightmares and being irritable and was tired and in constant pain.
10. Dr Hong documents the claimant's work and life restrictions noting he has not worked since the first accident, has problems holding things and is concerned about his ability to hold tools. He reported relationship issues with his son and mother and self-care issues.
11. Dr Hong notes GP entries relevant to work related anxiety and depression (26 September, 16 December) and a work capacity certificate dated 10 November 2022 which refers to reactive depression since 24 September 2021 (before either of the NRMA or QBE accidents).
12. Dr Hong expresses this opinion:

"He reported that he had good psychological functioning and was working and on the way to do a quotation when the first accident happened. He sustained physical injury and also a psychological injury consistent with major depressive disorder from the first accident. Within a couple of days, he had a second accident. His depressive symptoms from the first accident did not fulfil the duration criterion for MDD as there was insufficient time between the 2 accidents, and after the second accident, the same injury progressed to full-blown MDD. He has not been able to return to work after the first accident and his symptoms with depression and anxiety became more severe after the subject accident."

1. Dr Hong later says the anxiety and depressive symptoms started after the first accident and was exacerbated by the second and that the second accident did not break the chain of causation.
2. The doctor notes the claimant's denial of any previous mental health issues.
3. He expresses the view:

"The claimant's psychiatric disability is predominately from the first accident. The second accident exacerbated it but did not cause it and is not a new psychological injury."

1. Dr Hong assessed whole person impairment (WPI) at 8% arising from the first accident.
2. Dr Hong wrote a second report dated 27 February 2025. This report is addressed to the solicitors acting for QBE.
3. Dr Hong had been given one of Medical Assessor Nagesh's certificates (the decision relevant to the second accident and the decision that is the subject of the current Review proceedings). Dr Hong noted:

(a) Medical Assessor Nagesh had a similar history of symptoms and came to the same diagnosis (major depressive disorder);

(b) he remained of the view there were depressive symptoms present after the first accident, exacerbated by the second accident;

(c) his assessment of disability and incapacity remains unchanged, the first accident started the psychological injury, and the second accident did not cause a separate or new injury, and

(d) none of his other opinions had changed.

1. While the panel notes the workers compensation certificates of capacity refer to a motor accident on 24 September 2021, the iCare recovery plan on page 297 refer to a date of injury of 17 October 2021. The handwritten report from Dr Zaki on page 302 refers to the 17 October 2021 accident, that the claimant was driving to work when he was involved in an accident that led to reactive depression and secondary anxiety disorder. The claimant has confirmed that Dr Zaki's certificates referring to an accident on 24 September 2021 are wrong and the reference to 24 September should be a reference to the 17 October 2021 accident.

1. Medical Assessor Nagesh issued a certificate in respect of the claimant's 17 October 2021 accident and claim against QBE. The date of assessment was reported as the same (17 October 2023) but the date of the certificate is said to be "2/20/2024" which the Panel assumes is 20 February 2024.
2. Medical Assessor Nagesh made the same diagnosis in respect of the earlier accident as he did in the determination relevant to the current Review proceedings, and cited at [3], [4], [5] and [6] the same submissions and lists the same documents.
3. The pre-accident history cited at [8] is the same history (other than the date of the accident). In both he suggests "no forensic history and no personal injury claims".
4. In [9] the history of the motor accident is identical. According to Medical Assessor Nagesh in both accident the claimant was driving a Mazda 3 along Launa Road when a utility vehicle performed an illegal U-turn in front of him hitting the claimant's vehicle on the driver's door.
5. In the QBE decision at [10] Medical Assessor Nagesh refers to the NRMA later accident but there is no reference in the equivalent section of the NRMA decision of the earlier QBE accident.
6. In [11] of the QBE decision, Medical Assessor Nagesh refers to the NRMA accident as occurring on Epping Road when his car was sideswiped. The claimant was reported in this decision to says that the 21 October 2021 NRMA accident "resulted in worsening of his pain and his depressive symptoms as a result of the pain."
7. The two decisions include the same material at [12] under "current symptoms" and at [13] under "current and proposed treatment".
8. There are also identical clinical examination findings and current functioning and consistency comments in [14]-[16] and the same summary of relevant documents at [17].
9. His findings at [18] in the QBE decision acknowledge the subsequent accident, but the findings in the NRMA decision do not acknowledge the earlier accident.
10. In both, the finding on causation and reasons is the same:

