DETERMINATION OF REVIEW PANEL	
	
CITATION:	AAI Limited t/as GIO v Eid [2023] NSWPICMP 683	
		
CLAIMANT:	Dion Eid	
		
INSURER:	AAI Limited trading as GIO 	
		
REVIEW Panel	 	
		
MEMBER:	Susan McTegg	
		
MEDICAL ASSESSOR:	Matthew Jones	
		
MEDICAL ASSESSOR:	John Baker	
		
DATE OF DECISION:	19 December 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 5 December 2017; Medical Assessor (MA) Samuell found major depressive disorder caused by the accident was not a threshold injury; insurer sought review; Held – claimant satisfied DSM-5 criteria for post-traumatic stress disorder and major depressive disorder caused by the accident; certificate of MA Samuell affirmed. 

DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Assessment of Threshold Injury
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel affirms the certificate of Medical Assessor Doron Samuell dated 16 August 2022 as to non-threshold injury in respect of the following injuries caused by the accident:
•	post-traumatic stress disorder, and
•	major depressive disorder.

STATEMENT OF REASONS
introduction
1.	On 5 December 2017 Mr Dion Eid (the claimant) was driving his vehicle when a vehicle involved in an accident ahead of him spun out of control and collided with his vehicle (the accident). Mr Eid asserts he sustained the following injuries in the accident:
•	injury to the cervical spine;
•	injury to the thoracic spine;
•	injury to the lumbar spine; 
•	injury to the right shoulder, and
•	psychological injury.
2.	AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Eid under the Motor Accident Injuries Act 2017 (the MAI Act).
3.	Mr Eid’s claim is governed by the provisions of the MAI Act. At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the motor accident were threshold injuries.
4.	Medical Assessor Doron Samuell issued a certificate dated 16 August 2022 in which he certified that the psychological injury sustained by Mr Eid caused by the accident was not a minor (threshold) injury. 
5.	The insurer has sought a review of the certificate of Medical Assessor Samuell. 
BACKGROUND
6.	Mr Eid is 26 years of age and was 20 years of age at the date of the accident. 
7.	On 15 December 2017 Mr Eid lodged an Application for personal injury benefits.
8.	On 16 January 2018 the insurer issued a liability notice accepting liability for the first 26 weeks following the accident.
9.	On 20 March 2018 the insurer issued a liability notice declining liability for benefits beyond 26 weeks on the basis the injuries sustained by the claimant were minor (threshold) injuries for the purposes of the MAI Act. 
10.	On 12 April 2018 the claimant requested an internal review pertaining to the threshold injury decision.
11.	The insurer issued a Certificate of Determination dated 26 April 2018 affirming the original decision that the physical injuries were soft tissue injuries and should be classified as minor (threshold) injuries.
12.	By email dated 22 April 2021 the claimant provided the insurer with a copy of the report of Ms Chahine psychologist dated 19 April 2021. The claimant requested an internal review of the decision that the claimant’s injuries were “minor (threshold)” on the basis he was suffering post-traumatic stress disorder as a result of the accident.
13.	On 3 May 2021 the insurer stated it did not have jurisdiction to conduct an internal review on the basis an internal review of the “minor (threshold) injury” decision had been completed on 26 April 2018.  The insurer advised the claimant he was free to refer the dispute to the Personal Injury Commission (Commission) having declined to review the matter. 
14.	On or about 10 May 2021 the claimant filed an application with the Commission seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties. 
15.	Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”. 
16.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY- STATUTORY PROVISIONS
17.	The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. 
18.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
19.	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”. 
20.	A threshold injury is defined in s 1.6 of the MAI Act. Section 1.6(1)(a) of the MAI Act defines a “threshold psychological injury” as:
“A psychological or psychiatric injury that is not a recognised psychiatric illness.” 
21.	Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold psychological or psychiatric injury. 
22.	Part 1, cl 4(2) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a)	acute stress disorder,
(b)	adjustment disorder.” 
23.	Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 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	Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5	A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6	The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
	(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
	(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
24.	In respect of threshold psychological or psychiatric injury the Guidelines also provide:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential. 
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association. 
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
25.	In Briggs v IAG Limited trading as NRMA Insurance 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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘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 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6	Causation is defined in the Glossary at page 316 of the AMA4 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 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.”
ASSESSMENT UNDER REVIEW
26.	The injury referred for assessment was “psychological injury”.
27.	The dispute as to whether the injury caused by the accident was a minor (threshold) injury was referred to Medical Assessor Samuell who assessed the claimant on 26 July 2022           and issued a certificate dated 16 August 2022.
