1. Katherine Lazkani (claimant) was injured in a motor accident on 10 February 2022 (accident). She subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer). Liability for the claim has been admitted.
2. The claimant has referred her claim to the Commission for assessment under s 7.36 of the MAI Act. She seeks awards for non-economic loss, past economic loss, and future economic loss.
3. The proceedings were referred to me for assessment. A number of preliminary conferences have been held. At a preliminary conference held on 23 May 2025 the parties informed the Commission that there is a dispute about the claimant's permanent impairment as a result of a psychological injury caused by the accident. The dispute is to be the subject of an application for medical assessment.
4. Given the live medical dispute the position of the parties was that the proceedings should be referred to the stood over list subject to one matter. That matter relates to whether the claimant must undergo neuropsychological assessment at the request of the insurer and the consequences that flow from her refusal to do so.

1. The insurer wants the claimant to undergo neuropsychological assessment. The claimant objects. At the preliminary conference held on 23 May 2025 the insurer sought a direction from the Commission requiring the claimant to undergo the assessment. Directions were made for the provision of submissions by the parties addressing the insurer's application. As will be seen, the insurer varied its application to reflect the fact that the Commission's powers do not extend to making the direction the insurer initially sought and are limited to the remedies found in s 6.27.
2. In written submissions filed in support of its application the insurer argues that the request for a neuropsychological assessment "satisfies" s 6.27(1) because it is not unreasonable, unnecessarily repetitious or dangerous, and seeks directions that:

(a) it is to make an appointment at the earliest possible time;

(b) the appointment will be a joint examination "if the claimant wishes", and

(c) failure by the claimant to attend that appointment, without a reasonable excuse, will likely result in an exercise of the Commission's power to discontinue the assessment while the failure to attend an appointment persists.

1. Those directions are at odds with the insurer's submission at [5.4] that if the Commission concludes the request for a neuropsychological assessment satisfies s 6.27(1) because it is not unreasonable, unnecessarily repetitious or dangerous, and if the Commission also concludes the claimant does not have a "reasonable excuse" for her failure to attend that appointment, the Commission should direct that the damages assessment, "cannot be continued while the failure continues."
2. I have proceeded on the basis that:

(a) the insurer seeks findings that the proposed neuropsychological assessment is not unreasonable, unnecessarily repetitious, or dangerous and that the claimant does not have a reasonable excuse for her refusal to attend the assessment, and

(b) the insurer seeks an order that the assessment under s 7.36 of the MAI Act cannot be continued while the failure continues.

1. Section 6.27 is, relevantly, in the following terms:

"6.27 Medical and other examination of claimant (cf s 86 MACA)

(1) A claimant must comply with any request by the insurer -

(a) to undergo a medical or other health related examination by one or more health practitioners nominated by the insurer, or

(b) to undergo a rehabilitation assessment or an assessment to determine attendant care needs by a qualified person nominated by the insurer, or

(c) to undergo an assessment to determine functional and vocational capacity (including pre-accident or post-accident earning capacity) by a qualified person nominated by the insurer, or

(d) to undergo an assessment in accordance with the Motor Accident Guidelines,

not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.

(4) If the claimant fails without reasonable excuse to comply with a request under this section -

(a) the claim cannot be referred for assessment under Division 7.6 and any such assessment cannot be continued while the failure continues, and

1. The parties have filed a large volume of material with respect to the insurer's application. It is to be born in mind that under rule 67D(2) of the Commission Rules, a decision-maker for proceedings is not required to have regard to a document not specifically referred to in submissions made by a party to the proceedings.
2. I do not propose to summarise the material referred to by the parties in their written submissions. I have, however, considered all that material.
3. In its submissions the insurer refers to the following evidence:

(a) on 7 February 2017 Dr Hong My Linh Nguyen of Bass Hill Medical Centre noted the claimant "has been having symptoms of unable to focus, fogginess in concentration and doing activities";

