Issued under ss 7.23 (1) of the Motor Accident Injuries Act 2017

The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

1. The Review Panel revokes the certificate of Medical Assessor Doron Samuell dated

15 December 2023. 2. The Review Panel issues a new certificate determining that the following injury caused by the motor accident gives rise to a whole person impairment that is NOT GREATER THAN 10% (5%): * exacerbation of persistent depressive disorder.

1. On 21 February 2019 the claimant, Nadia Kayem, was involved in a motor accident when she fell and sustained injuries whilst travelling on a bus, insured by Allianz Australia Insurance Limited (insurer).
2. The claimant claims that she sustained multiple physical injuries in the accident. She also claims that she developed a psychological injury.
3. The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
4. As part of her claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
5. The insurer did not concede that the claimant's physical injuries or her psychological injury caused by the accident, had crossed that threshold.
6. This matter is concerned with the dispute about the claimant's psychological injury. The other aspect of the dispute concerning the claimant's physical injuries is subject to a separate determination issued by the Personal Injury Commission (Commission).
7. To resolve the psychological injury dispute, the claimant made an application for a medical assessment by the Commission pursuant to Division 7.5 of the MAI Act.
8. The Commission referred the matter to Medical Assessor Doron Samuell for assessment.
9. On 15 December 2023, the Medical Assessor issued a certificate finding that the injury - major depression, caused by the motor accident had resolved and therefore did not give rise to assessable permanent impairment.

1. On 17 January 2024, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of Medical Assessor Samuell to a review panel for review.
2. The application was not made within 28 days of the original certificate being issued to the parties in conformity with s 7.26(10)(a) of the MAI Act. For reasons advanced by the President's delegate in a decision dated 4 March 2024, the claimant's application to extend make the application pursuant to r 133A of the Personal Injury Commission Rules 2021(PIC Rules) was accepted.
3. The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]

1. According to s 7.26(5A) of the MAI Act, the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Jones and Medical Assessor Newlyn and Member Castagnet (the Panel).
2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
4. The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5] The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 4 Guides). Where there is any difference between AMA 4 Guides and the Guidelines, the Guidelines are definitive.[6]
2. Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders', found in clauses [6.201]-[6.228] of the Guidelines.

1. Pre-existing impairment is addressed in clauses [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 6.218 of the Guidelines provides that 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.

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
2. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:

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

1. Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.

"There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible."

1. The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]

1. The following injuries were referred to the medical assessor for assessment:
   • major depressive disorder, and
   • post-traumatic stress disorder.
2. The Medical Assessor found that at the time of his assessment, the claimant was suffering from a major depressive disorder which was consistent with symptoms that were observed in the available records, prior to the subject accident.
3. The Medical Assessor concluded that the psychiatric condition, major depressive disorder, was pre-existing. He was of the view that there was some evidence of an exacerbation of the pre-existing condition caused by the subject accident but that the exacerbation has ceased.
4. The Medical Assessor concluded that an injury - aggravation of major depression, was caused by the accident but at the time of his assessment, it had resolved. On that basis, he also concluded that an assessment of the degree of permanent impairment was not required.

1. The claimant filed a paginated and indexed bundle of documents comprising 57 pages, and the insurer filed a paginated and indexed bundle of documents comprising 259 pages.
2. Clinical records from Bankstown-Lidcombe Hospital dated 21 February 2029 and 12 December 2019 were filed by the insurer at the request of the Panel.
3. The parties consented to the documents filed by them in the related review matter

M-22177/24 (concerning the assessment of a permanent impairment dispute of the claimant's physical injuries) being considered in this assessment in so far as the Panel considers any such material to be relevant.

1. The claimant submitted that having found there was a psychiatric injury - major depression the Medical Assessor was, in accordance with cl 6.218 of the Guidelines, required to undertake the following steps:

(a) an assessment in accordance with the Psychiatric Impairment Rating Scale (PIRS), of the claimant's current impairment;

(b) an assessment in accordance with PIRS, of the claimant's impairment that existed at the time of the subject accident, and

(c) finally, to subtract any pre-existing impairment from the current impairment to arrive at a final assessment of psychiatric impairment caused by the accident.

1. The claimant submitted the Medical Assessor did not provide an adequate path of reasoning regarding his finding on causation. The Medical Assessor stated that the accident caused an exacerbation of a pre-existing condition and concluded that the exacerbation had ended. However, he did not provide his reasoning to explain the extent of the exacerbation, the nature of the exacerbation, and the grounds upon which he determined that the exacerbation had ended.
2. The claimant submitted that the Medical Assessor misinterpreted what the claimant said about her previous psychiatric condition. The claimant did not acknowledge that she had a "pre-existing severe psychiatric condition". She acknowledged that she has a previous significant psychiatric condition but she indicated that as at the day of the accident, that condition had either resolved or was at most, mild.

1. The insurer submitted that the Medical Assessor provided adequate reasons for his finding that the accident exacerbated pre-existing depression but that this exacerbation had resolved. The Medical Assessor has clearly explained the exacerbation ceased because the claimant's psychiatric symptoms described at the time of the accident were similar to the symptoms noted in the pre-accident records. Based on the above reasoning, the Medical Assessor's conclusion was that the exacerbation was temporary and not permanent.
2. The insurer submitted that in these circumstances, the obligations under cl 6.203, cl 6.218 and cl 6.19 were not triggered because the Medical Assessor determined that there was no permanent impairment due to the accident.

EVIDENCE BEFORE THE PANEL - PRE-ACCIDENT RECORDS

1. The clinical records of First Care Medical Centre showed the following entries:

(a) in a consultation with general practitioner (GP), Dr Caroline Davidson on 6 November 2013, it was recorded that the claimant was suffering from stress and anxiety having been a refugee in Syria where she was living in a tent for the past four years. The claimant was referred for counselling.

(b) In a consultation with psychologist, Mrs Rita Azzi on 21 January 2014, it was recorded that the claimant reported low mood, difficulty sleeping, switching of thoughts, winding down and concerned about her husband's health.

(c) In a consultation with Dr Davidson on 7 February 2014, the claimant reported that she was very stressed and anxious as her husband had been diagnosed with cancer.

(d) In a consultation with Mrs Azzi on 11 February 2014, the claimant reported being stressed, unable to cope with pressures from Centrelink and feeling "pressure in head" "pains in stomach" and "headaches constantly."

(e) In a consultation with Mrs Azzi on 23 March 2014, it was recorded that the claimant reported the following symptoms - "feeling down, pressure all on her dealing with making appointments (for husband), low mood, high stress and worry, difficulty sleeping."

(f) In a consultation with Dr Davidson on 25 May 2014, it was recorded that the claimant had symptoms of "depression, low mood, down cast, sad and depressed and poor affect". The claimant was prescribed with anti-depressant medication - Lexapro 10mg daily.

(g) In a "To whom it may concern" letter dated 1 July 2014, Mrs Azzi reported that the claimant had been undergoing psychological counselling for the past six months, including cognitive behaviour therapy (CBT) therapy and mindfulness. It was recorded that the claimant was suffering "with enduring symptoms of low mood, low energy, reduced motivation and high stress."

(h) On 18 August 2015, the claimant consulted Mrs Azzi when she reported that her husband had passed away in February 2015, and that she was "feeling down and having financial stress." Treatment included grief counselling.

(i) On 12 June 2017, the claimant consulted GP, Dr Mark Toomey reporting nausea, poor sleep, low self-esteem, anxiety, stress at work, relationship problems and irritability. It was also recorded that the claimant had irrational fears but no compulsive behaviour or auditory hallucinations. Dr Toomey diagnosed that the nausea was due to her anxiety. He noted that the claimant was under the care of psychiatrist, Dr Ashraf Ali, and despite being prescribed with Cymbalta, 30mg per day and Avanza, 30mg per day, she was still depressed.

