Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. revokes the certificate issued by Medical Assessor Fukui on 29 July 2024, and
2. certifies that the psychiatric or psychological injury caused by the motor accident is not a threshold injury for the purposes of the Act

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

1. [BSI] was involved in a motor accident on 11 May 2021. He says he was driving on the M4 when a truck with a trailer merged into his lane suddenly and unsafely causing a collision and forcing the claimant into a barrier on his right.
2. [BSI] says he sustained physical and psychological injuries in the accident and made a claim for statutory benefits against QBE, the third-party insurer of the vehicle that he says caused his accident.
3. A medical dispute about whether the claimant's injuries were threshold injuries or not arose in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
4. On 25 October 2022, Medical Assessor Fukui determined that the claimant has an adjustment disorder but not a post-traumatic stress disorder. As an adjustment disorder is a threshold injury and she did not diagnose a post-traumatic stress disorder, she determined the claimant's only injuries caused by the accident were threshold injuries.
5. On or about 21 December 2023 [BSI] applied to the Commission for a further assessment of the threshold injury dispute and on 29 July 2024 Medical Assessor Fukui determined [BSI] had a persistent depressive disorder, a driving phobia and an alcohol use disorder all of which were non-threshold injuries.
6. The insurer lodged an application with the Commission seeking a review of the medical assessment. On 3 October 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 21 May 2025 the President's delegate convened this Panel to conduct the Review.

1. The insurer had filed a bundle of 441 pages with the application for review in August 2024 and the claimant's bundle filed with the reply in September 2024 was 743 pages.
2. After the allocation to the Panel, almost a year after the application was lodged, the Panel issued directions to the parties requesting updated GP, psychiatrist and psychologist records. The Panel asked the parties to consider filing only documents relevant to the claimant's psychiatric injuries.
3. In response the insurer provided a bundle of more than 900 pages and the claimant provided a bundle which comprised 127 pages.
4. The Panel met on 3 September 2025 to discuss and decide how the Review would proceed. The Panel reported to the parties as follows:

(a) the Panel noted the various diagnoses made by examiners and assessors and advised:

"The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnoses of the original Medical Assessor or the diagnoses of the treating doctors or medico-legal experts or the particular diagnosis that may have been included in the application or reply form";

(b) the Panel referred to the cases which suggested an aggravation of a pe-existing non-threshold injury was also a non-threshold injury, and

(c) the Panel requested some additional documents and information relating to the claimant's 2016 accident.

1. The parties were advised of the re-examination date, and the claimant was directed to attend. The Panel was advised that the claimant settled his 2016 accident claim in May 2019. The Panel was also advised there were no expert psychologists or psychiatrists qualified to provide expert evidence in relation to that claim.
2. The claimant attended the re-examination on 29 October 2025 at 1.00pm. The Panel met on 9 December 2025 to discuss the re-examination findings and in order to finalise the Review.

1. [BSI]'s motor accident claim is governed by the provisions in the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
2. While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits payable. One of these restrictions is that if the only injuries sustained by the injured person are "threshold" injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident[1].
3. For those persons injured due to the fault of the owner or driver of a motor vehicle in the use or operation of that vehicle, a claim for damages can be made however, damages cannot be recovered if the claimant's only injuries are "threshold" injuries[2].

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

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

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

1. The Guidelines provide the method of determining whether an injured person's mental health disorder is a recognised psychiatric illness or not. If the claimant has a disorder that is not recognised in the DSM-5-TR, that injury must be a threshold injury. The method set out in the Guidelines (DSM-5-TR) also provides for the diagnosis of an adjustment disorder or acute stress disorder. While they are both recognised psychiatric illnesses, they are both threshold injuries in accordance with cl 4(2) of the Regulation).

1. If there is a dispute about whether an injured person's injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Fukui's, further medical assessments and the review of medical assessments by this Panel[5].
3. Where there is evidence establishing that the accident caused a non-threshold injury, at any time after the accident, a finding must be made that the accident caused a non-threshold injury even if the injury has healed, or the claimant has recovered from the injury, or the condition is in remission at the time of the medical assessment[6].
4. If the claimant has a pre-existing non-threshold psychiatric condition (such as post-traumatic stress disorder) and the evidence establishes that a later accident caused or materially contributed to a worsening of that pre-existing condition, that aggravation will be also be a 'non-threshold' injury[7]. An aggravation of a pre-existing threshold psychiatric condition (such as an adjustment disorder) may be a new injury, but it will also be a threshold injury.

1. The current proceedings relate to Medical Assessor Fukui's further assessment of the threshold injury dispute. In order to fully understand that assessment (and the parties' submissions) the previous assessment needs to be considered.

1. Medical Assessor Fukui examined the claimant on 3 August 2022. She confirms she was asked to assess "PTSD with significant negative mood (depressive) symptoms."
2. The claimant had lost his job six weeks before the assessment having taken leave without pay and using up all his sick leave after the accident and he said he was made redundant. He says his employer had determined his injuries were not work related.
3. The claimant denied a post psychiatric history and said he had high blood pressure before the accident. [BSI] said he was a social drinker consuming one to two glasses of wine.
4. Medical Assessor Fukui has a consistent history of the accident and records the onset of physical symptoms on his way to work and disrupted sleep due to pain. The claimant experienced intrusive thoughts which were not true flashbacks, and he had anxiety when he saw trucks, but he continued to drive. He became more socially withdrawn, stopped caring for himself, missed meals and lost weight. The claimant said he increased his alcohol consumption drinking up to half a bottle of spirits. He was bitter and angry about his employment situation and his employer's decision that his accident was not work-related. The claimant said he was prescribed anti-inflammatories but could not remember their names and said that made him feel worse.
5. He prefers to be alone and while he does not play sport anymore, he will go to events.
6. She noted the police report indicated cosmetic damage to his vehicle only. She also noted the claimant continued to work after the accident until Covid and it was then that his social isolation began.

1. The Medical Assessor examined the claimant on 27 June 2024. She confirms at [2][8] that she was asked to assess a post-traumatic stress disorder and alcohol misuse disorder.
2. Medical Assessor Fukui records at [8] - [10] the following history from the claimant:

(a) he is 59, married with five children two of whom lived at home;

(b) he came to Australia from Vietnam 40 years ago as a refugee "boat people";

(c) the claimant obtained qualifications and worked in a variety of roles but became a manager in construction for a railway company. He lost his job six weeks before the medical assessment with Medical Assessor Fukui;

(d) the claimant denied a past psychiatric history;

(e) the claimant said he was a social drinker before the accident and "consumed one to two glasses of wine";

(f) he had a "minor motor accident" on 6 December 2016 sustaining physical injuries to his neck, shoulder and back and he fully recovered and suffered no psychological injury;

(g) before the accident he used to play squash, soccer and go to the gym and he played cricket;

(h) the accident occurred on his way to work when a truck attempted to merge into his lane and collided with his vehicle on the front passenger side;

(i) the truck driver was unaware of what happened, and the claimant sounded his horn, got his attention and they both pulled over and exchanged details. The claimant's airbags did not deploy, and he got out of the vehicle, took photos and telephoned his employer before continuing on his journey to work;

(j) he did not feel injured at the time but said he had shoulder and neck pain while at work, went to a medical centre and was advised to take a week off work. He did not heed that advice and returned to work the next day;

(k) he has had surgeries to both his shoulders and sustained a fractured toe after falling due to intoxication, and

(l) he has chronic pain in his shoulders, arms, neck lower back and legs to his toes.

