Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. The Review Panel revokes the certificate of Medical Assessor Michael Hong dated

4 October 2024 and substitutes the determination that the following injuries caused by the accident gave rise to a permanent impairment of 41%: * major depressive disorder with psychotic features.

1. The claimant, Nadia Shamim (Ms Shamim) was injured in a motor vehicle accident (the accident) on 12 April 2022 when she was hit by a vehicle while crossing at a pedestrian crossing. Following the accident, she made a claim for damages under the Motor Accident Injuries Act 2017 (the Act) on Insurance Australia Limited t/as NRMA (the insurer).
2. Under the provision of the Motor Accident Injuries Act 2017 (the Act) in force at the time. Statutory benefits for treatment and care cease after 26 weeks if the person's only injuries resulting from the motor accident were minor injuries.
3. Ms Shamim submitted an Application for Personal Injury Benefits dated 23 May 2024.
4. There is a dispute between Ms Shamim and the insurer about whether the degree of permanent impairment of psychological injury caused by the accident is greater than 10%. The dispute is a medical dispute, as defined by s 7.17 of the Act, and a medical assessment matter pursuant to Schedule 2, cl 2(a) of the Act.
5. The medical dispute was referred to Medical Assessor Michael Hong for assessment. He issued a certificate dated 4 October 2024 in which he certified the following injuries were caused by the accident and gave rise to a permanent impairment of 24%:
   • major depressive disorder with active psychotic symptoms.
6. The insurer sought a review of the further assessment under s 7.26 of the Act. The President's delegate determined on 11 December 2024 that there was reasonable cause to suspect that the assessment was incorrect in a material respect. The review application was accepted and referred to this Review Panel.
7. The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.

1. The Panel is to conduct the Review in accordance with s 7.26 of the Act. Section 7.26(5A) provides that the panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
2. The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) Act.
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
4. Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.

1. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, 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) of the Act.
2. The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:

(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 motor 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 Guidelines states that psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders', found in cls [6.201]-[6.228] of the Guidelines.

1. Pre-existing impairment is addressed in cls 6.31-6.33 as follows:

6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.

6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident."

1. Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with "Mental and behavioural disorders" within the Guidelines, namely cls [6.201]-[6.228] of the Guidelines.
2. In order to measure impairment caused by a specific event, a 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 the Guidelines, and subtract this value from the current impairment rating: cl 6.218.

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 motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the 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 motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. 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 motor 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 Michael Hong examined Ms Shamim on 24 September 2024 and provided his certificate on 4 October 2024 which certified that the psychological injuries caused by the accident gave rise to a permanent impairment of 24%. He had the documents attached to the application but no further documents.
2. At [2] in his certificate, Medical Assessor Hong noted that the following injuries were referred to him for assessment by the Commission:
   • psychological condition.
3. At [3]-[4] in his certificate, the Medical Assessor summarised the submissions made by the parties.
4. Medical Assessor Hong took a psychosocial and pre-accident history at [8], reporting that

Ms Shamim was born in Fiji and grew up in New Zealand, coming to Australia when she was 12 years old. No trauma history or past psychiatric history was identified. Medical Assessor Hong discussed the domestic abuse history in her file and she said this was incorrect, she was not fearful of her father and he did not perpetrate violence at home. She had never had treatment with a counsellor or taken psychiatric medications before the accident. In terms of general medical history, she did not have cardiac, thyroid or liver disease. She did not have drug or alcohol problems. She was not aware of a family history of mental illness. She did not have a forensic history. 5. The Medical Assessor then took a history of the accident at [9], noting that Ms Shamim had an accident on 12 April 2022 and said she was in Granville, at a pedestrian crossing, waiting for the light to turn green. When the light was green for pedestrians, she crossed. Medical Assessor Hong reported that it was difficult to assess Ms Shamim as she was thought disordered, often hyperventilated and was crying throughout the assessment. 6. She said a car came from the back and hit her. She attended Westmead Hospital and had surgery for a left clavicle fracture. She had a poor memory of events immediately after the accident. She reported pain from head to toe, back, knee, headaches, the worst problem is her migraine and her "surgical area", ie clavicle and also her hands. The Medical Assessor asked her about her main psychological struggles and Ms Shamim said since the accident, her main problem is her brain injury and migraine, with shooting pain. 7. Medical Assessor Hong set out Ms Shamim's extensive history of symptoms and treatment following the accident at [10]. He recorded that Ms Shamim said she did not know who she was anymore, has chronically low moods, and gets easily frustrated and upset. She said she cannot live her normal life and misses her family, she feels broken. She had no concentration and misses her family, she loves her family, but she cannot maintain any relationship. She said she feels lonely, hopeless, worthless and meaningless. She closes her eyes and feels spiders crawling and hears "evil voices" and banging on the wall. She said she misses her good family time. She said her father came to the airport to greet her when she first came to Australia and they had coffee (before the accident). Ms Shamim said people living with her were making banging sounds and she could not tolerate having others at home. She now lived on her own, but sees shadows on the wall and state that people still talk and call her a failure with an "evil laughter", and the "voices" make fun of her, she said in an "eerie way". 8. On specific enquiry, she denied command auditory hallucination. She had nightmares and said medications do not help much. She had major concentration and memory problems. She had flashbacks related to the accident. 9. On specific enquiry, she said she had suicidal ideation but had never attempted suicide. The Medical Assessor asked about homicidal thoughts. She denied thoughts of harming others at present. She said her physiotherapist put a heavy load on her and she thought about hitting the physiotherapist and said she knows she should not. 10. She gained weight, around 10kg since the accident, and may have lost some weight since. She said she talks to God as she is religious. She cannot sleep due to severe pain, and was scared at night. She generally only sleeps one hour only, sometimes two hours. She does not sleep during the day. Her nightmares are about car accidents and snakes coming out from her clavicle. She has panic attacks. 11. On specific enquiry, Ms Shamim said she was driving before the subject accident on Learner driver's licence. Since the accident, she said she hates the road and does not drive anymore. The driving instructor told her she cannot drive as her physical injuries got in the way. 12. At [11], the Medical Assessor noted that Ms Shamim has not been involved in any other accidents or sustained any other psychological injuries other than the subject accident. 13. Medical Assessor Hong set out current symptoms at [12], noting Ms Shamim's reported psychological symptoms, which were provided in a disorganized and in a thought disordered manner, with some symptoms immediately after the accident, some recently. The Medical Assessor preserved the sequence she reported in the earlier section, to illustrate her current formal thought disorder, consistent with her psychotic symptoms. 14. As to current and proposed treatment, Medical Assessor Hong noted at [13] that Ms Shamim previously took Fluoxetine and Olanzapine, antipsychotic medication. She consulted several psychologists, the last time was in 2023 and said her last psychologist ceased practising. She has been consulting Dr Catherine McQuillan, psychiatrist for several years and her psychotropic medications have not changed in more than 12 months now. Ms Shamim has never had a psychiatric admission. There are no proposed treatments. 15. She is currently taking: * Quetiapine 400 mg, antipsychotic medication, one tablet at night; * Duloxetine 90 mg; * Epilim from her neurologist; * Endep 25mg, and * Lyrica. 16. Medical Assessor Hong took a clinical examination at [14]-[16] which is reproduced by the Panel below:

Ms Shamim was assessed by video. She went to her solicitor's office on her own. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment. Ms Shamim presented dishevelled and cried profusely before the assessment began. I spent some time asking her about having a support person and making the environment more suitable, as she said the light was too bright and we asked a worker in the office to help and dimmed the light. She was agitated and could not manage her emotions. She was consistently restricted in her affect range. She spoke spontaneously. She had a disorganized narrative and she was thought disordered.

I asked her about her daily activities and her typical day, Ms Shamim said she stays in bed, thinks about her family, she said she wants to re-connect with her father but could not. She said in Fiji, she was the only person with a computer and her father was a good man and her mother was good and lovely (Comment: she was thought disordered throughout the assessment and her history was disjointed). She buys the groceries online. She rarely goes out and she goes to appointments with Uber drop off. She was living in Merrylands and went to the local shops on her own as it was 5 minutes from home. She has moved. She said she has no help from anyone. She talks to her family overseas. She does not have friends now. She said she cries at home. She has no TV and does not have a computer. She is living in a garage, which she rents from a family. She does not cook and relies on premade meals. She showers intermittently and does not know how often. She said she is scared she would fall in the shower. She said she is embarrassed by her appearance and poor self-care. She told her psychiatrist about her poor self-care and said she prescribed medications. Normally, Ms Shamim had many recreational activities, including cooking, photography, taking walks 2 hours a day, going to the gym, and volunteer for Sydney festival and community events as a photographer. She enjoyed painting and watched sports and basketball. She is Muslim and never married. She used to go to the mosque but not since the accident. She said she is scared of crowds and cannot stand next to people. In terms of employment history, Ms Shamim said she worked in a contact centre in the finance industry before the subject accident.

Ms Shamim disagreed with the past psychiatric history and childhood trauma history as Dr Shetty had alluded to, as noted below."

1. At [17], the Medical Assessor provided an extensive summary of the relevant documentation upon which he relied during his assessment of Ms Shamim. The available documentation was similarly relied upon by the Review Panel in its re-examination of Ms Shamim and is accordingly reproduced under the section "Evidence available to the Review Panel" in this certificate.
2. Medical Assessor Hong then set out his diagnosis and reasons at [18], reporting that

Ms Shamim had been referred for the assessment of "psychological condition" in relation to the accident on 12 April 2022. He noted potential childhood trauma in her file and discussed it with her, and this has not been confirmed and it is possible Dr Shetty had taken an incorrect history from a thought disordered individual, as she was noted to be psychotic in their consultation. All other records consistently noted that Ms Shamim did not have a past psychiatric history and she had never had previous psychological or psychiatric treatment. She developed severe psychopathology since the accident, consistent with a major depressive disorder with psychotic symptoms. 3. As to causation, the Medical Assessor recorded at [19] that he noted potential childhood trauma but this was not confirmed and it was possible Dr Shetty had taken an incorrect history from a thought disordered individual, as she was noted to be psychotic in their consultation. All other records consistently noted Ms Shamim does not have a past psychiatric history and she has never had previous psychological/psychiatric treatment. She developed chronic anxiety and depressive symptoms with psychotic symptoms, which have not responded to antipsychotic medication and antidepressants and she remains severely impaired. There were no other stressors or contributing factors identified. She said her father no longer contacts her. Medical Assessor Hong concluded the accident was a major cause of Ms Shamim's current psychological injury. 4. At [20], Medical Assessor Hong opined that the following injuries were caused by the accident: * major depressive disorder with active psychotic symptoms. 5. The Medical Assessor then set out his findings as to whole person impairment (WPI) at [24], noting that Ms Shamim's impairment is permanent and entrenched, and unlikely to change substantially and by more than 3% in the next year, with or without medical treatment.