(b) records confirming a diagnosis of brain cavernoma in or about July 2017;

(c) Dr Samuel Kim's note in July 2017 that the claimant suffered from hand tremors since 2012 and the reference to the claimant "not feeling right" and "depression/anxiety";

(d) the claimant's report to Dr Nayef Kanawati on 22 February 2022 that she had "trouble focusing";

(e) reference by the claimant in her statement dated 26 September 2022 to being "extremely forgetful", "unable to process information as easily", that she experienced "difficulty with concentration", "difficulty with basic problem solving and making decisions", "decreased thought process", and "difficulty with reading and writing, using a computer or doing any other intricate activity for extended periods";

(f) the report by the claimant on 15 August 2023 of "lack of concentration" recorded in the clinical records of Aya Medical Centre;

(g) reference in the allied health recovery request dated 7 May 2024 to the claimant reporting "increased lethargy" and "poor/low motivation";

(h) the claimant's particulars dated 6 March 2024 that record she "feels perpetually tired and lacking in motivation";

(i) the claimant's report on 6 August 2024 that she was "feeling like she is disassociating" and "hasn't been concentrating at work, finding herself making errors", as recorded in the clinical notes of Mindwise Health & Wellbeing;

(j) the claimant's report on 3 September 2024 that "at work she feels fast movements overwhelm her", as recorded in the clinical notes of Mindwise Health & Wellbeing;

(k) the record in the clinical notes of Mindwise Health & Wellbeing dated 26 November 2024 that the claimant was "hyperfocused on work/paper work";

(l) reference in the claimant's submissions in the application for damages assessment to her being "forgetful and often forgets the children's names at school", and

(m) reference in the claimant's vocational and functional assessment report dated 23 August 2024 to the claimant "experience[ing] notable deficiencies in concentration impacting her ability to attend to tasks effectively."

1. In her submissions, the claimant refers to the following evidence:

(a) the claim form;

(b) the reasons of Medical Assessor Roberts dated 4 December 2023 in which he recorded the following history:

"...She was also diagnosed with cavernoma in the parietal lobe of the brain. This bled in 2017 and led to compromised spatial awareness. She explained that she has difficulty lining things up and this undermines her ability to reverse park. Otherwise, she does not encounter any difficulty driving the symptoms have largely resolved. She undergoes follow-up MRI scans.";

(c) Medical Assessor Assem's reasons dated 24 May 2023;

(d) Dr Rastogi's report dated 24 May 2024, in particular the doctor's diagnosis of major depressive disorder and post-traumatic stress disorder and her finding that the claimant had a moderate impairment in concentration, persistence and pace caused by the accident;

(e) the referral by Dr Al Aukidy for an MRI of the brain on 30 June 2017;

(f) the brain MRI findings of a 1.1cm cavernoma;

(g) the referral to Dr Dexter, neurologist, in July 2017;

(h) her statement dated 16 May 2025, and

(i) the 17 October 2017 and 6 July 2018 brain MRI scans.

1. In support of its application the insurer relies on written submissions dated 4 June 2025. The submissions record background to the application, including that the claimant alleges she suffers cognitive issues as a result of the accident.
2. At [2] the insurer refers to what it submits is evidence of pre and post -accident "cognitive complaints". The submissions acknowledge there is no evidence of head trauma from the accident.
3. The evidence referred to by the insurer includes the claimant's statement dated 26 September 2022, wherein she makes reference to being "extremely forgetful", that she is "unable to process information as easily", experiences "difficulty with concentration", "difficulty with basic problem solving and making decisions", "decreased thought process", and has "difficulty with reading and writing, using a computer or doing any other intricate activity for extended periods".
4. The submissions refer to particulars provided by the claimant and matters recorded in clinical notes, medical reports, and the claimant's submissions.
5. The insurer argues that s 6.27 places a "prima facie obligation" on the claimant to co-operate. The insurer submits that the onus of "nullifying" that obligation, by proving that an appointment is unreasonable, unnecessarily repetitious or dangerous, rests on the claimant. In the insurer's submission the claimant has not satisfied that onus.
6. The insurer submits:

(a) the claimant has not been assessed for cognitive impairment by a neuropsychologist, therefore the request for the examination is not repetitious;

(b) an examination with a neuropsychologist is not dangerous;

(c) a neuropsychologist is the only expert who can assess and measure functional impairment and its effects on performance domains, and provide an opinion about whether cognitive deficits are genuine;

(d) it requires a cognitive assessment to assess memory, attention, language, and problem-solving because the claimant alleges that those functions are diminished as consequences of the accident;

(e) assessment with a neurologist will not address these issues. A neurologist can identify a diagnosis and cause of a deficit, but they cannot assess the extent of incapacity or the measure of functional change. Therefore, assessment by a neuropsychologist is necessary and reasonable for assessment of the claim;

(f) the claimant particularises cognitive impairment as a significant component in her claim for damages. It would be unfair and prejudicial for the claimant to allege that she suffers cognitive impairments, which affect her work and other activities, while preventing the insurer from having the scope and extent of that cognitive impairment properly assessed;

(g) if it is not permitted to obtain a neuropsychological assessment, the claimant should not be permitted to seek damages in connection with alleged cognitive impairment, and it would be procedurally unfair and a denial of natural justice if damages were to be awarded on that basis, and

(h) if a damages assessment decision is made, and it incorporates damages paid for cognitive dysfunction, without expert analysis or assessment of the scope of that dysfunction, it will have been prejudiced and the decision "might be amenable to judicial review".

1. The insurer argues that if it is found the request for a neuropsychological assessment satisfies s 6.27(1) because it is not unreasonable, unnecessarily repetitious or dangerous, and if it is also found the claimant does not have a "reasonable excuse" for a failure to attend that appointment, a direction should be made that the damages assessment cannot be continued while the failure continues.

1. The claimant's submissions record that she has not alleged at "any point" that she suffered head trauma in the accident or that she suffered a brain injury or "any related neurological injury or condition".
2. The submissions state that the claimant alleges that she suffers from psychiatric injuries "as described by [Medical] Assessor Samson Roberts and Dr Rastogi" that manifest themselves, in part, by a cognitive deficit in the form of a moderate impairment of her concentration, persistence and pace. These matters, she argues, in the absence of any alleged head trauma, are properly assessed by qualified psychiatrists, not neuropsychologists. She submits that her "issues" with concentration are not as a result of "cognitive impairment".
3. The claimant "acknowledges" that she had a limited history of cognitive complaints prior to the accident due to the diagnosis of a brain cavernoma.
4. The claimant argues she has suffered a psychiatric injury which has been assessed by qualified psychiatrists utilising "agreed and accepted tools" for their assessment, including the Psychiatric Impairment Rating Scale (PIRS) scale. She repeats that she is not suffering from a brain injury and is not alleging any such organic complaint. There is, in her submission, no basis for her to be assessed by a neuropsychologist.
5. The claimant submits that any request by the insurer to attend an examination with a neuropsychologist is "at the very least" unreasonable. It is further submitted that the provision "allows a claimant not to comply" where a request for an examination or assessment is either unreasonable, unnecessarily repetitious or dangerous.
6. The claimant argues that in circumstances where she does not allege a brain injury or head trauma but does allege a psychiatric injury, it is appropriate for her to be examined by a psychiatrist. Similarly, where physical injuries are alleged, it is appropriate for her to be examined by an occupational physician. The submissions record that the claimant has, at the request of the insurer, attended examinations by Dr Junger, psychiatrist, and Dr Mitchell, occupational physician.
7. In the claimant's submission, it is not reasonable for her to be required to submit to a neuropsychological examination where no brain injury or head trauma is alleged.
8. In the claimant's submission, where "the relevant injury" is psychiatric, and where she has been assessed by a psychiatrist qualified by the insurer, the insurer's "request" that she undergo neuropsychological assessment is unreasonable and unnecessary.
9. The claimant argues that there is no denial of procedural fairness where she has provided all her past medical records, has identified the basis of her claim in full, and the insurer has qualified a medico-legal psychiatrist to assess her.
10. The claimant's position is that the insurer has the evidence it reasonably requires to meet her claim and that she has met her obligations under s 6.27.

