review provisions apply. 4. The review provisions provide[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). 5. Part 5 of 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.[9] 6. 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 and may determine the proceedings solely based on the written application.[10] 7. The parties filed bundles of documents for the Panel's consideration.

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From

1 April 2023 the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries". 2. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. 3. For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks. 4. Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.

1. A threshold injury is defined in s 1.6(1) of the MAI Act:[11]

"(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following -

(a) a soft tissue injury,

(b) a psychological or psychiatric injury that is not a recognised psychiatric illness."

1. Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines a threshold injury to include an acute stress disorder and an adjustment disorder.
2. Part 1, cl 4(3) of the Regulations provide that any assessment must be made under The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR).
3. 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).
4. 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). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[12]
5. The Guidelines also contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 10 of the Guidelines commenced on 15 September 2025 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

"5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

5.4 Diagnostic imaging is not considered necessary to assess threshold injury.

5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person's current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the diagnosis of psychological injury. These clauses provide:

"Threshold psychological or psychiatric injury assessment

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

5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5-TR), Fifth Edition, 2013, published by the American Psychiatric Association.

5.12 Where the symptoms associated with the injured person's psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury."

1. Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13] In Raina v CIC Allianz Insurance Ltd[14] Campbell J stated:

"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."

Claimant's submissions dated 11 December 2024[15]

1. The claimant submitted that the Medical Assessor erred by failing to assess permanent impairment when this dispute was referred.
2. The claimant submitted that the Medical Assessor failed to consider whether there was a non-threshold psychiatric injury at any time noting the opinion of Dr Nagesh in July 2023.
3. The claimant submitted that the history recorded by the Medical Assessor differed from that reported to Dr Nagesh, specifically, that there was a loss of consciousness and the claimant only remembered waking up in hospital. It was submitted that the finding that the accident did not satisfy criteria A for a diagnosis of post-traumatic stress disorder was based on an incorrect history concerning the nature of the accident.

1. These submissions discussed both the alleged physical and psychological injuries caused by the motor accident.
2. The insurer referred to property damage photographs of the front of the insured vehicle that the insured vehicle rear-ended the claimant's vehicle with no indication of air-bag deployments.
3. The insurer referred to the history contained in the ambulance report.
4. The insurer referred to the testing done at Campbelltown Hospital which confirmed the history recorded by Dr Nagesh and that disclosed in the ambulance records that the claimant underwent and passed A-WPTAS on four occasions.
5. The insurer noted that the claimant had undergone no treatment for any reported psychological symptoms, and no psychological issues were reported in the general practitioner (GP) records or the claim form.
6. The insurer referred to the inconsistencies between the history recorded by Dr Nagesh and that recorded in the ambulance records such as the claimant self-extricated from the car, was ambulant at the scene, made a telephone call, a relative attended the scene and went to hospital with him.
7. The insurer submitted that the Eagles records, hospital records and property damage photographs do not support a significant motor vehicle accident consistent with criterion A.
8. The insurer submitted there was no evidence of head strike and loss of consciousness.

Insurer's submissions dated 7 January 2025[16]

1. The insurer noted the certificate was incomplete because the Medical Assessor failed to assess the degree of whole person impairment.
2. The insurer submitted that the Medical Assessor considered a diagnosis of post-traumatic stress disorder and referred to the findings of fact made by the Medical Assessor concerning the motor accident. It submitted that the Medical Assessor provided sufficient reasons of an absence of a diagnosis of post-traumatic stress disorder because the subject accident did not satisfy criterion A.
3. The insurer submitted that the Medical Assessor inquired with the claimant about the mechanism of injury and noted the claimant's history reported to him was consistent with the ambulance and hospital records.
4. The insurer noted that Dr Nagesh did not have the benefit of various medical records such as the ambulance and hospital reports. It noted that the Medical Assessor considered not only the claimant's history, but the medical records as well as property damage photographs.