28.	Current symptoms were reported as follows:
“He said that, most of the time, he struggles to fall asleep. He said that when he is asleep, he does not sleep properly. He finds it frustrating. He says that depression makes it difficult for him to fall asleep. He said that he has one or more nightmares per week where he said that he feels as though he is falling and stuck. 
He said that his appetite is poor. He said that he eats once per day and forces himself to eat. His weight is unchanged.
He described his mood as being “always depressed”. He said that sometimes he can handle his depression. He said there is nothing that he enjoys doing. 
There is no diurnal pattern to his mood. 
He told me that he struggles to concentrate. He said the impact of his concentration is that, when he tries to work, he has difficulty focusing. He said that he cannot follow a movie.
When asked about suicidal ideation, he said that he preferred not to answer.”
29.	Medical Assessor Samuell reported the claimant was working on average for eight hours per week. He lived with his mother and was not in a relationship.  He described difficulty being motivated.  Mr Eid said he barely saw anyone and does not socialise because he struggles to get his words together. He does not cook or clean. He maintains his personal care although he only showers every second day which is less than was normal for him.
30.	Medical Assessor Samuell concluded Mr Eid was suffering from a major depressive disorder, a non-threshold injury caused by the accident.  Medical Assessor Samuell found Mr Eid satisfied the stressor criterion for post-traumatic stress disorder but did not satisfy the diagnostic requirements of that diagnosis. 
31.	Medical Assessor Samuell issued a second Certificate dated 16 August 2022 in which he assessed a permanent impairment of 7% in respect of the diagnosed condition of major depression. That certificate is not the subject of an application for review. 
REVIEW PROCEDURE
32.	The insurer lodged an application for review of the medical assessment of Medical Assessor Samuell within 28 days of the date on which his certificate was made available to the parties.
33.	On 6 October 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
34.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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.
35.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. 
EVIDENCE BEFORE THE REVIEW PANEL
36.	The Panel issued a Direction to the parties on 28 June 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded to the portal documents marked Insurer’s Review Bundle paginated from pages 1 to 103. The solicitor for the claimant uploaded to the portal a bundle of documents marked Claimant’s Bundle of Documents paginated from pages 1 to 78.
37.	On 22 August 2023 the Panel agreed an examination was required. The Panel also directed the claimant to upload to the portal the clinical notes of Dr Khan, general practitioner (GP).  
38.	The clinical notes of Dr Khan of Injury Car from 11 January 2018 until 21 September 2023 were uploaded by the claimant in accordance with that direction. 
Treating medical records
Quality Medical Practice, clinical notes
39.	On 8 March 2017 Mr Eid consulted Dr Ashraf Aboud, GP for depression. Dr Aboud prescribed Lovan capsule 20 mg one daily and recommended counselling. He reported “had steroid [sic] for a while now stopped on ex breast lumps”.  Further he reported inter alia:
“Has low mood concentration problem, Insomnia with loss of appetite lack of interest also not suicidal and self blame counselled about coping mechanisms and treatment call 000 if suicidal also given depression help line…[sic]”
40.	The next entry was not until 29 April 2020 when Dr Aboud reported “anxiety kicked out of home. Lt sided chest pain on ex tender”.  Dr Aboud’s clinical entry was otherwise identical to the entry of 8 March 2017.  In addition to Lovan he added Valium 5 mg. 
41.	Mr Eid consulted Dr Aboud again on 14 May 2020, and on 21 May 2020 when he placed 
Mr Eid on a Mental Health Plan and referred him to a psychologist. The Mental Health Plan referred to mixed anxiety and depression.
42.	Mr Eid also saw Dr Aboud on 7 July 2020 and 11 August 2020 in relation to his mental health.  He was also warned on several occasions about “benzo” addiction.
Clinical notes of Dr Ljaz Khan
43.	The first consultation on 11 January 2018 was in respect of “acute pain”.  
44.	On 24 January 2018 Dr Khan recorded a history of the accident on 5 December 2017. She reported the current complaints as follows:
“Low back and neck pain
Poor sleep – advises that he sleeps between 4-6am and then wakes up. Reports difficulty finding a position of comfort
Feels as if he sees stars/dots when he blows his nose
He flinches in close personal contact
Right shoulder discomfort with reported pins and needles to right upper limb.”
45.	Dr Khan referred Mr Eid to Dr Herald, orthopaedic surgeon in respect of his physical complaints. In the medical certificate of Dr Khan attached to the Application for personal injury benefits dated 24 January 2018 the injures listed include “acute stress reaction”.