"Prior to the subject MVA, Mr. Jaczak had no history of mental illness. The subject accident has given rise to his physical injuries and pain which in turn has resulted in the development of his major depressive disorder."

1. Medical Assessor Nagesh's finding on threshold injury and conclusion are identical in both decisions.
2. Medical Assessor Cameron assessed the claimant's physical injuries for both accidents as follows:

1. Medical Assessor Cameron has a history of the claimant living at Casula with his mother, working in the building industry for many years and deafness in the right ear since 1990.
2. In respect of the first (QBE) accident, the claimant said he said he attended his GP (but could not remember further details) and then Dr Lukaszewicz at Haberfield but could not remember details. He was referred to Dr Kuljic soon after the second accident. There is no history recorded of any previous physical or psychological complaints.
3. Medical Assessor Cameron notes the car the claimant was driving in the first accident was the car he was driving in the second accident.
4. Medical Assessor Cameron found all injuries were soft tissue threshold injuries and issued two separate certificates both dated 2 May 2023.

RE-EXAMINATION FINDINGS - MEDICAL ASSESSORS CHEW AND SINGH

1. Krzysztof Jaczak attended the re-examination on 14 May 2025 with Medical Assessors Chew and Singh by way of MS Teams. Internet connectivity was good throughout the re-examination.
2. The claimant was unaccompanied and he said he was at his home in Casula. A Polish interpreter arranged by Commission assisted with translation when necessary.

1. The Claimant is a 71-year-old man who lives in Casula with his mother who is 88 years old. He is not currently in a relationship. He has a 25-year-old son who lives with his ex-wife in Sydney.
2. He has not worked since the first motor accident. Prior to the accidents he worked in the building and construction industry.
3. He was born in Poland. He denied any childhood trauma. He said that he finished high school and studied car mechanics. He said that he worked as a builder in Poland. He migrated to Australia in 1991 to join his parents. His wife came later. His son was born in Australia. He is an Australian citizen. He has one brother and one sister. He has two maternal uncles in Sydney. He has lots of family within 10km of his home including cousins, nieces and nephews.
4. His father passed away around two years ago from COVID.
5. He said that he drank beer occasionally on weekends. He denied the use of cannabis or recreational drugs.
6. He described no past medical history other than blood pressure which was "up and down" but said he received no treatment for it. When asked about any previous mental health issues he said that around 10 years ago in the context of relationship difficulties with his then wife he attended the psychiatrist Dr Canaris and was provided psychological therapy and medication. He said that he got better with time and treatment and returned to full function with no further symptoms.

1. On 17 October 2021 he was involved in a car accident that is the subject of a separate claim. He said that he was by himself driving his Mazda BT-50 utility vehicle and wearing a seatbelt when another vehicle, a police vehicle, did a U-turn and collided with the driver's side door of his vehicle. Airbags were not deployed. He said that he was able to drive home from there. He said that he "didn't feel well" and thought he attended the doctor the next day but when taken to the records, he was not sure.
2. He remembers being given Panadol and sent for X-rays and tests. He recalled having pain in his back, shoulders and knee after this accident. He recalled feeling anxious about driving although he continued to drive after this accident. He reported feeling a little depressed from this accident because of pain. He did not work between this accident and the next accident.
3. He denied any other prior insurance claims for work or motor accidents. He denied any previous involvement with police or the law.