1. The parties filed bundles of documents for the Panel's consideration.

1. The ambulance report recorded the following history:[17]

"O/A pt sitting in driver seat, this car was hit from behind a low speed and then pushed the car in front also at low speed. Witnesses state got out of his car looked around spoke on phone then sat back down into car. O/E Pt purposely scrunching up eyes and resisting limb movements, pt not answering any questions on purpose. Nil obvious facial droop, good equal breath sounds, Pt's brother arrived and spoke to pt, pt obeying requests. In triage answering questions."

1. The hospital record noted the accident, the claimant was unable to recall it, remembered only driving home from KFC and noted "no periods of LOC identified".[18]
2. The hospital discharge referral noted the rear end collision with secondary impact with a vehicle in front. It noted the ambulance report which reported the claimant talking on the phone at the scene but confused. The claimant was unable to recall the accident and only remembered driving home from KFC then in the gap in hospital. No periods of loss of consciousness were identified.[19]
3. The records identified left chest tenderness, amnesia and dizziness.
4. The certificate of capacity dated 23 June 2021 noted the bruised left chest, amnesia, confusion and poor concentration.[20]
5. The certificate of capacity dated 30 June 2021 referred to loss of consciousness and amnesia.[21]
6. The claim form completed by the claimant on 2 August 2021 referred to the motor accident causing left chest tenderness, amnesia and dizziness.[22]

1. Dr Nagesh was qualified by the claimant's lawyers and provided a report dated

31 July 2023.[23] The doctor described a rear end collision with the insured vehicle was travelling at 70 kmph causing the claimant to lose consciousness and waking up in hospital. The claimant was unable to self-extricate his vehicle. 2. The doctor noted that the claimant had physiotherapy, had not commenced on antidepressant medication and a referral to a psychologist had not been made. 3. Dr Nagesh noted the serious description of the accident and symptoms which included loss of sleep, reduced appetite, lost weight, lack of energy and motivation, feelings of worthlessness and hopelessness and inability to concentrate, nightmares and flashbacks, cessation of driving, hypervigilance whilst sitting in a car. The doctor diagnosed that the motor accident caused a post-traumatic stress disorder and a persistent depressive disorder. 4. In a separate report assessing permanent impairment, Dr Nagesh assessed mild impairments for self-care and personal hygiene, travel, social relationships and moderate impairments for social and recreational activities, concentration persistence and pace and adaptability. The overall impairment was assessed at 15%. 5. Dr Jonathan Herald, orthopaedic surgeon, was qualified by the claimant and provided a report dated 14 October 2022. The doctor opined that the claimant had essentially recovered from the physical injuries caused by the motor accident.[24]

1. The police report of the motor accident was consistent with the claimant's version but referred to a "slow impact".[25]

1. The claimant provided a statement dated 18 May 2024. The claimant was born in Laos and immigrated to Australia in 1990. He worked until 2012 when he retired.
2. Prior to the motor accident the claimant was in generally good physical and mental health and had no issues with memory retention.
3. The claimant described the rear end collision and being conveyed to hospital by ambulance. He described various physical and psychological symptoms caused by the accident including poor memory, depressed mood, loss of confidence, lack of energy, anxiety, nightmares, flashbacks, weight loss, irritability and insomnia.
4. The claimant stated that he is socially withdrawn, does not attend family functions, has lost contact with friends avoid driving but takes public transport to familiar areas or otherwise travels longer distances with his children.

1. Mr Phimphakaysone was examined by both Medical Assessors on 2 December 2025 who provided the following report:

Mr Phimphakaysone (the claimant) attended the re-examination alone. He had travelled to his lawyer's office and was assessed using his lawyer's videoconference suite. He was supported by a Laotian interpreter organised by PIC. The claimant reported he was able to clearly understand the interpreter. The interpreter reported the claimant was fluent in Laotian. Both medical assessors Canaris and Baker were present for the entire re-examination.

The claimant was born in the capital city of Laos (Vientiane) on 14 March 1948. He was aged 77 years at the time of this re-examination. He was the fifth child of a seven-sibling family. He said he had two younger brothers and four elder sisters. He completed year 10. After completing year 10 he progressed to Don Doak college. He completed a three-year electrical technician's course. He remembered his teacher as having arrived from France to teach. After completing his education, he worked for the government electrical company and connected the local houses to the emerging national power grid.