1. The claimant was involved in a motor accident on 28 May 2016 (2016 accident). She made a claim for the injuries she sustained in that accident.
2. In her personal injury claim form dated 14 June 2016, the claimant stated that on

28 May 2016, she was travelling in a vehicle as a passenger at the intersection of Stacey Street and the Hume Highway Bankstown, when her vehicle was struck at speed by a fire engine truck. 3. The claim form indicated that she sustained injuries to her neck, back and head and that she suffered concussion. A medical certificate issued by GP, Dr Ali El Jaam on 7 June 2016 which accompanied the claim form, recorded a diagnosis of cervical discopathy, thoracic pain, lumbar discopathy and "PTSD".

1. In evidence was a report from psychologist, Ms Melak Haydar of PsychCentral Psychological & Consulting Services, dated 5 April 2016 and entitled "Psychological Treatment Plan" which appears to have been provided at the request of the CTP insurer as part of a rehabilitation plan for the injuries sustained by the claimant in the 2016 accident. Although the report predates the 2016 accident, Ms Haydar stated that the claimant had been referred to her by Dr El-Jaam for an assessment and treatment of her psychological injury arising from the 2016 accident.
2. Ms Haydar believed that as a result of the 2016 accident, the claimant was suffering from an anxiety disorder (post-traumatic stress and generalised anxiety) and depression. She recommended that the claimant continue with long-term psychotherapy, (with a minimum of 10 sessions and a review for further sessions if symptoms had not improved).

1. According to the reports of psychiatrist, Dr Ishrat Ali dated 13 April 2016 and 15 June 2017, he treated the claimant prior to the 2016 accident and after.
2. Dr Ali initially saw the claimant on 22 July 2015 after the death of her husband with symptoms of anxious feelings, depressed moods, insomnia, irritability, poor concentration, episodes of crying, episodes of screaming, feeling as if her husband was present in the room and occasionally hearing her husband's voice. The claimant was prescribed with Pristiq 50mg per day.
3. In his report dated 13 April 2016, Dr Ali indicated that he had been seeing the claimant from time to time and the last consultation was on 30 March 2016. On that occasion, Dr Ali indicated that the main diagnosis "appears to be a case of post-traumatic stress disorder as a result of war experiences and now she has reaction from the death of her husband." The claimant's prescription of Pristiq was increased to 100mg per day.
4. In his report dated 15 June 2017, Dr Ali reported that the claimant was seen again after the 2016 accident. He indicated that prior to that accident, the claimant had made some progress, and her depression became slightly better, and she appeared to be coming out of her depression. After the 2016 accident, her depression became worse and she started having difficulty sleeping and relaxing. She also had concentration problems which became worse. She was prescribed with Cymbalta.
5. The ultimate diagnoses made by Dr Ali were an adjustment disorder with depression following her husband's death and post-traumatic stress disorder as a result of the 2016 accident. Using the AMA criteria and the Motor Accident Permanent Impairment Guidelines,[9] Dr Ali assessed a whole person impairment (WPI) of 17% attributing 5% for pre-existing depression and 12% due to the 2016 accident.

1. The claimant was assessed by consultant psychiatrist, Dr Graham George on 18 July 2017 on behalf of the CTP insurer for the 2016 accident. In his report dated 19 July 2017, Dr George referred to the report of Dr Ali dated 13 April 2016 and indicated that he was unable to diagnose the claimant with an ongoing psychiatric disorder arising from the 2016 accident. He believed that the claimant may have elements of a persistent depressive disorder subsequent to her traumatic experiences related to being in Iraq during a war and where it appears that she was traumatised from her experiences in a refugee camp for a five-year period.

1. In a report dated 11 July 2018, the claimant's treating GP, Dr Ali El-Jaam reported that at that time, the claimant's psychological state was in "dire straits", and he had referred the claimant for treatment by Ms Haydar in 2016, Dr Ali in 2017 and another psychiatrist, Dr Ashraf Phillips, in June 2018.
2. Dr El-Jaam commented as follows (errors in original):

"Mrs Kayem is a 55 years old woman with the trauma and burden of a 90 years old. Mrs Kayem had escaped her war torn country Iraq and went to Syria. The war as you know broke out in Syria and she along with her husband were brought out to Australia by the United Nations. Upon their arrival Mrs Kayem's husband ... was diagnosed with stomach cancer and had sadly passed away.

Mrs Kayem has had nothing short of a very long history of trauma since the day the war broke out in Iraq. Everything that symbolised stability in her life was taken away from her, contributing to her spiraling mental health. Mrs Kayem is very much isolated and lonely and has no-one in her life that supports her domestically, physically or mentally on a day-to-day basis.

I strongly support Mrs Kayems' application in being granted a pension, Mrs Kayem will never be mentally or physically fit to enter any employment, as her psychological state is very severe, and she will require the aid of psychiatric, psychological, counselling and medication to ensure that Mrs Kayem is at least living."

1. According to the clinical records of Bankstown-Lidcombe Hospital dated 2 October 2018, the claimant was assessed on that day in the following circumstances (errors in original):

"reports worsening depression since her husband died of cancer 3 years ago threatened to jump off TAF balcony in Dec, presented to ED and d/c home by MHT

lives with her son-son need to lock doors and window and lock up all sharp objects to ensure safety at times she will remove scarf and run and lie on street

reports she hear her dead husband calling her to join him in the grave

has also seen her dead husband hugging her, kissing her and telling her to end her life."

1. On assessment the following background was recorded:

Reports yesterday she went to chemist after that she felt tired and sat at the bench. She was later found by her neighbour lying at the street without her scarf. Reports she does not recall taking her scarf and lying at the street. She was taken to her unit by her neighbour and her son. Reports developing abdominal pain since. Reports whenever she feels very sad, she gets abdominal cramps and loose motion.

Pt talked about feeling sad and depressed since passing away of her husband in 2015. Reports she's still in grief. Has been having suicidal thoughts since with nil active plan/intent. Reports she sometimes feels like running into the traffic however denies ever attempting same. She has had X1 ED presentation last year with SI and attempted to jump off the balcony of the TAFE where she was doing a course at the time. Reports she was having issues with her assignment then. Reports dropping the course since and denies any other suicide and SH attempts since. Reports her son is quite supportive. Reports son has locked the window and door to the balcony so that she does not jump off the balcony. He also hides the knives so that she does not cut herself. Reports if her son was not quite protective of her, she probably would have done something to herself."

1. Following the assessment, the claimant was discharged home with referral to the Bankstown Community Mental Health Emergency Team (CoMHET) and to be followed up by her GP and psychologist.

EVIDENCE BEFORE THE PANEL - POST-ACCIDENT RECORDS

1. In her Application for personal injury benefits (claim form), the claimant stated that the date of the accident was 9 March 2019. This appears to be an error as the available evidence (for example the clinical records of Bankstown-Lidcombe Hospital) makes it clear that the accident occurred on 21 February 2019 and indeed elsewhere on the claim form, the claimant acknowledged that she was discharged from the hospital after the accident, on

1 March 2019 which is well before 9 March 2019. Nothing turns on this misdescription. 2. In her claim form, the claimant described the circumstances of the subject accident in the following terms:

"I was a passenger on Punchbowl Bus which was turning at speed, left from Rickard Rd onto Sir Joseph Banks St. I was seated when my bags which were on the floor began to move. I bent down to hold the bags, but as the bus was travelling fast & turning sharply, I fell forward off the chair onto my left knee and face. I could not hold myself up and rolled along the floor."

1. In her claim form, the claimant outlined the injuries she received in the accident as follows:

"Injury to left shoulder, right shoulder, left knee broken, head injury, lacerations on shoulders, and a bridge in mouth was damaged, require new bridge."