46.	Mr Eid attended on Dr Khan in respect of neck, low back and right shoulder pain on 
26 February 2018 and on 23 April 2018 he was prescribed Mobic. 
47.	On 26 April 2018 Dr Khan referred Mr Eid to Charmaine, psychologist.  In the referral 
Dr Khan stated: 
“Mr Dion presents today with
-	Ongoing neck and back pain
-	Right shoulder pain
-	Persistently distressed about pain
-	Anxious, low mood
Post MVA”.  
48.	On 14 May 2018 Dr Khan reported current meds including Tab Valium which Mr Eid had taken from a friend.  Dr Khan advised against this and arranged a psychologist follow up. 
49.	In Certificates of capacity/certificates of fitness dated 11 April 2018, 23 April 2018,
14 May 2018, 17 May 2018, 10 July 2018, 29 July 2019, and 21 October 2019 the diagnosis reads:
“1. Cervical spine – WAD II.  2. Mechanical low back pain.  3. Right shoulder – SA/SD bursitis. 4. Psych – adjustment disorder.”
50.	On 13 June 2018 Dr Nail Nair, neurosurgeon reviewed Mr Eid in respect of his cervical and lumbar complaints. He recommended further X-rays.
51.	On 29 July 2019 Dr Khan reported Mr Eid had right shoulder, neck, upper and lower back pain with pins and needles to the right lower leg and poor sleep. She again counselled 
Mr Eid against using medication from a friend. 
Clinical notes of Dr C Bonovas Practice
52.	The first consultation occurred on 12 January 2021. Dr Bonovas described the reason for contact as PTSD (post-traumatic stress disorder). He prescribed Escitalopram and referred Mr Eid to Dr Ben Teoh. He reported: 
“Had car accident 3 years ago
…
Developed depression after the accident 
Has not been able to work
Has told at the Northern beaches Hospital that he may be suffering from PTSD
This is the main problem
Was prescribed Valium to which he became addicted & was stopped.
Complaining of low mood, impaired focus & concentration, loss of interest, reduced appetite, insomnia. Has nightmares of accident when falling asleep. …”
53.	On 6 May 2021 Dr Bonovas reported Mr Eid was “complaining of low mood, marked anxiety, inability to sleep, nightmares/phobias, tremor”. He ceased Escitalopram and added Effexor- XR SR capsule 37.5 mg and Seroquel 25 mg. 
54.	Mr Eid continued to consult Dr Bonovas regularly in respect of his ongoing depression and anxiety. On 31 August 2022 Dr Bonovas referred Mr Eid to Dr Teoh again for ongoing management of his depression. 
Dr Ben Teoh, psychiatrist
55.	On 19 January 2021 Dr Teoh reported Mr Eid was the victim of an “horrific MVA” in 2017 resulting in multiple injuries affecting his neck and back. Dr Teoh reported his personality had changed from an active and outgoing person to an isolated man. He reported preoccupation with negative thoughts and a profound sense of hopelessness.  He also reported intrusive memories of the accident, hypervigilance, a fear of accidents, insomnia and nightmares.  Mr Eid reported he was irritable and moody, had avoidant behaviour and lacked communication. 
56.	Dr Teoh report Mr Eid had used cannabis and excessive diazepam to relieve his pain.  He also reported no past history of psychiatric illness. Dr Teoh concluded the presentation was consistent with chronic post-traumatic stress disorder. 
Charmaine Moubarak, psychologist
57.	Ms Moubarak reported on 25 May 2018 she had seen Mr Eid for an initial consultation on 
18 May 2018 when he presented with the following symptomology that was characteristic of major depressive disorder as per DSM 5 criteria:
•	mood fluctuations where he reported to have low moods for most of the day;
•	lowered motivation with no clear goal setting;
•	uncertainty regarding his future;
•	absence of routine;
•	prefers to stay at home rather than interact with people or engage in any activity;
•	lowered self-confidence;
•	difficulty accepting the changes to his lifestyle;
•	social withdrawal
•	heightened anxiety;
•	heightened stress and difficulty dealing with stress;
•	lowered resilience levels
•	heightened frustration
•	pain focused;
•	regularly thinking of the accident
•	sleep disturbance, and
•	lowered concentration, attention and memory.  
Maskini Chahine, psychologist
58.	Mr Eid commenced psychological treatment with Ms Chahine on 2 February 2021. In a report dated 19 April 2021 she reported Mr Eid had been referred for psychological sessions for chronic post-traumatic stress disorder relating to the accident. 