The claimant reported that his father was 90 years of age when he passed. His mother was about 82 years old when his died. His eldest sister had died aged 80 years. All of his sisters remained in Laos. All of his brothers had escaped Laos and were accepted a refugees in Australia. His two younger brothers live near him in south-western Sydney.

The claimant entered Australia about 40 years ago. He said he was married with his wife and five children. He said that his younger brothers were part of the Laotian military. They escaped Laos before the claimant had decided to flee.

The claimant said he was taken into custody with the communist government officials on two occasions. He said he would speak out opposing the teachings in the after-work meetings that were essential to attend whilst the new communist government consolidated power in Laos. The claimant said he would be placed in a government house and have to learn the new ways. The claimant called the process "brainwashing," he said he was required to be able to repeat from memory the new teachings. When he could achieve this essential function, he was released back to his wife and family. After the second episode of detainment, he and his family decided to flee Laos. The claimant said neither he, his wife or children were physically tortured.

The claimant saved up his money and purchased a river crossing with a boat man. He said the fee was very expensive. He was safely conveyed with his wife and family into Thailand. When in Thailand the family entered a refugee camp and the camp was supported by UNHCR. He and his family were processed and entered Australia to reunite with his brothers in Sydney. The duration from fleeing to entering Australia was about 2 years. He remembered flying to Sydney with his family. He said he was physically and psychologically well before entering Australia.

The claimant entered Sydney in 1990. He found employment working in a car battery factory. This first job lasted for about 3 years. He then found his second job working in a PVC pipe making factory. He remained in this role until his retirement 14 years later in 2007. He was in receipt of an old age pension.

In 2013 his wife decided to leave the marriage. She formed a defacto relationship with another Laotian man who was living near the family home. She remained in this relationship since. The claimant explained that he remained living in the family home and raised his five children. He said he would have incidental contact with the mother of his children should they both attend the local Buddhist Temple for festivals at the same time. He said he was polite and respect full as they were both at the temple - however he did not converse with her at any other time since her leaving the relationship in 2013.

After retiring from the work force, the claimant commenced caring for his children and his grandchildren. At the time of this re-examination he reported he had four grandchildren to his adult children's unions. He explained that he had lived alone in his own home, and he was not living with support from any of his adult children before the accident. He said he had developed the role of attending to his grandchildren and their school day transport needs. He would take and collect the grandchildren most days. He enjoyed talking to his grandchildren about their day and their developments at school. He would pick and return the children from the children's parental homes. He said he would often receive a late call from on of his children to collect the grandchildren as the partner had been delayed at work or in some other activity.

The claimant reported that he had first suffered from visual problems in about 1998. He had a surgical operation to his left eye. His vision improved and he continued to work and drive without difficulty or impairment.

The claimant reported that he had sustained a right (dominant) hand injury whilst working for the PVC company. He said he sustained a right index finger - distal phalanx injury. He had a K-wire inserted and after this surgical treatment the K-wire was removed, and he had right hand physiotherapy from a hand specialist. He recovered without impairment.

The claimant said that he had developed back pain from many years of lifting for the PVC pipe company he said his lawyer filled in NSW Workcover claim. He had physiotherapy and the matter resolved without further personal injury claims.

The claimant said he had not had a motor accident before this accident. He said he was a safe driver, and the accident had caused him to become very upset, as he wanted to know why the driver that caused the accident had 'decided to do what he did.'

The claimant reported he was treated for hypertension. He said he took on tablet daily for this condition but could not remember the tablets name and he had not brought the medication to the re-examination. He said he did not smoke tobacco; he did not drink alcohol. He did not use illicit substances, and he did not gamble. He was not allergic to any medication he had used in the past.

The claimant said he had never had a psychological or psychiatric condition before the motor accident. He had been resilient whilst living in Loas and he had succeeded in his escape from Laos with his wife and family.