Current psychiatric impairment rating scale (PIRS)

1. Major depressive disorder with active psychotic symptoms

Antidepressant medication, Antipsychotic medication, Psychiatrists, Psychologists

Ms Shamim said she gained weight and her weight seemed to be stable now. She skips meals and relies on premade meals and shops online. She does not shower daily and no longer cares about her appearance

She used to have an active social life and went out with her friends regularly and relinquished all usual recreational activities.

Ms Shamim is anxious and goes out only if absolutely necessary. She orders Uber and goes out on her own as she has no support person.

Ms Shamim's relationship with her partner of 5 years ended since the accident and her psychological changes are a major factor. She does not contact any friends anymore and reported her relationship with her father soured and he does not want contact her anymore since the accident. She has occasional contact with her mother and sister overseas but their relationship is poor as well.

Ms Shamim described having poor concentration. She has not undertaken study or retraining since the subject accident and she is thought disordered and has poor concentration. This was evident during brief conversation and consistently poor throughout the assessment.

Ms Shamim has not worked since the subject accident and has no capacity to adapt, due to chronic depression with psychotic symptoms.

1. At [25]-[27], the Medical Assessor noted that Ms Shamim had not sustained a subsequent injury and had no confirmed past psychiatric history. The Medical Assessor assigned nil apportionment and negligible effects of treatment.
2. Medical Assessor Hong concluded that Ms Shamim sustained a permanent impairment of 24% as a result of injuries caused by the accident.

1. The Review Panel reproduces Medical Assessor Hong's summary of all relevant material which was the Panel relied upon during its assessment of Ms Shamim.

Application for Personal Injury Benefits dated 29 April 2022

1. Ms Shamim described the accident as follows: "I was crossing the road on Wellington Road, heading toward the train station. I waited for the pedestrian light to turn green, before walking across the road. While walking, I was struck by a vehicle turning onto Wellington Road from Clyde street."
2. She reported the following injuries: "Fractured left collar bone, Abrasions to both knees, Several abrasions to my hands/wrists/elbows, Potential traumatic brain injury/concussion, Post trauma amnesia, Left ankle pain, Psychological trauma, Right feet & ankle pain, Right feet abrasion."

1. Ambulance record noted 40 female pedestrian versus car accident, GCS was 15 throughout.

Clinical notes of Dr Matthew Jones, Orthopaedic Surgeon, dated 3 August 2022

1. Dr Matthew Jones advised she needs helps with post-traumatic stress disorder. She has mild TBI.

Report of brain injury rehabilitation service dated 15 August 2022

1. Ms Shamim reported flashbacks and intrusive memories related to the accident, ongoing post-traumatic stress disorder. Mild TBI.

Rehab needs assessment report by AusRehab, dated 23 August 2022

1. AusRehab Initial assessment report noted anxious, a number of, heightened pain after the subject accident, in temporary accommodated, she has work acquaintances but not close friend. Walking tolerance is 10 minutes. Before the subject accident, she was learning to drive. She uses public transportation but is fearful.

Pain Clinic report by Justine Walker, physiotherapist, dated 5 October 2022

1. Pain clinic report noted significant pain, housemates perform all meals, she was independent in self-care, she had significant pain behaviour, significant mental health distressed related to the accident.

1. Certificates of capacity possible brain injury. Certified as having work capacity eight hours, five days per week May 2022.

Clinical notes of Dr Namrata Shetty, psychiatrist, dated 28 April 2023

1. Dr Namrata Shetty, treating psychiatrist, noted Ms Shamim's auditory hallucination, misinterpretations, tactile hallucination, in the context of nightmares related to the accident significant psychosomatic symptoms, after the subject accident, increased irritability and paranoia, no longer trust anyone, auditory hallucination related to an evil woman, tactile hallucination e.g. in driving lesson. She alluded to not being in a relationship due to preoccupied with work, and Dr Shetty noted difficulties with getting a history as she said "it's personal". She had a difficult childhood and reluctant to discuss it, domestic violence related to father. Duloxetine 30 mg, Endep 25 mg. "No past psychiatric history". She does not use recreational drugs and does not abuse alcohol. Tangential and circumstantial in thought form. Diagnosis was psychosis-like symptoms in the context of acute stress, assessment was generally difficult. Dr Shetty recommended Olanzapine 5 mg, antipsychotic medication.
2. Dr Leo Gong referral letter to Dr Katherine McQuillan dated 28 April 2023:

"Thank you for seeing Ms Nadia Shamim with post-traumatic stress and chronic pain after a motor vehicle accident in April 2022, during which she sustained a fractured left clavicle and minor head injury. Had subsequent follow-up with the Brain Injury unit at Westmead, and follow-up imaging has excluded any brain or spine injury. However, she continues to have significant symptoms, including but not limited to neck pain, tingling and pain in the arms, dizziness, nausea, and headaches. In recent times she has been noted to be increasingly neglecting self-care. Reports that her ongoing quality of life is extremely poor, and she is clearly significantly debilitated by her condition. Becoming increasingly despairing regarding her multiple symptoms and limited quality of life. Seeing a physiotherapist and psychologist, but greatly needs your input in regards to diagnostic clarity, and forming a management plan for her condition. She has a current third party insurance claim active.

