WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

THE REVIEW PANEL'S ASSESSMENT UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS:

1. Revokes Medical Assessor Abhishek Nagesh's certificate dated 29 June 2023, which found that the claimant's psychological injuries arising from the motor accident gave rise to whole person impairment of 17%.
2. Issues a new certificate determining that the motor accident did not cause or aggravate a psychological condition.

1. Omar Najjarin (the claimant) was injured in a motor accident (the accident) on 7 March 2018. The accident occurred when the claimant was riding his motorbike and the insured driver passed a stop sign. The rider could not avoid colliding with the side of the insured car. He flew over the car and onto the road.
2. He was transported to hospital and was discharged the following day. He was diagnosed with a series of injuries and eventually with psychological injuries stemming from this accident.
3. The insurer is liable for Mr Najjarin's entitlements to statutory benefits and damages under the Motor Accident Injuries Act 2017 (MAI Act).
4. Mr Najjarin formerly had three firms acting for him, but he is representing himself in this dispute.
5. Section 4.11 of the MAI Act states that any claimant's entitlement to damages for

non-economic loss is dependent on injuries arising from an accident being assessed as greater than 10% whole person impairment (WPI). 6. A dispute has arisen because the insurer denied liability for non-economic loss damages, because it does not agree that the claimant's WPI from injuries suffered in the accident is greater than 10%. 7. Mr Najjarin disputed the insurer's decision and filed an application to resolve this medical dispute in the Personal Injury Commission (Commission). 8. Medical Assessor Abhishek Nagesh examined Mr Najjarin and produced a certificate dated 29 June 2023 stating that the subject accident had caused Mr Najjarin to suffer

post-traumatic stress disorder and a major depressive order. The Medical Assessor assessed those injuries as 17% permanent impairment. 9. The insurer applied under s 7.26 of the MAI Act to refer the medical assessment to a Review Panel on the grounds that the medical assessment was incorrect in a material respect. 10. The Presidential delegate decided to refer the assessment to a Review Panel (Panel) on

15 December 2023. 11. The Commission's President constituted this Panel to review Medical Assessor Nagesh's assessment. 12. Following r 128(1) of the Personal Injury Commission Rules 2021 (the PIC Rules) the Panel will "conduct and determine the proceedings in accordance with procedures determined by the panel." 13. The documentary evidence before the Panel consists of material in the insurer's bundle of 3,951 pages combining its own and the claimant's evidence and 1,667 pages from the claimant. 14. The Panel discussed the parties' bundles at its first meeting on 5 February 2025, which included all the material that was relevant to the claimant's past disputes as well as this matter. 15. The Panel had asked the insurer to provide the bulk of documentation including material

Mr Najjarin relies on in this medical dispute. 16. The Panel considered the High Court decision in Gamestar Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623. The Court observed in the absence of submissions referring to specific documents that a tribunal is not required to search for references within documents where the submissions do not specifically address the materials. The Panel also commends the comments of Bellew J in Bevan v Bingham [2023] NSWSC 19 concerning the obligation of legal practitioners to place only the necessary evidence before the decision maker. 17. The Panel has noted that the insurer provided detailed submissions regarding summarised clinical notes obtained from the claimant's doctors before the accident and Dr Synott's reports but did not refer to why the other material was relevant. Further, the Panel noted the documents referred to in Medical Assessor Nagesh's reasons and considered those. 18. The claimant's bundle contains large amounts of material referring to the claimant's interactions with the insurer, the law firms he instructed and proceedings in the District Court. 19. Further, the Panel considered the material showing that despite the existence of records that showed that Mr Najjarin had sought medical help with his mental health in the past, which doctors recorded as depression, family conflict, legal trouble, and time away from work. The Panel noted that Mr Najjarin denied the authenticity of that material, accused the insurer of manipulating records, and had declined to provide a context for why the doctors would record that. 20. There was no evidence supporting any misrepresentations by the insurer or that the records were inauthentic. 21. The Panel was concerned that Mr Najjarin may have lacked insight into why the Panel needed to hear from him how those notes had come into existence. 22. As Mr Najjarin was representing himself the Panel decided that it could assist the parties if the Panel's legal Member met on MS Teams with Mr Najjarin and the insurer's legal representative before the re-examination to ensure that Mr Najjarin understood the process, ask him to point out what aspects of his bundle he wanted this Panel to consider and that the appropriate records are available. 23. That pre-examination conference was held on MS Teams video with the insurer's legal representative, Andrew Gorman attending at 2.30 pm on 19 February 2025 for approximately 30 minutes, but Mr Najjarin did not attend despite adequate notice before the appointment and several attempts to call him during the conference. 24. The Panel also considered it was necessary to re-examine Mr Najjarin. Medical Assessors Chew and Verma agreed to conduct this examination on the Panel's behalf via MS Teams video on 3 April 2025. The claimant attended that medical examination. The Panel met again to discuss the examination on 20 June 2025.