The claimant advised that he had recently had his NSW Driver's licence ceased as he failed the reading test at the time of renewal. He said he was still able to see to travel alone to the re-examination venue. He said his vision was much worse at night. The claimant was noted to engage in characteristic behaviour that is known to be common in visually impaired people. The claimant could not focus or make eye contact using the video-conferencing system. He could stand, turn and find the handle of the door to invite the staff in to turn of the video-link on conclusion of the re-examination when asked by the medical assessors to perform this function for them.

The claimant said he had received a late call from his adult child prior to the motor accident on 10 June 2021. He said, as was frequently the case, he was requested to collect his grandchildren from their school. He had collected his grandchildren from their school and then returned to the grandchildren's home. He had left the grandchildren's home and was returning to his house when the accident happened.

The claimant was stationary waiting at a traffic light whilst waiting to turn. The two cars in front of him had stopped. The claimant had stopped and was the third car in the line of vehicles. Unexpectedly a car from behind crashed into the rear-ended of his car. The claimant did not know what speed the driver of the car that crashed into him was traveling.

The claimant's car was pushed forward but did not hit the second car in the line that was in front of him. The claimant said his airbags did not deploy. He reported having been 'shocked' by the accident. He said this was the first time he had because experienced the force of a crash. He was able to exit his car. He said he was upset and wanted to talk to the driver than had crashed into his car. He then returned to his car and waited for the ambulance to attend.

The claimant said he was in pain as his chest had hit the steering wheel. He said his head had not hit the steering wheel and he had not hit his head on any other part of the interior of his car.

The claimant said he was not unconscious at any time after the accident. He said he was upset and distressed and he used the word, 'shock' to describe his psychological condition caused by the accident.

After the ambulance arrived, he was transferred to Campbelltown Hospital. He was admitted to hospital for investigation. He was discharged after two nights of hospitalisation. He did not have any surgical treatment.

The claimant said he had not fractured any bones. He said that he had bruising to his anterior chest wall that had hit the steering wheel. He was discharged for follow up with his general medical practitioner (doctor).

History of symptoms and treatment following the motor accident

After discharge from hospital the claimant returned to live in his own home alone, as before the accident. He reported that his older grandchildren and daughters would visit to assist home at home.

The claimant said he continued to experience pain in his chest from where his chest had hit the steering wheel.

The claimant said he had become lonelier since the accident. He reported that he would have depressive ruminations about the accident and why the driver had not stopped. He reported that his energy was low and he was depressed in his mood. He described insomnia and recurrent intrusive memories of the accident. He described being startled from sleep, when two dogs in his neighbourhood would howl at each other during the night. He described his energy level as low, and he was less interested in continuing in his role as a helpful grandfather. He described loss of interest in socialising with his adult children and his grandchildren. He said his family had responded to his increased isolation by encouraging his teenage granddaughters to visit him most weekends after they had completed their weekly shopping.

The claimant did not report suicidal thoughts or thoughts about death or dying.

The claimant had continued to attend his doctor. He was not prescribed any psychiatric medication or medication to assist with insomnia. He was not referred to a clinical psychologist or psychiatrist. He said he was sad and upset that he never found out why the driver that caused the accident had "done this to me". He was asked to explain what he meant by this statement he spontaneously made during the re-examination and the claimant explained that his life was worse since the accident, that he had pain and that he was not able to enjoy his life as he had before the accident.

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

The claimant said that his vision had deteriorated since the accident. He explained than in 1998 he had surgery to his left eye. His vision improved and he continued working and driving his car. He said that when he had attempted to renew his NSW Driver's License, he was told that his vision was too poor for him to be granted a renewal. He said he had not driven a car since because his licence was not renewed.

The claimant has suffered a clinically significant psychological injury because of the accident. At the time of this assessment the claimant's psychological injury was best defined as DSM-5-TR F32.0 Major depressive disorder.

The claimant said he developed the following symptoms consistent with the psychological injury:

Depressed mood most of the day, nearly every day as indicated by the claimant reporting frequent depressive worries and loneliness.

Markedly diminished interest and pleasure in all or almost all activities nearly every day as demonstrated by his loss of capacity to experience happiness and pleasure when socialising with his adult children and grandchildren.