Current Medications: Duloxetine 60mg Capsule; Endep 50 50mg Tablet."

Report of Dr Katherine McQuillan, psychiatrist, dated 5 June 2023

1. Dr Katherine McQuillan psychiatrist report, based at the Northern pain centre, noted

Ms Shamim's anxiety and depression, loss of enjoyment in activities normally enjoyed, withdrawn, many of her interest were active and physically she could not do them. She has panic attacks, hypervigilant, trauma symptoms and overwhelmed. No suicidal ideation reported. No past psychiatric history. She does not use recreational drugs and does not abuse alcohol.

1. The claimant's statement said before the subject accident, she has no past disability.

Ms Shamim was in a pedestrian versus car accident, and had surgery for left clavicle fracture. She developed amnesia and psychological injuries. She attended brain injury clinic. She takes Olanzapine and Duloxetine. After the accident, she started a new job in May 2022 but only attended less than one week due to her injuries. She was in constant pain with memory problems. She started a leadership management course before the accident but could not continue. Before the accident, she was social, and went to the beach and enjoyed photography, had lunch out, takes walks and went overseas with her family in 2019. Before the subject accident, her relationship with her ex-partner was good and dated since January 2018. She was religious but since the accident, felt disconnected from God. Relationship with her ex-partner ended after the accident.

Report of Dr Katherine McQuillan, psychiatrist, dated 22 September 2023

1. Dr Katherine McQuillan psychiatrist further report noted intermittent psychological treatment, rapport gradually establish, Duloxetine and Amitriptyline, discussed further increase Duloxetine and Quetiapine, ongoing psychological treatment, trauma treatment for post-traumatic stress disorder but given her distress and mood instability may be difficult to pursue.

Medicolegal report of Dr Richa Rastogi dated 14 November 2023

1. Dr Richa Rastogi IME psychiatrist's report noted the subject accident with loss of consciousness and fracture. No past psychiatric history. She had anxiety and depression, panic attacks, low self-esteem, memory difficulties. On Quetiapine 400 mg and Duloxetine 90 mg. She was dishevelled with poor self care, hysterical with pain, difficult to engage pressured and disorganized in speech. She diagnosed post-traumatic stress disorder and major depressive disorder. She provided a PIRS with ratings 233335, 24%, and explained the PIRS ratings based on Ms Shamim's impairment and activities: housebound and avoids going out, triggered by noises. Loss of friendship and separated from her relationship. Cannot concentrate due to being exhausted and overwhelmed.

Allied Health Recovery Request dated 11 January 2024

1. Allied health recovery request form 1 reported chronic pain symptoms, anxiety and depression, post-traumatic stress disorder, Lillian Richardson psychologist.

1. GP complete records with the top entry on 29 April 2022, noted the subject accident.

23 May 2022, treatment at Westmead Hospital. Undiagnosed mood/personality issues. Main issue severe post-traumatic stress disorder.

Submissions of the claimant dated 19 February 2024

1. The Panel summarises the submissions of Ms Shamim dated 19 February 2024 by reference to paragraph numbers:

[1]-[3] The claimant submits that the insurer has communicated an incorrect decision that materially impacts the claimant's rights to compensation pursuant to the Act which should be overturned.

Insurer's decision being referred for Commission's assessment

[4]-[6] On 16 November 2023, the claimant requested the insurer concede that the claimant's WPI exceeds 10% as a result of the accident injuries. The claimant submits that no response has been received from the Insurer at the date of these submissions. Ms Shamim further submits that the claimant disagrees with the insurer's decision and seeks a determination by the Commission.

[7] The claimant seeks a determination by way of a Commission's assessment that the injuries sustained are causally related to the subject motor accident; and exceed the 10% permanent impairment threshold.

[8] The claimant submits that the insurer failed to consider or accord appropriate weight to relevant factors in making its decision, including the report of

Dr Richa Rastogi dated 15 November 2023, which indicates that her psychiatric injuries caused by the accident result in WPI exceeding 10%.

[9]-[10] The claimant submits that the Insurer made an incorrect determination which impacts her right to compensation. She further submits that the Insurer has a duty to resolve the claim justly and expeditiously pursuant to s 6.4 of the Act.

[11]-[12] The claimant submits that the insurer failed to consider or give appropriate weight to the medico-legal report of Dr Richa Rastogi dated

15 November 2023. Dr Richa Rastogi's report provides a comprehensive assessment of her accident-related injuries and diagnoses post-traumatic stress disorder.

[13] Based on this diagnosis, Dr Richa Rastogi assessed a 24% permanent impairment as follows:

(a) self-care and personal hygiene - Class 2;

(b) social and recreational activities - Class 3;

(c) travel - Class 3;

(d) social functioning and relationships - Class 3;

(e) concentration, pace and persistence - Class 3, and

(f) adaptation - Class 5.

[14] The claimant submits that Dr Richa Rastogi observed anxiety with depressed mood, panic attacks, low self-esteem, loss of confidence and working memory deficits, and recognised that persistent pain and lack of adaptation amplified the claimant's chronic depressive cognitions and anxiety, significantly impairing her functioning. The claimant submits that these findings demonstrate a permanent impairment exceeding the 10% threshold.