"the degree of permanent impairment of the injured person that has resulted from the injury caused by the accident (including whether the degree of permanent impairment is greater than a particular percentage)" is a medical assessment matter."

1. If there is a dispute about the degree of permanent impairment of an injured person being sufficient to award non-economic loss damages i.e. greater than 10%, then those damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
2. The review is not confined to the issues raised in the application (or the reply) but is "a new assessment of all the matters with which the medical assessment is concerned" (sub-s 3A).
3. The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:

(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines.[1] The assessed degree of permanent impairment is to be expressed as a percentage.

(2) Impairments that result from more than one injury arising out of the same accident are to be assessed together to assess the degree of permanent impairment of the injured person.

(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment, or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent."

1. Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
2. The Guidelines state as follows with respect to causation of injury:

6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

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

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

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

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular

ss 5D and 5E.

Degree of psychiatric impairment rating scale (PIRS)

1. Impairment is assessed following the Guidelines which include a chapter entitled "Mental and behavioural disorders." The assessment is to be undertaken in accordance with the psychiatric impairment rating scale (PIRS) and the AMA 4 Guides are to be used as "background or reference only."[2]
2. The Medical Assessor must obtain a psychiatric diagnosis before assessing PIRS in accordance with the current editions of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[3]
3. The PIRS provides[4] for the consideration of any psychiatric condition present before the accident in question:

"In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating."

1. The PIRS provides in cl 6.219 for six areas of function:

(a) self-care and personal hygiene;

(b) social and recreational activities;

(c) travel;

(d) social functioning (relationships);

(e) concentration persistence and pace, and

(f) adaptation.

1. The PIRS then provides at cl 6.220 for five classes of impairment with a descriptor for each which is "illustrative rather than literal criteria" and which is based on:

"... a history of the injured person's pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury."

1. The impairment may be adjusted for treatment,[5] that is treatment such as medication being taken to treat the psychiatric condition.
2. Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[6]

1. Medical Assessor Abhishek Nagesh issued an assessment in a certificate dated

29 June 2023, which found that the psychological injuries arising from the motor accident gave rise to 17% permanent impairment. 2. Medical Assessor Nagesh recorded the claimant's history, before and after the accident on

7 April 2018, which was complex. The claimant completed year 12 and TAFE studies in accounting and business then moved into cement rendering up until the accident. 3. The claimant described a happy childhood without abuse or trauma. 4. The Medical Assessor had been instructed with material, which provided an alternative history to what the claimant recounted. That history is summarised in the insurer's submissions to this Panel below. 5. The Medical Assessor told the claimant that evidence submitted to the Commission referred to the claimant being expelled from his home when he was seven years old, which the claimant denied. The claimant also denied having a criminal record other than a drink-driving matter. He denied having a history of mental illness with depression diagnoses in 2014 and 2015, which correlated with his father's death. He denied being depressed in 2016, 2017 and 2018. 6. This correlated with receiving Centrelink benefits, but he says that was brief and that he was working full-time up to the date of accident. He said he was functioning well in all areas of his life at that time. He had a romantic partner that he enjoyed life with, but that relationship is now only based on sharing a home as they were not romantically connected anymore. 7. The claimant described the accident as he was riding his motorcycle when the insured ran a stop sign. The ambulance transported him to hospital where he was kept overnight. He was discharged with diagnoses of soft tissue injuries. This was treated with GP visits, pain relief, and physiotherapy. 8. The GP referred the claimant for psychological counselling and psychiatric treatment because he developed avoidant behaviour, flashbacks, nightmares, feelings of hopelessness, sleeplessness due to pain, rumination, and depression secondary to his functional loss. Those symptoms have continued. 9. Medical Assessor Nagesh noted inconsistencies between the documentation he was briefed with and the claimant's version of the history. He put that to the claimant, who denied the truth of the information recorded in the documentation. The Medical Assessor did not address in any detail whether the claimant explained why the material was untrue. 10. Medical Assessor Nagesh referred to Dr Julian Parmegiani's report dated

18 February 2021 diagnosing post-traumatic stress disorder and major depressive disorder, and pain physician Mark Davis's report dated 4 February 2021. The Medical Assessor also considered Delphia Psychology's treating psychologist reports with treating psychiatrist

Dr Karthik Modem's report who diagnosed the same conditions as Dr Parmegiani. 11. The Medical Assessor considered the claimant's mental health history before the accident. The claimant had never experienced post-traumatic stress disorder. The Medical Assessor also found the claimant's history of depression, which was in remission 2018, did not provide objective evidence of the claimant having a psychological condition capable of being assessed for permanent impairment on the day of the accident. 12. The claimant's PIRS from the accident consisted of three scores for self-care and personal hygiene, social and recreational activities, travel, and adaptation. There were two scores for social functioning and concentration persistence and pace. That resulted in 17% permanent impairment attributable to the accident. 13. Medical Assessor Nagesh applied the PIRS to the claimant's psychological state before the accident and found 0%.