Loss of happiness with him no longer interested in sustaining old friendships or making new friendships.

Poor sleep with difficulty initiating sleep and remaining asleep with repeated waking from sleep when startled by unexpected noise, such as dogs howling.

Fatigue and loss of energy nearly every day with the claimant being less interested in attending his local temple and providing volunteer services of cleaning the temple.

Diminished ability to concentrate with loss of capacity to read and enjoy his television news like he had before the accident.

The claimant did not report that he was referred to a psychologist or a psychiatrist since the accident. His doctor had not prescribed any psychiatric medication. He was not admitted to a psychiatric hospital for psychiatric treatment as an in-patient.

The claimant presented as a neatly dressed man wearing clean clothes. He had neat long hair. He reported having attended the lawyer's office alone for the re-examination. The claimant was able to engage with the interpreter and was able to respond to the questions asked during the 100-minute examination.

The claimant described a sad, depressed mood. He spoke of increased loneliness since the accident. He did not make eye contact at any time during the re-examination, and this was due to his poor eyesight. He was able to concentrate for the duration of the re-examination. The pace of the re-examination was slow. He did require pauses to collect his thoughts and respond to the questions asked.

The claimant's speech was low in volume and slow in pace. He was able to describe how the accident had psychologically injured him. He spoke about fear of driving; however, he also spoke about his eyesight deteriorating and his vision during the day being much worse at night. His inability to make eye contact was consistent with the claimant's reported poor vision.

The claimant did not report suicidal thoughts or plans. He reported less interest in listening and watching television than he had before the accident. He described sadness that he was unable to collect his grandchildren from school. He was sad when he spoke about his granddaughters and daughters visiting him about once weekly to assist with his maintenance of his home.

The claimant was orientated in time place and person. He did not report any delusional ideas or psychotic symptoms. He was able to provide a coherent and cogent history regarding the accident and his life before and after this event.

The claimant was insightful into his condition. His judgment was normal.

The claimant reported that he lived alone in his own home. He said he was able to cook simple meals. He said he would pressure hose the cement around his home. He did not have lawn to maintain. He would grow vegetables to share with his extended family. He did not require assistance with his self-care and personal hygiene. He required assistance from his daughters and granddaughters to assist with the inside cleaning of the home and washing of his clothes.

The claimant reported less interest in attending his local temple for festivals than he had before the accident. He reported that he was less interests in his traditional practices than before the accident. He described enjoying his grandchildren's company less than before the accident. He was less interested in watching and listening to news from his country of origin and Thailand.

The claimant said he had stopped driving as his eyesight was too poor to drive day or night. He was able to use public transport to travel alone to familiar areas like his lawyer's office. He had not travelled internationally since the accident. Before the accident he would travel internationally for vacations and visits to his surviving family members.

The claimant said he had decided at the time that the mother of his children left the home and commenced a new defacto relationship with her new partner that he would not seek a new relationship for himself. He said he was lonely after the separation. He said the accident made him feel lonelier.

The claimant said he did not enjoy his grandchildren and family events as he had prior to the accident. He said his granddaughters and daughters would attend his home to visit about once per month. He said he would meet with his brothers about once each month.

The claimant reported that he was interested in current affairs in Laos and Thailand. He said he would listen to YouTube in Thai to stay current with developments in his region of interest. He said he read less but relied on YouTube and other media to stay up to date. He receives a newsletter from his local temple to advise him of up-coming events and festivals.

The claimant reported that he was no longer interested and would fatigue should he volunteer to help clean the temple. He had stopped cleaning as he was no longer able to assist the temple community in this manner. He was less able to help in the care of his grandchildren since the accident.

The claimant provided a consistent history similar to that which was provided to other medical assessors. He was able to describe his symptoms in more detail when provided increased time. The claimant did not over emphasis his condition. He was focused on his increased loneliness and sadness since the accident. He stated he wanted to an explanation from the driver that caused the accident as to "why he (the other driver) had caused the crash". He said he had spoken about these concerns to other medical assessors.