[15] The claimant submits that Dr Richa Rastogi's assessment supports a permanent impairment rating greater than 10%.

1. The Panel summarises the submissions of the insurer dated 12 March 2024 by reference to paragraph numbers:

[1]-[2] The insurer submits that it is not in a position to determine whether the claimant's WPI is greater than 10%. However, based on the balance of the evidence, the Insurer submits that the Claimant's injuries are unlikely to exceed the 10% statutory threshold.

[3] The insurer submits that the evidence confirms the claimant reported childhood difficulties, coming from a broken family, disclosing domestic violence, and reporting fear of her father (R2).

[4] The insurer submits that the available evidence does not provide a clear picture of the claimant's pre-existing trauma, noting her reluctance to provide further details due to persecutory themes. Dr Namrata Shetty observed that the assessment was difficult due to the claimant adopting an adversarial stance during medical history taking (R2).

[5] At a consultation on 23 May 2022, GP Dr Jennifer Jiang recorded observations of a difficult personality, possible mild TBI, post-concussive syndrome, possible undiagnosed mood/personality issues, and the need to differentiate premorbid versus post-injury symptoms (A17).

[6] Orthopaedic surgeon Dr Matthew Jones expressed concerns the claimant may have an underlying psychiatric condition, noting limited engagement with psychological treatment, repeated conflicts with health professionals, perceived patterns hindering recovery, obsessive focus on her injury, and elements suggestive of paranoia (R3).

[7] The insurer submits that the claimant's limitations in activities of daily living are attributable to her physical condition rather than a psychiatric condition:

(a) Aus Rehab's Initial Rehabilitation Needs Assessment dated

23 August 2022 noted the claimant was unable to work due to ongoing bilateral upper limb pain (R4), and

(b) the claimant is able to perform self-care and activities of daily living independently, including meal preparation and household chores (R5).

[8] The insurer submits that there is limited clinical evidence detailing the claimant's alleged psychiatric condition arising from the subject accident and that further investigation of her pre-accident presentation is required to confirm any comorbidities.

[9] Further, it submits that it is unable to determine whether the claimant's WPI exceeds the 10% statutory threshold without further investigations, including obtaining expert evidence.

[10]-[11]The insurer submits that the claimant has not taken meaningful steps to mitigate her damages in accordance with s 4.15 of the Act. However, the insurer submits that the claimant's WPI is unlikely to exceed 10%.

Submissions of the Insurer dated 31 October 2024

1. The Panel summarises the submissions of the insurer dated 31 October 2024 by reference to paragraph numbers:

[1.1]-[1.4] The insurer sets out a background to the dispute, submitting that Medical Assessor Hong erred in his certificate due to a failure to apply the Guidelines, give appropriate consideration to the evidence, and give sufficient reason. It submits that these errors give rise to grounds for review.

[2.1]-[2.5] The insurer sets out the legislation and case law upon which it relies in its submissions, citing ss 7.26(2) and 7.26(5) of the Act, Dominice v Allianz Insurance [2016] NSWSC 1241, and Meeuwissen v Boden and Motor Accidents Authority of New South Wales [2010] NSWSC 106.

Failure to Correctly Apply the Motor Accident Guidelines - Inconsistencies

[3.1]-[3.2] The insurer submits the Medical Assessor failed to put inconsistencies between Ms Shamim's reports and medical evidence to her and that cl 6.41 requires identified inconsistencies to be raised with Ms Shamim to afford procedural fairness.

[3.3]-[3.4] The insurer submits the Medical Assessor identified inconsistencies between Dr Shetty's record of domestic violence and Ms Shamim's denial of such history. It notes that the Medical Assessor speculated Dr Shetty may have taken an incorrect history and concluded there were no other stressors or contributing factors.

[3.5]-[3.6] The insurer submits the certificate provides no explanation as to how the inconsistencies were resolved, yet causation was accepted without proper reasoning. It further submits the Medical Assessor failed to put the inconsistencies to Ms Shamim and failed to give sufficient reasons as required by s 7.23(7) of the Act.

Failure to give appropriate consideration to the evidence

[3.7]-[3.8] The insurer submits the Medical Assessor failed to adequately consider evidence relevant to inconsistencies and causation, including reports of difficult presentation and withholding of information. It further submits that the evidence demonstrates a tendency to withhold information, and Allianz Australia Insurance Ltd v Francica [2012] NSWSC 1577 requires assessors to consider and comment on such evidence and provide reasons.

[3.9]-[3.10] The insurer submits the Medical Assessor failed to provide an adequate statement of reasons of his findings as required by s 7.23(7) of the Act. It further submits that there was material suggesting pre-existing or unrelated impairment which the Medical Assessor failed to consider or address.

Failure to correctly apply the Motor Accident Guidelines - incorrect application of PIRS

[3.11(a)] The insurer submits Medical Assessor Hong assessed Class 5 impairment on the basis Ms Shamim had not worked and could not adapt due to psychological injury.

[3.11(b)] Class 5 under the Guidelines denotes total impairment and inability to work.

[3.11(c)] The insurer submits the finding is inconsistent with Ms Shamim's presentation, highlighting evidence of work capacity and that inability to work was attributed to physical pain.