1. The claimant's statement dated 26 September 2022 records that in 2017 she was diagnosed with a cavernoma[1] in her head and was treated for that condition. She states that the condition has remained stable and that she was "due for another check-up in 10 years". The claimant also described her post-accident symptoms that include being "extremely" forgetful, and unable to process information as easily, having difficulty with concentration, difficulty with "basic problem solving and making decisions", and "decreased thought process".
2. In her statement of 16 May 2025, the claimant again addresses her symptoms, including those referred to at [19], [22], and [34].
3. Particulars provided to the insurer dated 6 March 2024 record that as a result of the accident the claimant suffered injuries to her thoracic spine, cervical spine, both shoulders and knees, post-traumatic stress disorder and major depressive disorder. She also particularised "injuries and disabilities" that included physical and psychological symptoms. The particulars record (among other things) that she "feels perpetually tired and lacking in motivation" and that her sleep is broken and she does not feel rested on waking.
4. The claimant's written submissions provided in support of her application for assessment of damages refer to physical and psychological injuries, symptoms, and disability. There is, as recorded in the insurer's submission, reference to the claimant being forgetful.
5. It is clear on the evidence before me that the claimant's case is, relevantly, that she suffered a psychiatric injury as a result of the accident and that this injury has resulted in functional deficits. The claimant does not allege that she suffered either a head injury or a brain injury as a result of the accident. Nor does she allege that she suffered a neurological injury or condition.
6. To the extent that the injuries and disabilities alleged by the claimant can be characterised as "cognitive issues", "cognitive complaints", "cognitive deficits", or "cognitive impairment", it is clear her case is that those issues and/or complaints are the result of the psychological injuries she suffered in the accident. As her written submissions filed in relation to the insurer's application make clear at [17]:

"The Claimant alleges that she suffers from psychiatric injuries (as described by [Medical] Assessor Samson Roberts and Dr Rastogi) that manifest themselves, in part, by a cognitive deficit in the form of a moderate impairment of her concentration, persistence and pace".

1. Without attempting to reach a firm conclusion on the medical issues between the parties, the claimant's submission in this regard finds support in the opinions of Drs Rastogi and Junger: Chopra v State of New South Wales (South Western Sydney Local Health District) [2023] NSWCA 142.
2. In her report of 24 May 2024 Dr Rastogi recorded a range of symptoms reported by the claimant, including a "fog in her brain", that she had lost her confidence, and that her memory and concentration are poor. The doctor diagnosed major depressive disorder and post-traumatic stress disorder. With respect to "concentration, persistence and pace"[2] the doctor found there was a moderate impairment:

"...as she feels tired and exhausted and has difficulty with finishing complex tasks. She is distracted with poor ability to multitask, reduced pace and struggles with comprehension".

1. The symptoms referred to by the doctor relate to the psychological injuries she diagnosed.
2. Dr Junger, psychiatrist, reported to the insurer's solicitor on 27 May 2025. The doctor recorded that the claimant:

"...had a cavernoma in 2017 which bled at this time. [She] had another flare up in 2019. [The claimant] will use prednisone during a flare up. At the time of the cavernoma bleed she felt a severe headache [the claimant] had visuospatial problems."

"...[The claimant] reports that the neurological symptoms for the cavernoma improved and did not impact upon her ability to do further studies in 2018 and 2019"

"The fogginess and difficulties in concentration occurred following the cavernoma and have resolved and were not an enduring difficulty."