The DSM-5-TR F32.0 Major depressive disorder is the best diagnosis to define this claimant's primary psychological injury. The following DSM-5-TR criteria for major depressive disorder are as follows: Criterion A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.

Depressed mood most of the day, nearly every day as indicated by the claimant reporting frequent depressive worries of loneliness.

Markedly diminished interest and pleasure in all or almost all activities nearly every day as demonstrated by his loss of capacity to experience happiness and pleasure when socialising with his adult children and grandchildren.

Loss of happiness with him no longer interested in sustaining old friendships or making new friendships.

Poor sleep with difficulty initiating sleep and remaining asleep with repeated waking from sleep when startled by unexpected noise, such as dogs howling.

Fatigue and loss of energy nearly every day with the claimant being less interested in attending his local temple and providing volunteer services of cleaning the temple. Diminished ability to concentrate with loss of capacity to read and enjoy his television news like he had before the accident.

Criterion B. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

This criterion is met because the claimant has lost his social capacity to assist in the care of his local temple and his grandchildren by supporting his adult children with specific needs like attending to the collection of the grandchildren from school, before his recent deterioration in vision and ceasing of his driver's licence.

Criterion C. The episode is not attributable to the physiological effects of a substance or to another medical condition. This criterion is met because the claimant does not drink alcohol, smoke tobacco or use illicit substances or suffer from a medical condition which may cause depressive symptoms.

Criterion D. The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified an unspecified schizophrenia spectrum and other psychotic disorders.

This criterion is met because the claimant does not suffer any of the above conditions.

Criterion E. There has never been a manic episode or a hypomanic episode.

This criterion is met because the claimant does not suffer from any of the above conditions.

For these reasons the best diagnosis to define the claimant's psychological injury due to the accident is major depressive disorder.

Post-Traumatic Stress Disorder: The Medical Assessors agree that whilst the claimant does report suffering "shock" at the time of the accident, the medical assessment completed at the Campbelltown Hospital failed to find that the claimant was exposed to actual or threatened death, or serious injury because of the accident. The claimant was assessed by his doctor and was not referred for psychiatric or psychological treatment. The doctor not referring the claimant for psychological treatment is another indicator that after the accident the treating medical team did not assess the claimant as having exposure to actual or threatened death, or serious injury because of the accident. For these reasons the claimant fails to satisfy the minimum necessary criterion A for the diagnosis of post-traumatic stress disorder.

Persistent Depressive Disorder, The Medical Assessors both agree that whilst the claimant had been diagnosis with Persistent Depressive Disorder at the time of this re-examination, he had more symptoms than required for this diagnosed mood disorder. For these reasons this is not the preferred mood disorder diagnosis, and major depressive disorder is a better explanation of the claimant's condition at the time of this re-examination.

The claimant was independent in his lifestyle before the accident. He was retired and in receipt of his aged care pension. He was active in his local community; he contributed volunteer services to his local temple. He would assist his adult children with their childcare needs by providing essential transport for his grandchildren in relation to his grandchildren's school transport needs.

The claimant was a driver in the car that was hit from the rear by another driver whilst stationary waiting at traffic lights. The claimant suffered non-life-threatening injuries because of the accident. The claimant became depressed in his mood. He experiences his independence has deteriorated as he was less able to engage in his lifestyle and less able to contribute to his community temple and extended family. He became more reliant on his daughters and granddaughter. He enjoyed their company less since the accident.

The Medical Assessor both agree that the psychological injury major depressive disorder could be caused by the accident.

The Medical Assessors both agree that the motor accident caused the psychological injury of major depressive disorder.