59.	Ms Chahine reported the use of intergrative psychological techniques including focused behavioural, cognitive behavioural, psychoeducation and acceptance and commitment therapy. She reported he completed five sessions and reported improvement but still experienced depressed mood, fear, feelings of distress and feeling overwhelmed. 
Catherina Quan, exercise physiologist
60.	In a report referrable to a hydrotherapy program dated 27 April 2018 Ms Quan of TFI (therapy for industry) reported Mr Eid had not worked since the accident. She reported the following positive screening for psychosocial barriers including:
•	fear avoidance beliefs associated with activity;
•	reported feelings of stress, depressed mood and anxiousness, and
•	reliance on passive coping strategies. 

Medico-legal reports
Dr Yajuvendra Bisht, psychiatrist
61.	Dr Bisht assessed Mr Eid at the request of his lawyers on 23 November 2022 and provided a report dated 1 February 2023.
62.	Dr Bisht reported at the time of the accident Mr Eid thought he may die.  He reported injuries to the right shoulder and lower back which had not recovered.  
63.	Dr Bisht reported Mr Eid had experienced psychological symptoms from the day of the accident including: 
•	frequent recollections of accident (nightmares and flashbacks) and preoccupation with the physical injury;
•	feeling anxious/sad while having these recollections/preoccupations;
•	hypervigilance when he would be in a vehicle;
•	lack of enjoyment in previously pleasurable activities;
•	difficulty sustaining concentration;
•	initial and middle insomnia;
•	lack of motivation towards socialising and self-care, as well as hobbies;
•	feeling anxious in day-to-day situations, and being easily startled;
•	persistent flat mood;
•	irritability;
•	feeling distant from people, and
•	lack of enjoyment.
64.	Dr Bisht also reported intermittent thoughts of suicide and stated Mr Eid was found in his car after an overdose on one occasion.  Dr Bisht reported little improvement in symptoms over the last five years.  He diagnosed post-traumatic stress disorder and major depressive disorder. 
65.	In a supplementary report dated 1 February 2023 Dr Bisht assessed a 22% whole person impairment. 

Insurer’s submissions
66.	The insurer provided submissions dated 2 June 2021 in reply to the minor (threshold) injury dispute. 
67.	The insurer notes the GP provided a diagnosis of an acute stress reaction. 
68.	In May 2018 the claimant’s psychologist reported that the claimant “presented with symptomatology that is characteristic of Major Depressive Disorder as per the DSM-5 criteria”. 
69.	In April 2021 approximately three years following the accident the treating psychologist provided a diagnosis of chronic post-traumatic stress disorder with symptoms including nightmares, hypervigilance, intrusive memories, flashbacks and avoidant behaviours. The insurer submitted there is a lack of medical evidence to establish this was an accurate diagnosis. Furthermore, the insurer submits the delay in reporting symptoms applicable to that diagnosis raises questions about how those symptoms are causally related to the accident. 
70.	The insurer provided submissions dated 30 September 2022 in support of the application for review. The insurer submits Medical Assessor Samuell failed to address DSM-5 as required by cl 5.11 of the Guidelines. The insurer notes Medical Assessor Samuell took a history of the claimant using “cannabis every week or fortnight” and that he had been charged with drug possession. 
71.	The insurer noted Medical Assessor Samuell concluded: 
“Mr Eid is suffering from a Major Depressive Disorder. He described a significantly
depressed mood that is highly clinically impactful. He has sleep disturbance, appetite
disturbance, concentration impairment and, in my view, it is reasonable to infer that he
has had at least nihilistic, if not suicidal ideation. His general level of functioning has been compromised due to his Major Depressive Disorder…”
72.	The diagnostic criteria for major depressive disorder under DMS-5 is as follows:
“A. 	Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning: at least one of the  symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly attributable to another medical
condition.
1.	Depressed mood most of the day, nearly every day, as indicated by either
subjective report (e.g., feels sad, empty, hopeless) or observation made by
others (e.g., appears tearful)…
2.	Markedly diminished interest or pleasure in all, or almost all, activities most of the
day, nearly every day (as indicated by either subjective account or observation).
3.	Significant weight loss when not dieting or weight gain (e.g., a change of more
than 5% of body weight in a month), or decrease or increase in appetite nearly
every day.
4.	Insomnia or hypersomnia nearly every day.
5.	Psychomotor agitation or retardation nearly every day (observable by others, not
merely subjective feelings of restlessness or being slowed down).