1. In a certificate of fitness issued by Dr El Jaam which accompanied the claim form, the diagnosis of the motor accident-related injury(ies) was recorded as "Left tibial plateau fracture".

1. An ambulance attended the scene of the accident, and the claimant was taken to Bankstown-Lidcombe Hospital for treatment where she remained until discharge on 1 March 2019.
2. According to the hospital clinical records dated 21 February 2019, there was on admission, pain in the lower limb and hip. An X-ray showed a lateral tibial plateau fracture of the left knee and a CT scan showed a Schatzker 3 pure depression type fracture with a 4mm articular depression.
3. The principal diagnosis was a left tibia plateau fracture. This was treated by open reduction and internal fixation and bone grafting at the hands of orthopaedic surgeon, Dr Christopher Reitz. No surgical complications were recorded.
4. Prior to discharge, the claimant was cleared by the physiotherapy team. She was reviewed by the psychiatric team for ongoing suicidal ideation.
5. Upon discharge, the claimant was to be managed non-weight-bearing for six weeks until union of the fracture had been established and she was to be followed up in about two weeks by Dr Reitz in his rooms.

Treatment of physical injuries after the accident

1. The claimant was reviewed by Dr Reitz on 14 March 2019 about two weeks post-operatively. In a report of the same date, Dr Reitz recorded that the wound was healing well. A repeat

X-ray showed good hardware positioning with good positioning of the tibial plateau. 2. The claimant was further reviewed by Dr Reitz on 12 April 2019. Repeat X-ray performed on that day showed excellent hardware positioning with good reduction of fracture and signs of union, with no tenderness over the lateral joint line and a good range of motion in the knee in a stable knee joint. The claimant was advised to start weaning off crutches. 3. The claimant was further reviewed by Dr Reitz on 24 May 2019 with repeat X-ray which showed good alignment and union of the fracture. The claimant was able to walk into

Dr Reitz's rooms, and she reported in doing so, her knee was not painful. On examination, the claimant had a full range of motion in the left knee, which was not painful on palpation, range of motion or weight-bearing. There was some weakness in her quadriceps, and she was advised to perform strengthening exercises. Further follow-up was arranged only an as-needs basis. 4. The claimant was further reviewed by Dr Reitz on 17 July 2019. On this occasion, the claimant reported that pain in the left leg had been increasing over the last few weeks and seemed to be associated with lower back pain and signs of sciatica. There was also pain in the left hip on the lateral aspect with clinical signs of trochanteric bursitis. On examination, the left knee itself showed a well-healed wound with excellent range of motion and only very mild lateral knee tenderness. 5. Dr Reitz believed that most of the pain in the left leg appeared to arise posteriorly consistent with left leg sciatica, and pain in the left hip clinically appeared to be trochanteric bursitis. 6. X-rays of the pelvis, left hip and left knee performed on the same day, showed symmetrical left hip joint with no osteoarthritis, degenerative changes at the lumbosacral junction, with evidence of osteitis pubis. At the knee, a plate transfixes the lateral tibial plateau where the articular surface appears intact, and the joint space is maintained. 7. Dr Reitz referred the claimant for an ultrasound of the left hip and an MRI of the lumbar spine. He reviewed the claimant on 6 August 2019 with the results. 8. The ultrasound of the left hip showed tendinosis of left gluteus minimus and medius tendons with partial-thickness tear at the insertion of gluteus medius and some thickening in the greater trochanteric bursa. The MRI scan of the lumbar spine showed multi-level degenerative change with possible nerve root impingement on the left, raising symptoms of left leg sciatica. 9. Dr Reitz gave the claimant a referral for a CT-guided L5/S1 cortisone injection. He also referred the claimant to neurosurgeon, Dr Simon McKechnie, to monitor the lumbar spine pathology. However, there is no evidence before the Panel of any treatment received by the claimant for Dr McKechnie. 10. On 14 August 2019, the claimant undertook an ultrasound-guided injection of cortisone to the left trochanteric bursa and on 21 August 2019, a CT-guided left L5/S1 perineural injection of cortisone. 11. A progress X-ray of bilateral knees performed on 22 December 2020 showed internal fixation of proximal tibial fracture on the left with anatomical alignment. No significant depression of the tibial plateau was demonstrated, with no complications of hardware. 12. On 13 January 2021, the claimant underwent a further CT-guided left L5 perineural injection of cortisone. 13. A progress X-ray of bilateral knees performed on 29 March 2022 showed internal fixation in the left tibia with no features of complication, very minor articular surface irregularity within the lateral compartment of left knee and medial aspect of patellofemoral compartment of right knee, with no significant osteoarthritic degenerative changes otherwise noted, and no significant joint effusion. 14. On 6 September 2022, the claimant was admitted to St George Private Hospital under the care of Dr Reitz for the removal of the hardware at her left knee. 15. On 25 October 2022, the claimant was seen by Dr Reitz post-surgery. The claimant reported that her left knee pain had improved but she was still struggling with ongoing back issues. 16. A progress X-ray of the left knee performed on 25 October 2022 showed there had been interval removal of the plate and screw fixation across the lateral tibial plateau and proximal metadiaphysis of the tibia, with no fracture or periosteal reaction and anatomical alignment. There was mild degenerative change involving the medial and lateral compartment of both knees, slightly more prominent in the medial compartment of the right knee, which has only been assessed on the Rosenberg projection. 17. On examination, Dr Reitz found a good range of motion in the left knee, which was stable. He referred the claimant for further physiotherapy and knee strengthening exercises. 18. On 4 January 2023, the claimant returned to see Dr Reitz with ongoing pain issues after the left knee arthroscopy and removal of lateral tibial hardware. Dr Reitz noted there was a lot of pain issues but objectively there was a well-healed wound with minimal osteoarthritic change only. He referred the claimant to interventional pain specialist, Dr James Yu for further management. 19. Dr Yu saw the claimant on 21 March 2023. The claimant reported persistent left knee pain since the accident. She described her pain as aching stabbing pain, associated with swelling and skin temperature changes, and there was dark blue to purplish skin colour changes in the knee region. She rated her pain at 10/10 on a visual analogue scale. 20. Dr Yu noted that the claimant underwent a left knee arthroscopy and removal of lateral tibial hardware in September 2022. The claimant reported that she had tried acupuncture and analgesia for ongoing pain in the knee, but her pain continued to deteriorate. She has tried different analgesic medications, including Avanza and Endone. It appears that the claimant reported to Dr Yu that there was a complication of infection in the knee although the Panel could not verify this on the available evidence. The claimant reported that she had also been seeing a psychologist every three weeks. 21. Dr Yu noted that psychometric screening tests showed extremely severe depression, anxiety and stress with significantly low self-efficacy and severe catastrophising. The claimant reported significant sleep disturbance associated with her pain condition. 22. Dr Yu recommended an evidence-based multi-disciplinary pain management program called "RESTORE", which involves a one-on-one pain program incorporating psychological, physical and medical components. He also referred the claimant to a pain specialist psychiatrist, Dr Noore, for supportive psychotherapy and pain management. He recommended that the claimant continue her analgesics at the same dose and if the pain persisted, he discussed possible future treatment options including a left lumbar sympathetic nerve block. 23. There is no evidence before the Panel regarding any treatment received by the claimant form Dr Noore. 24. A further follow-up X-ray of the left knee performed on 28 March 2023 showed minimal degenerative osteoarthritis of the medial and lateral compartments of the left knee joint, but there was no evidence of an acute fracture or dislocation of the left knee. 25. The claimant was further reviewed by Dr Reitz on 23 April 2024 after an MRI scan of the left knee was performed in March 2024. Dr Reitz was of the view that the imaging showed the previous lateral tibial plateau fracture which was united. There was a small radial tear of the free edge of the body of the lateral meniscus, but this appeared to be stable. There was a small degree of knee joint effusion with more marked bone oedema involving the medial femoral condyle with some degenerative change and full thickness cartilage defects. 26. Dr Reitz diagnosed post-traumatic osteoarthritis in the left knee. He provided the claimant with a referral for a cortisone injection and indicated that should symptoms not settle in the mid to long term, a knee replacement would address the symptoms. 27. A further X-ray of bilateral knees were performed on 15 November 2024 showing mild degenerative changes in the right knee joint, but the joint space was maintained. In the left knee, there were joint minimal osteophytic changes in the lateral tibial plateau but no significant joint space narrowing and no suprapatellar effusion. There was no acute bony injury.