1. The claimant reported disrupted sleep due to pain and discomfort. He was overthinking the accident and had intrusive thoughts but no true flashback phenomenon. He would have anxiety when he saw trucks. He continued to drive to work but stopped because of Covid lockdowns and worked from home. His wife now does most of the driving. He has not driven on the M4 Motorway (where the accident happened). His psychologist has encouraged him to drive. He described a panic attack in February 2024 when he saw a truck and rear ended the vehicle in front of him. He pulls over when he sees a truck and is anxious in a car. He can take buses and trains.
2. He reported feeling bitter about his employment situation because they said his accident was not work-related. He was irritable, angry, socially withdrawn and isolated. He reported eating once a day and losing 10kg. He says his alcohol consumption has increased, and he drinks half a bottle of spirits to relax and numb his pain. He was drinking in the morning but now delays drinking until after lunch and has suffered blackouts but denied being an alcoholic.
3. He continues on antidepressants Duloxetine and Mirtazapine and sees a psychologist once a month for over two years but has not seen Dr Rastogi since 2023.
4. Medical Assessor Fukui made the following comments about the claimant's consistency:

"Having reviewed documents which were not available at the time of my previous assessment in August 2022, I noted a number of inconsistencies in [BSI]'s history. It is my opinion that there are omissions and embellishment of symptoms in contrast to the history he provided during the earlier threshold injury assessment."

1. She put various inconsistencies to the claimant who said his memory was not good and his concentration has been affected. He did not deny what was put to him. She formed the view the claimant was an unreliable historian.
2. Medical Assessor Fukui at [19] offered a diagnosis. She referred to her previous decision and her finding of an Adjustment Disorder and that the claimant's accident did not satisfy Criterion A of a post-traumatic stress disorder, as it was a minor accident.
3. She did however note that the claimant's psychological injury has deteriorated over the last two years caused by a number of factors which she listed as:

(a) chronic pain which impacts on his mental health;

(b) the loss of social networks through sports teams and other activities due to his pain condition;

(c) COVID-19 lockdown resulting in social isolation and him not driving;

(d) the loss of his job from redundancy and anger towards his employer;

(e) significant alcohol abuse, and

(f) the prolonged compensation process.

1. Despite finding that he has been inconsistent and there was evidence of him embellishing his symptoms, she diagnoses a persistent depressive disorder, driving phobia and alcohol use disorder. She says:

"He initially suffered from an Adjustment Disorder which has been exacerbated and has become chronic with persistent anxiety and depressive symptoms. His condition therefore fulfills the DSM-5 criteria for Persistent Depressive Disorder. He has developed avoidance and fear of driving and has a Driving Phobia and he consumes significant amount of alcohol daily which is hazardous to his health and now suffers from Alcohol Use Disorder."

1. In terms of causation, she says the claimant had no psychiatric history before the accident. She says the onset of his symptoms are related to the accident and are consistent with the accident being causally related. She says, "there are no other identifiable causes for his psychiatric conditions."
2. As the three disorders she has diagnosed were caused by the accident, she certified them as being not threshold injuries within the meaning of the Act.

1. The insurer takes issue [18] - [23] with the fact a dispute about post-traumatic stress disorder and an alcohol use disorder were referred to the Commission and that the Medical Assessor had no power to "make alternate diagnoses."
2. The insurer says the Medical Assessor in determining an alcohol use disorder did not refer to pre-accident evidence of an alcohol problem [24] - [37].
3. The insurer says the Medical Assessor took the same history of alcohol consumption in August 2022 and has not explained how the claimant has "deteriorated" in terms of his alcohol issues [38] - [44]. The insurer also submits at [45] - [51] that the Medical Assessor did not set out the criteria or explain how the claimant met the criteria for an alcohol use disorder and has accepted the claimant's self-report about his alcohol consumption despite finding the claimant was an "unreliable historian."
4. The insurer also submits that the Medical Assessor has failed to properly consider the motor accident that occurred in February 2024 [56] - [62]. The insurer had requested additional documents about this accident.
5. Attached to the insurer's application were 441 pages of documents from Dr Ma of the Dellwood Medical Centre. These documents include clinical notes up to 29 March 2023.
6. The insurer's original submissions opposing the application for further assessment included the following:

(a) the claimant says he feared for his life - but that fear had not been communicated to any of the other examiners, or the claimant's GP;

(b) the first complaint of post traumatic symptoms occurred on 18 June 2021;

(c) the insurer notes Dr Rastogi's clinical notes include in the first attendance little detail and while they refer to a depressive disorder do not refer to a posttraumatic stress disorder until August 2023. At the second consultation there were anger management issues discussed but not posttraumatic stress disorder. At the third attendance the insurer said the claimant again reported depressive symptoms and not posttraumatic symptoms. The insurer suggests these were similar complaints to those made after the claimant's 2016 accident and refers to records concerning that claim, and

(d) the insurer disputed the deterioration of symptoms and said there was evidence of a previous alcohol misuse disorder.

1. The claimant submits at [2.1] - [2.4] that the Medical Assessor is required to make a diagnosis in accordance with clinical judgment and is not limited to the diagnoses identified by the parties.
2. The claimant submits at [2.5] - [2.10] that the Medical Assessor has diagnosed an alcohol use disorder and that there is no issue in a threshold injury dispute about contribution or apportionment. The insurer says at [2.11] - [2.14] an increase in symptoms is the reason for the diagnosis and there has been no issue about causation raised.
3. The claimant says at [2.15] there was no misdirection and at [2.16] - [217] there was no impact on this mental state caused by the subsequent accident.
4. The claimant's original submissions in support of the further assessment referred to deterioration of the claimant's psychological condition and his ongoing treatment with Ms Davies and Dr Rastogi [2.3] and [2.4]. The claimant relies on records from Ms Davies and Dr Rastogi not previously before the Commission and a report from Dr Allan, psychiatrist, dated 29 March 2023 [4].

1. The Panel has before it, more than 1,000 pages of documents. The claimant has alleged both physical and psychological injuries and the claimant's physical injuries have been assessed. Many of the documents provided by the parties are not referred to in the submissions and that maybe because they are more relevant to the physical assessment.
2. The Panel has considered all of the documents but included in this evidence review only those that are considered relevant to the issues in dispute.