1. The accident occurred on 21 October 2021. He was driving the same vehicle as previously, the Mazda BT-50. He was unaccompanied and wearing a seatbelt. He said that there was a female driver of a sedan driving "erratically" in front of him who suddenly turned into his lane hitting the front of his vehicle. Airbags were not deployed. He said that they stopped and exchanged details. He said that he drove home.
2. He does not recall how long after this accident it was before he saw the doctor.

History of symptoms and conditions following the motor accident

1. He reported that he felt increasingly fatigued with poor energy after this accident. He reported that his memory was poorer. He reported that his motor skills were now not as good, and he had begun to drop things. He said that he did not feel as capable with his hands and that his walking was not as good either. He said that this made him feel frustrated and down and he became increasingly depressed. He said that his sleep was affected. He said that he was worried about driving and did not drive for at least six months after the accident. He said that he became more isolated and attended fewer social gatherings.
2. Mr Jaczak said he got to the point where he felt hopeless and suicidal. He could not remember when this was. He said that at that point he was treated with medication and improved a bit. He said that while he remained symptomatic, he had not been suicidal since.

Injuries or conditions since the subject motor accident

1. His father died in 2022. He reported no ongoing abnormal grief issues relating to this.
2. He said that around a year or two ago he had difficulties with his brother. He appeared to be saying that police were involved, as there were allegations of assault, however he said this did not progress. The Panel notes the records of Dr Kuljic suggest the claimant may have been charged as there is a reference to a community service order but this sentence does not appear to have attracted any time in gaol. He said that there was a civil case as his brother owed him money. He acknowledged that this was a stressful period, and he had to go to court about the incident.
3. He said that he was charged with driving with a mobile phone. He challenged this and said that he did not lose his driver licence in relation to this.

1. The claimant reported that he attends his GP regularly. He said that until recently he attended his psychiatrist Dr Kuljic roughly monthly.
2. He reported that he is prescribed medication, an antidepressant, which he has found helpful. But he cannot recall the name or the dose.
3. There is no plan for any significant treatment changes in the future.

1. The claimant appeared his stated age and was reasonably groomed. There were no suicidal thoughts. He reported his mood as depressed. His affect, had some reactivity but was generally restricted to the dysphoric range. He had no evidence of psychosis. He was oriented to time, place and person. There was no abnormal psychomotor activity.

1. He said that overall, he had improved from around two years ago when he was at his worst and felt suicidal. He said that he felt "fog on his brain". He said that he felt "confined" and that there were "clouds over my head continuously". He said that he was always "tired".

1. He is independent with self-care and activities of daily living. He is able to drive. He is able to attend to the local shops for shopping. He has not been able to work. He has been to Southeast Asia on holiday. He has visited family in Newcastle and Queensland. He has a good relationship with many of his family members.

1. Mr Jaczak's history and presentation were generally consistent. There were minor inconsistencies such as the altercation with his brother and the involvement of police and his history of the mechanism of the accident appears slightly exaggerated (there is no visible damage to the front of the car in the photographs before the Panel). We also note that the claimant had difficulty recalling some details (such as when he first saw the doctor after the accidents). The accident occurred over three years ago and was close together in time with his first accident and the claimant has complained of memory impairment since the accident.
2. These issues with the claimant's presentation do not, in our clinical judgment, significantly impact our assessment. The records of Dr Kuljic are extensive and the claimant's presentation to us was consistent with how he has presented to Dr Kuljic.

Does the claimant have a posttraumatic stress disorder?