[3.11(d)] The insurer submits the evidence indicates impairment in adaptability was partly or wholly attributable to physical incapacity.

[3.11(e)] The insurer submits the Medical Assessor improperly considered physical symptoms when assessing psychological employability and failed to give adequate reasons.

[3.11(f)] The insurer submits the findings do not align with the evidence or the Guidelines.

[3.11(g)] The insurer submits the Medical Assessor assessed Class 4 impairment based on reported poor concentration and observed thought disorder.

[3.11(h)] Class 4 denotes severe impairment, including inability to live alone or need for regular assistance.

[3.11(i)] The insurer submits the finding is inconsistent with evidence showing

Ms Shamim lived independently, managed personal care, and completed the assessment without difficulty.

[3.11(j)] The insurer submits the Medical Assessor failed to provide sufficient reasoning for the Class 4 rating and incorrectly attributed thought disorder to concentration impairment.

[3.11(k)] The insurer submits the findings are inconsistent with the evidence and the PIRS definitions.

[4.1]-[4.3]The insurer submits Medical Assessor Hong erred by failing to apply the Guidelines, failing to consider evidence, failing to give sufficient reasons, and misapplying PIRS. It further submits that these matters give rise to more than a mere suspicion of material error and that the certificate should be referred for review under s 7.26(2) of the Act.

Submissions of the claimant dated 20 November 2024

1. The Panel summarises the submissions of Ms Shamim dated 20 November 2024 by reference to paragraph numbers:

[1]-[5] Ms Shamim sets out a background to the dispute and submits that there is no reasonable cause to suspect an error has occurred in Medical Assessor Hong's certificate.

Alleged Error 1 - Failure to correctly apply the Motor Accident Guidelines - Inconsistencies.

[6]-[7] The insurer alleges the Medical Assessor failed to address inconsistencies between Ms Shamim's accounts and medical evidence. It notes that

Dr Shetty recorded domestic violence by the father, while Ms Shamim clarified no such violence occurred.

[8]-[10] Clause 6.41 of the Guidelines requires inconsistencies between findings and records to be put to the injured person. Ms Shamim submits the inconsistency was addressed by Medical Assessor Hong, Ms Shamim explained the discrepancy, and procedural fairness was upheld.

Ms Shamim notes that her Evidentiary Statement confirms a close relationship with her father prior to the accident.

[11] Ms Shamim submits Medical Assessor Hong concluded Dr Shetty may have taken an incorrect history, and the inconsistency was properly addressed and explained.

Alleged Error 2 - Failure to give appropriate consideration to the evidence

[12]-[13] The insurer alleges Medical Assessor Hong failed to adequately consider evidence regarding inconsistencies and causation. It is submitted by

Ms Shamim that the Insurer mischaracterises evidence showing difficulty expressing herself as withholding information.

[14]-[16] The insurer further alleges failure to consider pre-existing impairment;

Ms Shamim submits no medical evidence supports prior psychiatric illness. Ms Shamim relies on reports from Dr Rastogi, Ms Moser-Burgess, and

Dr McQuillan which confirm no previous mental health history. She submits no evidence supports pre-existing psychiatric conditions and Medical Assessor Hong relied on available evidence, expressly stating he considered all materials.

[17]-[18] Ms Shamim submits the insurer has not identified any specific inadequacies in reasons and the argument lacks substance. She further submits, consistent with Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281, a detailed step-by-step reasoning was not required and Medical Assessor Hong conducted a thorough evaluation leading to a 24% WPI finding.

Alleged Error 3 - Failure to correctly apply the Motor Accident Guidelines - incorrect application of PIRS

[19]-[20] The Insurer alleges Medical Assessor Hong improperly considered physical symptoms when assessing employability. Ms Shamim submits that her employability is affected by interrelated physical and psychological factors.

[21]-[23] Medical Assessor Hong assessed Class 5 employability consistent with

Dr Rastogi's Class 5 assessment citing reduced pace, anxiety, cognitive deficits, inability to work, and significant impairment. Ms Shamim submits Medical Assessor Hong is qualified to assess psychological injuries only and physical injuries are outside his expertise and that Medical Assessor Hong linked Class 5 impairment directly to psychological injuries, noting inability to adapt due to chronic depression with psychotic symptoms.

[24]-[25] The insurer submits Medical Assessor Hong incorrectly assessed Class 4 for concentration, persistence and pace. Ms Shamim argues, contrary to the insurer's claim of independent living, that she has faced accommodation instability and relied on community services.

[26]-[27] Ms Shamim submits, contrary to the insurer's claim of no difficulties during assessment, that Medical Assessor Hong recorded thought disorder and consistently poor concentration. She further submits the allegation that thought disorder was incorrectly treated as cognitive impairment lacks foundation and medical support.

[28]-[29] Ms Shamim submits the insurer has failed to demonstrate error in Medical Assessor Hong's diagnosis or WPI assessment. She further submits that the insurer's critique lacks evidence of material error under s 7.26 of the Act and the review application should be dismissed.