1. A claim was made against QBE in relation to an accident on 6 December 2016. The claim form was signed and dated 29 December 2016. [BSI] was the driver of a car run into from the rear. He was not taken to hospital and listed his injuries as right shoulder, the whole of his back and both legs. [BSI] said he was seen by Dr Ma of Bankstown and had physiotherapy at J B Healthcare in Cabramatta. The medical certificate in support provided by Dr Vidanalage refers to mechanical bilateral shoulder discomfort, cervical spine whiplash, mechanical low back pain and "poor sleep".
2. Dr Dias, occupational physician provided a report dated 7 December 2017 to the claimant's solicitors. Dr Dias has a history of the claimant taking sporadic days off work in 2017 and that in October 2017 he stopped work completely and he was not working at the current time looking for more sedentary jobs.
3. Dr Dias also has a history of the claimant playing competitive squash but not having returned to this since July 2017.
4. The claimant reported to Dr Dias he drank one standard drink of alcohol once per fortnight on average.
5. Dr Dias considered it was doubtful that the claimant's injuries "will ever resolve to the point where he is pain free or free from functional compromise in the foreseeable future."
6. Dr Dias expressed the view that the claimant's WPI was 19%.
7. In particulars provided to the insurer on 5 April 2018, the claimant documented psychological sequelae including being "scared to drive" being "useless and weak" and poor concentration and memory due to preoccupation with pain. The claimant reported waking up at night and being unable to return to sleep.
8. Dr Ting, vocational assessor of Injury Assess provided a report dated 18 October 2018. He reported, inter alia, that [BSI]'s shoulder movements were guarded, and the active ranges of motion were restricted in almost all directions. Dr Ting records the claimant's height as 171cms and his weight at 86kg (fully clothed). The claimant reported putting on weight after the accident.
9. The claimant reported avoiding pain medication because he had a flare up of a previous gastric condition as a result.
10. Dr Ting reports the claimant played sports and squash and soccer three or four times a week, ran 7 - 10km and swam bushwalked but has stopped all of these due to his pain.
11. Dr Ting records significant emotional sequalae, that the claimant was depressed and easily irritated. Dr Ting says [BSI] was overwhelmed and panicked at work. He was experiencing sleep issues and had moved into the downstairs study. He was irritable and distracted by pain and has withdrawn from social activities and family functions. He was avoiding driving and had reduced his social activities. He reported being more forgetful and he had left his last job "because he could not handle the stress." He also reported difficulties in the marriage.
12. His depression was rated on the DASS with a score of 46 and a severe range for depression and extremely severe range for anxiety and stress. An emotional intelligence assessment was undertaken suggesting the injury had impacted him significantly and was affecting his ability to cope with stress, interpersonal relations and problem solving.
13. Dr Ting recommended a number of alternative roles and considered the claimant would have difficulties at work and in the home.
14. The claimant gave a statement in support of his claim dated 3 May 2019. He details his migration to Australia and his pre-accident employment working six to seven days a week doing eight hours a day during the week and 10 - 12 hours per day on the weekend. He says after the weekend he could not do this work and obtained work for six weeks in 2017 and three months in 2018.
15. He documents his previous medical conditions and musculoskeletal conditions (left knee and neck and lower back).
16. The claimant sets out the circumstances of his accident and says he was in shock and felt "immense pain to my neck radiating down to my shoulder, my back and psychological sequelae." He explains further:

(a) he felt deflated and like a burden to his family;

(b) his sleep was affected due to pain;

(c) he avoided driving for a short time and has now resumed driving but is extremely caution and anxious;

(d) he is preoccupied with pain and has difficulty concentrating, and

(e) he feels weak and useless and has been relying on his family which embarrasses him.

1. The claimant documents his treatment including referral to Charmaine Moubarak psychologist. He does not mention any treatment from her.

1. The notes from Dellwood Medical Centre commence on 29 January 2015:

(a) 29 January 2015 - the claimant had gastrointestinal issues, felt fatigued and found it hard to sleep. It is said he was falling asleep and snoring at work;

(b) 20 March 2015 - regular headaches and sleep problems. Sleep apnoea was considered;

(c) 29 October 2019 - occipital headaches noted as "tension headache";

(d) 15 January 2020 - right shoulder pain;

(e) July 2019 - May 2021 - there were eight attendances for sexual health issues;

(f) 17 June 2020 - "has been drinking a lot recently" was stated in the history and the reason for attendance said to be "alcohol dependence". The claimant was counselled about ways to reduce alcohol;

(g) 6 August 2020 - the claimant complained of dizziness and had too much drinking. The claimant was advised to reduce his drinking and have a blood test;

(h) 19 August 2020 - headaches which on 16 September 2020 had improved, and

(i) 21 September 2020 - Na (sodium) and ALT (alanine aminotransferase the levels of which in the blood can indicate liver damage) - the claimant was said to "admits to eating out and drinking alcohol" advice was given to "reduce ETOH and reduce dining out."

1. There is no reference in these records to the 2016 accident or any attendances after 2016 for accident-related issues.

1. [BSI] completed the claim form on 17 May 2021. He provided details of the QBE claim but denied any "illness or injury affecting the same or similar parts of your body at the time of the accident."
2. The claimant lists his injuries as neck, trapezius, lower back and psychological injuries.
3. [BSI] notified his employer on 14 May 2021 and in a form dated 20 May 2021[10]. He says the B-double truck cut into his lane and pushed his vehicle towards the concrete barrier. The claimant advised he had seen Dr Ma and had been given pain killers.
4. The first certificate of capacity and fitness is dated 17 May 2021[11] and diagnosed the claimant with right neck and trapezius pain and back pain. Insomnia is also mentioned but no other psychological symptoms.
5. The claimant attended the Bankstown Police station to report the accident on 21 May 2021. This report suggests the claimant took a photo of the truck ahead of him while driving and before the truck had pulled over for particulars to be exchanged. The claimant told Police he had shoulder and back pain and "psychological issues" because the truck merging into him was "traumatising". The police saw photographs of the damage and noted it to be "cosmetic and minimal". The claimant referred to his solicitor and wanting to make a claim.
6. The claimant has provided photographs - the truck that he says caused his collision is a truck with a pair of trailers - that is it is a B-double truck. The claimant's vehicle is a utility type vehicle with cab and it has scrape marks down the left-hand side and some very limited scrape marks on the right-hand side. The photographs of the truck and the claimant's car were taken while it was still dark the accident having occurred at around 5.00am.
7. In his second statement dated 21 September 2021, [BSI] says after 2019 he stopped treatment and made no more complaints about his neck, shoulders and back.
8. The claimant says that after the accident he felt "immense pain to my neck radiating down to my shoulder, my back and psychological sequelae." The Panel notes these are exactly the same words used to describe the effects of the 2016 accident.
9. The claimant says he is pre-occupied with thoughts of pain, has difficulty concentrating. He says he has trouble sleeping and sees flashbacks of the accident and experiences pain.
10. The claimant says he feels deflated, weak and useless. His is worried about losing his job, has lost confidence, does not care about his appearance and has sleeping pills which do not help him.

1. The claimant first attended Dr Ma on 11 May 2021. The claimant was there for his blood pressure checkup (146 over 91) and reported the accident and pain on the right side of his neck, trapezius and right low back pain. There was some right neck and trapezius tenderness on examination.
2. On 12 May 2021 the claimant returned with right scapula pain and on 14 May with lethargy poor sleep and upper back pain and he was referred for physiotherapy. Further attendances on 17 May (for the medical certificate) and 21 May (difficulty sleeping) and the claimant was referred for counselling.
3. On 2 June 2021 the claimant had a sexual health issue, had his blood pressure checked (for his superannuation) and was told his blood pressure was high and he had not been sleeping well and was coughing "on further history he visited Goulburn on 26 May and went to Trappers Baker (Covid concerns).
4. On 18 June 2021 the claimant was having body pains and posttraumatic symptoms and was afraid to drive in peak hour traffic. On 28 June 2021 the claimant complained of a tight low back and was "scared to go to work sometimes cos of MVA."
5. On 1 July 2021 the claimant expressed dissatisfaction with current physiotherapist and a further referral was provided.
6. Clinical notes from Adjusting to Health chiropractic have been provided[12] and these commence with a first treatment on 6 July 2021 and end in February 2022 with almost 60 services being provided in that period.
7. On 9 July 2021 the claimant attended Dr Ma complaining that his low back pain was worse with the cold and he was still having trouble sleeping. On 19 July 2021 his back was bad. On 26 July 2021 the claimant told Dr Ma he could not sleep from the pain and nightmares and that he saw the psychologist, but the next appointment was three weeks away. On 9 August 2021 the claimant reported having been approved for psychology sessions and was feeling depressed and was "drinking a bit of alcohol".
8. There were a number of attendances for physical symptoms and a referral to Dr Kam. On