Treatment of psychological/psychiatric injuries after the accident

1. According to the clinical records of PsychCentral, the claimant received psychotherapy treatment in 17 sessions from 23 July 2019 to 21 August 2021. The clinical records do not identify the details of the treatment providers.
2. At the initial session on 23 July 2019, it was recorded that the claimant had seen a psychologist since 2013 for depression, anxiety, grief after her husband's death and following her involvement in the 2016 accident. The treatment provider recorded the following:

"She presented symptoms consistent with PTSD, depressive symptoms and stress disorder.

She reported flash backs, avoiding riding buses, irritability, over thinking, difficulty sleeping, low energy levels and panic attacks.

Complains of memory difficulty and lack of concentration.

Dass21, she falls in severe range of depression, extremely severe anxiety and stress."

1. The management plan for the remaining sessions was assessment, motivational interviewing, stress management, exposure techniques, cognitive analysis, challenging and restructuring and psycho-education.

1. According to the clinical records of Bankstown-Lidcombe Hospital dated 17 December 2019, the claimant was referred to the hospital by the NSW Police Force for an assessment on 12 December 2019.
2. On admission on 12 December 2019, the following details were recorded:

"C 804 BIBA[10] from home with stress to anxiety due to housing problem. PHx (past history) depression & anxiety, schizo affective disorder."

1. On assessment with the Psychiatric Registrar, Dr Civadelic, it was recorded that the claimant stated the following (errors in original):

"Says she want to 'lost my life.' This is because the Housing court appeal, she is very affected with many diseases. Feels as though she is not being listened to. 3 discs from her back +shoulder broken.

Says they need to find a unit that is suitable to her physical needs. Says there a 35 steps to enter the building, 3rd floor wth nil lift. Pt is worried that she will not be able to walk to her home. Says she has depression and anxiety she is not able to walk up the stairs. Says she vomits and is physically unwell.

Says she can not go home until her housing situation is sorted. Patient was however willing to speak with a psychiatry team at Bankstown CMHT to assist in this.

She is requesting for a report to say that she is not capable of living at that very house. Concerned about the housing issue. asking the psych Reg whether she will receive any help with the letter.

She was offered a voluntary admission to BanksHouse which she declined. She felt safe going home and receiving support from the community mental health team as well as her family."

1. Following the assessment, Dr Civadelic recorded the following conclusion:

"55 year old woman with a Bg of depression. She was brought to ED by her family due to feeling stressed and expressing suicidal ideations. This was in the context of her living arrangements, pt was recently given an apartment to live in which in on a 3rd level, nil lift. She is concerned that she is unable to ambulate well and is requesting assistance in finding other alternative suitable accommodation."

1. According to a report dated 16 March 2020, consultant psychiatrist, Dr Asraf Philips indicated that he saw the claimant on a referral from her GP Dr El Jaam, for an opinion and management.
2. Dr Philips noted that the claimant started to have depressive symptoms following the subject accident where she sustained fractures to her leg and had to undergo surgery. Since then, the claimant reported that she has described symptoms of low mood, anhedonia, disturbed sleep and lack of appetite. She continued to hear her husband's voice who passed away shortly after arrival in Australia. She reported having suicidal ideation and that she tried to jump off a balcony in 2017 and was admitted overnight in hospital. She also reported that she tried to jump in front of traffic and was followed up by CoMHET.
3. Dr Philips noted that the claimant had received treatment from a psychiatrist and a psychologist for many years.
4. Dr Philips considered that there was "no evidence of pervasive low mood, psychosis, mania, PTSD, OCD or other anxiety disorders was found during the assessment." He believed the presenting symptoms were suggestive of depression complicated with unresolved grief.
5. In a report dated 15 April 2021, Dr Philips indicated that he saw the claimant for review on that day when she continued to insist that she had bipolar disorder and schizophrenia because she had perceptual disturbance. Dr Philips believed there was no evidence to support a diagnosis of bipolar disorder or psychosis.

1. In a report dated 26 April 2021 and provided at the request of the claimant's solicitors,

Dr El-Jaam stated that the claimant attended his surgery prior to the accident only for psychological treatment. The consultations focused on her mental health, changing her medication and referring her to a psychiatrist and psychologist. 2. Dr El-Jaam was of the opinion that the claimant's psychological/psychiatric conditions were improving prior to the accident and her physical health was somewhat stabilised by medication and other therapies, allowing her to have some independence where she felt confident enough to use public transport and go shopping and see people and these activities assisted with her "depression and schizophrenia, along with psychiatric and psychological reviews." He believed that following the accident, the claimant's depression was aggravated as she held fears of going out alone and fear of using public transport. 3. Dr El-Jaam's diagnosis for the psychiatric injuries arising from the accident was a severe aggravation of depression and post-traumatic stress disorder. He believed that the claimant would continue to suffer from fluctuating bouts of these psychological/psychiatric conditions and will require the aid of medication, psychiatric and psychological reviews for an indefinite period of time.

1. According to the clinical records of Bankstown-Lidcombe Hospital dated 17 February 2025, the claimant was referred to the hospital for a review on 11 February 2025 before her discharged from COMHET on 14 February 2025.
2. The claimant's history of suicidal ideation on the background of trauma and psychosocial stressors was noted as well as her previous diagnosis of post-traumatic stress disorder, anxiety and depression.
3. Following an assessment, it was concluded that the claimant was discharged because "she is linked with private and appropriate mental health supports and denied any risk issues".

1. On 13 March 2025, the claimant was scheduled to be re-examined by the Medical Assessors of a review panel constituted by the Commission for the purpose of determining her physical permanent impairment dispute with the insurer.
2. The re-examination did not proceed on that day. Medical Assessor Rhys Gray of that review panel explained the circumstances in the following note to the Commission:

"Mrs Kayem attended for Medico Legal consultation as arranged at 2pm today. She attended with her son, her carer. Interpreter was present too.

On entering the consultation room she 'collapsed,' consistent with a stress reaction. Pulse & breathing satisfactory, no chest pain or LOC.

Briefly assessed by Drs Oates and Gray. No proceeding with M/L exam.

Advised ambulance for clinical assessment but son insisted on attending their own Doctor/GP."

1. The claimant was assessed at the request of the insurer by consultant psychiatrist, Dr Michael Hong on 17 May 2021. Dr Hing provided a report dated 23 May 2021.
2. Having conducted his assessment of the claimant and considered the available pre-accident documentation, Dr Hong believed that the claimant has suffered depression and anxiety and that she had a major depressive disorder which was pre-existing, possibly with psychotic features in terms of her hearing her husband's voice. Dr Hong noted that she was symptomatic even when she was on treatment before the subject accident.
3. Dr Hong was of the opinion that the claimant's major depressive disorder had been aggravated by the accident, developing trauma related symptoms consistent with post-traumatic stress disorder.
4. Dr Hong assessed a pre-existing permanent impairment of 19% and a permanent impairment of 22% after the subject accident.
5. Dr Hong considered that there should also be a "one-tenth deduction" for a "concurrent injury" because the claimant presented "to the hospital once or twice as a result of concurrent life stressors, including housing court appeal and her abusive neighbour."
6. Dr Hong's final assessment of WPI was "22 -19 - one-tenth = 1%."
7. The claimant was re-assessed by Dr Hong on 22 March 2024 and he provided a report of the same date. Dr Hong's updated diagnosis was as follows:

"She said her psychiatrist has now diagnosed Schizophrenia with anxiety and depression. I noted this is not a new psychiatric diagnosis, but her previous psychiatric diagnoses have been re-defined. She continues to have the same psychological symptoms, that is, anxiety and depressive symptoms, and psychotic symptoms, before the subject accident, and to the present day.