1. The medical members of the Review Panel assessed Ms Shamim by audio-visual link on

27 November 2025 at 9.00am. The findings of the Medical Assessors are reproduced below.

1. Ms Shamim is a 43-year-old woman who lives in shared private rental accommodation. She was not working and was financially supported by CTP payments. She reported that she last worked around a month after the accident.
2. Ms Shamim was unaccompanied at the interview and attended via MS-Teams from her lawyer's office.
3. Ms Shamim was born in Fiji and describes a very positive upbringing with kind and loving parents.
   • parents separated around 2000 while living in Fiji;
   • mother moved to the USA, followed later by her sister who married there;
   • father moved to Sydney, Australia;
   • she migrated to New Zealand in 2007;
   • she migrated to Australia approximately 17 years ago to be with her father, with whom she was very close;
   • prior to the accident, was living happily in a shared rental for months;
   • education includes accounting and computing in Fiji, and case manager qualifications (NZQA) in New Zealand;
   • employment history includes Westpac Bank (Fiji and NZ), Ministry of Social Development in NZ (for four years), and various contact centre roles in Australia, and
   • immediately prior to the accident, was a contact centre supervisor for approximately three months, and had an interview scheduled for a National Contact Centre Manager position. She resigned from the supervisor role in January 2022 to seek a daytime role.

1. No prior psychiatric history before the index event. She again adamantly denied any abuse or violence history today.

1. Denies any history of alcohol, tobacco, or illicit substance use.

1. Ms Shamim was extremely distressed when discussing specifics of the accident. She reported on 12 April 2022 she was a pedestrian crossing when she was hit by a car from behind.
2. She was taken by ambulance to Westmead Hospital and had surgery for a fractured clavicle.

History of symptoms and treatment following the motor accident

1. She reported that since the accident she has become increasing distressed, depressed and anxious with poor concentration. She reported that she can hear evil voices and banging on the walls and that people talked about her and didn't like her. She reported poor sleep and passive suicidal ideation but no attempts.
2. There were reports of significant family estrangement post-accident. Father, who has remarried, reportedly asked her not to contact him. Mother is also distant following arguments, reportedly related to Ms Shamim's change in behaviour and use of profanity. She feels misunderstood by her family.
3. Ms Shamim has moved accommodation over 20 times since the accident due to difficulties with hygiene and interpersonal conflicts with housemates. She was currently renting a room in a shared house for approximately two months, with problems already arising.
4. Her relationship of five years ended soon after the accident. She claimed her partner was unhappy with her clavicle scar and she felt ashamed. They had planned to marry and have a family.
5. Ms Shamim reported that she has no current friends and has lost all previous social contacts. Only interaction is with her GP and lawyers. She leaves her home only for essential medical appointments.
6. Her religious background is Muslim, and she reports that this is the only reason she continues to live, but struggles to practice her faith due to poor hygiene, inability to shower, and no longer attending the Mosque.
7. She reported that last year she saw a psychologist regularly and this wasn't helpful. She said that she previously also attended hospital clinics for brain injury and pain but these stopped.
8. Ms Shamim reported treatment by her GP monthly generally via Telehealth. She was not currently seeing any other health professionals.
9. Ms Shamim reported that her current medications include duloxetine, epilim, endep, Seroquel, maxolon, lyrica, Panadol osteo and somac.

1. Ms Shamim reported ongoing low mood and distress. She said that she is worried about the scar on her clavicle from surgery in the hospital and this prevents her from dating among other things. She remains worried about cars and traffic. She reports ongoing headaches, anxiety. She said that she feels lonely and hopeless. She said that she doesn't feel like she belongs in the world and is worried about the future. She reported that her memory and concentration were impaired. She reported that she rarely left the house except for occasional medical appointments. She reported that she had lost all her friendships.
2. She reports that her pain is ongoing and severe. She reports shooting pains in her eyes mouth and neck as well as back and head pain.

Details of any relevant injuries or conditions sustained since the motor accident

Clinical examination - mental state examination

1. The assessment was undertaken using audiovisual technology. The quality of the connection was satisfactory. Appeared for a video-link assessment from her solicitor's office. She presented as highly distressed and tearful for much of the interview, with visible mucus from her nose. She was dishevelled with unbrushed hair and no makeup.
2. Behaviour: Displayed psychomotor retardation at times then agitated when upset. Remained seated throughout.
3. Affect: Labile and distressed, congruent with thought content. Expressed feelings of hopelessness, worthlessness, and despair.
4. Speech: Soft in volume but coherent. Rate was generally slow.
5. Thought Content: Preoccupied with themes of loss, hopelessness, and being a "failure". Expressed suicidal ideation, stating "death is better than living this life", but also noted she would not act on these thoughts due to her religious beliefs. Reported ideas of persecution, stating housemates in multiple accommodations have stolen from her, made derogatory comments ("psycho"), threatened to kill her, and one made an unwanted sexual proposition.
6. Reported auditory and visual perceptual disturbances: hears voices, sees shadows on the walls, and spiders crawling on her eyes when they are closed. Reports flashbacks to the index event. Significant somatic complaints including severe pain (head, eyes, mouth, neck, arms, hands), constant vomiting, and breathing difficulties. Expressed feelings of derealisation and depersonalisation ("feel like an alien," "like a zombie," "don't belong in this world").
7. Cognition: Appeared to follow the interview, though was frequently distressed and required redirection. No formal cognitive assessment was performed.
8. Insight/Judgment: Limited. Attributes all difficulties to the accident. Judgment appears impaired regarding self-care and safety in shared accommodation.
9. Rapport: Established, though the interview was dominated by her distress.