1 September 2021 the claimant reported "flashbacks" and said he was depressed and Mirtazapine was prescribed. On 6 September 2021 the claimant saw Dr Ma for dizziness and was told to go to hospital which he did where he was diagnosed with vertigo. 9. On 5 October 2021 the claimant reported that Lyrica and Endep "don't agree with him." On

1 November 2021 the claimant reported dizziness again and he had "stopped driving for now". 10. On 7 January 2022 the claimant started complaining of arm pain and difficulty lifting things. On 11 February 2022 he complained of "bilateral shoulder pain" and he sought a different antidepressant saying he gets very tense when he drives and pulls over if there is a fast car behind him. 11. On 15 February 2022 the claimant had been reviewed by a Doctor Pathirana for fitness for duties and this doctor reported the claimant was drinking three whisky bottles a week. On

22 March 2022 the claimant had sharp pains in his left shoulder. 12. On 8 April the claimant reported a "massive fight with neighbours" who have children who kick the ball and set off the dogs interrupting his sleep and making him cranky. He was not concentrating as a result. The claimant was referred to a psychiatrist in April 2022. On 6 May 2022 Dr Ma reports the claimant's drinking was upsetting his stomach. On 4 July 2022 the claimant had not yet seen the psychiatrist. At this time the insurer had rejected his claims for left shoulder surgery and treatment. On 29 July 2022 approval for the psychiatric consultation was approved. On 23 September 2022, Dr Ma reports the claimant's family had bought him a Cavoodle to lift his spirits. The claimant had the surgery and was undertaking physiotherapy. 13. On 8 March 2023 Dr Ma records that the claimant "fell from vertigo had open dislocation of left hallux" and he was getting sciatic pain down his right leg. 14. Other documents from the Dellwood Medical Centre (Dr Ma) have been provided[13]:

(a) the claimant was referred to physiotherapy on 14 May 2021 for neck and back pain;

(b) the claimant was referred to Merrylands Counselling, and

(c) several medical certificates were provided.

1. Clinical notes from Complete Allied Healthcare have been provided.[14] These commence with a treatment on 21 May 2021 for lower back and right shoulder and neck pain and end on

1 July 2021. Diagrams of the claimant's exercises were provided. 2. On 22 May 2021 Ms Lau wrote to the GP documenting her findings and treatment recommending ongoing physiotherapy twice a week for four weeks. 3. While the claimant was regularly attending Dr Ma at Dellwood, he also started seeing Dr Lim at "the Workers Doctors" practice on 5 October 2021. Dr Lim records[15] neck and lower back symptoms and left shoulder symptoms. The claimant reported nightmares and difficulty sleeping due to pain. The claimant was not confident and said he had had gained weight (86kg). The claimant returned to Dr Lim on 2 November 2021 but it appears the consultation was similar to the one before and there were no changes to the recommendations that Dr Ma was making. 4. Notes have been provided[16] from Dr Halder concerning the claimant's gastrointestinal tract and in respect of endoscopies and colonoscopies.

1. The claimant provided particulars of the claimant's 2024 accident. This occurred in Campsie after the claimant was driving home after having his hair cut.
2. The claimant says he took a left turn, saw an oncoming vehicle and experienced a flashback, causing his body to freeze and he remembered the truck and his accident. He says he "froze due to anxiety and panic attacks." He accelerated to get out of the situation but collided with the rear of another vehicle.
3. The claimant says the accident was very minor, caused scratches only and the claimant did not experience any injuries and made no claim. No damage has been repaired and the claimant is unaware of whether any other vehicles made claims.

Treating psychologist or psychiatrist reports and records

1. The claimant was referred to Dr Rastogi on 8 April 2022 by Dr Ma. The claimant first attended Dr Rastogi on 18 July 2022 with the reason for contact given as "Major Depressive Disorder" but no further details.
2. On 24 August 2022 the claimant attended again, and Dr Rastogi notes the claimant had shoulder surgery and was working with rehabilitation. They apparently worked on setting goals and dealing with anger and avoidance behaviours and triggers.
3. Dr Rastogi records on 16 November 2022 that the claimant was irritable, frustrated and reactive with relationship conflict. His sleep was poor and he had poor sex drive. His mood fluctuates and pain was ongoing.
4. On 16 December 2022 the claimant reported he was due for more shoulder surgery and was feeling isolated and cognition was affected. He was struggling to accept his incapacity and felt distressed although medication was helpful.
5. The claimant attended Dr Rastogi on 20 April 2023 with no details of the consultation and the on 11 August 2023 where the clamant reported flashbacks, nightmares, anger, irritability, social avoidance, lacks motivation and being triggered easily. He was waking up with nightmares and felt "betrayed and angry for losing his job and career."
6. On 14 August 2023 the claimant's solicitors requested a report from Dr Rastogi. Several documents were provided including the medico-legal reports, Mr Griffiths' reports and the assessment certificates of Dr Woo, Dr Fukui and the Review Panel decision.
7. Dr Rastogi wrote to Dr Ma. She took a consistent history of the accident, but the claimant said his body moved side by side and restrained by the belt and his neck moved forward and backwards with force." The claimant braked suddenly but it was too late, and his ute was a write off. He reports "immense pain in his neck radiating to his shoulder and back" and went to a doctor. She refers to the claimant having lost his job due to a restructure and while he was the breadwinner his wife has taken that role. He complained of being isolated and alienated socially. He was hypervigilant and struggled with driving. He was avoidant of driving. "He self-medicates with alcohol and drinks increased amounts."
8. Dr Rastogi diagnosed a post-traumatic stress disorder with associated adjustment disorder and major depressive disorder.
9. Theresa Davies, psychologist started seeing the claimant on 16 July 2021. She records he felt terrified and felt he was going to be killed. She has a history of a physical injury to the right shoulder and lower back.
10. At the first and second appointment, there were references to a fear of COVID and it was noted his squash had been cancelled before COVID. He had stopped competition squash the year before the accident but was playing socially.
11. She has a history of the claimant having not driven much for more than 12 months and that he gets scared and angry when driven by others. She took a history on 20 August 2021 of him having a "small accident a long time ago"
12. There was frustration at the system and the insurer's decisions.
13. Ms Davies wrote to Dr Rastogi on 17 July 2022. She notes the claimant was "high achieving" who continued to work full time after the accident for some months. She expressed the view the claimant's symptoms were consistent with a DSM-5 diagnosis of post-traumatic stress disorder and major depressive disorder and that the claimant suffers from insomnia.
14. The claimant had been taking antidepressants which were not greatly effective and his symptoms had worsened. The claimant was frustrated with his employer.
15. The claimant had always been healthy and played competitive squash until the accident. He had put on weight then lost it rapidly and was "using alcohol at increasing levels in more recent months". The claimant complained of chronic pain from his shoulder and back, had recent bouts of vertigo and high blood pressure was contributing to his mood. He was said to be fearful of driving.
16. Ms Davies wrote to the claimant's solicitors on 31 August 2023. She repeated many of the things she wrote to Dr Rastogi about. She records increasing pain the shoulders and back and that the claimant had "two major shoulder operations" which had impacted significantly on his physical and mental health.

1. The insurer obtained a report from Mr Griffiths as to the forces involves and likelihood of injury. The report is dated 19 April 2023.
2. Mr Griffiths reviewed the photographs and described damage to the left side of the claimant's vehicle and some light scuffs and abrasions on the right side as a result of the claimant's car making contact with the concrete barrier between eastern and westbound lanes.
3. The claimant had told examiners his car was a write off which Mr Griffiths said is not accurate and that "his descriptions greatly increase the magnitude of the event". He says the lateral forces involved would not cause a violent leftward motion.