My view is that she developed an aggravation of her pre-existing psychological injury, which is consistent with Major depressive disorder with anxiety and psychotic symptoms and also consistent with Schizophrenia with anxiety and depressive symptoms."

1. Dr Hong's revised assessment of permanent impairment was a WPI of 17% for pre-existing impairment and a current WPI of 22%, leading to a conclusion of a WPI of 5% relating to the subject accident.

1. The re-examination was undertaken on behalf of the Panel by Medical Assessor Jones and Medical Assessor Newlyn on 2 July 2025. The assessment took place via audio-visual link through the MS Teams platform.
2. Present at the examination, also via audio-visual link was interpreter, Rose Haddad, National Accreditation and Authority for Translators and Interpreters No.: CPN1LJ74N. The language of interpretation was Arabic. The claimant was present in her solicitor's office and Medical Assessors Newlyn, Medical Assessor Jones and the interpreter were situated in their respective offices.
3. Their examination report now follows.
4. From early on in the interaction, it became apparent that it was likely to be a challenging assessment. The claimant spontaneously offered that she was "a bit confused"; she was holding her head in her hands, her eyes were barely open, and she requested from the outset whether she could refer to the notes she had made. She indicated she needed to look at her notes to confirm her date of birth. When asked why this was necessary, she responded that she did not know and then said her "memory is not stable."
5. There were other indicators of idiosyncratic health behaviour early in the assessment, including that the claimant, at about the 10-minute mark, started pouring water over her head scarf and head. There appeared to be no trigger for this and when asked why she was doing this, she responded that she did not know. When asked why she did not know why she was pouring water on her head (a very fundamental goal-directed behaviour that is likely to have had some explanation, even if trivial), she responded that she did not know.
6. Allowing the claimant time to explain her situation she indicated that she perhaps poured water on her head because she felt "pressured from all the questions", (there had only been very basic introduction questions by this point). She referred to the previous assessment (a medical assessment for the Commission) where the questions she was receiving made her "feel sick." She commented in the current assessment that she felt like she was going to die. The Medical Assessors offered that we seek assistance for the claimant and that the assessment could be terminated and she rapidly declined this offer and then became more animated and expressive and indicated that her circumstance "will be the same next time." All the above events had occurred within the first 10 minutes of interaction. The assessment ultimately went on to have a duration of approximately 120 minutes.
7. The Medical Assessors asked the claimant why she was at her solicitor's office and not at home, given her statements about her poor health. She responded that the solicitor had technical equipment that she did not have at home and also, "If something happens, [she] can be cared for from a medical point of view."
8. The claimant is a 62-year-old woman who reported that she is living in Chester Hill, where she has lived for approximately four to five years in Community Bridge Housing. She reported that her son is also on the lease and that because she has health conditions, he spends most of his time at her place. She said he also tends to his children, taking them to school. She said he is also studying. She said her son is aged 27 or 29, and he has a wife and two children; a four-year-old son and a five-to six-year-old daughter. She said that her son, her son's wife and their two children live 15 minutes away and "sometimes he goes to see his family."
9. The Medical Assessors offered the claimant an opportunity to discuss her health problems and the pressure she referred to (which had something to do with her pouring water on her own head). The claimant referred to the pressure relating to the travel time required for the appointment and that she was "not well." She said, "You think these questions are normal but for a sick person it is 'heavy like a mountain'." The claimant reported that it was 20 minutes travel time for the assessment on the day. She went on to say that her health situation was "not really about the distance", referring to the travel. She said that even when she is in her own house she feels, "the same effort and tiredness." She went on to say that all of the medications she is on make her "brain less." She referred again to the pressure that she is feeling.
10. The Medical Assessors asked the claimant about any other children. She reported she has a daughter who is married, has a family and three children aged around two, five to six and six to seven. They live approximately three-quarters of an hour's drive away.
11. The claimant reported she has five grandchildren in total and when asked if she gets to see them, she responded, "Sometimes." She said her children bring them to see her "from time to time." She spontaneously added that because of her "depression" she sees them and then they leave.
12. The claimant reported she is not receiving any income. When asked if she was receiving any Centrelink benefits, she responded that she was receiving the Disability Support Pension. When asked for how long she had been receiving this, she said that it had been since 2016 or 2017. The claimant was asked for which disability she received the Disability Support Pension, and she responded it was for "some mental illness" due to her husband's sickness. She reported she was the carer for her husband until he died, and after he died, she felt in shock for a while. She said this was around 2015. She said, at that time, she wanted to learn, forget the depression and the shock that she was under and the government wanted her to work or study so she went to TAFE. At TAFE, a teacher was bullying her, which made her very depressed, she attempted suicide and TAFE staff called an ambulance. She initially reported that she thought this was 2016 but on cross-checking with the documents the assessors suggested it may have been October 2017.
13. The Medical Assessors asked the claimant about her suicide attempt, and she said this was because her teacher was bullying her a lot and "treating [her] like a little girl." The claimant said she had been a teacher in her own country, and she felt she was being told to stand in the corner and "don't do this or do that". The claimant said she was already depressed and she became angry and tried to jump from the balcony. She said a teacher saw her, then they called an ambulance. The Medical Assessors asked the claimant if she stayed in hospital after that and she said she thinks she may have been in Bankstown Hospital in the mental health ward but could not recall how long she was in there. She said she was discharged to see a psychologist and a psychiatrist.
14. The Medical Assessors asked the claimant about her health conditions which were the reason she stated her son spends much of his time at her place, and with what tasks he assisted her. The claimant responded that she sees a lot of nightmares and that they are awful. She said that she has nightmares about the accident when she fell, hit the metal and fractured her knee. This required fixing. She reported she was told that if she falls over, she will do more damage. She reported that her son helps her with showering and with shopping. The claimant reported that her son helps her prevent falls, but sometimes he needs to pay attention to his studies and his family as well. She clarified and said that her son looks after her, however, if he needs to go and look after his family and study, he will. The claimant was asked if she managed independently when he goes to study and spend time with his family and she responded, yes. She went on to say that her son receives a Centrelink carer's pension.
15. On further exploration, the Medical Assessors learned that the claimant's son helps with showering sometimes and also helps her go to the toilet. She said that he helps her with sleeping and when the assessors enquired what this entailed, she said that he is there "if she needs anything." The claimant went on to say that she has National Disability Insurance Scheme (NDIS) support, including twice a week to help her shower, she also has cleaning assistance and gardening assistance if she needs. The Medical Assessors confirmed that the claimant needs physical assistance for showering and she responded, "One hundred percent." She went on to say that after the accident her knee was shattered for two years, she underwent significant surgery whereby a medical bar was inserted. She said after about three years the same metal bar became infected and inflamed, and she had to undergo further surgery. The claimant reported that with her knee she has problems sleeping, sitting, kneeling, she does not have any balance, and she feels like she is going to fall.
16. The Medical Assessors tried to clarify with the claimant what assistance she required with sleeping, and she said that if she sits on her bed and she wants to get up her son helps her getting up. He also holds her to walk when she goes to the toilet.
17. We asked the claimant about the assistance her son provided with respect to shopping and she said that sometimes he goes shopping and gets bread, milk, food and something for a salad. She reported that sometimes she cannot go by herself for long periods. She will go with him in the car, and she will stay in the car and he does the shopping.
18. The Medical Assessors asked about any other medical problems and the claimant reported that she suffers with respect to her stomach and every two years she has a gastroscopy. She said she has lumps in her gastrointestinal system and she has a B12 injection every three months and has this tested. She said she has problems with her colon with respect to gas, and stress, and strain, and said this was because she was "always stressed and depressed." She also has asthma, three disc problems in her back, and problems with her neck and both shoulders. She reported she has had cortisone injections in her hands and her heel.
19. The claimant referred to an incident in 2016 that made her "life go upside down" and caused her "mental health to get bad". She said the incident involved the Fire Brigade and that at the time they were new to Australia, it was not long after her husband had died and at the time she was very sick. She and her son were in a car and were travelling through a green light and a Fire Brigade vehicle hit them. She said this was on a very rainy day. (The claimant at this point in the assessment was splashing water on her face and holding her head in her hands.)
20. The Medical Assessors asked the claimant about what the effect of this accident was on her, and she said that they luckily had no injuries, no fractures and it was a minor hit, however the car was hit badly. She had minor bruising and took painkillers for two weeks and that was that. The Medical Assessors asked the claimant about the mental health impact from that accident, and she rather confusingly responded that like the year 2019 accident there were no injuries, no surgery, no pain and minor bruising.
21. The Medical Assessors tried to clarify again what had occurred from the 2016 accident given the claimant had referred to turning her life upside down and her mental health turning bad and she responded, "What do you mean?" The Medical Assessors reminded the claimant what she had said in the assessment, and she understood and answered that, with respect to the 2016 accident, on top of feeling depressed, the death of her husband and the bullying she was experiencing at TAFE, the accident "added to everything." She said she did not have much pain at the time. She spontaneously added that when a person is in pain their mental health is not great, in fact it "triples."
22. The Medical Assessors noted that when the claimant was discussing this accident she appeared to be writhing around a lot and her eyes were still closed. The Medical Assessors paused to address her possible discomfort and asked her why she was reacting this way and she said that she did not know. She said she felt a lot of pressure on her head, like there is a mountain on the top of her head and it was really heavy. We asked her if she was in pain and she said that she was. She also added that she had severe pain in her left leg. She said this was in the knee where she had surgery. She reiterated that she was in "lots of pain." She said that because she cannot sit for long, she has to lie on her back otherwise her back becomes sore.
23. The Medical Assessors asked the claimant how her mental health and general functioning was following the 2016 accident, given that she was feeling depressed, had experienced the death of her husband, the bullying at TAFE and the impact of the accident and she responded that "things started to get better." She stated that she was seeing a psychologist, a psychiatrist and a general practitioner every month, she was seeing a pain specialist, she had steroid injections in her wrist and her heel, and she was taking painkillers for her joints.
24. She then added that the accident in 2019 was "a big thing in [her] life." She reported that she "felt it stopped [her] life." She stated that she "had concentration" and that she "used to remember what [she] was doing", however "the 2019 accident ended [her] life." The claimant became more distressed at this point in the assessment and appeared teary when she said she was asking the Australian government for assistance because she is now an Australian citizen. She said she had suffered from the war in her country and that everything turned upside down and her circumstances turned upside down.