1. It is the clinical judgment of the Medical Assessors that the claimant cannot be diagnosed on his current presentation with a post-traumatic stress disorder as a result of the accident on 21 October 2021.
2. The Medical Assessors are of the view that the circumstances of the accident are not of the level to fulfil criterion A. Criterion A requires there to be exposure to actual or threatened death or serious injury which the commentary in the DSM-5-TR suggests would include war, assault, kidnap, terrorist attack, torture, natural or human-made disasters and "severe motor vehicle accidents.". While the claimant's symptoms may have varied over time, as the accident is not severe enough to fulfill criterion A of a post-traumatic stress disorder, the Panel is of the view that the claimant has not been able to fulfil the criteria of such a disorder at any time since the accident.
3. The Medical Assessors note that the claimant did not report at the re-examination any significant intrusive symptoms which are required in order to fulfil criterion B. He denied distressing memories of this accident, recurring distressing dreams, flashbacks or reactions to cues of the accident.
4. As the claimant does not satisfy the first two criteria required for a posttraumatic stress disorder, the claimant cannot be diagnosed with such a disorder.

1. It is the clinical judgment of the Medical Assessors that the claimant is currently experiencing a Major Depressive disorder. According to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR) there are five criteria each of which will be dealt with in turn.
2. Criterion A - requires there to be "five (or more) of [nine listed] symptoms present during the same 2-week period and represent a change from previous functioning". The Panel accepts the claimant's history as confirmed in the records of Dr Kuljic. The Medical Assessors are satisfied that in the four years since the accident there has been a greater than two-week period of the following symptoms: depressed mood, diminished pleasure, sleep disturbance, lack of energy, feelings of worthlessness and difficulties with concentration. This is an alteration of Mr Jaczak's functioning from how he was before the first accident.
3. Criterion B - the symptoms exhibited by the claimant "cause clinically significant distress or impairment in social, occupational, or other important areas of functioning". The records from Dr Kuljic and the claimant's history indicate that, as a result of his depressive symptoms he has been clinically distressed to the extent that he reported feeling suicidal in 2023 (or 2024) and he has been unable to return to work.
4. Criterion C - the symptoms are not attributable to substances or medical conditions. The claimant denies any substance use such as drugs or excessive alcohol and there is no indication in the treating records of any substance abuse. The claimant reports physical injuries arising from his first accident, aggravated by his second accident. It is the clinical judgment of the Medical Assessors that his symptoms of depressed mood, diminished pleasure, feelings of worthlessness and difficulty concentrating are due to his depressive disorder and not his physical symptoms.
5. Criterion D - at least one of the depressive episodes is not better explained by a schizoaffective disorder or other psychotic disorder. There is no evidence in the records of any schizoaffective disorder or any psychotic disorder and no indication at the re-examination that such a disorder was present.
6. Criterion E - there is no manic or hypomanic episode. The claimant did not disclose any such episodes; the review of the treating notes from the claimant's health providers do not indicate there is evidence of such episodes and there was no indication of any mania at the re-examination.
7. It is the clinical judgment of the medical members of the Panel that this disorder is in partial remission. The claimant himself reported being improved from two years ago. His ability to function at home and in the community has improved and he is able to travel and engage with his family. It is highly unlikely that the claimant has a WPI of greater than 10% based on his current presentation.

1. The Panel notes that the test of causation is two-fold, could the motor accident have caused or contributed to the injury or the development of the condition (a medical judgment) and whether the motor accident did cause or contribute to the development of the condition (a factual or legal judgment).

Could the accident have caused or contributed to the claimant's disorder?

1. The Panel notes that the claimant has been involved in two motor accidents four days apart. The claimant reported physical symptoms after the first and further symptoms after the second. The claimant ceased work after the first accident and has been unable to return to work.
2. Having considered the mechanism of both accident, the proximity of the two accidents and the claimant's physical injuries, it is the Medical Assessors view that the 21 October 2021 could have caused or contributed to the development of the claimant's major depressive disorder.

Did the accident cause or contribute to the claimant's disorder?