1. The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or non-threshold as defined under the MAI Act.
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: Insurance Australia Group Ltd v Keen[27] and Insurance Australia Ltd v Marsh.[28]
3. The Panel adopts the reasoning in Lynch v AAI Ltd[29] that a psychological condition caused by the accident can be present at any time to establish that a psychological injury is not a threshold injury for the purposes of the MAI Act.
4. We also adopt the reasoning in Lynch[30] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
5. The Panel has met following the medical examination undertaken by the Medical Assessors set out earlier in these Reasons. We adopt the joint examination report of the Medical Assessors and add the following further reasons.
6. The insurer submitted that the claimant had undergone no treatment for any reported psychological symptoms and no psychological issues were reported in the GP records or the claim form.
7. We have considered but rejected this submission in considering its diagnosis.
8. We note that various histories are inconsistent with ambulance records. The claimant's diagnosis was made after consideration of all the forwarded documents and the presentation of the claimant at the re-examination accepting that he has limited English and limited understanding of psychological conditions. The claimant's capacity to report psychological symptoms in English is the most likely reason for lack of documentation in the GP records or the claim form. The diagnosis is the best fit after consideration of the forwarded documents as a whole in the context of the claimant's condition before and after the accident. The variation between persistent depressive disorder and major depressive disorder is best understood as the capacity of the claimant to describe through an interpreter his psychological injury symptoms and minor variation in diagnosis in clinical practice between types of depression is common and not unexpected.
9. The claimant's psychological injury commenced soon after the accident and has not remitted since. The claimant's psychological injury symptoms have included the presence of symptoms of depression. Whilst the severity and number of depressive disorder symptoms may have varied in severity the claimant was never absent of his psychological injury symptoms as best demonstrated by the change in his daughters and granddaughters support of him to maintain as much independence as possible enabling the claimant to remain in his home since the accident.
10. The claimant's submission that Dr Nagesh recorded the correct history and the original Medical Assessor recorded an incorrect history of the accident and the immediate aftermath is rejected. The history recorded by Dr Nagesh is grossly inconsistent with the ambulance report and other records.
11. Further, the Panel was cognisant that this was a live issue and obtained a precise account of the claimant's version of the circumstances of the accident. That version recorded by the Medical Assessors on the Panel is consistent with the version recorded by the original Medical Assessor, the ambulance report and that aspect of the police report referring to a slow impact. It is also part of our conclusion that the claimant was consistent with his account. Any error in the record keeping is probably attributable to the incorrect record of

Dr Nagesh. 12. In light of the diagnosis reached by the Medical Assessors it is unnecessary to conclude whether the claimant succeeds on the threshold issue based on the diagnosis made by

Dr Nagesh. However, for completeness we add that, for the reasons provided by the Medical Assessors on the Panel, criterion A for the diagnosis of post-traumatic stress disorder is not established. 13. The Panel concludes that the motor accident caused the major depressive disorder. The claimant has suffered and continues to suffer from a major depressive disorder caused by the motor accident. The psychological injury is not a threshold injury as defined in the MAI Act due to the nature, severity and number of symptoms which have occurred since the motor accident to date. These symptoms are sufficient to exclude the diagnoses of acute stress disorder and adjustment disorder as defined in the current version of DSM-5-TR.

1. The Panel measured the claimant's whole person impairment as documented in the psychiatric impairment rating scale (PIRS) table below:

The claimant reported that he lived alone in his own

home. He said he was able to cook simple meals. He said he would pressure hose the cement around his home. He did not have lawn to maintain. He would grow vegetables to share with his extended family. He did not require assistance with his self-care and personal hygiene. He required assistance from his daughters and granddaughters to assist with the inside cleaning of the home and washing of his clothes.

The claimant reported less interest in attending his local temple for festivals than he had before the accident. He reported that he was less interests in his traditional practices than before the accident. He described enjoying his grandchildren's company less than before the accident. He was less interested in watching and listening to news from his country of origin and Thailand.

The claimant was able to use public transport to travel alone to familiar areas like his lawyer's office. He had not travelled internationally since the accident. Before the accident he would travel internationally for vacations and visits to his surviving family members.

The claimant said he had decided at the time that the mother of his children left the home and commenced a new defacto relationship with her new partner that he would not seek a new relationship for himself. He said he was lonely after the separation. He said the accident made him feel lonelier.

The claimant said he did not enjoy his grandchildren and family events as he had prior to the accident. He said his granddaughters and daughters would attend his home to visit about once per month. He said he would meet with his brothers about once each month.