1. In 2010 the claimant was in hospital due to a hand injury but it was noted the claimant had long standing sleeping difficulties and anxiety.
2. On 18 January 2014, the claimant attended Westmead hospital by ambulance with suicidal ideation. He had an argument with his girlfriend after a night of heavy drinking and he cut his arm/chest and abdomen. The note said he was unemployed. It also said the claimant told the Emergency department a court directed him more than seven years earlier to seek psychological help, with nil follow up since then.
3. On 18 July 2014 GP Dr Ho noted that the claimant had a great deal of mental health issues. The mental health plan referred to "depression." That plan was renewed on 9 January 2015.
4. A Centrelink Medical Certificate certified the claimant was unfit for work from 9 January 2015 to 9 April 2015 due to depression. Another certificate extended that period from 15 April 2015 to 15 July 2015 due to depression.
5. In 2015 the claimant was seeing Mr Singh, psychologist.
6. On 7 September 2016, the claimant attended his GP. Depression was mentioned with low mood, less interest in activities and less concentration. A further Centrelink Medical Certificate listed his diagnosis as depression and being unfit for work from 7 September 2016 to 7 October 2016. A GP mental health assessment listed his presenting problem as depression and his past mental health problems also as depression.
7. On 17 October 2016, the attending GP recorded the claimant's upbringing. The note refers to the claimant being kicked out of home at seven years of age. At time of the consultation, he was noted to be sleeping in his brother's house's lounge room. The note records that Parramatta's Corrective Services office recommended counselling five years earlier. He was using marijuana daily, taking speed, had suicidal thoughts every second day, attempted suicide two years ago and that he has been in and out of jail as well as homeless. A DASS 21 form listed the claimant as having extreme severe depression, anxiety, and stress.
8. On 26 October 2016, a GP recorded the claimant's history included depression so he was referred to a psychologist. A Centrelink Medical Certificate listed that diagnosis and certified him unfit for work from 26 October 2016 to 26 December 2016.
9. On 28 December 2016 the claimant's GP, Dr Ahmed reported the claimant is known to have depression and taking an anti-depressant. The note records the claimant started arguing about being given a certificate for three months. A Centrelink Medical Certificate listed the same diagnosis and he was certified unfit from 28 December 2016 to 28 February 2017.
10. The claimant reported on 5 September 2017 that he was taking Ritalin 10mg for ADHD and that he had been in jail in the past for armed robbery and used to take drugs in the past.
11. The claimant's GP provided a further mental health plan on 19 March 2018. It listed the claimant's presenting problem as low mood, depression. The claimant was referred to a psychologist. The claimant's response to K10 questioning on distress scored 49/50, which meant he was experiencing severe distress levels.
12. The claimant did not mention his pre-accident history to his treating psychiatrist Dr Modem according to the letters dated 10 April 2019, 18 May 2019, 18 September 2019, 8 January 2020, 4 March 2020, 29 April 2020 , 2 December 2020, 10 March 2021 and 14 July 2021.
13. Those letters note the claimant denied a history of psychotic symptoms, panic, agoraphobic, specific phobic and obsessive-compulsive symptoms;
14. Dr Modem's handwritten records on 10 April 2019 show the claimant reported he had no history of mental health issues before the accident. Further, the claimant reported no history of any other medical issues apart from the motor vehicle accident;
15. Dr Modem reported that the claimant told him on 14 July 2021 that he, "...grew up unaware of pain".

