Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel confirms the certificate dated 25 October 2024.

1. The claimant was involved in a motor vehicle accident on 17 March 2020. The accident occurred on Holbeche Road at the intersection with Doonside Road in Arndell Park. The claimant was driving west intending to turn left from Holbeche Road onto Doonside Road. While that intersection is controlled by traffic lights, there is a separate left turn lane which permits a left turn at any time, with care.
2. The claimant was driving a Ford Transit single-cab utility vehicle. His wife was in the passenger seat. The claimant was sitting on a cushion, and so was positioned quite high in his seat. As there was no backseat, there was a wall behind the driver's seat with a glass panel at the top, behind his head. Both the claimant and his wife were wearing seatbelts.
3. The claimant's vehicle was stationary in the left turn lane. His left hand was on the steering wheel. His right elbow was resting on the windowsill. The claimant was looking over his right shoulder for oncoming traffic on Doonside Road. As he was doing so, he suddenly felt a jolting bang, in the rear. There was no warning and he heard no screeching of brakes before the impact. His vehicle was pushed several metres forward by the impact from the insured vehicle which was a 4.5 tonne tarre weight Isuzu rigid truck.
4. The claimant remembers the back of his head striking the rear glass panel. His right elbow was impacted by the windowsill frame. He reports he immediately felt pain in his neck, between his shoulder blades and in his left arm and back. He was in a state of shock after the accident. The other driver was apologetic and said he did not see the claimant's vehicle.
5. Ambulance and Police Officers were not called to the scene. The claimant was able to drive home. The claimant says the rear-end of his vehicle suffered minor damage and did not require repair. He also says there was considerable damage to the Hino truck.
6. The claimant did not attend hospital because of the COVID-19 situation. He consulted his treating general practitioner (GP) the next day. He was referred for physiotherapy and chiropractic treatment sessions for injuries to his neck, lower back, right elbow and right little finger. Imaging studies of his cervical spine, right elbow, lumbar spine and right hand were performed. The claimant was referred to a sports physician, Dr Grace Bryant, for treatment of the injuries to his left elbow and right hand. The claimant returned to work on restricted light duties approximately three months after his accident. By then he was self-employed as a Director of his own company in air-conditioning (manufacturing).
7. QBE Insurance (Australia) Limited (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer denied liability for payment of statutory benefits beyond 26 weeks as it regarded the injury caused by the accident as a soft-tissue threshold injury for the purpose of the Act. That decision was confirmed upon internal review. The insurer also denied that the claimant's accident-related injuries give rise to a degree of whole person impairment greater than the 10% threshold.
8. The insurer initially conceded that the claimant's injuries gave rise to a degree of whole person impairment greater than 10% based on the available evidence. By letter dated 26.10.2023, the insurer stated that it reversed it position, based upon additional information received from Dr Andrew McIntosh, biomechanical engineer, who considered that the claimant sustained a soft tissue injury to the cervical spine in the subject accident, but no other physical injury. The insurer also relied upon reports from Dr Hyde-Page, orthopaedic surgeon, and Dr Robin Fitzsimons, neurologist, in relation to the claimant's physical injuries and WPI arising from those injuries.

1. As there is a dispute between the parties about:
   • whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act; and
   • the degree of permanent impairment under Schedule 2, cl 2(a) of the Act,

the claimant was referred to Medical Assessor Yu Tang Shen for assessment of psychiatric condition - Depression; Persistent Depressive Disorder (Dysthymia).

1. Medical Assessor Shen certified on 25 October 2024 as follows:

The following injury caused by the motor accident:

is not a THRESHOLD INJURY for the purposes of the Act.

Medical Assessor Shen found that the claimant's psychiatric injury is not a threshold injury, as it is a psychiatric injury that is recognised in the DSM-5, that is not acute stress disorder or adjustment disorder. See Regulation 4(2) of the Motor Accident Injuries Regulation 2017 (Regulation).

1. Medical Assessor Shen did not proceed to assess whole person impairment (WPI) arising from the persistent depressive disorder for reasons that are not stated.
2. A differently constituted Review Panel certified on 20 June 2025 as follows:

(a) The following injury caused by the motor accident:

• cervical spine - soft tissue injury

(b) The following injury caused by the motor accident:

• right elbow - soft tissue injury

1. The insurer sought a review of Medical Assessor Shen's certificate, on the basis that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The insurer relied upon the particulars set out in the application and supporting documentation. The claimant did not agree that a review was warranted.
2. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and

cl 34 of Procedural Direction PIC 7 (28 days). 3. The insurer submits there is a reasonable cause to suspect that Medical Assessor Shen's assessment is incorrect, in a material respect, for the following reasons:

(a) failure to engage with evidence, and

(b) errors in DSM-5-TR diagnosis.

1. Particulars are given in support of each of those submissions as follows:

(a) Error 1 - Failure to engage with evidence

• The insurer submits that Medical Assessor Shen erred by not considering the balance of the relevant evidence provided by the parties with respect to the claimant's post-accident psychological complaints. The insurer says that, apart from the reports of Dr George and Dr Rastogi, psychiatrists qualified by the claimant's solicitors, there is no engagement with any of the clinical records or other documents attached to the parties' application and reply. The insurer submits this is a significant omission in circumstances where the clinical records do not contain any significant reporting of psychological symptoms in the post-accident period. The insurer submits that the only reasonable conclusion that can be drawn is that the Medical Assessor failed to consider the clinical records at all.
• In the absence of any commentary on the treating records or the timeline of symptoms in the post- accident period, the insurer submits that it is unclear what, if any, the impact this had on the Medical Assessor's determination. The insurer says the Medical Assessor appears to have accepted the claimant's self-reporting and not deemed it necessary to review or cross-reference with the clinical records. The insurer submits this amounts to a breach of procedural fairness as it may have impacted his diagnosis or opinion on causation.