The claimant reported that he was interested in current affairs in Laos and Thailand. He said he would listen to YouTube in Thai to stay current with developments in his region of interest. He said he read less but relied on YouTube and other media to stay up to date. He receives a newsletter from his local temple to advise him of up-coming events and festivals.

The claimant reported that he was no longer interested and would fatigue should he volunteer to help clean the temple. He had stopped cleaning as he was no longer able to assist the temple community in this manner. He was less able to help in the care of his grandchildren since the accident.

Apportionment - pre-existing/subsequent impairment

There is no apportionment for a pre-existing or subsequent impairment.

No allowance is made because there has been no treatment.

Degree of permanent impairment caused by the motor accident - 6 %.

1. We make some observations of the classification for concentration, persistence and pace. We note the observations in Abdal v Insurance Australia Ltd[31] that a medical assessment only involves "the plaintiff taking about himself in response to the medical assessor's questions or prompts, and this was not said to be, nor was it likely to be, an intellectually demanding task or a task that involved complex instruction".
2. This is not what occurs in a normal assessment by a Medical Assessor in assessing a psychologically injured claimant and is not what occurred in the assessment undertaken by the Medical Assessors of the Panel. What occurred here and usually occurs is that the questioning by the Medical Assessor(s) over an extended period requires a claimant to maintain concentration, respond consistently to questioning, stay focused and remain coherent. The responses lead to the clinical observations made by Medical Assessors in determining whether and to the extent the claimant presents as impaired under this PIRS category for concentration, persistence and pace.
3. Abdal was recently questioned on this issue in Georges v Musico[32] when Griffiths AJ stated:[33]

"Secondly, if necessary, I would go a step further and state, with respect, that for the following reasons, Abdal is plainly wrong and I would decline to follow it. In particular, I respectfully consider that his Honour's approach involved an incorrect level of judicial review scrutiny to a decision which necessarily involved the application of high levels of medical expertise. I also respectfully consider that his Honour erroneously applied, outside the context in which they were made, statements in the joint judgment of Ballas."

1. Later in his reasons Griffiths AJ observed that the:

"Review Panel was plainly entitled to rely on its own clinical evaluation of Mr Georges based on the observations of two psychiatrists of how he performed during the 90-minute AVL re-examination" noting that it was an "intellectually demanding task."[34]

1. The observations of Griffiths AJ are consistent with cl 6.217 of the Guidelines which provides:

"The scale must be used by a properly trained medical assessor. The psychiatrist's clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis and based on the psychiatrist's clinical experience."

1. Furthermore, our observations for the classification for concentration, persistence and pace was not limited to the Medical Assessors clinical judgment of the examination. The claimant fairly admitted to a history of reading articles which showed significantly less impairment than that recorded by Dr Nagesh.
2. We find that the impairment is stabilised and permanent within the meaning of cl 6.19 and 6.20 of the Guidelines. The claimant's accident happened on 10 June 2021, more than four years ago. The claimant's condition is now well stabilised and unlikely to change by more than 3% WPI with or without medical treatment within the next 12 months. For these reasons the claimant's psychological injury is now a permanent psychiatric impairment.

1. The Panel has reached a different diagnosis from that contained in the original medical assessment. The claimant suffered a psychological injury which is not a threshold injury.
2. The Panel revokes the certificate issued by Medical Assessor Verma dated

7 November 2024 and issues a new certificate which is attached at the commencement of these reasons.

[2] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.

[5] Sections 3.11 and 3.28 of the MAI Act.

[11] This sub-section was amended by the MAI Amendment Act, Schedule 1[5].

[13] See s 3B(2) of the Civil Liability Act 2002.

[14] [2021] NSWSC 13 (Raina) at [65].

[27] [2021] NSWCA 287 at [40], [41] and [45].

[28] [2022] NSWCA 31 at [11], [21] and [64].

[29] [2022] NSWPICMP 6 at [70]- [73] (Lynch).

[31] [2025] NSWSC 478.

[32] [2025] NSWSC 1085.