6.	Fatigue or loss of energy nearly every day.
7.	Feelings of worthlessness or excessive or inappropriate guilt (which may be
delusional) nearly every day (not merely self-reproach or guilt about being sick).
8.	Diminished ability to think or concentrate, or indecisiveness, nearly every day
(either by subjective account or as observed by others).
9.	Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation
without a specific plan, or a suicide attempt or a specific plan for committing
suicide.
B.	The symptoms cause clinically significant distress or impairment in social,
	occupational, or other important areas of functioning.
C.	The episode is not attributable to the physiological effects of a substance or to
another medical condition.
Note: Criteria A-C represent a major depressive episode…
D.	The occurrence of the major depressive episode is not better explained by
schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional
disorder, or other specified and unspecified schizophrenia spectrum and other
psychotic disorders.
E. 	There has never been a manic episode or a hypomanic episode.”
73.	The insurer submits the claimant did not provide a history of recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide as required by Criterion A. The insurer submits the assessor erred in inferring that the claimant had “at least nihilistic, if not suicidal ideation” based on the history provided. The insurer submits the Medical Assessor failed to show how the claimant met five (or more) of the symptoms of Criterion A.
74.	The insurer also submits the Medical Assessor failed to provide sufficient reasoning in respect of Criterion C in circumstances where the claimant was allegedly using cannabis every week or fortnight. It is submitted Medical Assessor Samuell ought to have considered whether the claimant’s symptoms were attributable to the physiological effects of cannabis. 
Claimant’s submissions
75.	The claimant provided submissions dated 10 May 2021 in support of the minor (threshold) injury dispute.
76.	The claimant submitted in her report Ms Chanine substantiated the diagnosis of chronic post-traumatic stress disorder demonstrating that the claimant satisfied all the DSM-5 criteria for that diagnosis. 
77.	The claimant provided submissions dated 26 September 2022 in response to the application for review where the claimant argued he provided a full and transparent history of his cannabis use and where the conclusion that he exhibited suicidal ideation was reached by Medical Assessor Samuell after a full and comprehensive assessment.  The claimant argued Medical Assessor Samuell provided a clear explanation as to how the claimant met the DSM- 5 criteria for major depressive disorder. 
THE MEDICAL EXAMINATION
78.	The Panel examination took place in a face-to-face assessment on 6 December 2023 at the medical suites of the Commission in Oxford Street, Sydney. 
79.	Present were Medical Assessor John Baker, psychiatrist, Medical Assessor Matthew Jones, psychiatrist, Mr Dion Eid and his mother, Margaret. Mr Eid’s mother was present as a support person and did not contribute to the assessment. 
80.	Mr Eid was identified using his New South Wales Driver’s Licence. Mr Eid was not affected by any substance at the time of the assessment.
81.	Consent and confidentiality was discussed, and Mr Eid appeared to understand the purpose and nature of the assessment and the limits of confidentiality, and he agreed to continue with the assessment. 
Introduction 
82.	Mr Eid is a 26 year-old man living in East Lindfield, where he has been for a few years. He lives there with his mother. His mother is not currently working. Mr Eid himself is not working and undertaking no study. He receives Centrelink benefits in the form of the Disability Support Pension. He stated this was for post-traumatic stress disorder and depression. He has been receiving a Disability Support Pension since approximately the beginning of this year. Prior to that he had no income and his mother and brother were assisting him financially. Mr Eid reported his father is in his life and calls to check-up on him. He lives in Sydney, in Merrylands. His mother and father separated when he was about five. 
83.	The date of accident was 5 December 2017. Prior to the accident Mr Eid was an apprentice carpenter and he cannot remember if he finished his qualifications. He was working for “some guy.” He said since the accident his “family has tried to make [him] work”, however he said he “can’t.” He reported that his family attempt to make him leave his room and go for a walk. He thinks that he has had attempts to work in carpentry however none of these has been successful. He believes he has received some Centrelink benefits, for example food relief, however this has been intermittent, and he cannot remember the details. 
84.	When asked about his difficulties with memory, in a rather impaired way, Mr Eid answered that he struggles to sleep, he has nightmares of the accident, he is always anxious and nervous, scared and depressed, and he cannot talk to people and get his words together properly. 
85.	Mr Eid is not currently taking any medications. The last medications he took were “a while ago.” He reported that he had tried different medications, and nothing had worked. He believes he has not had medications for approximately a year. He cannot remember the names of his medications and he has tried a few antidepressants and also tried medical cannabis and oils from different doctors, approximately two years ago for a few months. He had no negative effects from these, however they did not assist. He smoked medical marijuana and also vaped oil. Mr Eid also reported that he had trialled a benzodiazepine, Diazepam. 