(b) Error 2 - Errors in DSM-5-TR diagnosis

• The insurer submits that the Medical Assessor's diagnosis of persistent depressive disorder contains material errors and does not comply with the requirements of DSM-5-TR. Particulars are given in support of that submission. Specifically, the insurer says the Medical Assessor made no reference at all to Criterion C in his diagnosis. The insurer submits that the Medical Assessor fell into error by failing to address Criterion C of his purported DSM-5-TR diagnosis (in circumstances where the clinical records suggest the criterion is not met). In the insurer's submission, the diagnosis therefore does not comply with clauses 5.11 or 5.12 of the Guidelines.
• The insurer submits that the history taken by the Medical Assessor demonstrates that it is the claimant's physical symptoms, rather than his psychological symptoms, that are causing any functional impairment.
• In later further submissions, the insurer noted that the claimant asserts he satisfied the DSM-5-TR diagnostic criteria on several occasions in the post-accident period, as per the reports of Dr George, Dr Rastogi and the certificate of Medical Assessor Shen. The insurer disputes that those documents contain valid DSM-5-TR diagnoses in the post-accident period.
• The insurer submits the reports of Dr George and Dr Rastogi do not confirm the presence of a recognised psychiatric condition in the post-accident period.
• The insurer repeats its submission that the diagnosis made by Medical Assessor Shen does not meet the DSM-5-TR diagnostic criteria for a recognised psychiatric condition. The insurer says the Medical Assessor did not engage with the clinical records and the sporadic reporting of symptoms, and no comments were made as to how Criterion C was met in that context.
• In response to the claimant's submission, that it is not unusual that psychological symptoms did not emerge immediately after the accident, the insurer says the issue in this case is not just the absence of contemporaneous reporting, but more so the scarce reference to any psychological symptoms, throughout the post-accident period.

1. The insurer's review application was opposed by the claimant on various grounds. It is not necessary to refer to those submissions in detail as they were not accepted by the President's delegate. Briefly, the claimant submitted as follows:
   • In response to the insurer's complaint that the Medical Assessor did not specifically refer to the clinical records, the claimant submits that the Medical Assessor was under no duty to do so. Relevant case law is cited.
   • It was open to the Medical Assessor to accept the claimant's testimony about his symptoms and he plainly did so. There was no inconsistency between the claimant's history and the clinical records in any event.
   • The insurer's submission fails to recognise that the Medical Assessor was required to exercise his own specialist's expertise as a psychiatrist, using the full gamut of his clinical experience and expertise, to assess the claimant. He was not required to specifically engage with arguments put by the insurer that were not based in evidence.
   • As to the allegedly "Incorrect DSM-5 Diagnosis", the claimant submits that cl 5.11 of the Guidelines says no more than that the Medical Assessor must diagnose a recognised psychiatric illness under DSM-5. It says nothing about requiring the Medical Assessor to specifically list the qualifying criteria for a condition, as the insurer submits. In any event, so the claimant submits, the Medical Assessor plainly did refer to all the relevant criteria. Particulars are given in relation to Criterion C, Criterion D, and Criterion H.
   • The fact that the claimant is also restricted by physical injuries does not disqualify him from receiving a psychiatric diagnosis in the claimant's submission.
2. President's delegate Kenneth Ho issued a Determination of an Application for Review of a Medical Assessment on 21 January 2024 which stated the satisfaction of the President's delegate there is reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor's failure to refer to diagnosis Criterion C for depressive disorder despite having referred to the other diagnostic Criteria A to H except C.
3. Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the dispute referred to Medical Assessor Shen.
4. What has been referred for assessment in these proceedings is psychiatric condition (depression; persistent depressive disorder).
5. The Panel notes that the Medical Assessors on the Panel are required, in accordance with the Guidelines, to determine if the claimant has a psychological or psychiatric injury, within

DSM-5, caused by the accident, and then make a diagnosis of that injury. 6. The Medical Assessors may, in their clinical judgment, diagnose a condition that is the same as, or different to, the diagnosis 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. 7. The parties were invited to make further submissions in relation to the manner in which the Panel proposes to proceed, particularly in relation to the diagnosis that it may make, as stated in paragraphs 22 to 24 above. Any such submissions should be uploaded not less than seven working days before the date of the Medical Assessors' re-examination of the claimant. No such submissions were made by either party.

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 motor 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 biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

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

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 motor accident. The motor 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. See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

"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 principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

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

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

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

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on

28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries". 2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury. 3. Any reference in these reasons to "minor injury" is a reference to a "threshold injury" and any reference to the word "minor" referring to the injury alleged to have occurred in the accident is a reference to "threshold". 4. A threshold injury is defined in s 1.6 of the Act and includes a "soft tissue injury" or "psychological or psychiatric injury that is not a recognised psychiatric illness". 5. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the Act. 6. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

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

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

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

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

1. comprehensive accurate history, including pre-accident history and pre-existing conditions;
2. a review of all relevant records available at the assessment;
3. a comprehensive description of the injured person's current symptoms;
4. a careful and thorough physical and/or psychological examination;
5. diagnostic tests available at the assessment.

Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant relied upon the following material which the Panel has considered:

Background - the claimant submitted as follows:

(a) the claimant suffered serious injuries in a rear-end collision on 20 March 2020. He had no symptoms in his neck, right arm, or back before the accident, but he developed such symptoms in the immediate aftermath of the accident;

(b) as a consequence of the accident, the claimant also developed psychological symptoms. He has been diagnosed with a Persistent Depressive Disorder by Dr Grahame George, psychiatrist. The insurer relies upon no psychiatric evidence and there is evidential basis upon which to challenge Dr George's assessment;

(c) on 18 February 2022, the insurer conceded that the claimant's degree of permanent impairment exceeded 10%;

(d) despite having appropriately conceded both that the claimant's injury was a non-threshold injury, and that the 10% threshold was crossed, the insurer sought to reverse its position in November 2023, on the basis of the flawed non-medical opinions of a biomechanical engineer, Dr McIntosh, who concluded that the claimant's injuries were unlikely to have been caused in the accident;

(e) Dr McIntosh provided no alternative explanation for the sudden onset of symptoms after the accident and so his opinions rest upon acceptance of the remarkable and implausible coincidence that the claimant would have come to his symptoms at exactly the same time even had the accident not occurred;

(f) the primary flaw in the findings of Dr McIntosh is that he was instructed by the insurer's solicitor to assume (without evidence) that the insured driver was travelling at 10km/h when the accident occurred, when that assumption has not been proved by evidence. As such, all of his opinions are based upon that faulty and unproved factual assumption, which deprives those opinions of probative value, and strictly makes them inadmissible. (The Panel notes that the rules of evidence do not apply to this review);

(g) there is no evidence whatsoever to suggest the insured driver was travelling at that speed, and even if such evidence did exist, it would be at-odds with the physical evidence and the claimant's testimony, and

(h) the evidence of Dr McIntosh addresses only physical injury, and so provides no basis for the insurer's decision to deny that the claimant's psychological injury is a non-threshold injury, as per the opinion of Dr George. In that regard, the insurer offers no answer as to why it did not accept the only psychiatric evidence on the subject. It relies only upon the medically unqualified opinion of its claim's officer that the persistent depressive disorder is unrelated to the accident because it was not diagnosed in the medical records shortly after the accident, a proposition that is not only unsupported by any medical opinion, but which is at-odds with the opinions of Dr George that address this very issue, Dr George having explained that the development of symptoms over time is typical for a persistent depressive disorder.

(i) Pursuant to s 1.6(2) of the Motor Accident Injuries Act 2017 (the Act), a recognised psychiatric illness is not a threshold injury. Dr George, psychiatrist, has diagnosed the claimant with a Persistent Depressive Disorder due to the accident. This is a recognised psychiatric illness under DSM-5 and so it is not a threshold injury. There is no other psychiatric evidence before the Commission. (The Panel notes that is no longer the case. There is now the evidence of Dr Rastogi and Dr Synott);

(j) the claimant's psychological complaints were documented by his treating general practitioner, Dr Koleda, in his record of the claimant's first post-accident attendance on 20 August 2020. At that consultation, Dr Koleda recorded that the claimant was suffering symptoms of post-traumatic stress. At the next consultation on 10 September 2020, Dr Koleda diagnosed "Depression";

(k) further, the Benchmark Rehabilitation Vocational Assessment report prepared on 4 June 2021 for the insurer recorded that the claimant was experiencing constant irritability, frustration and moodiness, that he was slower to complete work tasks, and that his relationship with his wife was strange;

(l) the insurer suggests the depressive disorder is not related to the accident because of a lack of contemporaneous evidence. As per the above, this is incorrect. Further, this contention was comprehensively addressed in the supplementary reports of Dr George in which he stated that the way in which the claimant's depression developed was not uncommon because, as time passes and pain does not recede, pain has an impact on a patient's mobility and also general activity level and underlaying symptoms, and especially chronic pain, leads to the onset of depression. He stated that a persistent depressive disorder evolves over a period of time, specifically more than two years for such a chronic condition, which builds slowly over time and becomes more chronic, especially if pain and limited mobility do not improve, which was the case for the claimant, and

(m) Dr George's reports constitute cogent, reliable and uncontroverted evidence that the claimant has a non-threshold psychological injury.

(n) The claimant asserts that his condition has resulted in a degree of permanent impairment of more than 10% as a result of the accident.

(o) The claimant's submissions in relation to physical injury are not relevant for the Panel's consideration.

(p) The insurer relies on the report of Dr Andrew McIntosh, biomechanical engineer, dated 10 July 2023. As stated above, a biomechanical engineer is not a medical practitioner. On the question of injury, the opinions of a medical practitioner should be preferred. It is noted that not even the insurer's qualified medical experts adopt the opinions of Dr McIntosh, and

(q) Even if the report of Dr McIntosh were to be accepted at its highest, it does not establish that the claimant sustained only threshold injuries in the accident. The opinions of Dr McIntosh are directly contradicted by those of Mr Grant Johnston, biomechanical engineer.... who undertook a scientific analysis of the forces involved in the accident, by reference to the physical evidence, unlike Dr McIntosh, who simply assumed that the insured driver was travelling no faster than 10km/h at the time of the accident.

Certificate and Reasons of Medical Assessor Ian Cameron]

Report of Dr Grahame George, consultant psychiatrist, to claimant's lawyers

Dr George records that the claimant has no psychiatric history of note. He then describes the claimant's medical, family, personal/social histories and his Mental State Examination. He provides a diagnosis of persistent depressive order. Under the heading "SUMMARY AND OPINION", Dr George says as follows:

"I have diagnosed him with a persistent depressive disorder secondary to his pain and consequences of the accident. His persistent depressive disorder would have been added due to the death of both his parents in 2022. Whilst he has not seen his father for some time, according to his reports, he was close to his mother.

His GP had not referred him either to a psychologist or psychiatrist in relation to his depressive disorder. He has not been taking antidepressant medication. His ongoing depression would be viewed more reactive to circumstances and consequences and, generally, be thought of more as a chronic dysthymic disorder."

Dr George sets out the DSM-5 criteria for persistent depressive disorder and states how these have been satisfied, in this case, in his opinion.