1. The claimant spontaneously began talking about the subject accident. She said she was shopping with her son, she went to get the groceries and she wanted to call him to go home, however her son had no phone reception. She said she went and took her salad ingredients, with her other shopping. She then said she was on the bus, the bus was travelling fast and then she fell on her knee and fractured her knee in two places. She suffered from pain. She reported having nightmares and trouble breathing and she was unable to go out or walk. She said her life became impossible and then she said tearily that she was, "finished." She commented that she previously was a teacher and had engineers, lawyers and doctors as students. She then stated, "No health, no body, no brains."
2. The Medical Assessors asked the claimant about her situation prior to the accident, and she said that of course she wanted to help and be useful in society. She said she wanted to work and earn her own money and not be unemployed. She said she wanted to go back to teaching. She offered that maybe she was going to get better, that she could remarry, and forget about all the problems. She said however in the year 2019, all her hope was gone. She said she became a disabled woman. The Medical Assessors suggested to the claimant that perhaps she could again get better, possibly remarry, and forget about everything in the past, and she responded that that was not the case because her leg is no good, her foot is no good, she needs a replacement and, "All the time is pain." She went on to declare that she could not marry.
3. The Medical Assessors asked the claimant about her reference to a knee replacement, and she responded that that could help but she does not want surgery; she wants alternative treatment. She said she unable to undertake the surgery because she is diabetic and she is scared of this and her other health issues.
4. The Medical Assessors again asked the claimant about her mental health problems for the period six to twelve months prior to the 2019 accident. The Medical Assessors thought that this was of particular relevance given the claimant's submissions regarding her ability to complete some basic day-to-day tasks "on the day of the accident" and that this represented some degree of remission or resolution of her previous psychiatric conditions. (Comment: the Medical Assessors considered that on face value this argument did not make sense from a psychiatric perspective.) The claimant said that during that period she had some tiredness, some sadness, some depression but that she "wanted to be better." She referred to the "thing" and "the pressure" being gone, and before the Medical Assessors had any chance to explore what the claimant meant in this regard, she went on to say that now all day she is crying, she wants to hurt herself, and she feels pain in her stomach which is related to her mental health. She added there was an "accident", and that two to three months before the assessment she took a knife and started running around with the knife in the streets and she said that three years after the accident she was admitted to hospital three times.
5. On questioning about the knife incident, she said that her neighbours saw her, they took the knife and called an ambulance, which took her to Bankstown-Lidcombe Hospital. The Medical Assessors asked her why she had a knife and she reported that she wanted to hurt herself. She said that she was, "Under shock from the accident and couldn't suffer anymore." She said she had pain, she had problems sleeping and she started to have nightmares.
6. The claimant returned to the narrative of the six to twelve months prior to the subject accident. She said that somehow, she started to feel better under the care of a psychologist and psychiatrist, and she somehow started to trust herself. The claimant again started to put water on her head during the assessment and when asked why she repeatedly said, "I don't know." She then said it was because of the pain from her leg which was getting too much. She also said that there was question after question, that she could not concentrate and that she felt pressure.
7. The Medical Assessors tried to clarify again what the claimant was meaning about the "accident" that occurred about two to three months before the assessment. She said that this was due to the pressure she is under and the pain she suffers. The Medical Assessors attempted to clarify to what pressure the claimant was referring to, and she said it was because of the pain that she has, the surgery that she has undergone, all the pain and that she cannot sleep. She said she has had lots of injections and medications and that the surgery she had to undergo made her more depressed and gave her a stronger idea that she wanted to end her life. The claimant said she cannot bear the concept of having another surgery.
8. Given the highly emotive and challenging nature of the claimant's presentation, the Medical Assessors attempted to clarify and summarise what the claimant had presented at that point in the assessment. The Medical Assessors were simply trying to lay out some chronology referring initially to the trauma that the claimant had referred to having experienced in Iraq, then the death of her husband, and before there was a chance to mention further aspects of the claimant's history that she had mentioned, she interrupted and said that the depression she had had previously, the trauma she had from the war, the death of her husband, the bullying she had experienced at TAFE and the accident in 2019 was, "all nothing compared to now."
9. The Medical Assessors asked her if there had been something that had occurred since the 2019 accident and she responded clearly that yes there had and that because of the metal she has in her leg as a result of the first surgery, she is in lots of pain, she was unable to get better, and she had a lot of sessions of physiotherapy. She reported there was a time she wanted to get up from her bed, she was unable to get up, her son was not there, she tried to hold her stick, she called her son, and then she fell and broke her right shoulder. She said that her son was asleep and that the cause of that fall was her leg.
10. The Medical Assessors attempted to ask the claimant about what she thought the impact was of the 2019 accident on her mental health, comparing prior to the accident and after the accident, and she responded by suggesting that the Medical Assessors were pressing her nerves and wanting her to be upset. The claimant referred to prior to the accident, stating that with all the help she had from physiotherapy, psychologists, psychiatrists, she would have been able to go back to work, recover and "see [her] life." She said that period did not include any surgery. She then added that the 2019 accident "finished [her] life."
11. The Medical Assessors again attempted to summarise some of her mental health history including referring to the problems from Iraq, the problems from her husband's death, any problems before and after the 2016 accident and also in the period leading up to the 2019 accident, and the claimant understood this and said, "Yes, it's still going on."
12. The Medical Assessors tried to clarify some points from the complicated history with reference to the documents, including that her son became her carer approximately around 2017, prior to the 2019 accident, and the claimant confirmed that he had. When asked why he became her carer she said that it was because of pain in her back from three disc problems, surgery on her right palm for the nerves, surgery in Syria on her left palm and problems in her stomach related to mental health, which led to vomiting. She said that she also had asthma and depression and that her son had to help her clean and mop the floor.
13. At the two-hour point in the assessment, the claimant reported that she needed some Panadol because she was in pain. She was holding her back and moaning. She requested water from somebody at her end of the assessment and said that someone had gone to get her something (presumably referring to Panadol). The claimant got out of her chair briefly and was moaning whilst doing this. When she returned, she asked that we could please hurry up and she said, "Maybe I'll end up in hospital."
14. The Medical Assessors, considering the claimant's reported difficulties, the protracted nature of the assessment and the challenges in gaining the specific information from the claimant, and the claimant's request to hurry up, deemed it appropriate to terminate the assessment as the Medical Assessors had attained sufficient information to form their opinion.