1. Dr Enrico Parmegiani's medico-legal report dated 18 February 2021 referred to the claimant failing to respond positively to treatment and that his permanent impairment was 22%. That doctor diagnosed chronic post-traumatic stress disorder with major depressive disorder with psychotic features.
2. Dr Parmegiani recorded the claimant had a happy childhood without trauma or abuse. He was not exposed to the Lebanon civil war when he lived there with his family, between the ages of 4 and 13 years old. He also told the doctor he was working full-time in the four years before the accident.
3. The doctor was not instructed with the clinical notes which recorded the claimant's pre-accident history.
4. Subsequently, Dr Parmegiani's assessment did not consider the impact of the claimant's clinical history when he decided on whether the accident materially contributed to the claimant's injuries or if there were any pre-existing permanent impairment to deduct.
5. Psychiatrist Dr Inglis Synott examined the claimant for the insurer to produce a report dated 28 May 2019. The claimant presented as a vague historian, who struggled to recall events.
6. The claimant described continuing pain from his injuries, anger with the insured driver, plus recounting symptoms that matched depression and post-traumatic stress disorder. He told the doctor that these symptoms began very soon after the accident and had grown worse since the accident.
7. Dr Synott recorded that the claimant told him that he had no past psychiatric history, and he was unsure about his family.
8. Dr Synott considered the claimant was displaying inordinate symptoms, with maladaptive attitudes that abrogated responsibility for his life's trajectory. The claimant required intervention and rehabilitation.
9. Dr Synott saw the claimant again via audio visual link on 11 December 2020.
10. Dr Synott was concerned that the claimant's condition was entrenched and would not respond to treatment, but if there was treatment it needed experienced experts to provide it.
11. The claimant told Dr Synott that his psychological condition had deteriorated since the last examination. The claimant told the doctor that the insurer refusing to pay for treatment had contributed to the decline.
12. The claimant's demeanour on this occasion was:

"Pleasant, friendly, cooperative and polite; constricted affect but interacted well; he as very anxious, low in mood, an air of helplessness and hopelessness - forlorn...Occasionally vague about details, but generally able to maintain focus and recall details; no overt cognitive impairment."

1. Dr Synott diagnosed post-traumatic stress disorder, but he considered that he would understand if other psychiatrists added a separate major depressive disorder diagnosis.
2. The claimant's condition was entrenched and medicine could mainly provide support rather than rehabilitation.
3. Dr Synott's report dated 28 March 2022 addressed the clinical history before the accident as referred to in the insurer's submissions.
4. Dr Synnott noted Mr Najjarin confirmed comments made at the earlier assessments, specifically that up to the date of the accident he had worked full-time as a cement renderer and before the accident he had not had psychiatric difficulties or ever required psychiatric treatment. The report does not read as if Dr Synnott put that history to him.
5. Dr Synnott recorded the claimant told him he was working full time in the lead up to the accident and that he had never experienced psychiatric difficulties or required treatment for psychiatric difficulties. Dr Synnott diagnosed post-traumatic stress disorder with prominent anxiety and depression but went on to opine the claimant describes an inordinate degree of impairment and ultimately, he opined:
6. "...there are reasons to doubt the veracity of his account - and it is impossible to have confidence in the credibility of his portrayal regarding the psychiatric symptoms he attributes to the MVA."
7. Dr Synott was not confident his diagnosis could be correct given the discrepancy between the medical records and the claimant's account of his life before the accident.

1. Consequently, Dr Synnott could not tell if it was the accident or other factors that were influencing the claimant's psychological state.
2. Pain specialist Dr Glen Sheh's report dated 2 May 2022 takes a detailed history of the claimant's physical and psychological injuries arising from the accident, the trajectory of his treatment, and his interaction with various specialists including a summary of neurologist

Dr Bentovoglio's diagnosis of a "mild traumatic brain injury is some post-concussive effects but no cognitive impairment and no neurological deficit". It also refers to complex regional pain syndrome (CRPS) symptoms. 3. Dr Sheh's opinion is that the claimant will need long-term pain medicine and psychiatric support from his accident-related injuries. This also impacted on his need for domestic assistance.

1. The Centrelink payment records demonstrated he was receiving payments before and after the accident.
2. The records show the Centrelink medical certificates submitted between 7 September 2016 until 20 June 2017 referred only to depression. After that up to 26 February 2019 the Centrelink certificates mostly referred to musculoskeletal issues, except for mentioning cancer/tumour-brain in the most recent certificate.
3. There are regular notes under the heading medical conditions referring to the claimant experiencing depression since "a young age."
4. On 3 April 2017, a Centrelink Medical Certificate listed the earlier diagnosis and certified the claimant unfit for work from 3 April 2017 to 3 May 2017.
5. On 15 June 2017, the claimant's Centrelink records noted the claimant lists numerous mental health symptoms. The claimant also reported he has not had paid employment.
6. On 5 June 2017, a Centrelink Medical Certificate listed the claimant's diagnosis as depression and certified the claimant unfit for work from 5 June 2017 to 5 August 2017.