Dr George addresses the insurer's contention that the claimant does not suffer from a persistent depressive disorder due to the absence of depressive symptoms mentioned in his GP's records in the first few months after the accident. (As the points made by Dr George in reputing that contention are summarised previously, it is not necessary to repeat them here).

In response to a series of questions put by the claimant's lawyers, Dr George further addresses the DSM-5 criteria for persistent depressive disorder and explains why a differential diagnosis is within the schizophrenia spectrum, and other psychotic disorders, is not appropriate.

Dr George does not utilise the PIRS to provide an assessment of whole person impairment.

Report by Dr Richa Rastogi, consultant psychiatrist, to claimant's lawyers

Under the heading "Diagnosis and Opinion", Dr Rastogi says as follows:

He was involved in a motor vehicle accident with C6/C7 nerve impingement causing chronic neuropathic pain and left sided radiculopathy and functional limitations and a tendon tear in his right elbow. This has profoundly affected his working capacity, caused business losses and financial strain and compromised his quality of living. He presents with agitated depressive disorder that has continued over three years with depressive conditions, mood lability, insomnia, anhedonia, loss of confidence, loss of identity and fear about his future. His depressive disorder has been persistent in a setting of chronic pain and losses with amplification due to his chronic pain not responding to treatment and causing marked physical impairments. He has a poor prognosis. I am of the opinion that his depressive disorder is directly attributed to the motor accident.

He fulfils the DSM-5 diagnosis of Major Depressive Disorder charaterised by:

1. depressive mood most of the day;
2. markedly diminished interest or pleasure;
3. significant decrease in appetite;
4. insomnia;
5. psychomotor agitation;
6. fatigue or loss of energy;
7. feelings of worthlessness or excessive or inappropriate guilt; and
8. diminished ability to think or concentrate, or indecisiveness.

1. The symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.

1. The episode is not attributable to the physiological affects on a substances or another medical condition.

His prognosis is very guarded and poor in a setting of physical impairments, functional losses, poor stress coping, depressive symptom and financial losses. Given the bidirectional association between pain and depression, his depression is likely to worsen with time causing further impairments, although his degree of permanent impairment is unlikely to change by more than 3% in the next year with or without treatment and so his degree of permanent impairment is assessable under the Motor Accident Guidelines."

In a separate Permanent Impairment Assessment of the same date, Dr Rastogi utilised the psychiatric impairment rating scale (PIRS) to assess whole person impairment as follows:

1. For the purposes of a threshold injury assessment, it is sufficient if the claimant has satisfied the definition of a non-threshold injury at any time since the accident (claimant's emphasis), even if he does not currently satisfy that condition. This approach was approved in David v Allianz Australia Insurance Limited [2021] NSWPICMP 227 and in Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6 and Baldedara v QBE Insurance Australia Limited [2023] NSWPICMP 604.
2. It follows it is not necessary for the Panel to find that the claimant is suffering from a non-threshold injury at the time of their examination of him. It is sufficient for the Panel to form the view that the claimant has suffered from a non-threshold condition at some point since the accident. In that regard, the evidence is overwhelming and irresistible.
3. First, the claimant plainly satisfied the criteria for Persistent Depressive Disorder when he was assessed by Dr George, who confirmed he satisfied all of the DSM-5 criteria.
4. Second, the claimant plainly satisfied the criteria for persistent depressive disorder when he saw Dr Rastogi on 26 June 2024, as confirmed by her recitation of the DSM-5 criterion on that occasion.
5. Third, the claimant plainly satisfied the criteria for persistent depressive disorder when he was assessed by Assessor Shen. While the application for review was accepted because the Assessor failed to specifically refer to Criterion C, it is obvious from his findings that the claimant satisfied this criteria as the Medical Assessors on the Panel will appreciate.
6. The evidence overwhelmingly establishes that the claimant has suffered from the effects of a persistent depressive disorder at some time since the accident and caused by the accident. At such, the Panel will find that the claimant did not suffer only threshold injuries, as a result of the accident.
7. The Panel notes the claimant's statements dated 28 September 2023 and 16 November 2023 which are included in the claimant's review bundle. The Panel also notes the report of Mr Johnston, biomechanical engineer, dated 17 February 2021 which appears at page 293 of the claimant's review bundle. None of that material is relevant for the Panel's consideration as it goes to the claimant's physical injuries.

1. The insurer relied upon the following material which the Panel has considered:

President's delegate determination (threshold injury - psychological)

Certificate of Medical Assessor Yu Tang Shen (threshold injury - psychological)

These documents are not relevant for the Panel's consideration as they relate to the claimant's physical injuries.

Report of Dr Inglis (Howe) Synnott, consultant psychiatrist, to insurer's lawyers

"In my opinion, on the information available, the major factor in his inability to work is the described motor accident-related physical symptoms/pain. This is based on the SIRA certificates which do not mention accident-related psychiatric injuries.

In my opinion, the cause of his described psychiatric symptoms would be shaped by the cause of his accident-related physical symptoms/pain.

In my opinion, regarding the accident, he describes experiencing sufficient symptoms to meet the diagnostic criteria of a major depressive disorder with prominent anxiety, chronic - both DSM-4 and 5 criteria. I am not persuaded post-traumatic stress disorder is an appropriate conceptualisation of his psychiatric response to the subject accident.

Please note, Major Depressive Disorder, is a broad diagnostic category and covers a wide-range of presentations and there are no automatic implications simply on the basis of this diagnosis. One should not necessarily assume there is a significant psychiatric impairment or incapacity for employment and the diagnosis is not an automatic contraindication to participating in employment and other life roles - and it does not explain the totality of the situation.