1. In arriving at a diagnosis of a major depressive illness and an adjustment disorder, Dr Junger recorded that the claimant: "...reports problems with concentration due to ruminations about the accident". In the doctor's opinion the claimant's "current presentation is not a progression of pre-existing conditions".
2. In Dr Junger's opinion the claimant's:

"...accident related injuries reduce her resilience from an employment perspective, her endurance from an employment perspective and do impact upon, for example, concentration because of re-triggering some of her trauma re-living symptoms..."

1. There is no dispute that the claimant had a pre-existing cavernoma in her brain. She does not allege this condition was made worse by the accident. Both Dr Rastogi and Dr Junger were aware of the pre-accident diagnosis of cavernoma. Neither doctor suggested that the symptoms reported by the claimant following the accident were attributable to that condition.
2. The insurer does not argue the proposed neuropsychological assessment is required to address the cognitive impact of the cavernoma.
3. At [2.2]-[2.18] of its written submissions the insurer refers to evidence of pre and post-accident "cognitive complaints". The insurer does not, however, explain how or why a neuropsychological assessment is relevant or required to address those complaints. It does not, and could not, argue that such an assessment would provide evidence of the claimant's pre-accident cognitive functioning. There is no evidence of a neuropsychological assessment having been carried out pre-accident against which a comparison could be made.

1. The claimant's case is that her "cognitive deficit" is a result of her accident caused psychological injuries. The term "cognitive deficit" has been used in the claimant's case to describe complaints she has reported post-accident with respect to her functioning in realms such as concentration and memory, processing information, problem solving and making decisions.
2. Doctor Rastogi attributed these complaints to the accident caused psychological conditions she diagnosed. Dr Junger recorded the claimant "feels she is slower cognitively" and reported problems with concentration "due to ruminations about the accident". The doctor attributed those complaints (and others) to the claimant's psychological injuries.
3. The impact of the claimant's psychological injuries on her functioning is a matter for psychiatric opinion. The insurer has had an opportunity to meet this aspect of her case; the claimant having been assessed at its request by Dr Junger.
4. Dr Junger did not recommend neuropsychological assessment of the claimant. The insurer has not identified any expert evidence supporting the need for the claimant to undergo neuropsychological testing.
5. The mere assertion in the insurer's written submissions that neuropsychological assessment is required does not establish that such an assessment is reasonable, necessary, or required to meet the claimant's case. The insurer's application is made on the basis of a non-medical forensic decision by it and its lawyers.
6. The insurer's submission that a neuropsychologist is the only expert who can assess and measure functional impairment and its effects on performance domains and provide an opinion about whether cognitive deficits are genuine, is not supported by evidence. Further, this submission squarely raises the possibility that the insurer is using the assessment to impugn the claimant's credit. If so, that would not be a proper purpose for a medical examination and would be unreasonable: Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567 at [17], Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019, Boral Transport v Gulic [2013] NSWCA 150, Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136.
7. I reject the insurer's submission that, in circumstances where the claimant particularises cognitive impairment as a significant component in her claim for damages, it would be unfair and prejudicial to prevent it from having the scope and extent of that cognitive impairment properly assessed. The insurer has had the opportunity to meet the claimant's case. The claimant's refusal to undergo a neuropsychological assessment will not result in a denial of procedural fairness.
8. On the evidence before me, neuropsychological assessment of the claimant is not relevant to the issues in dispute between the parties.
9. To require the claimant to attend a medical assessment that is not relevant to the issues in dispute would be unreasonable.
10. For the purposes of s 6.27 of the MAI Act I find the claimant has a reasonable excuse for not complying with the insurer's request that she attend a neuropsychological assessment because such an assessment is not relevant to the issues in dispute and the request is unreasonable.
11. I decline to make the order sought by the insurer.
12. The proceedings are referred to the stood over list.

[1] A cluster of abnormal blood vessels - see Dr Michell's report dated 23 April 2024.

[2] One of the 6 areas of functioning in the PIRS: see Motor Accident Guidelines cl 6.201-6.228.