1. The assessment had a duration of two hours. The claimant's presentation was noteworthy in that there was significant focus on physical symptoms including pain. The claimant was highly emotionally demonstrative, and there was unusual behaviour including the claimant dousing herself in water on two occasions and not providing clear motivation for this goal-directed behaviour. She was somewhat vague and unclear with respect to her recall about her history, including such details of whether she was seeing a psychologist or a psychiatrist at various times. Even with prompting, she seemed unable to acknowledge or remember significant contact with mental health professionals and ongoing problems in the period leading up to the subject motor accident.
2. The claimant sat in her solicitor's office wearing a black top and a brown headscarf. She made poor eye-contact for much of the assessment, appearing pained and despondent, at times holding her head in her hands. At other times she was highly fluent in her speech and inclusive of details. There did not appear to be any formal thought disorder or delusional thought content. There was no evidence of acute perceptual abnormalities consistent with psychosis. There was discussion of self-harm and suicidal ideation in the two to three months prior to the assessment, but not in the present. Her mood had an element of helplessness and despair, particularly related to her ongoing pain and physical limitations.
3. There was a disability focus to her narrative and multiple references to being dependent upon others (primarily her son). The claimant's affect (expressed emotion) was highly pain and disability focused. There was significant illness behaviour, including pouring water on her head on two occasions, requesting paracetamol near the end of the assessment, and referring on more than one occasion to the pressure she felt from being asked questions (which were, at the time, quite straightforward and neutral in tone and intent) with the claimant referring to feeling like there was the weight of a mountain on her head.
4. Ultimately, the claimant appeared to be cognitively intact (she appeared to only refer to her notes to clarify her date of birth but no other details of her history that she provided). Her insight and judgement appeared intact at a very fundamental level. Rapport was limited, primarily by the claimant's focus on her symptoms and her illness behaviour, however it ultimately facilitated the assessment. The assessment was ultimately terminated as the claimant was indicating frustration and distress and because no further meaningful information was being obtained.

1. The claimant reported a narrative and presented at assessment as consistent with having significant long-term mental health problems and a considerable level of expressed distress. The Medical Assessors of the Panel considers that the claimant would satisfy diagnostic criteria for a Somatoform Symptom Disorder with predominant pain. She was preoccupied with her physical illnesses and pain, reporting that she required support and assistance related to these, even to the level of requiring assistance to shower, toilet and even with her sleeping behaviour. She appeared clearly overwhelmed by the totality of her health problems, indicating she was "a woman only breathing" and that she had "no ambitions in life."
2. The Medical Assessors of the Panel are of the view that the claimant's illness behaviour was not the total explanation of her presentation. The Medical Assessors deliberated at length and, considering the documentation of her pre-existing mental health problems, her subsequent mental health problems, and her presentation at assessment, concluded that the claimant had a longstanding mood disorder and that this had been exacerbated by the events of the subject motor accident and consequent injuries and complications.
3. Given the persistent and chronic nature of these mood symptoms, the Medical Assessors of the Panel consider that the most appropriate diagnosis under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR) is of Persistent Depressive Disorder. She satisfies diagnostic criteria in the following ways.
4. The claimant has had depressed mood for most of the day, for more days than not, for at least two years (Criterion A).
5. Whilst depressed she has experienced gastrointestinal upset, low energy, low self-esteem, feelings of hopelessness and problems with concentration (Criterion B).
6. It would appear that she has never been without the above symptoms for a period of more than two months at a time (Criterion C).
7. The claimant may have had periods where she would have satisfied diagnostic criteria for Major Depressive Disorder, but the overall clinical picture better represented a diagnosis of Persistent Depressive Disorder (Criterion D).
8. There does not appear in the history to have been any period of mania, next episode hypomania, nor cyclothymia (Criterion E), nor are her symptoms related to a chronic psychotic disorder (Criterion F).
9. Her symptoms are not due to the direct physiological effects of a substance or a general medical condition (Criterion G). Her symptoms have caused clinically significant distress as well as impairment in important areas of functioning (Criterion H).
10. Although the claimant may well have suffered from Chronic Post Traumatic Stress Disorder related to her earlier life trauma due to events in Iraq, these symptoms were not prominent at assessment and, as such, she would not attract that diagnosis as it relates to the motor accident. It should also be noted that the motor accident would not be considered a Criterion A, Post Traumatic Stress Disorder event.
11. Given the natural history of PTSD and the documentation available for the period leading up to the subject motor accident, the claimant's submissions that there was no longer a pre-existing diagnosis or that her persistent depressive disorder had all but resolved, was not accepted by the Medical Assessors of the Panel, consistent with their clinical knowledge and experience. The Medical Assessors of the Panel considered however that there had been nonetheless an exacerbation of the claimant's Persistent Depressive Disorder, given the further negative life events such as the subject accident and subsequent injuries.
12. On the balance of probabilities, the Panel accepts that the motor accident caused an exacerbation of the claimant's persistent depressive disorder.
13. Given the ongoing nature of the claimant's symptoms, she has essentially stabilised from a psychiatric perspective and is unlikely to change in her level of psychiatric impairment in the upcoming twelve months. The Medical Assessors considered that the claimant had a permanent psychiatric impairment and that it was appropriate to assess the pre-existing level of WPI and her current level of WPI, in order to determine the level of WPI due to the subject motor accident.

Previous psychological and psychiatric treatment (and it was possibly ongoing)

Prior to the accident the claimant was receiving the Disability Support Pension and her son was her carer. She was assessed for whole person impairment by her treating psychiatrist, Dr Ishrat Ali, who related to the motor vehicle accident on 28 May 2016, provided a report on 15 June 2017, having last seen her on 14 November 2016. Dr Ali had seen the claimant prior to that motor vehicle accident and was assessing her whole person impairment in relation to that accident. Dr Ali opined that the claimant had a mild impairment in self-care and personal hygiene, stating that she was mostly able to look after herself but occasionally appeared unkempt.

Dr Michael Hong, Psychiatrist, in his report dated 22 March 2024 assessed the claimant in relation to the subject accident in 2019. He referred to a hospital discharge summary dated 12 February 2019 (this was not sighted by the assessors) that referred to her being stressed, her depression being bad, she was suicidal daily, and her son was closing the doors and windows so that she could not leave the house. This appears to have been just before the motor vehicle accident. Dr Hong assessed a Class 3 Moderate impairment for self-care and personal hygiene at that stage, and he reassessed his previous assessment of a Class 4 in this category for pre-existing impairment.