1. Diagnostic impression is of a major depressive disorder with psychotic features. The current presentation is severe, with profound functional impairment across all domains, including self-care, social functioning, and vocational capacity. Her current living situation is precarious and she appears to lack any effective social support.
2. There is no evidence of a pre-existing psychiatric condition. She again adamantly denied any abuse or violence history today.

1.Major Depressive Disorder with psychotic features.

Psychological therapy (not current), psychiatrist (not current), medication

Ms Shamim is able to live independently albeit with reduced pace and motivation for self-care.

Ms Shamim never leaves the residence for social or recreational activities.

Ms Shamim is able to travel independently in the local area to familiar places if necessary.

Ms Shamim is unable to form or sustain long-term relationships and has fractured relationships with her partner, father and close friends.

Ms Shamim is unable to follow complex instructions. Ms Shamim however demonstrated ability to follow simple instructions during interview.

Ms Shamim has such severe symptoms that she is totally impaired and cannot work at all

1. Although Ms Shamim remains on some medication, her account did not reflect improvement in her condition nor did she ascribe any change in impairment to the treatment. The Panel found that there was no treatment effect.

1. In the insurer's reply submissions at [3], the insurer said that:

"The evidence confirms that the Claimant had reported difficulties in her childhood; coming from a broken family. She disclosed domestic violence and reported being fearful of her father (R2)"

1. The "evidence" at (R2) is all derived from the report of Dr Namrata Shetty.
2. Dr Shetty said in her report:

"...she described a difficult childhood - she was reluctant to discuss further but stated briefly that she was from broken family. Trauma - There was domestic violence with her stating that she was fearful of her father."

1. Medical Assessor Michael Hong referred to the undated report of Dr Shetty in the last paragraph of page 5 of his Reasons. He noted that:

"... Dr Shetty noted difficulties with getting a history as she said 'it's personal'. She had a difficult childhood and reluctant to discuss it, domestic violence related to father."

1. It is not clear on what evidence Dr Shetty drew this conclusion, but it was clear that whatever Ms Shamim stated, she was, according to Dr Shetty, 'reluctant to discuss it'.
2. On this basis, the insurer invited the positive conclusion mentioned at [3] in the insurer's reply submissions.
3. The Panel noted that Medical Assessor Hong, in his history, said:

"No trauma history was identified. Ms Shamim does not have a past psychiatric history... [He] discussed the domestic abuse history in her file and she said this was incorrect, she was not fearful of her father and he did not perpetrate violence at home."

"She again adamantly denied any abuse or violence history today."

"There is no evidence of a pre-existing psychiatric condition. She again adamantly denied any abuse or violence history today."

1. At [16] of Ms Shamim's evidentiary statement it reads:

"In 2023, I also consulted Psychiatrist, Dr Namrata Shetty on one occasion and as I did not feel comfortable with the session, my GP, Dr Gong referred me to Psychiatrist Dr Katherine McQuillan, and I have so far only had 1 consultation with her on 5 June 2023."

1. Dr McQuillan noted that there was no prior psychiatric history.
2. Dr McQuillan records a history that no early developmental or academic difficulties were reported. Although her parents separated when she was young, they maintained a good relationship with Ms Shamim and her sister.
3. Dr McQuillan mentions nothing about taking a history relevant to physical abuse by her father or fear of her father when she was young.
4. In a subsequent report 13 November 2023, Dr McQuillan who reviewed her adds nothing which would support the alleged history of abuse.
5. Dr Richa Rastogi, psychiatrist, reported at the request of Ms Shamim's solicitor on

15 November 2023. 6. Dr Rastogi took a background history, which included:

"She denied any history of developmental adversities and reports a secure upbringing."

1. There was no previous psychiatric history of depression or anxiety.
2. There is nothing in Dr Rastogi's report which would support the insurer's submission.
3. The Panel considers that the submission made by the insurer is opportunistic, based on a report where the reporter, Dr Shetty, did not establish a rapport with Ms Shamim and finds that the report of Dr Shetty cannot be relied upon for the conclusions of fact which it asserts should be drawn.
4. The "history" of abuse by her father is not confirmed in any of the many documents provided to the Commission including the reports of Dr McQuillan or any neurologist or other relevant person.
5. It is denied expressly by Ms Shamim and it is appropriate that it has been rejected by the Panel as not supported by evidence.
6. The reply submission by the Insurer at [5] referring to the consultation on 23 May 2022 with Dr Jennifer Jiang adds nothing to support the insurer's serious contention arising from

Dr Shetty. 7. The submission at [6] deriving from Dr Jones' report of 3 August 2022 adds nothing to the insurer's case. 8. The Panel has taken into consideration the submissions at [7]-[8] and states that there is no support for the submission that the impacts on her activities of daily living are associated with her physical condition rather than her psychiatric condition. 9. The Panel, including two very experienced psychiatrists, has arrived at a very different view of the relevance of the physical condition as compared with the psychiatric condition, referring to the PIRS assessment in which it has given reason for each categorisation.

1. The Review Panel met again on 11 December 2025 at 4.00pm and discussed the opinion arrived at by the medical panellists and it is noted that each member of the Panel, including the legal Member, was in agreement with the proposed decision and subsequent determination.

1. The Review Panel revokes the certificate of Medical Assessor Michael Hong dated

4 October 2024 and substitutes the determination that the following injuries caused by the accident gave rise to a permanent impairment of 41%: * major depressive disorder with psychotic features.