1. The parties did not provide income records filling the gaps for the financial years where the claimant received small amounts of Newstart.
2. The Panel noted that although there are references to criminal activity including armed robberies and using illicit drugs in the clinical notes, there is no official criminal or drug treatment programs records supporting these references. The notes were taken in the context of treatment only. They are untested and due to the passing of time the claimant was not able to explain the context and denied they were correct.
3. The insurer's bundle included reports and medical dispute certificates addressing the claimant's physical injuries. There were no submissions drawing this Panel's attention to parts of that material that could have been relevant to resolving this dispute.
4. The insurer's letter addressed to his then lawyers dated 25 May 2022 provided reasons for denying that the claimant's permanent impairment was greater than 10% for his physical and psychiatric injuries. The reasons are repeated in the insurer's submissions below.
5. The letter is relevant in the context of establishing that the claimant could have received legal advice on the issues leading the insurer to deny liability for non-economic loss.

1. The claimant provided a bundle of documents which lists submissions on psychiatric permanent impairment and replying to the insurer's application for review.
2. Having scanned the bundles those submissions could not be located.

1. The insurer submitted to Medical Assessor Nagesh that the claimant had a significant

pre-accident psychological history that must be considered when addressing causation of the claimant's alleged injuries and any impairment resulting from the accident. 2. The insurer drew the Panel's attention to the relevant psychiatric history. 3. The insurer also submits any Medical Assessor must exercise caution when taking the claimant's pre-accident medical history because of the inaccuracies in the records and inconsistency between the records and the claimant's version of his history. 4. The insurer submits the claimant's psychological injuries cannot yield a permanent impairment greater than 10%. 5. The insurer relies on Dr Synnott who reviewed the claimant's pre-accident records and referred to these in his report dated 28 March 2022. 6. The insurer also submits that if Dr Parmegiani had access to the claimant's psychological profile shown in the clinical notes referred to above before the accident, then he would not have assessed permanent impairment as being greater than 10%. 7. That doctor reported that the claimant told him that the claimant and his family had no history of psychiatric illness before the accident. However, the claimant's GP recorded on

5 September 2017 that the claimant told him that the claimant's mother had depression while the claimant's father had schizophrenia plus the claimant's history referred to above belies that proposition. 8. The assessment should have included a deduction pre-existing impairment and address causation appropriately.

1. Medical Assessors Chew and Verma examined the claimant by video preliminary conference on 3 April 2025. He attended unaccompanied.
2. The interview was difficult as the claimant provided inconsistent information, both internally inconsistent and inconsistent with the records. His responses to inconsistent information were generally again inconsistent and he would often answer with persecutory themes about the system being against him.
3. He said that he currently lives at home in Blacktown. He continues to live with his partner who he describes as his ex-partner and carer. He lives in private rental accommodation and says both of their names are on the lease.
4. He said that he receives the Disability Support Pension from Centrelink. He couldn't clarify when this was started but said "it was after the insurance cut me off." He was unable to specifically clarify what diagnoses and disabilities were listed on the DSP paperwork other than "physical and mental health conditions."
5. He explained that he was self-represented because of costs and delays by his previous lawyer and he didn't trust them and thought they colluded with the insurance company. He said that he did have help with his representation but did not want to say who initially then he said that his ex-partner had helped him with matters and with the bundle for the Commission.

1. Before the accident, Mr Najjarin indicated that he was well and functioning at a high level. He said he was able to care for himself. He said that he related well to his partner. He said that he related well to his family. He said he could concentrate well and socialise with friends regularly.
2. Mr Najjarin said he was working as a concreter without restrictions. When the contents of the clinical and Centrelink records were put to him, he was unable to explain this satisfactorily.
3. For example, the Centrelink records show he was in receipt of benefits soon before the accident. However, he was unable to satisfactorily explain this discrepancy with his account of working. He only admitted that he had occasional pain in his right leg and knee and that he felt down every now and then because of his father's death in 2014.

1. The details regarding the personal history were a little difficult to obtain. He reported he was born in Bankstown Hospital. Mr Najjarin initially did not wish to discuss his cultural or religious background or much about his family. He later claimed that his family were very important to him and that the insurance process was muddying their name for example by saying that there may be a family history of mental illness.
2. He reported that he has one brother and a sister who live in Sydney with two sisters who live outside Sydney.
3. He said that his mother lives close by but he claims that he doesn't see her. He said that his father died in 2014 from liver cancer.
4. He said that he had a good and happy childhood. He said that he attended the Church and the Mosque. He denied any problems in childhood when it was put to him that clinical notes from his visits to GP provided a different history.
5. He said that he completed year 12 at school. He was questioned about this as paperwork submitted to Centrelink indicated literacy issues. He was unable to reconcile the discrepancy other than "it was faked by the insurance company." He said that he completed a diploma at TAFE after school.
6. He has been with his partner since 2010. He claims that they broke up as a couple after the accident in 2020/2021 but remained living together and remain very close with his partner doing carer duties.