In my opinion, the discrepancies and incongruities in his account - and information in the documentation - raised reasonable questions about the veracity of his account, including but not just confined to what might be the psychiatric impact of the accident. For the purposes of this assessment, regarding the subject accident, one can have no confidence in offering an opinion on:

1. psychiatric symptoms caused by the accident;
2. psychiatric diagnosis;
3. appropriate treatment;
4. prognosis;
5. work capacity; and
6. impairment.

Dr Synnott then describes the other documentation."

Dr Synnott did not assess whole person impairment for the reasons stated.

Supplementary report of Dr Andrew McIntosh, biomechanical engineer

Not relevant for the Panel's consideration as it does not deal with the claimant's psychiatric condition.

Insurer's Further Submissions include the following:

1. In his submissions dated 15 August 2025, the claimant asserts that he "plainly" satisfied the DSM-5-TR diagnostic criteria on several occasions in the post-accident period as per the reports of Dr George, Dr Rastogi and the certificate of Professor Shen.
2. Pursuant to the principle in David v Allianz Australia Insurance Limited [2021] NSWPICMP 227, the claimant submits that it ought to be accepted he satisfied the diagnostic criteria for a recognised psychiatric disorder at some point at the post-accident period, based on those reports/certificates.
3. The insurer disputes that those documents contain valid DSM-5-TR diagnoses in the post-accident period.
4. The insurer submits that Dr George, in his reports dated 29 March 2023 and

20 November 2023, does not actively engage with the DSM-5-TR diagnostic criteria. 5. In his report dated 7 November 2023, Dr George makes a number of comments that purport to engage with the diagnostic criteria. However, the insurer submits that those comments do not address Criterion B of a Persisted Depressive Disorder. 6. The insurer also submits that Dr George's comments do not specifically address Criterion H (that the symptoms caused clinically significant impairment in social occupational and other areas of function). In particular, it is submitted that Dr George takes a history in his substantive report dated 29 March 2023 that it is the claimant's physical symptoms that caused his incapacities in activities of daily living. 7. The insurer submits that Dr George's reports do not confirm the presence of a recognised psychiatric condition in the post-accident period. 8. Dr Rastogi provided a report dated 26 June 2024. The insurer submits that Dr Rastogi was not provided with any of the claimant's clinical records for the preparation of her reports, and that this is significant, noting that a critical issue in this matter is the minimal post-accident reporting of psychological symptoms. 9. Dr Rastogi purported to diagnose an agitated persistent major depressive disorder. The insurer submits that, along side not giving consideration to the clinical records, Dr Rastogi's diagnosis does not deal with all of the DSM-5-TR diagnostic criteria for a major depressive disorder. In particular, Dr Rastogi only addresses the first three criteria. 10. The insurer therefore submits that Dr Rastogi's report does not confirm the presence of a recognised psychiatric condition in the post-accident period. 11. Medical Assessor Shen's diagnosis does not meet the DSM-5-TR diagnostic criteria for a recognised psychiatric condition. This was explicitly the basis upon which the review application was accepted. The Medical Assessor did not engage with the clinical records and the limited, sporadic reporting of symptoms, and no comments were made as to how Criterion C was met in that context. 12. Finally, the claimant submits that it is not unusual that his psychological symptoms did not emerge immediately after the subject accident. The insurer confirms that the issue in this matter is not just the absence of contemporaneous reporting, but more so the scares reference to any psychological symptoms throughout the post-accident period. 13. As stated in the insurer's review application submissions, there are only three references who psychological symptoms in the post-accident treating records, being 20 August 2020, 10 September 2020 and a DASS-21 completed on 22 February 2022. 14. The insurer submits that careful consideration will need to be given to the nature of the subject accident, the scarce reporting of symptoms and whether any activities of daily living restrictions (for the purposes of any relevant DSM-5-TR diagnostic criteria) are attributable to physical or psychological symptoms.

1. The report of Medical Assessor Ronald Gill and Medical Assessor Christopher Rikard-Bell is as follows:

Mr Enrique Ruiz-Diaz was born on 21 December 1971. He was 53 years old at the time of this assessment.

He resides in Kenthurst, New South Wales, where he lives with his wife and son (18). He also has two adult daughters, aged 27 and 26, who live independently. One of his sons is 24.

Before the accident, Mr Ruiz-Diaz was self-employed, running his own air-conditioning manufacturing business. He had been in the business for 20 years.

He managed a small factory where he both supervised staff and undertook deliveries, handyman tasks, and manual work. As the business developed, he also took on managerial responsibilities in the office, overseeing operations and managing up to six employees.

Following the accident, he was unable to sustain the physical and psychological demands of his work. He was off work for three months.

He closed the business as he could not keep up with orders and was losing customers. He shut the business down a year after the accident.

Currently, Mr Ruiz-Diaz supports himself through government benefits (JobSeeker) and some financial assistance from his family (sister, son, and his wife's pension). There are ongoing monetary issues related to rent, school fees, groceries, bills, etc.

On 17 March 2020, Mr Enrique Ruiz-Diaz was driving his Ford Transit single-cab utility vehicle along Holbeche Road at the intersection with Doonside Road in Arndell Park, NSW.

He was stationary in the left-turn lane, waiting to merge, with his wife seated beside him. A large Isuzu truck collided into the rear of his vehicle.

He described the impact as a sudden, strong jolt, pushing his vehicle several metres forward.

During the collision, the back of his head struck the glass panel behind his seat, and his right elbow was forcefully jolted against the window frame.

He immediately felt pain in his neck, between his shoulder blades, in his left arm, and in his back. He also noted right elbow pain at the time.

He was shaken and in shock. He looked at his wife and asked about her wellbeing. He initially realised that he had no idea what had hit him.

It took a few minutes to realise the gravity of the situation. He did not lose consciousness.

Within a few minutes, he left the car. He was shaking and felt that his legs were like jelly, and that he was trembling.