1. The claimant disclosed a pre-existing depression in the context of relationship difficulties 10 years before this accident. The Panel has no records in relation to this episode and there is no reference to it in the treating GP records that have been put before the Panel. While this episode may have predisposed Mr Jaczak to the development of depression, the Panel is not satisfied on the information we have that the pre-existing condition is causative of the claimant's current condition.
2. The claimant attended his GP, Dr Lukaszewicz on 28 October 2021, 11 days after the first accident and seven days after the second. He mentioned both accidents to her and reported feeling shock, stress and anxiety. Thereafter he was referred to Dr Kuljic who has seen the claimant on multiple occasions and treated his symptoms.
3. It is clear from the history given to the Medical Assessors that psychological symptoms developed after the first accident however there was insufficient time between the two accidents to allow for the diagnosis of a major depressive disorder (because the two weeks required by criterion A had not elapsed). If there had been more than two weeks between the accidents and the claimant therefore had a pre-existing non-threshold psychiatric condition caused by the first (QBE) accident and the later accident aggravated that condition, the cases of Todev v AAI Limited t/as GIO[22] and AAI Limited t/as GIO v Hoblos[23] suggest that the aggravation would be a "non-threshold" injury.
4. The Medical Assessors are of the view that Mr Jaczak's current major depressive disorder was caused or contributed to by both accidents.
5. The Medical Assessors also note that there are other stressors likely to be contributing to the claimant's depressive disorder including the death of his father in 2022 and the issues with his brother in 2023 (or 2024) but these do not create a separate or distinct further disorder.

1. A major depressive disorder is a psychiatric disorder recognised by the DSM-5-TR and as it is not an adjustment disorder or acute stress disorder it is a non-threshold injury.
2. The Panel is satisfied that the claimant developed a non-threshold psychiatric disorder after his two motor accidents and that the accident on 21 October 2021 was a more than negligible contribution to the development of that disorder.
3. The Medical Assessors are of the view that, due to Mr Jaczak's current level of functioning, the claimant's major depressive disorder is in partial remission. In Lynch v AAI Limited t/as AAMI,[24] the Medical Panel was considering whether a psychiatric injury was a threshold injury or not[25]. At [68-69] the Panel concluded that Ms Lynch suffered from a Specific Phobia of Driving which was not a threshold injury. She was also found to suffer from a major depressive disorder which had been diagnosed in 2020 but was in remission. This was also not a threshold injury. After citing David v Allianz Australia Insurance Ltd[26] and considering cl 5.10-5.11 of the Guidelines the panel said at [72]:

"That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a [non-threshold] injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as [non-threshold], when the injury occurred, to one being classified as [threshold] because the injury had healed."

1. While the claimant's condition may be in partial remission, this does not affect the Panel's decision that the claimant's psychological or psychiatric injury caused by the motor accident of 21 October 2021 is not a threshold injury.
2. As the Panel has arrived at the same outcome as Medical Assessor Nagesh, it therefore follows that his certificate must be confirmed.

[1] Amendments to the MAI Act which came into effect on 1 April 2023 changed the terminology from "minor injury" to "threshold injury" for all accidents and for accidents occurring after 1 April 2023, statutory benefits are payable for 52 weeks.

[2] The current version of the Guidelines is version 9.3.

[3] See Schedule 2, cl 2(e) in the MAI Act.

[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

[6] Page 13 of the insurer's review bundle.

[7] Page 26 of the insurer's review bundle.

[8] Page 54 of the insurer's review bundle.

[10] Page 485 of the claimant's bundle.

[12] Page 23 of the insurer's review bundle.

[14] Page 100 of the claimant's bundle.

[17] Page 109 of the claimant's bundle.

[18] In Dr Kuljic's notes which commence on page 389 of the claimant's bundle.

[19] Page 106 of the claimant's bundle.

[20] Page 45 of the additional bundle of notes.

[21] At various points in the additional bundle of notes.

[22] [2023] NSWSC 836.

[23] [2023] NSWPICMP 210.

[24] 2022 NSWPICMP 6.

[25] The terminology at the time was minor or non-minor injury.

[26] 2021 NSWPICMP 227.