1. He denied any history of serious illnesses, injuries, or conditions before the accident.

1. He denied any significant issues with alcohol or drugs. He continued to deny this when the documentary evidence showed otherwise. He only made admission to "a small amount here and there growing up."

1. Mr Najjarin was very vague about previous psychiatric illnesses or problems. He admitted that he struggled with the passing of his father in 2014 and attended counselling. When put to him that there was an emergency department summary where he was suicidal around that time and using drugs and alcohol, he said that this was fabricated.

1. He adamantly denied any criminal history and said that any attempt to state he had a criminal record was simply an attempt to "muddy my name."

1. The Medical Assessors asked Mr Najjarin about the accident on 7 April 2018. He was riding a motorcycle unaccompanied with full protective gear.
2. He said that a P-plater ran a stop sign and he drove into the car and was flung over the car landing on the wrong side of the road. He was taken by ambulance to hospital. He was discharged later that day and told to see his GP.

History of symptoms and treatment following the accident

1. Mr Najjarin stated that his current treatment involved seeing his GP regularly and his psychologist fortnightly. He said that he saw a psychiatrist, Dr Modem until "insurance stopped paying." He said that he sees a pain specialist one to two times a year. He said that he should be seeing an orthopaedic surgeon and physiotherapist but "insurance won't pay."
2. His current medication includes Targin 25mg, Prazosin 3.5mg daily, Gabapentin 900mg daily, Mobic 7.5mg daily, Fluoxetine 80mg daily.

1. Mr Najjarin reported that he has ongoing pain in his head, lower back, pelvis, both legs and chest. He said that the pain has been getting worse since the accident. He reports that he suffered from flashbacks and nightmares a few times a week.
2. He said that he does not sleep at night because of chest pain. He said that he has a fear of being outside. He said that he is sad, miserable, and anxious. He said that he has social problems. He said that he has "intrusive thoughts." He said that he hates the insurer who stalks and harasses him.

1. Mr Najjarin presented as a dishevelled man with longish hair and a thick beard. His eye contact was good. He cooperated with the interview process and was able to remain focused for over 70 minutes.
2. At times he appeared irritable and uncomfortable throughout the interview. His speech was normal in tone and volume. There was no abnormality of perception. Mr Najjarin's affect was depressed and irritable with some reactivity and he seemed very stressed at times.
3. His cognitive function appeared normal, and his thoughts were logical. Mr Najjarin complained there have been problems since the accident with pain and mental health and he has not received adequate treatment or help. He had no current active thoughts of self-harm.

1. Mr Najjarin stated he does not shower regularly and he will eat meals erratically. He said that he is unable to do any household tasks and relies on his carer.
2. In terms of social functioning, Mr Najjarin reported that he didn't see his family. He later admitted that he had seen his brother a few weeks ago. He said that his family were busy and selfish. He said that he maintained a good relationship with his ex-partner.
3. In terms of concentration, Mr Najjarin is able to focus on screens for the CCTV all day. He focussed during the 75 minute interview and said he was watching the CCTV screens simultaneously. He did not explain why he was watching CCTV screens.
4. In terms of social and recreational activities, Mr Najjarin rarely goes out. It was difficult to establish how frequently this occurs. He smirked and laughed then adamantly denied he took any holidays when asked.
5. In terms of adaptation, he claims he cannot work at all. However, he is able to monitor the CCTV and work on his self-representation for the Commission matters.
6. In terms of travel, Mr Najjarin says he is unable to drive or ride at all and relies on his

1. The Medical Assessors' were unable to make a psychiatric diagnosis on the day of the examination due to the significant inconsistencies and discrepancies between the claimant's account and the documentation provided to the Panel.
2. This is a complex fact situation. The bundle combining claimant's and insurer's evidence was almost 3,700 pages. Referring to reports dealing with the musculoskeletal condition show that the claimant's physical and psychiatric conditions are interacting to leave the claimant deeply impaired.
3. The Guidelines dictate that the Panel must only consider the permanent impairment as it is at the time of the assessment.
4. The Medical Assessors questioned whether the claimant's condition was static, well stabilised, and unlikely to change substantially regardless of treatment in accordance with the AMA 4 Guides (page 315). As stated at cl 6.26 the Panel must consider whether permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% WPI in the next year with or without medical treatment. If the impairment were not permanent, it would be inappropriate to characterise it as such and evaluate it according to these Guidelines.
5. Dr Synott's conclusions in his report dated report dated 11 December 2020 that the claimant's condition was entrenched, because it was not responding to medical intervention. Dr Synnott's later report did not rebut that conclusion.
6. That and the Medical Assessors clinical judgment satisfied them that the claimant's condition was unlikely to change.
7. The claimant's conduct during the examination with significant inconsistencies and discrepancies between the claimant's account and the documentation provided meant that the Panel could not rely on the claimant's input during the examination to resolve the dispute. The Panel's Medical Assessors' were unable to accurately assess his symptoms and function during that event.
8. Dr Synnott's addendum in his reports contains helpful observations for this Panel for managing evaluations where the information cannot be called "reliable".
9. He wrote:

"Psychiatry is unable to prove the (relative) significance of factors that could be influencing a person's presentation - be it psychiatric illness or 'non-diagnosis' factors. A number of issues may be in play and significant at the same time, yet there is no greater certainty in assigning a particular diagnosis and saying it is significant - than saying a non-diagnosis issue is significant. There are no scientific tests to confirm that opinion.

The individual being assessed and/or the psychiatrist may be inclined to attribute the person's symptoms/difficulties to a particular diagnosis or incident(s) - and downplay the possible impact of non-diagnosis issues (perhaps viewed as nebulous or tenuous). Such an approach assumes people are incapable or immune to other factors shaping their behaviour and thinking, and how they respond to life's challenges. It is a

one-dimensional construct of people - ignoring their complexity and depth of character, and the impact of the totality of their life experiences."

1. Accordingly, to diagnose a psychiatric condition, assess PIRS, assess causation and whether evidence of the claimant's pre-accident psychological state is sufficiently objective enough to calculate psychological impairment existing at the date of the accident the Panel must rely chiefly on the relevant records provided in the parties' bundles and the claimant's presentation.
2. Overall, the claimant's pre-accident psychological state revealed in the clinical notes could not be given such weight that it would exclude the accident as not being able to materially contribute to post traumatic disorder if the claimant's current psychological condition.
3. Using clinical judgment however, even putting aside the clinical interview the Medical Assessors conducted, the Medical Assessors were not able to establish any consistent symptoms or diagnoses from review of all clinical notes, entries and reports and are therefore unable to endorse any prior diagnoses including post-traumatic stress disorder.
4. In assessing the weight to be given to the material disclosed in the claimant's clinical notes the Medical Assessors considered that the consistent GP attendances, creation of mental health plans and mentions of depression in the context of Centrelink certificates of capacity showed that the claimant's capacity to work was already adversely impacted by depression before the accident. Further, the Medical Assessor could not find he was telling the truth when he said he had never had psychiatric issues before the accident.

1. Mr Najjarin was attempting to satisfy this Panel that the accident probably caused or contributed to a recognised psychiatric condition.
2. This Review Panel, comprised of two specialist medical practitioners and a legal Member, understands it is not required to choose between competing medical opinions and must form its own opinion: Insurance Australia Group Ltd v Keen[7] and Insurance Australia Ltd v Marsh.[8]
3. This Panel adopts the Medical Assessors' examination findings with the additional further observations.
4. This Panel is aware that people who are self-represented, vulnerable, lack confidence, who have to repeat the same story many times, who are not as educated as the questioners, who have suffered head injuries or psychological conditions, who are taking strong painkilling medication, who have suffered trauma and are fearful of the claims process are less likely to be thought of as reliable witnesses.
5. This Panel is also aware it must not reject a claimant's direct evidence solely on the basis that the witness is an unreliable storyteller or has told it differently in the past but must also look at what the balance of evidence discloses.[9]
6. It is reasonable that the insurer would attempt where there is supporting evidence to test the differences or identify inconsistencies. This approach is adopted in aid of the submission that the claimant's evidence is incredible or unreliable and that as a result, the claimant's evidence must be treated with caution unless corroborated.
7. The Panel accepts the accident was sufficient to satisfy the initial diagnostic requirement for post-traumatic stress disorder, because the circumstance where he was thrown over the insured driver's car from his motor bike by a sudden stop involved exposure to actual or threatened death or serious injury.
8. However, the claimant's treating doctors' records and complaints recorded in Centrelink records show an extensive history of psychological symptoms and time away from work before the accident.
9. The Medical Assessors' opinion are that issues set out in the clinical notes and records suggest there are other potential causes for any post-accident psychiatric symptoms other than the car accident.
10. The records show there was pre-accident depression with some impact on function. The Medical Assessors took into account both the history gathered at re-examination and that provided in collateral information, however, the criteria for a depressive disorder such as a major depressive disorder or persistent depressive disorder was not met. On balance the Medical Assessors found that in the past a DSM-5-TR diagnosis of unspecified depressive disorder F32.A was appropriate. The Medical Assessors also found the claimant no longer suffers from this condition which has resolved.
11. As has been noted in a number of Supreme Court decisions such as Bugat v Fox[10], a doctor noting or not noting a claimant's complaint is not determinative of a fact in issue. Any tribunal must also look at the context of the complaint or lack of complaint and consider if there are any relevant evidence that would support the claimant's contention.
12. The Panel attempted to find that evidence such as in the other medical reports supporting his claim that the accident caused his psychiatric condition. Those reports depended upon accepting the history the claimant provided that before the accident he had not known any mental health challenges or sought treatment.
13. This Panel offered the claimant opportunities to address and contextualise the histories taken by various treating doctors and in other records before the accident.
14. During the interview with the Panel's Medical Assessors,' he stated a blanket denial of the records' authenticity including alleging the insurer had "faked" Centrelink records and was attempting to muddy his family name when asked about the references to his family history including past mental illness. There was no basis to the allegations.
15. The Panel notes until Dr Synnott was provided with the claimant's clinical notes from before the accident, Dr Synnott supported the nexus between the accident and post-traumatic stress disorder. It was not clear from reading the last report whether Dr Synnott put that history to Mr Najjarin during that examination, because he does not record that the claimant denied it. However, the doctor had based his previously supportive opinion in earlier reports on the claimant's history that he had never sought mental health assistance before the accident.
16. The High Court in _Whisprun Pty Ltd v Dixon[11]_held that if a medical opinion was based on accepting a history and complaints which were later rejected, then the medical opinion could not have weight. Gleeson JA also discussed this principle in Boateng v Dharamdas[12] where his Honour stated:

"The medical opinions were premised on an acceptance of the appellant's account of his history and complaints. Such an opinion would only be as acceptable as the history on which it was based."

1. The claimant's history given to the Medical Assessors, as well as to Drs Modem, Parmegiani and Synnott moved the Panel to doubt the claimant's version unless it was independently corroborated. Given that the Medical Assessors on this Panel do not accept the claimant's account of his pre-accident and post-accident symptoms, the Panel gives no weight to the reports the claimant relied on.
2. The Panel prefers those contemporaneous accounts in the clinical records to the version the claimant provided to the Medical Assessors in the recent examination. The claimant's adherence to denial and his inconsistency in the face of the records causes this Panel to find the claimant is unreliable as a witness in his own case.
3. Assessing the cause of a psychiatric condition largely depends on accepting the person's history, notwithstanding that the Panel has considered that lack of consistency may be due to the factors referred to above.
4. The Panel's Medical Assessors' view was that at the time of the assessment he did not have any diagnosable psychiatric condition.
5. He did not present with the requisite intrusive, avoidance, arousal and negative alterations in cognition and mood that would meet the criteria for diagnosis of PTSD.
6. He did not present with the sustained mood symptoms to meet criteria for a mood disorder such as a depressive disorder.
7. The Panel also notes that the clinical judgment of its medical members, who are psychiatrists, is the most important tool in applying the PIRS: cl 6.217 Impairment Guidelines. As the Medical Assessors were unable to make a diagnosis the Medical Assessors cannot apply the PIRS.
8. The Panel finds the claimant does not have post-traumatic stress disorder because his symptoms do not meet the threshold for DSM-5-TR diagnosis as determined by the Medical Assessors' clinical judgement. To quote from DSM-5-TR "use of Manual" page 21:

"It is not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis.... The relative severity and salience of an individual's signs and symptoms and their contribution to a diagnosis will ultimately require clinical judgement."

1. Accordingly, the claimant has failed to satisfy the Panel that is probable that the motor accident caused or materially contributed to a psychiatric condition. In these circumstances, the Panel will not assess the claimant's permanent impairment.[13]

1. Given those findings, the Panel revokes Medical Assessor Abhishek Nagesh's certificate dated 29 June 2023, which found that the psychological injuries arising from the accident gave rise to permanent impairment of 17%.
2. The Panel issues a new certificate certifying that the accident did not cause or materially contribute to the claimant's psychological condition.

[1] Version 10 since 15 September 2025. Referred to as the Guidelines.

[5] See cls 6.222 - 6.223 of the Guidelines.

[7] [2021] NSWCA 287 at [40], [41] and [45].

[8] [2022] NSWCA 31 at [11], [21] and [64].

[9]James Thomas Stevens v DP World Melbourne Ltd [2022] VSCA 285 [44].

[10] Bugat v Fox [2014] NSWSC 888.

[11] (2003) 77ALJR 1598 at 1609 [60] per Gleeson CJ, McHugh, and Gummow JJ.

[12] [2016] NSWCA 183 at [148] (Leeming JA and Davies J agreeing).

[13] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.