There were a few people who offered assistance. No ambulance was called, as he was fearful of COVID-19 infection. He did not call the police. He was able to drive his vehicle back home.

At home, he was in a lot of pain in his shoulder and upper limbs. He could not sleep. A few days later, he saw his general practitioner. He said that he had difficulty securing an appointment.

He was given pain relief medications. He also had imaging studies that identified the injuries.

The pain has not improved and has progressively worsened.

In the following days and weeks, he developed persistent symptoms of neck pain radiating into his left arm, lower back pain, swelling and pain in the right elbow, and pain in his right hand.

He was referred for physiotherapy and chiropractic care and received platelet-rich plasma (PRP) and cortisone injections in the right elbow and hand.

He struggles to engage in his daily chores. He struggles to put on clothes and to attend to his personal care needs. He has not been asking for assistance.

He spoke about ruminating over his loss of independence and loss of freedom. There is a loss of identity. He cannot play golf or football and spoke about now being hunched over.

He does not see things improving for him. He said that he has not complained but does not see things improving.

He feels depressed, helpless, and hopeless. The depression worsened more so two years ago.

He has lost friends and rarely leaves his home. He rarely goes to the shops to buy groceries. He struggles to form social connections. He said that he does not have any patience anymore. He said that he chooses not to form social relationships. The pain impacts his social connectedness.

The relationship with his wife and children has been impacted. He feels that the daughters moved out because of his irritability. He said that he swears a lot at home. He spoke about his loss of role as a father and said he does not have patience anymore.

He thinks every day about his role as a provider and his inability to financially provide and assist.

The sadness is pervasive. He was happy when his sister gifted him a puppy dog a year ago, which made him happy. He could not recall the last time he was truly happy.

His self-esteem and confidence levels are low. He has guilty thoughts, and these are pervasive. He continues to mourn the loss of his social status.

He was never emotionally sensitive but has become like this now. He tends to overthink. He tends to get fixated on negative cognitive thinking patterns.

He reported a sense of insecurity and feels reliant on people around him. He suspected initially that he had an anxiety attack. Later investigation led to the diagnosis of atrial fibrillation.

He gave a history of interpersonal sensitivity. He tries to leave his place once a fortnight. He has to be pushed by his wife to leave the house.

He has no history of psychosis, mania, or hypomania.

Mr Ruiz-Diaz denies active suicidal ideation, intent, or plan. He has never attempted suicide, and there is no family history of suicide. Protective factors include his family relationships, his children in particular.

He has not engaged in self-harming or risk-taking behaviours.

He does report irritability, reduced frustration tolerance, and a tendency to become easily angered. He can be verbally impulsive.

Mr Ruiz-Diaz describes his sleep as suboptimal. He generally sleeps only three hours at night. The pain impacts his sleep. He has early, middle, and delayed insomnia. He has no recent history of nightmares or night terrors. He reports feeling persistently tired and lethargic because of the poor quality of his sleep.

His memory is not optimal. He is forgetful. He forgets names and dates. He struggles with appointments and nowadays writes in a calendar, which has been of help. He needs prompting from his wife. He has become reliant on his wife for organisation.

His concentration and attention are poor. He said that he can focus on a task he commences for ten to fifteen minutes. He has stopped reading books. He falls asleep when reading books. The comprehension of information has slowed down.

His motivation and energy levels are low. He said that he simply exists.

He showers every second to third day, he brushes his teeth every few days, and he changes his clothes twice a week. He does not care about his grooming and presentation in front of people. His children joke about his hair, but he has not been formally prompted to shower and look after his hygiene.

He can drive locally. He said that he does not like driving as he feels anxious and upset. He has been able to use the Metro on two occasions. He said he would use public transport if required. His appetite is decreased and he has lost weight. In the last few months, he has lost a further 8 kg.

Mr Ruiz-Diaz has been diagnosed with Persistent Depressive Disorder by multiple independent psychiatrists, including Dr George in 2023, Dr Rastogi in 2024, and Assessor Shen in October 2024.

Previously, he had never seen a psychiatrist or psychologist (pre-accident). He is not engaged with seeing a psychiatrist and is not open to seeing a psychiatrist in the community.

He has a lukewarm attitude towards seeing a psychologist in the community.

He has no history of psychiatric hospitalisation, and no family history of mental illness.

Mr Ruiz-Diaz has chronic pain and functional limitation arising from the accident, including injuries to the cervical spine, lumbar spine, right elbow tendon tear, and right hand.

He has been diagnosed with severe obstructive sleep apnoea. He is entitled to a free CPAP machine. He was also diagnosed with atrial fibrillation.

His past medical history includes a gastric bypass approximately 20 years ago and a mandibular fracture from a fall in 2019, both of which resolved.

He has no history of seizures. He reports an allergy to codeine (rash).

He is prescribed Lyrica (pregabalin), Mobic (meloxicam), tramadol, dabigatran, and Voltaren (diclofenac) for chronic pain. He has not trialled psychiatric medication. He is not open to trialling psychiatric medication.

Mr Ruiz-Diaz was a social drinker and since the accident has stopped drinking.

He does not use tobacco or vaping products and denies illicit drug use.

There is no history of excessive caffeine use, gambling, or other addictions.

Salient Features of Psychosocial and Developmental History

Mr Ruiz-Diaz was born in Uruguay and migrated to Australia at age one. He denies any developmental trauma.

He completed high school and later obtained a Bachelor of Management and Business. He has been married for 28 years and has four children.

On examination, Mr Ruiz-Diaz was casually dressed and mildly dishevelled. He appeared his stated age and was superficially cooperative, though underlying irritability was noted. There was no psychomotor agitation or retardation. His speech was normal in rate, tone, and volume. His thought form was goal-directed. His thought content revolved around themes of hopelessness, frustration, and loss. There was no evidence of psychosis, hallucinations, or delusional content. His affect was constricted and irritable. His mood was persistently depressed. He was fully oriented to person, place, and time. His insight was partial. His judgement was reasonable.