86.	With respect to treatment, Mr Eid sees Dr Con Boniface in Parramatta as his general practitioner. He sees a psychologist every two weeks or so, whom he has seen “for a few years”, at least since 2021. He also sees a Psychiatrist, Dr Ben Teoh, every few months. These treatments are funded by Medicare. He said they have not been helpful and “nothing helps.” 
History of the accident
87.	The date of accident was confirmed as 5 December 2017. Mr Eid said he was driving, there was a car that was spinning, and he remembers spinning lights and that they came and smashed him. He said he woke-up in the car and was trapped. He remembers someone was helping him and he got out of the vehicle on the other side. He said he was alone in the car and the car was written-off. He said the accident occurred near an old house he had lived in, in Guildford, near Merrylands. 
88.	Mr Eid reported an ambulance came and he was taken to Westmead Hospital, where he stayed overnight. 
History of symptoms and treatment following the accident 
89.	With respect to his physical injuries, Mr Eid suffered back and neck pain and also pins and needles in both arms and legs. They were also numb. He sustained no fractures. 
90.	Initially, Mr Eid reported he could not remember what treatment he received, however he had seen a physiotherapist and undergone some hydrotherapy. He had pain medications for a while, but no longer takes these. He also took Diazepam for his pain. He said, “nothing helped.” 
91.	When asked how his physical injuries were now, he said that they were the same in that he had pins and needles in his arms and legs, and he was numb. He also said his back hurts, his neck hurts, and he gets headaches. He said his physical injuries were “worse” and they had “always been there.” 
92.	When asked about his physical limitations, he reported he cannot bend over properly because of pain, and he is in pain twenty-four hours a day. He cannot move properly, he cannot lift anything, he has pain when he stands up, however he can sit, and he can lie down, which he does most of the time. He said he only is not lying down when he is forced to stand up. When he lies down he does “nothing.” He said he will “daze out” and “stare at the wall.” If he puts on a movie it is “just going by.” He said, “time goes by.” He reported that if he can sleep in the day, he has two or three nightmares of the accident. He said most nights he has nightmares. The nightmares involve seeing lights spinning at him and him being trapped in a vehicle. He then wakes up. He said the nightmares are always the same and always what he saw. 
93.	When asked whether these experiences happened when he was awake or in the daytime, he said he is “always tense and worried.” He said he “expect[s] the worst.” 
94.	Mr Eid also added that he gets dizzy and forgets things and that has interfered with his ability to work. 
95.	Mr Eid thinks that he may have seen a pain specialist, but he has not attended any pain clinics to his knowledge. 
96.	With respect to emotional and psychological symptoms emanating from the accident, Mr Eid said he initially felt shocked and trapped. He said otherwise he has experienced physical, emotional, mental and financial pain. When asked about the financial pain he said that he had borrowed money to survive for clothes and food over the years. He is in debt, but he is not sure by how much. He is on the Pension currently. 
97.	When asked about his anxiety, Mr Eid reported that he was “always like this.” He reported he was always tense and nervous, worried about his future and expecting the worst. He always feels like he is trapped and cannot move. He reported his family forces him to drive and get out of his room. They tell him that “life has to go on.” He said he will go for a walk to avoid getting blood clots. When he is in the car he always looks around and he is attempting to make sure that no car will hit him. He drives short distances by himself, for example to get food from a drive-through about ten to twenty minutes away. He said he feels similarly anxious when he is a passenger, and he always looks around. He said his mother made him drive on the day of the assessment. He has not used public transport. 
98.	When asked about whether he had had any panic attacks, Mr Eid reported he starts crying and gets tense. It feels overwhelming and lasts a few minutes. This occurs every week or so. He just starts crying. 
99.	With respect to his mood, Mr Eid reported he feels “shit.” He said nothing makes him happy. He has had thoughts of suicide and has attempted suicide but did not want to talk about it with the Panel. He has no current plan to suicide. He said at the time he told his family, and they came and retrieved him.
100.	With respect to sleep, Mr Eid reported he “can’t sleep.” If he tries to sleep, he has nightmares and he tends to toss and turn. He has very brief sleep and he feels “dazed out.” He reported he is always tired. 
101.	When asked about his appetite, Mr Eid reported that his mother makes him eat food. 
102.	Mr Eid is of Christian faith. He said he prays to Jesus but cannot go to church because there are “lots of people.” He reported he cannot be around people, except maybe his brother for a while. He does not like loud voices, and he gets very dizzy, and he has to go and lie down. 