1. Dr Mitchell, occupational physician provided a report dated 28 July 2022 to the insurer.
2. The claimant confirmed a history of high blood pressure, reflux, vertigo and tennis elbow but does not appear to have volunteered the history of a past motor accident and neck, back and shoulder injuries.
3. Apart from his continuing physical symptoms, the claimant gave Dr Mitchell a history of nightmares, flashbacks and difficulty concentrating. He also reported driving for in excess of 15 minutes caused him difficulty. The claimant weighed 93kg at that time.
4. On 12 July 2023, Dr Mitchell provided a further report. Dr Mitchell read the history recorded in his previous report and the claimant agreed with it. Dr Mitchell then appears to have taken hi through his medical history from 2014, 2015 and the accident in 2016 as well as more recent issues in 2020. Dr Mitchell also documented the claimant's fall at home in March 2023 due to excessive alcohol. The claimant weighed 83kg at that time.
5. Dr Mitchell expressed the view that the claimant's complaints:

"The severity of symptoms reported and the consequential disabilities claimed to be present appear excessive considering the nature of the forces involved in the initial accident, the absence of any objective or radiological evidence of injury in the neck or lower back, and the shoulder conditions which did not develop apparently for many months after the subject motor vehicle accident."

1. Dr Allan, psychiatrist reported to the claimant's solicitors on 29 March 2023. He has a history of the accident that is consistent (a truck cutting in front of [BSI] to avoid a car merging from an on ramp.
2. The claimant reported he was a general manager at the time of the accident and has not returned to any form of employment having been made redundant.
3. The claimant gave a history of hypertension before the accident but no other problems. [BSI] said he had no alcohol problems before the accident and says Dr Ma's record of such is an error.
4. The claimant said he feared for his life. He heard the sound of being struck and scraping and that he was pushed into the concrete barrier on the driver's side. He said he had sounded his horn and flashed his lights. The claimant reported no airbags went off but that his vehicle was written off.
5. Dr Allan records that he developed pain in his neck and back and shoulders and has never been pain free and that this is a constant reminder of the accident. He reported struggling to get dressed and denied any injuries being present before the accident.
6. The claimant said he had no drinking problem before the accident and now drinks a bottle of wine and a four or five beers a day.
7. [BSI] reported being anxious generally and fearful when driving and he has recurrent nightmares and intrusive memories of the accident. The claimant says he sees his GP three times a week and has had treatment from an orthopaedic surgeon and physiotherapist. He has seen a psychologist and a psychiatrist.
8. Dr Allan diagnosed a post-traumatic stress disorder and an alcohol use disorder and assessed WPI at 22%.
9. In a supplementary report, Dr Allan deals with the notation by Dr Ma of "alcohol dependence" and the claimant's report that he drank two glasses of red wine a week but may have had the occasional event where he drank too much. Dr Allan says "alcohol dependence" has a specific medical meaning and suggested clarification be sought from Dr Ma.
10. Dr Hyde Page wrote a report for the insurer dated 21 June 2023. He has a history of the claimant giving up work soon after the injury and that the claimant has not worked since then. Dr Hyde Page has a history of shoulder problems coming on much later than the neck and the back and that the claimant had left shoulder surgery in mid-2022 and right shoulder surgery in February 2023.
11. The claimant admitted to Dr Hyde Page consuming excessive amounts of alcohol.
12. The claimant weighed 85kg at that time. Dr Hyde Page was satisfied the claimant injured his neck and back but not so the shoulders.
13. Dr Ting provided a vocational and functional assessment report to the claimant's solicitor dated 7 September 2023. The report was based on a number of documents that post date the current accident but which also refer to two statements of the claimant dated 3 May and 28 September 2019[17]. These documents are not before the Panel. While Dr Ting has a history of the claimant's 2016 accident from the claimant, he records at section [4] of his report that the claimant "made a full recovery from these injuries." Dr Ting's report makes no mention of his earlier report and his involvement in the claimant's previous claims.
14. Dr Ting includes a history of the claimant's alcohol consumption:

(a) before the accident he consumed alcohol mainly at work functions;

(b) after the accident he has used alcohol to manage his pain and improve his mood;

(c) at one time he was drinking half a bottle whisky, a six pack of beer and a glass of wine a day;

(d) under the guidance of his psychologist and psychiatrist he has reduced his alcohol intake;

(e) he consumes a bottle of red wine and several beers a day, and

(f) he is working on abstinence before lunch time.

1. On 6 May 2023 the claimant was examined by Medical Assessor Woo who issued his certificate on 13 May 2023. He found the neck, back and right leg injuries soft tissue and threshold injuries but that the left shoulder partial-thickness tendon tear was no a threshold injury. At that time the claimant weighed 94kg.
2. On 25 July 2023 a Panel comprising Member McTegg and Medical Assessors Assem and Gibson revoked Medical Assessor Woo's certificate, noted the agreement by the parties that the claimant's cervical, thoracic and lumbar spine and right leg injuries were soft tissue and threshold injuries. The Panel also determined the claimant did not injure his left shoulder in the accident due to the absence of contemporaneous complaints, the pre-accident history of the 2016 accident, the biomedical evidence of Mr Griffiths and the discrepancy in typical symptomatology and the claimant's reports. The claimant weighed the claimant at 94kg.
3. On 1 September 2023, Medical Assessor Home determined that further chiropractic treatment was not reasonable and necessary.

RE-EXAMINATION FINDINGS - MEDICAL ASSESSORS CANARIS AND SINGH

1. The claimant attended the re-examination on 29 October 2025, and the following are the findings of the Medical Assessors.
2. The claimant was interviewed by Microsoft Teams over an interval of 1.5 hours. A good audiovisual connection was established. He was at his home, and we were in our respective offices.

1. The claimant is a 62-year-old married man who was a general manager with the railways with MPR Rail at the time of the accident, but who says he has not worked since his accident.
2. He denied any history of psychiatric illness before the accident. He was asked how much he drank before the accident. He launched into a discursive and rambling account of how well he functioned before the accident. He maintained he could not drink excessively before the accident because the railways had a zero-tolerance policy with drugs and alcohol. He was asked again later in the interview about his alcohol consumption before the accident and said he drank "very little" except on special occasions if he did not have to go to work for two or three days, speaking again of the zero-alcohol policy of his employer. He said he had not lost his driver licence.
3. The Medical Assessors noted attendances in his GP record (clinical notes of Dr Ma) in 2018 to 2019 related to concerns about sexually transmitted diseases, but were unable to clarify this with him in the context of our enquiries as to his marital and other relationships.
4. [BSI] was asked about his physical health before the accident. He spoke of winning a squash competition in 2015 and 2017. He did not volunteer his previous accident, but it was put to him that he had an accident in 2016 when he was rear-ended and he said he "had some issues", saying, "I got on top of it - I got back to my physical sport...". He could not recall his injuries from that time beyond some minor neck problems, saying he returned to sporting activities not long after, but could not say precisely when. He said he had some treatment but he could not recall the details. He denied any psychological injuries from that time. We drew his attention to references in the 2018 report of Dr Ting to psychological sequelae, including low mood, anxiety, panic, broken sleep, irritability, forgetfulness, and poor concentration. [BSI]'s response was that he could not recall taking any significant time off work - he could not say precisely when. He said he may have had a small payout from the accident, but he could not recall how much, and he could not say when he settled his claim.
5. [BSI] said he does not smoke, he does not use any drugs, and he does not gamble.
6. He denied any history of problems with the law, barring "the incident with the idiot next door". He denied any other claims history.
7. He knew of no family history of psychiatric problems.
8. He was born in what was then Saigon. He has three sisters and four brothers. He is the second of his siblings but the first born son. His father died some 20 years ago. He was a lawyer in the police force. His mother took care of the family home. He said growing up in a big family was "very competitive - you basically fight for your food". He completed year 12 in Vietnam.
9. He came to Australia in 1980, initially going to Malaysia by boat and then coming to Australia by plane, sponsored by his grandfather, who was already here. He came with his father and his second youngest brother. His mother arrived "well and truly after - my other siblings came with her".
10. In Australia, he obtained a diploma as an engineer. He could not recall when but said it would have been "in the 80s". He has also completed his MBA in Australia through AGSM "well and truly after that". He saw his MBA as "an opportunity to excel".
11. He was a state manager for the Australian Communications Authority from around 2001 or 2002 and then worked with the railways from 2012 or 2013.
12. He has been with his wife for nearly 40 years. His oldest son died soon after birth. He has five adult children, all of whom are grown up - one son and four daughters. His son had moved back to try and assist him as did his daughter. However, he has had a "massive falling out" with his daughter, who has moved out. He blamed this on his low mood, saying she would try and force him to eat, "and I yelled and screamed, and she moved out... I really regret it...".