Mr Ruiz-Diaz meets DSM-5 criteria for Persistent Depressive Disorder.

This conclusion is supported by the longitudinal history obtained at interview and by concordant independent psychiatric opinions from Dr Graham George, Dr Richa Rastogi, and Assessor Yu Tang Shen.

The clinical picture is one of a persistently depressed mood present for most of the day, more days than not, over a period exceeding four years, accompanied by insomnia, low energy, poor concentration, diminished self-esteem, hopelessness, irritability, and reduced motivation.

The symptom pattern is chronic rather than episodic, without sustained remission, and is not better explained by substance use or another medical condition.

While Dr Synnott acknowledged symptoms consistent with a chronic depressive disorder, he declined to formalise a diagnosis due to concerns regarding historical consistency.

He did not offer an alternative psychiatric diagnosis.

On balance, the DSM-5 diagnosis of Persistent Depressive Disorder is substantiated and represents a recognised psychiatric illness under DSM-5 and, on that basis, constitutes a non-threshold psychiatric injury.

The predominant causative factor for Mr Ruiz-Diaz's psychiatric condition is the motor vehicle accident of 17 March 2020 and its direct physical consequences.

The accident resulted in multiple musculoskeletal injuries with chronic pain, functional restriction, and loss of physical capacity. These changes precipitated a progressive psychological decline marked by loss of role, identity, independence, and vocational purpose.

Although financial stressors and business difficulties emerged over time, the evidence indicates these were downstream consequences of the accident-related injuries rather than independent or primary causes of psychiatric illness.

The clinical pathway is coherent and consistent across the record. The accident resulted in physical injuries involving the cervical and lumbar spine, the right elbow, and the right hand. Persistent pain, sleep disruption, and reduced functional capacity followed.

Over time, this led to an inability to sustain work demands, progressive loss of his business, financial strain, and erosion of his social and family roles.

Within this context, Mr Ruiz-Diaz developed persistent depressive symptoms, including hopelessness, irritability, low mood, social withdrawal, reduced self-care, and impaired motivation.

The depressive disorder has been maintained by the interaction between ongoing pain, functional loss, and psychosocial stressors, rather than pain alone.

Mr Ruiz-Diaz had no identified psychiatric vulnerability prior to the accident. He had no history of mental illness, psychiatric treatment, substance misuse, or functional impairment.

He was socially active, physically capable, and vocationally established, having run his own business for many years.

His premorbid functioning suggests psychological resilience rather than predisposition.

There are no identified developmental, familial, or psychiatric risk factors that would explain the onset of a depressive disorder independent of the accident.

Several factors have contributed to the persistence of Mr Ruiz-Diaz's psychiatric symptoms. Chronic pain and sleep disruption remain central, with insomnia and fatigue reinforcing low mood and irritability.

Ongoing physical limitations have restricted activity, independence, and confidence.

The collapse of his business and resulting financial stress have compounded feelings of worthlessness and loss of role.

Social withdrawal, strained family relationships, and reduced self-care further maintain the depressive state.

The absence of funded psychological or psychiatric treatment has limited opportunities for symptom improvement, allowing the disorder to become entrenched.

Psychiatric involvement has consisted of multiple independent assessments.

Dr Graham George diagnosed Persistent Depressive Disorder and described a gradual but continuous evolution of symptoms in the context of chronic pain and disability.

Dr Richa Rastogi diagnosed an agitated form of persistent major depressive disorder and assessed significant functional impairment. Assessor Shen independently reached a diagnosis of Persistent Depressive Disorder and classified the injury as non-threshold.

Dr Synnott, engaged by the insurer, acknowledged depressive symptoms consistent with a chronic depressive disorder but declined to provide definitive opinions on diagnosis, prognosis, or impairment due to concerns about historical consistency. He did not diagnose an alternative condition.

Mr Ruiz-Diaz has not engaged in structured psychological treatment. This is not due to absence of symptoms or lack of need, but rather to the refusal of insurer funding and his limited engagement with community-based psychological care.

The lack of treatment records reflects systemic barriers rather than clinical recovery or resolution of illness.

Allied health involvement has primarily related to physical rehabilitation and vocational assessment. Physiotherapy, pain interventions, and vocational assessment through Benchmark Rehabilitation were undertaken.

While vocational assessments noted some retained capacity for light or sedentary work at an earlier stage, these findings must be interpreted in the context of paced, restricted, and ultimately unsustainable work efforts, rather than stable competitive employment.

Favourable factors include the absence of pre-existing psychiatric illness, the absence of substance misuse, intact reality testing, and the presence of family relationships that remain protective despite strain.

Mr Ruiz-Diaz demonstrated premorbid occupational stability and resilience, and he retains insight into his difficulties.

Negative prognostic factors are significant. Symptoms have been present for more than four years without remission.

Chronic pain, sleep disturbance, and physical disability persist. Financial hardship and loss of vocational identity have been profound.

Social isolation, marital strain, irritability, and reduced self-care further complicate recovery.

The prolonged absence of active psychiatric or psychological treatment is a major adverse prognostic factor.

Mr Ruiz-Diaz does not have capacity for his pre-injury employment or for alternative competitive employment at present.

Attempts to continue working were progressively restricted, paced, and ultimately unsustainable. Psychiatric symptoms, including low motivation, impaired concentration, irritability, poor sleep, and reduced stress tolerance, significantly impair reliability and consistency in a work setting.

Barriers to employment include the interaction of psychiatric symptoms with chronic pain, reduced functional capacity, limited adaptability outside his longstanding business role, and diminished confidence.