103.	With respect to personal relationships, he reported that he lost a romantic relationship a few years ago and it had been for a few years’ duration. He did not want to talk about this with the Panel. 
Psychiatric history 
104.	Mr Eid reported that prior to the accident he had experienced no mental health problems of significance, including any history of anxiety or depression. He had never received any treatment including from a psychologist or a psychiatrist. He denied any family history of mental health problems. 
Drug and alcohol history 
105.	Mr Eid reported there was no recreational drug history of significance. He does not drink alcohol and never has. He has smoked cigarettes on and off since the age of eighteen. He has no problematic gambling history and has not been addicted to prescription medications. He does not ingest excessive caffeine but has small amounts of coffee. 
Forensic history 
106.	There was no criminal history and no history of work-related injuries or worker’s compensation. Mr Eid denied any experience of other motor vehicle accidents or involvement in any other compensation or litigation processes. 
Details of any relevant injuries or conditions sustained since the accident 
107.	Mr Eid reported there had been no relevant injuries or conditions sustained since the motor accident. 
Current and proposed treatment
108.	Mr Eid reported he is seeing a psychologist every two weeks and a psychiatrist every few months. He reported that there is no expected surgical or physical treatment planned for his physical injuries. 
109.	When asked about what he discussed with his psychologist, Mr Eid reported he discussed “[his] PTSD and depression.” He reported his psychologist had talked about him undergoing Eye Movement Desensitisation and Reprocessing therapy, however he reported that he did not want to do it as he did not want to talk about the accident. 
Mental state examination 
110.	Mr Eid was a gentleman of Middle Eastern appearance with solid build who had short, black hair and a neat beard. He had some tattoos and wore a black and white t-shirt and black track pants. He had black and white sneakers. He made reasonable eye-contact and was polite, cooperative, and attentive and displayed no abnormal movements. His speech was somewhat monotonous and slowed and there was no evidence of formal thought disorder or delusional thought processes. He denied any current thoughts of self-harm or thoughts of harm to others. He described his mood as “bad always” and his affect (expressed emotion) was dysphoric and flat. There was no evidence of perceptual abnormalities. Rapport was limited by his restricted mood. His cognition, insight and judgement was hard to assess but appeared somewhat impaired by his mental state. 
111.	Mr Eid reported he was 86kg and had put on weight since the accident. He subjectively reported he had problems with his memory and concentration. His memory appeared somewhat impaired at assessment. 
Current functioning 
112.	The Panel asked Mr Eid about any other family members. He said he is the fourth of four children and has two brothers and a sister. They are all married, and he has eight nieces and nephews. They live in Sydney; one in Concord and two in Parramatta. He reported he has contact with his siblings and they tend to check-up on him. He reported however he is very avoidant, he said he does not talk to anyone, and he does not leave his room. 
113.	Mr Eid reported he has lost all of his friendships and he cannot be around people. He commented that he cannot talk properly socially, and he is avoidant. He reported he cannot talk on the phone and cannot go out. He added that he does not enjoy anything. 
114.	Mr Eid has not been to a psychiatric hospital and said he does not want to go there. He said that he prays however “always nothing is changing.” 
115.	Mr Eid reported that his family try to force him to do some therapy and sit in the sun and they have nagged him. He said he trusts his family. 
116.	When asked why the accident had such effect on him, he said he did not know but then said that his “whole life got ripped away from [him].” He feels like he is broken and “can’t be fixed.” 
117.	Mr Eid reported he has no hobbies currently but used to like fishing, dirt bike riding and football. He played touch football and Oz-tag. 
DIAGNOSIS
118.	Mr Eid presented as significantly impacted upon by symptoms of post-traumatic stress disorder and major depressive disorder. He would readily satisfy DSM-5 diagnostic criteria for both. His mental state examination and reported narrative was consistent with ongoing symptoms that were impairing his functioning. 
Post-traumatic stress disorder
119.	The Panel finds the claimant meets the diagnostic criteria for post-traumatic stress disorder under DSM-5. The claimant meets criteria A in that his involvement in the accident exposed him to threatened death or serious injury. 
120.	Mr Eid meets criteria B in that he has recurrent distressing nightmares involve seeing lights spinning at him and him being trapped in a vehicle. Generally, he continues to feel like he is trapped and cannot move. 
121.	Mr Eid meets criteria C in that he is constantly fearful, does not like to go out, and when he is in the car he always looks around and he is attempting to make sure that no car will hit him. 