1. On the day of the accident, he was on his way to work. He was on the M4. He was in the right-hand lane with a truck in the left lane. A car tried to merge into the middle lane from the left. The truck came to the left and pushed him into a concrete barrier. He tried to sound the horn and flash his lights. The truck eventually pulled over. Airbags did not deploy. He was able to get out of the car. He exchanged details and continued to drive and went to work.

History of symptoms and treatment following the motor accident

1. He said he "didn't feel right", saying he felt his back and shoulders were hurting so he left work and saw a nearby doctor, who gave him a painkiller. He could not recall what he was given.
2. He subsequently "forced myself to work a couple of times and then Covid hit and I isolated myself". We pointed out to him that Covid started in January / February 2020 and was well established at the time of the accident in May 2021. He said, "It was a long time ago but I'm positive we weren't allowed to go to sites and I isolated myself ...".
3. He has had rotator cuff surgery around 2021 paid for by the insurer.
4. We asked when he started to experience psychological symptoms. He said, "I came here as a refugee, and I expected to live to an old age... it was a B-double coming at me... I felt so helpless... I never felt like this before - not safe like this before... I worked hard all my life - I paid taxes all my life...".
5. He maintained he experienced physical and psychological problems straight after the accident. He "tried very hard to forget this and move on".
6. He said he has been drinking more heavily but was reluctant to disclose to us how much. He could drink half a bottle of spirits with wine and beer easily. His wife and kids have decided to sell the family car lest he do something stupid and drink and drive. He said he drank more because he felt depressed, and that many times his heart was pounding, recalling a recent incident when he felt as though an elephant was sitting on his chest.
7. He said he could not sleep and would be upset if he saw something that upset him.
8. He said he drank more heavily now because it helped him forget, move on, and feel relaxed. He buys his alcohol in varying quantities from "wherever it's on special" such as BWS or Dan Murphy's or "Stax" (Liquorstax). He pays via cash or card, and his son-in-law sometimes gives him some bottles. He sometimes buys cask wine. This appears to be consistent with the records the insurer has obtained.
9. Despite our questions we were unable to establish clearly when his drinking escalated. We drew his attention to the evidence of escalating alcohol use (for example the December 2018 report of Dr Ting in which he was documented as having consumed five bottles of wine in the preceding week) and [BSI] admitted to drinking before the accident when his mood was low. We further noted the general practice notes of Dr Ma with an entry dated 17 June 2020 noting him to be "drinking a lot recently" with a diagnosis of alcohol dependence. A further note on 6 August 2020 states, "had alcohol too much [sic]" with advice to reduce drinking.
10. Dr [BSI] then told us he wakes "so many times during the night" with "the flashbacks - I thought I'm going to die" and spoke of a dream in which he saw his long-deceased father. He woke "sweating like a pig". On a good day, he won't drink till after two o'clock, and "on one bad day I started at 8 o'clock [in the morning]". His mood is low "most of the time during the day - why do you think the neighbour set me off". He is irritable and says the neighbour and his kids set him off.
11. He saw a psychiatrist but could not remember when. He was prescribed medication. He has been prescribed mirtazapine 60mg and Cymbalta 60mg daily.

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

1. He "had a big incident with a neighbour not long ago - possibly last year" in which police were called and apparently they have attended "quite a few times". Apparently, the neighbour said something stupid and upset him and the neighbour nearly smashed down his door. It was difficult to get a proper history of this incident but the claimant blames his neighbour for this.
2. He had a further motor vehicle accident around Chinese New Year last year (2024) when he was driving, saw a truck, and was scared. He said he hit the accelerator and slammed into the car in front of him. He was not hurt and has not made a claim.
3. He also said he broke his toe after tripping and falling after drinking too much and had surgery and wore a moon boot. We noted he reported to the hospital and his GP at the time that he was dizzy and was diagnosed with vertigo.

1. He complains of low mood, anxiety, insomnia, flashbacks, nightmares, irritability, and admits to excessive drinking.

1. He sees a psychiatrist every two months or so and a psychologist every three to three and a half weeks. He finds her very helpful, saying, "She tries to assist me with baby steps - what she did was that I'd sit in the car with my wife... to get some exercises to change the routines... suggest different ways to try to work through my sleeping problems... so I don't start drinking too early...".

1. He presented as a man of appearance consistent with his stated age and Vietnamese ethnicity whose hair was dishevelled although he appeared clean shaven. His narrative was rambling and discursive and it was difficult to interrupt to get him to the point. What he said was at times hard to follow and he did not provide clear answers to questions. His speech was noticeably slurred.
2. He was asked whether he had had anything to drink before the interview to which he responded that he had had "just a couple of glasses of red but it's after lunch, doctor... I've been pushing it back [on alcohol]".
3. His mood was dysphoric, and his affect restricted while his narrative was dominated by his disappointment over his circumstances of which he said, "I'm very disappointed that I worked hard to get my position and when I needed help the most wasn't supported [by the insurer]".
4. There was no evidence of psychosis. Apart from his evident mild intoxication, there was no evidence of cognitive impairment.

1. There has been considerable tension with his family because of his irritability. He is appreciative that his wife is still with him.
2. He said he has not showered for the last four days, although "some days I'm good - could be every 2 days". He changes his clothes with similar frequency. His appetite is poor and most of the time I couldn't be bothered" eating. His weight fluctuates. He does not do any cooking or cleaning beyond cleaning the toilet after he uses it.
3. He goes out very rarely socially while acknowledging that he needs to get out of the house and change his routines. He spoke of missing his grandson's birthday and regretting this. He finds dealing with people, "too much hard work".
4. He does not go out on his own - his wife now drives him around. He would sometimes "scream and yell" when she is driving if he feels scared. The claimant reported to Medical Assessor Fukui in October 2022 that he continued to drive after the accident although he had anxiety when he saw trucks. In July 2024 [BSI] also reported to Medical Assessor Fukui that he was continuing to drive but got anxious around trucks. We could not establish whether [BSI] was now saying he does not drive at all or whether he was driving but not as much.
5. His concentration is poor, and he has become forgetful. He might leave his room to go downstairs and not remember why he came. He used to read a lot of books, but does not do this much. He said he would rapidly lose interest and not remember what he read. He does watch TV but cannot watch for long, losing interest rapidly.
6. He said he continued working for some time after the accident but from home after the accident, but he could not say how long. In any case, he said because of lock downs there was not much work to do. However, he was asked to come back to the office, and he was terrified of driving on the road. He sees his poor concentration as the main reason for not working saying he finds it hard to stay on tasks and "a simple task now seems to be a big task for me". It seems his position was terminated by way of a redundancy. The Medical Assessors were unable to establish from [BSI] when he returned to work but noted the approximate timeline in Dr Horace Ting's 2023 report, indicating that he may have last worked in October 2021 and was made redundant in June 2022. This accords with the history taken by Medical Assessor Fukui in August 2022 that the claimant was retrenched in July 2022 and had used up sick leave and leave without pay before that.
7. His wife works full time - she does some cleaning which she had been doing for a long time after the kids had grown up.