The psychiatric condition contributes independently to incapacity, amplifying the effects of physical injury.

Maximum medical improvement and psychiatric impairment

Mr Ruiz-Diaz is considered to have reached Maximum Medical Improvement from a psychiatric perspective.

Symptoms have remained stable in severity over several years without meaningful improvement and are unlikely to change substantially in the absence of treatment.

There is no basis for apportionment to pre-existing psychiatric impairment, as none was present prior to the accident.

There is strong convergence among Dr George, Dr Rastogi, and Assessor Shen, all of whom diagnosed a recognised depressive disorder causally linked to the accident and described continuous symptoms since 2020.

All characterised the condition as more than an adjustment response and associated with meaningful functional impairment.

Divergence arises primarily from Dr Synnott's report, which questioned reliability and highlighted inconsistencies in records and function, but did not offer an alternative diagnosis.

Procedural concerns raised by the insurer, including documentation of DSM-5 Criterion C, relate to reasoning structure rather than to the substantive presence of a psychiatric illness.

The Medical Assessors views are based on the weight of consistent psychiatric evidence, the longitudinal history of symptoms, and the coherence of the clinical narrative linking injury, pain, loss, and depression."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] It is not the role of the Panel to correct error in the decision of the original Medical Assessor.
2. The Panel is not required to choose between competing medical opinions and is required to form its own opinions.[7] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another.
3. The Panel wishes to add the following further reasons:

(a) in relation to the clinical records, the Panel notes the insurer's failure to comply with the direction made on 3 July 2025 that, if it wishes to rely upon clinical notes and/or other treatment records, it was to specify, with particularity, the entries that are said to be relevant to the matters in issue;

(b) in relation to the alleged scarcity of references to psychiatric/psychological symptoms (as to which, the Panel accepts the evidence of Dr George to explain the gradual onset of symptoms, in the absence of any probative evidence to the contrary), the Panel notes that it is well-settled that delay in the reporting of symptoms is relevant to, but not necessarily determinative of, the issue of causation.[8] Likewise, the Australian Commission on Safety and Quality in healthcare recognises that the late the reporting of symptoms is relevant to, but not determinative of, medical causation. The Panel is also aware of the decision in Briggs No. 2[9] warning that legal causation is not to be determined on the basis of scientific certainty, but on the balance of probabilities;

(c) the Panel invited the parties to consider whether the Medical Assessors should proceed to assess WPI in the event that they found an accident-related non-threshold injury. The claimant consented on the basis of convenience. The insurer objected on the basis that the WPI claim had been withdrawn, which was why Medical Assessor Shen did not assess it. The insurer submitted that the Panel lacks jurisdiction to consider and certify WPI absent an extant WPI dispute. The insurer distinguished the decision of Allianz v Sekar [2025] NSWPICMP 6 675 on the basis that the circumstances differed from the subject claim as, in Sekar, the original Medical Assessor did conduct a permanent impairment dispute. A WPI dispute therefore formed part of the medical assessment that was then subject to the review application, and

(d) for those reasons, whilst the Medical Assessors have assessed WPI, the Panel declines to publish their findings, notwithstanding the guiding principle of s 42 of the Personal Injury Commission Act, as the Panel does not wish to risk an appeal on the basis of lack of jurisdiction, which is not a matter before the Panel for determination. Without citing relevant authority, it seems that the insurer is relying upon Mandoukos[10] which is binding on the Panel. See also Elammar's case[11] which is of similar application to the present case.

1. The Panel met on 4 September 2025 to consider the following:

(a) the nature of the dispute and the matters in issue;

(b) whether any additional documents are required, and

(c) whether a re-examination is necessary.

The claimant was examined by the Medical Assessors on 27 November 2025 remotely.

1. The Panel will reconvene on 23 January 2026 to consider its findings and to finalise its decision.
2. The findings of the Medical Assessors on diagnosis are similar to those of Medical Assessor Shen, Dr George and Dr Rastogi. To the extent that they differ with Dr Synnott, they respectfully disagree, as they do not find his reasons for making no substantive findings to be persuasive.
3. The Panel finds, as a matter of medical determination and as a matter of factual non-medical judgment, that the motor accident could have caused, and did cause, the claimant to suffer a persistent depressive disorder, notwithstanding the infrequent and sporadic reference to psychiatric symptoms in the post-accident period. In that respect, having considered the parties' submissions, the Panel prefers the claimant's submissions, and relies upon the Medical Assessors' clinical judgment, experience and expertise.[12]
4. As regards the competing biomechanical engineering evidence, the Panel accepts that it is a matter of common sense that the nature and speed of the impact may effect the extent of the injuries sustained. See per Principal Member John Harris in Allianz v Sarofim[13]. Whilst biomechanical engineering experts may purport to express opinions as to causation of injuries, in the circumstances of the subject accident, the issue of causation of injury ultimately is a matter for the Medical Assessors.[14] Having regard to the totality of the psychiatric evidence, the Panel was not greatly assisted by the evidence of either Mr Johnston or Dr McIntosh in the circumstances of this case.
5. Further, without having to make a finding on the matter, the Panel notes the "basis rule", as explained in Makita[15], and also the well-established principle that expert evidence based upon false assumptions has no probative value.

1. For the above reasons, the Panel confirms the certificate of Medical Assessor Shen dated

[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

[8] Bugat v Fox [2014] NSWSC 888

[9] Briggs No. 2 [2022] NSWSC 372

[10] Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

[11] Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 280

[12] Webster v Allianz Australia Insurance Limited [2024] NSWPICMP 638

[13] Allianz Australia Insurance Limited v Sarofim [2024] NSWPICMA 346

[14] Motor Accidents Authority of NSW v Mills [2010] NSWCA 82

[15] Makita v Sprowles [2021] NSWCA 305