There is a letter from her GP dated 11 July 2018, "To Whom It May Concern", that includes, "I strongly support The claimant's application in being granted a pension, The claimant will never be mentally or physically fit to enter any employment, as her psychological state is very severe, and she will require the aid of psychiatric, psychological, counselling and medication to ensure that The claimant is at least living."

There is an emergency department admission summary dated 2 October 2018 indicating ongoing thoughts of self-harm and suicidal attempt, that she was living with her son who needed to lock doors and windows and lock up all sharp objects to ensure safety, and that she had poor oral intake generally. (This was only four months before the 2019 accident.)

The claimant herself was not able to provide a meaningful or helpful account of her level of functioning in the period leading up to the motor vehicle accident.

Considering the information available to the assessors, the overall long-term picture of the claimant's mental health, and utilising their clinical judgement, they assessed that the most appropriate assessment in this category is of a Class 2 mild impairment.

There is little or no evidence of any, either from the claimant's reported narrative, or in the documentation, of the claimant being actively involved in any substantial social or recreational activities. There is evidence, for example, in her GP letter dated 11 July 2018 to support her Disability Support Pension application that, "The claimant has had nothing short of a very long history of trauma since the day the war broke out in Iraq. Everything that symbolised stability in her life was taken away from her, contributing to her spiralling mental health. The claimant is very much isolated and lonely and has no one in her life that supports her domestically, physically or mentally on a day-to-day basis." The assessors accept that the claimant may not have been an inherently socially and recreationally active individual, however the historical evidence supports assessment in this category of a Class 3, Moderate impairment, consistent with the guidelines "Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person, not actively involved, remains quiet and withdrawn."

There is no evidence of the claimant actively attending social events or partaking of any significant recreational activities. It should be noted that only four months prior to the assessment The claimant presented to hospital as suicidal, requiring her son's constant vigilance to prevent her from self-harm.

From the information available to the assessors, the claimant possesses a driver's licence but was previously not driving due to a lack of confidence. It appears she was capable of travelling independently to local or familiar areas, such as on the day of the accident. There is no evidence of her travelling independently to unfamiliar or distant locations. This is consistent with a Class 2, mild impairment.

The assessors accept that the claimant did not have a broad social network. There is no evidence of any strain in her close family relationships, for example with her children or grandchildren. Indeed, her son appears to have been highly supportive in this relationship. The absence of social relationships outside of relationships with her children is, utilising clinical judgement, consistent with a Class 2, mild impairment.

There is no evidence of the claimant partaking in any particularly cognitively demanding activities, or activities that require a degree of concentration, persistence and pace. There is some evidence of her relying on others, applying for a Disability Support Pension, having a paid carer, and although having previously been a teacher, partaking in no employment or academic activities leading up to the motor vehicle accident. There is significant evidence of long-term mental health problems and severe and significant symptoms such that, utilising clinical judgement, there was likely a Class 3, moderate impairment leading up to the motor vehicle accident. (Comment: The assessors note that having a Class 3, moderate impairment does not preclude activities such as getting dressed, going shopping, or catching a bus, as they appear in the claimant's submissions related to the day of the motor accident.)

It would appear that the claimant was near totally impaired with respect to employment capacity, and similarly relatively impaired with respect to other adaptive roles, for example as mother and grandmother. It appears that she was being cared for by her son prior to the motor vehicle accident, she had applied for a Disability Support Pension due to her chronic inability to work, for mental health reasons. She was referred to in various documents from her clinicians such that she was deemed unemployable in the future, for mental health reasons. Considering all factors, the assessors considered that the claimant had a Class 4, severe impairment. A Class 4 impairment takes into account the fact that The claimant reported that she had had some hope that she may have increased her ability to contribute with respect to her adaptive capacity, but that at the time of the accident, it was likely that there was a significant degree of impairment and if there was any adaptive capacity relevant to this category, it would have been infrequent, irregular and low demand. This is consistent with a Class 4, severe impairment.

1. Although the claimant was receiving treatment prior to the motor accident (although it is somewhat unclear exactly what this entailed), it does not appear to have had a significant therapeutic impact, particularly given her significant mental health problems over the preceding years.
2. Pre-existing WPI: 17%

The claimant focused on physical treatments and did not disclose current mental health treatment.

The claimant reported that she requires considerable assistance with respect to her self-care and personal hygiene. This appears to be from a physical perspective. She reported she receives domestic assistance in the form of NDIS support. She reported her son is also her paid carer. She said that although her son spends a considerable amount of time at her house assisting her, she otherwise lives alone and is able to manage from day-to-day when he is not present.

Although it is likely that on purely psychiatric grounds, The claimant would likely be able to look after herself at a basic level, given what appears to be a reasonable reliance on outside assistance, a proportion of this would likely be due to mental health reasons. Considering that the claimant's son was a carer previously, that he was required to ensure her safety at times, and that now there is a significant degree of physical limitation with respect to her day-to-day activities, the most appropriate assessment, from a psychiatric perspective, is a Class 2, mild impairment..

There is no evidence of the claimant attending any social events or partaking of any recreational activities (much as was the case prior to the motor vehicle accident). She is clearly able to leave her place of residence (therefore not a Class 4) and reported that she can socialise with her family when they visit. Overall, there is no evidence of suggest anything other than a Class 3, moderate impairment.

Although The claimant's reported narrative at assessment was somewhat vague and inconclusive, the assessors found no evidence that the claimant was travelling independently. The claimant referred to physical limitations with respect to walking, and these are not considered in this assessment. Utilising clinical judgement and considering overall the difference in the claimant's clinical status before and after the accident, this is consistent with a Class 3, moderate impairment.

The claimant's assessment of impairment in social functioning is essentially unchanged from before the motor accident. She maintains relationships with her children and grandchildren and has not formed other relationships outside of this, to our knowledge. This is consistent with a Class 2, mild impairment.

Again, there appears to have been no significant change in the claimant's level of impairment in this category since prior to the motor vehicle accident. She is able to live alone at times. She gave no evidence of any cognitively demanding or academic activities or pursuits, despite priding herself on having previously been a teacher.

Due to a multitude of factors, the claimant is totally impaired with respect to her adaptative functioning. She continues to be on the Disability Support Pension, continues to have a carer, continues to not have any employment and continues to not indicate much with respect to adaptive capacity related to this category.

Apportionment and pre-existing/subsequent impairment:

1. The Panel adopts the pre-existing impairment assessed by the Medical Assessors in the table above. In the Panel's view, there do not appear to have been any external subsequent events justifying any adjustment for subsequent impairment.

1. With respect to effects of treatment, the claimant continues to report very little in the way of treatment effect. The Panel finds that there is no adjustment for such.
2. Therefore, the Panel finds that the current WPI is 22%.
3. Subtracting the pre-existing/subsequent whole person impairment of 17%, the Panel concludes that the WPI caused by the motor accident is 5%.

1. The Medical Assessors of the Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
3. The Panel finds that the degree of permanent impairment of the claimant's psychological injury caused by the motor accident is 5% and therefore not greater than 10%.

1. The Panel has reached different conclusions in their assessment for the claimant's injury to those of the single Medical Assessor. Accordingly, the Panel revokes the certificate of the single Medical Assessor and issues a new certificate.
2. The new certificate of the Panel is attached to these reasons.

[5] The Guidelines applied by the Panel is the Motor Accident Guidelines Version 10.1 which commenced on 12 December 2025.

[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].

[9] These guidelines, effective from 1 June 2018, are applicable to motor accidents that occurred between 5 October 1999 and 30 November 2017.