1. [BSI]'s attention was drawn to a note of Dr Ma's before the accident stating that he had been drinking too much. He maintained that he did not know what he had told Dr Ma and that if he had drunk too much it was "very, very rare".
2. He was asked about entries in the documentation that his marriage had been under strain in 2016. He said he could not recall saying that and he did not know what this could have been about.
3. His attention was drawn to entries in his medical record with reference to increased alcohol consumption and concerns about sexual issues including being checked for STDs on multiple occasions. He denied sexual partners other than his wife but then said he was concerned about what he might have done, while out, having drunk more than usual. The claimant could not explain this further.
4. His attention was drawn to Dr Allan's report which had a history of him not working after the accident whereas he had said he had been working but working from home. He reiterated his belief that at the time of the accident he had stopped going to the office because of Covid. It was pointed out to him that according to his history on the day of the accident, he had been driving to the office from his home. The claimant was unable to provide a response resolving this inconsistency.
5. The Medical Assessors noted the confluence of medical entries relating to excessive drinking and to presentations with concerns around sexually transmitted illnesses. However, we were unable to establish the connection between these issues because of the claimant's denial of pre-accident drinking and minimisation of pre-accident drinking.
6. He reiterated his denial of any psychological symptoms following the 2016 accident despite having his attention drawn to documentation of psychological sequelae (for example the 2018 report of Dr Horace Ting). The claimant could not recall many of the circumstances surrounding the claim arising out of the 2016 accident but gave us the clear impression he was trying to minimise the effect of this accident.
7. We noted his reported fear of driving and his reported anxiety as a passenger, which were similar to complaints he made in his 2019 statement and to Dr Ting in 2018. We noted there were occasions when he did drive, for example, within a month or two of the accident according to his GP notes he drove to Goulburn and in February 2024 around Chinese New Year he drove and the other histories give to Medical Assessors and examiners. We also note his report that his family has decided to deprive him of access to a motor vehicle. We were unable, to resolve this inconsistency largely because of the claimant's rambling responses to questions.

1. The Medical Assessors have noted [BSI]'s lack of recall of many of the pre-accident details particularly concerning his pre-accident mental health state and the 2016 accident. The claimant's treating GPs record clearly establish a drinking problem before the accident and the reports commissioned by his previous solicitor in respect of the 2016 accident quite clearly indicate a claim was made for a psychological injury.
2. The claimant reported to Dr Dias and Dr Ting after the 2016 accident that he experienced poor memory and lack of concentration and that [BSI] also reported to Medical Assessor Fukui issues with memory and concentration.
3. [BSI]'s lack of recall may simply be due to poor memory of things that happened nine years ago, or this lack of recall may be due to a deliberate minimisation by the claimant in order to maximise the effects of the current accident. Either way, the Panel has concerns about the reliability of [BSI]'s evidence. As a result, we will look to the documentation for support of the claimant's diagnosis where available and will not rely on his history alone.

1. In another Panel decision, the matter of Lynch v AAI Ltd[18] that Panel determined that the claimant bears the onus of proof in establishing that any injury is not a threshold (the terminology then was minor injury) for the purposes of the MAI Act. This is consistent with Briggs v IAG Limited t/a NRMA Insurance[19].
2. In Briggs, Justice Wright also noted that:

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. The test of causation in cl 6.6 of the Guidelines is as follows:

6.6 ... To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

This, therefore, involves a medical decision and a non-medical informed judgement.

1. The Panel notes the claimant's history of a previous accident (admitted), previous psychological symptoms arising from that accident (not admitted but provided in an expert's report commissioned in respect of the previous accident) and the claimant's previous alcohol consumption (documented in his GP notes). It is the Medical Assessors' clinical judgment that the current car accident could have, as result of these factors, rendered the claimant more vulnerable to the development of a psychiatric disorder.
2. The Panel notes the claimant's description of the accident and the size of the vehicle that collided with his. It is the Medical Assessors' clinical judgment that the current accident could have caused some form of anxiety, trauma or stress related disorder.
3. The Panel notes the claimant was physically injured in the accident sustaining cervical, thoracic and lumbar spine injuries and a right leg injury and that he continues to complain of symptoms in these areas (as well as his left shoulder which has been found to have been not caused by the accident). It is the Medical Assessors' clinical judgment that in the light of the chronicity of these symptoms that the claimant could have developed some form of depressive disorder.
4. The claimant listed "psychological injuries" in his claim form completed on 17 May 2021 within a week of the accident. The claimant reported to police on 21 May 2025 that he was experiencing psychological issues and that the accident was traumatising. On 18 June 2021 the claimant reported to Dr Ma he was having posttraumatic symptoms and Ms Davis reports the claimant's feelings of terror and that he was going to be killed. On 21 September 2021 the claimant in his statement complains of "psychological sequelae".
5. The Panel is satisfied that the motor accident on 11 May 2021 did in fact cause psychological symptoms.

1. It is the clinical judgment of the Medical Assessors that the claimant's presentation is consistent with a diagnosis of alcohol use disorder.
2. In terms of the DSM-5-TR criteria, the Medical Assessors note there is only one criterion, criterion A which requires there to be a "problematic pattern of alcohol use leading to clinically significant impairment or distress ... within a 12 month period of 2 of 11 symptoms." The Panel suggests there are at least four of the 11 symptoms present:

(a) the claimant reported consuming large amounts of alcohol (spirits, wine and beer);

(b) in his history he said he had made unsuccessful efforts to cut down on his alcohol use;

(c) his recurrent alcohol use has caused him to fulfil major role obligations as evidenced by his mild but significant intoxication at interview;

(d) his alcohol use may have occurred in situations in which it is physically hazardous as evidenced by his injury following a fall of the drinking too much coupled with his family's decision to deprive him of access to a car, which while not explicitly stated was suggestive of a perception on their part that his drinking was manifestly risky, and

(e) he was considered likely to have significant tolerance for alcohol given the amounts he was said to be consuming.

1. The Medical Assessors were not able to establish the presence of a characteristic withdrawal syndrome because of the claimant's reluctance to provide details about his drinking and its impact.