122.	Mr Eid meets criteria D in that he has exaggerated negative beliefs that he is broken and “can’t be fixed, and his whole life was ripped away from him. He demonstrates a marked disinterest in pre-accident activities of daily living including working, socialising and activities like fishing, dirt bike riding and football. He is reluctant to socialise with others and is generally avoidant. He does not like to be around people, he has lost friendships and he no longer enjoys anything. 
123.	Criteria E is demonstrated by Mr Eid’s problems with concentration and his sleep disturbance.
124.	Criterion F, G and H are demonstrated where disturbance has lasted more than one month, it caused clinically significant distress and impairment in Mr Eid’s functioning generally and it is not attributable to the physiological effects of a substance.  At the time of the re-examination Mr Eid had not used any cannabis either medical or non-medical or cannabis oil for approximately two years. Whilst the physiological effects of cannabis have been associated with an increased risk of depressed mood the duration between the claimant’s last use and the claimant’s mental state at the time of the re-examination is too long to significantly affect his presentation. 
125.	The insurer argues it was not until three years following the accident the treating psychologist provided a diagnosis of chronic post-traumatic stress disorder with symptoms including nightmares, hypervigilance, intrusive memories, flashbacks, and avoidant behaviours and submits the delay in reporting symptoms applicable to that diagnosis raises questions about how those symptoms are causally related to the accident. 
126.	There can be delayed expression of post-traumatic stress disorder where the full diagnostic criteria are not met until at least six months after the accident. Dr Khan included “acute stress reaction” in the medical certificate dated 24 January 2018 and on 26 April 2018 Dr Khan referred Mr Eid to Ms Moubarak, psychologist in respect of anxiety and low mood.  In a medical certificates dated 11 April 2018 Dr Khan included “psych – adjustment disorder” and Ms Moubarak identified various symptoms of post-traumatic stress disorder at the time of her initial consultation with Mr Eid on 18 May 2018.  The Panel is satisfied the claimant’s symptoms of post-traumatic stress disorder are causally related to the accident although the full suite of symptoms may not have become apparent for at least six months post-accident. 
Major depressive disorder
127.	The Panel finds the claimant meets the diagnostic criteria for major depressive disorder under DSM-5. Symptoms which are present during a two week period and represent a change from Mr Eid’s previous functioning in accordance with criteria A are as follows:
•	depressed mood most of the day noting he feels sad and hopeless, and nothing makes him happy;
•	markedly diminished interest or pleasure in most activities as evidenced by his avoidant behaviour; 
•	insomnia where Mr Eid struggles to sleep and experiences nightmares;
•	psychomotor retardation evidence by his dysphoric and flat mood and slowed speech; 
•	fatigue evidenced by his reluctance to leave his room, his tendency to do nothing and just let time go by;
•	feelings of worthlessness evidence by feeling like he is broken and “can’t be fixed”; 
•	loss of concentration and impaired memory, and 
•	recurrent suicidal ideation. 
128.	Criteria B is established noting the symptoms cause Mr Eid significant distress and together with the symptoms of post-traumatic stress disorder impair all aspects of his life including his motivation to work, his capacity to socialise and his ability to undertake the usual activities of daily living.
129.	Criteria C is established where the evidence is the condition is attributable to the effects of the accident and is not attributable to the physiological effects of a substance or any other medical condition.  At the time of the re-examination Mr Eid had not used any cannabis either medical or non-medical or cannabis oil for approximately two years. Whilst the physiological effects of cannabis have been associated with an increased risk of depressed mood the duration between the claimant’s last use and the claimant’s mental state at the time of the re-examination is too long to affect his presentation. 
130.	The condition is not better explained by any other psychotic disorder as per criteria D and criteria E is established where there is no evidence of any manic or hypomanic episode. 
131.	Mr Eid reported ongoing psychological therapy at a fortnightly frequency and ongoing psychiatric review every three months, however there had apparently been limited therapeutic benefit from these treatments. He was not currently taking any medications, nor had had any psychiatric admissions. 
DETERMINATION
132.	The psychological injury caused by the motor accident is best defined as post-traumatic stress disorder DSM5 code 309.81 with co-existent major depressive disorder DSM-5 code 296.22. The Medical Assessors for the Panel find that the psychological injury caused by the motor accident is a non-threshold injury for the purpose of the MAI Act.
133.	The Review Panel affirms the certificate of Medical Assessor Doron Samuell dated 
16 August 2022 as to non-threshold injury in respect of the following injuries caused by the accident:
•	post-traumatic stress disorder, and
•	major depressive disorder.