1. The Medical Assessors considered the diagnosis of post-traumatic stress disorder. They noted that the accident had resulted in minimal damage to the claimant's vehicle and noted the non-deployment of airbags and non-attendance by emergency services. There was no broken glass, and there was no serious physical injury sustained by the claimant. That said, they noted evidence from the Road Safety Solutions report of 19 April 2023 that there had been some contact between the claimant's vehicle and the concrete barrier on his right and that the truck involved was a B-double, a very large truck
2. The Medical Assessors accepted that this scenario could be perceived as a situation involving exposure to the threat of serious physical injury and that the claimant may have felt helpless at the time in question, which, as such, is in keeping with Criterion A as per the DSM-5-TR description of this condition. However, the Panel also notes the claimant's vehicle was able to be driven away and after he exchanged details with the truck driver, the claimant drove on to work which suggests he did not at the time of the accident perceive a threat of significant injury.
3. The Medical Assessors note the claimant's report of flashbacks and nightmares since the accident suggesting intrusive symptoms in accordance with Criterion B of the diagnosis but also note there is no consistent record of these in the GP notes, the initial reports of Dr Rastogi and the records of Ms Davies. The Medical Assessors are not confident this criterion has been met.
4. The Medical Assessors noted the claimant's report of anxiety with driving and avoidance of driving, which is reiterated in other reports, while also noting inconsistency in his account, amplified by his family's decision to sell their car so he would not be able to drive. They considered, on balance, that Criterion C (persistent avoidance of stimuli associated with the traumatic event) was not met.
5. The Medical Assessors noted evidence of negative alterations and cognitions and mood manifested in the claimant's social withdrawal and persistently low mood consistent with Criterion D, although the claimant's evidence about the effect of Covid and lock downs was not consistent and cast doubt on the fulfilment of this criterion.
6. There was evidence from the claimant in his history of marked alteration and arousal and reactivity manifest in irritability, insomnia, and sleep disturbance (Criterion E) however the Medical Assessors note there appears to be a significant contribution from his physical injuries to this.
7. His symptoms had been present since 2021 (Criterion F).
8. His symptoms were associated with clinically significant distress and psychosocial impairment as manifested in his social withdrawal, his inability to work, his difficulties with his family, and his poor concentration (Criterion G).
9. There was no evidence to suggest that his disturbance was attributable to another medical condition. The Medical Assessors say they considered the possibility that his symptoms might be linked to his excessive drinking. While they could not exclude the contribution of factors such as alcohol withdrawal, they noted that the history on offer indicated that he drank more heavily in response to his symptoms. Criterion H is, in our view, made out.
10. Because of the Panel's significant concerns about the reliability of the claimant's history, the Medical Assessors are not satisfied on the information before them that the claimant meets all of the criteria for a post-traumatic stress disorder.

1. Medical Assessor Fukui diagnosed in August 2022 an adjustment disorder but not a

post-traumatic stress disorder. In July 2024 Medical Assessor Fukui maintained her view about the post-traumatic stress disorder but she noted the deterioration of the claimant's mental health condition and diagnosed him with a persistent depressive disorder, driving phobia and alcohol use disorder. 2. Dr Rastogi the claimant's treating psychiatrist diagnosed a major depressive disorder on

18 July 2022 and post-traumatic stress disorder in August 2023. Ms Davies, psychologist diagnosed a post-traumatic stress disorder and major depressive disorder. 3. While the Medical Assessors considered it was possible the claimant had depressive symptoms sufficient to satisfy a diagnosis of persistent depressive disorder or major depressive disorder, they were not confident in making that diagnosis due to their

re-examination being a single consultation with the claimant and due to his presentation at the time. The Medical Assessors also consider it possible that the claimant's consumption of alcohol (which is a substance that has a depressive effect) could be the cause of a depressive state as opposed to the substance disorder being caused by an underlying depressive state. 4. In terms of a driving disorder, the Medical Assessors were unable to get a cohesive account of the claimant's driving noting he appears to have been driving for a few months after the accident and he was driving in February 2024 when he had another accident. The Medical Assessors are of the view that it would be unsafe to make a diagnosis of a driving phobia in the light of the unreliable history provided at the re-examination and in the records.

1. [BSI]'s alcohol use disorder was pre-existing. Despite his assertions to the contrary the Medical Assessors are satisfied that the records establish a problem with alcohol before the accident as follows:

(a) on 18 October 2018 [BSI] told Dr Ting he drank when his mood was low and he drank five bottles of wine in the previous week;

(b) on 17 June 2020 the claimant was said to have been drinking a lot recently and was said to have "alcohol dependence". The Panel notes Dr Allan (for the claimant) expressed the view that this is a medical term which has specific meaning and sought clarification from Dr Ma. The Panel agrees that the term "alcohol dependence" has a medical meaning and suggests the claimant was engaged in excessive drinking at that time. There has been no clarification from Dr Ma in the light of this;

(c) on 6 August 2020 the claimant complained of dizziness associated with too much drinking, and

(d) on 21 September 2020 the claimant's blood test results indicated liver damage and the claimant admitted to drinking.

1. The claimant's history given at the re-examination was rambling and discursive. He appeared mildly intoxicated to the Medical Assessors and said he could drink a half bottle of spirits along with wine and beer in a day. There is scant evidence of the type and quantity of alcohol the claimant was drinking before the accident save that of Dr Ting who reported the claimant had drunk five bottles of wine the previous week (but there is no mention of beer or spirits).
2. Alcohol use disorder is a common comorbidity with post-traumatic symptoms, and the worsening of a pre-existing alcohol use disorder is also a common sequel after a traumatic event. In the claimant's case, other factors such as the loss of structure arising from the loss of his job may also contribute.
3. The Medical Assessors are satisfied on the balance of probabilities that the claimant had

a pre-existing alcohol use disorder which has worsened as a result of the motor vehicle accident. The 11 May 2021 accident has thus made a more than negligible contribution to the aggravation of a pre-existing alcohol use disorder.

1. The Panel decisions of Todev v AAI Limited t/as GIO and AAI Limited t/as GIO v Hoblos[20] are authority for the proposition that if a claimant has a pre-existing non-threshold psychiatric condition and the evidence establishes that the subject motor caused or materially contributed to a worsening of that pre-existing condition, that aggravation injury will also be a 'non-threshold' injury. An alcohol use disorder is not a threshold injury and an injury which causes an aggravation of an alcohol use disorder is also not a threshold injury.
2. While the Medical Assessors have outlined above their concerns with making an alternative diagnosis, they are confident in their diagnosis of an alcohol use disorder. As an alcohol use disorder (including an aggravation of a pre-existing alcohol use disorder) is a non-threshold injury, the Panel is not of the view that the possible alternative or co-existent disorders need to be further considered.
3. While the Panel has arrived at the same conclusion as Medical Assessor Fukui (that the claimant has a non-threshold injury), the Panel has come to a different view about the other two disorders diagnosed by the Medical Assessor.

1. The Panel is therefore of the view that the certificate should be revoked, and a fresh certificate issued.

[1] Sections 3.11(1) and 3.28(1) of the MAI Act.

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

[4] Schedule2, clause 2(e) in the MAI Act.

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

[6] See Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6.

[7] See Todev v AAI Limited t/as GIO [2023] NSWSC 836 and AAI Limited t/as GIO v Hoblos [2023] NSWPICMP 210.

[8] The numbers in square brackets are a reference to the section number in the Medical Assessor's reasons.

[9] The numbers in square brackets are a reference to the paragraph number in the submissions.

[13] Page 72 of the claimant's additional bundle.

[14] Page 82 of the claimant's additional bundle.

[15] His initial assessment report to QBE is dated 5 October 2021 at page 104 of the claimant's bundle and his notes are at page 279 of the claimant's bundle.

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

[17] While the first statement was dated 3 May 2019, the second statement was dated 21 September 2021 (not 2019 as stated).

[18] [2022] NSWPICMP 6 at [44] - [62]

[19] [2022] NSWSC 372 (31 March 2022) see for example paragraph 73.

[20] [2023] NSWSC 836 and [2023] NSWPICMP 210.