AAI Limited t/as AAMI v Chami

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Chami [2022] NSWPICMP 285
CLAIMANT:	Daouk Chami
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL:	Member Belinda Cassidy Medical Assessor John Carter Medical Assessor Michael Rochford
DATE OF DECISION:	13 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (MAC Act); medical assessment of whole person impairment (WPI) and insurer’s application for review under section 63 of the MAC Act; claimant experienced stress incontinence after accident, assessed as having 10% WPI due to neurological cause of incontinence; claimant had complicated pre- and post-accident history of multiple conditions including urinary problems and muskulo-skeletal problems; Held – Panel not satisfied there was a physical cause (neurological, gynaecological or urological) related to the accident; incontinence confirmed and present but not due to accident and therefore no impairment.
DETERMINATIONS MADE:	The Review Panel: Revokes the certificate of Medical Assessor Korbel dated 27 May 2021.1. Taking into account the certificate of Dr Berry dated 8 June 2021 (issued on or about 24 June 2022), certifies that the degree of Daouk Chami’s permanent impairment resulting from the injuries caused by the motor accident on 12 May 2017 is not greater than 10%.2. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Ms Dahouk Chami was involved in a motor accident on 12 May 2017. Ms Chami was a front seat passenger in a car being reversed out of a driveway and onto a main road when the vehicle she was in was struck on the back left hand (passenger) side by a four-wheel drive vehicle.
Ms Chami made a claim against AAMI, the third-party insurer of the vehicle that hit the vehicle Ms Chami was in[1].
[1] The Panel has not been provided with a copy of the claim form or the medical certificate attached to the claim form.
A dispute arose between Ms Chami and AAMI about Ms Chami’s entitlement to damages for non-economic loss. That dispute was referred to the Medical Assessment Service for determination. Upon the abolition of the Medical Assessment Service, the resolution of that dispute fell to the Personal Injury Commission (the Commission). On 27 May 2021 Medical Assessor Korbel determined that Ms Chami had a whole person impairment (WPI) of 10%.
The insurer was not satisfied with that determination and lodged an application for review with the Commission. A delegate of the President determined that the application for review should be allowed, and the President has convened the Panel.

LEGISLATIVE FRAMEWORK

Ms Chami’s claim and her entitlement to damages are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act). In a claim for damages,

Ms Chami may be entitled to damages for both non-economic (non-pecuniary or non-financial) losses and economic (pecuniary or financial) losses.
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with section 134[2] and entitlement to those damages is restricted by section 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[2] The current maximum as of October 2021 is $590,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[3].
[3] See s 132 and s 44(1)(c) of the MAC Act.
Damages for economic loss are determined in accordance with common law principles subject to some restrictions in Part 5.2 of the MAC Act.

Dispute resolution

Section 58(1) of the Act (in Part 3.3 of Chapter 3) provides for the resolution of the “medical assessment matters” that may arise during the life of a claim including:
“(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by a review panel[4].
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under section 63 of the MAC Act are made to the President of the Commission on the grounds that the assessment “was incorrect in a material respect” (sub-section (1)).
If the President is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-sections (2) and (2B)).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-section 3A).
Rule 128 of the Personal Injury Commission Rules 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Assessment of impairment in relation to urinary tract injuries is undertaken pursuant to Chapter 11 of the AMA4 Guides (page 249) and cls 1.250 – 1.252 of the Guidelines.

ASSESSMENT UNDER REVIEW

Assessor Korbel undertook an examination of the claimant and issued a certificate dated 27 May 2021. He was asked to consider an injury to the claimant’s urinary tract including bladder and urinary incontinence.
He has a history from the claimant’s statement of 12 June 2020 and the history taken by Associate Professor Matthias that she developed urinary incontinence after the motor accident.
The claimant reported that she came to Australia from Lebanon in 1980 and after arriving had four children including twins in 1984. She has apparently been in receipt of a disability support pension since 2003. Assessor Korbel says “She denied any urinary problems after the birth of her children”.
The assessor has a consistent history of the accident and records that the claimant had neck and back pain and was admitted to Bankstown hospital for a day and then re-admitted later for 14 days. He records “she had pain in her neck and back and poor control of her bladder and bowel”. She said her bladder problems started after the accident and she has been wearing incontinence pads with pull-up pants since the accident using four a day and one at night due to leakage.
He notes attendance on Dr Matthias gynaecologist and Dr Korda, uro-gynaecologist and that she had urodynamic studies undertaken which confirmed stress incontinence and a mild three compartment prolapse. He records that Dr Matthias has recommended surgery. Assessor Korbel was told by the claimant she was seeking a second opinion before having that surgery. Cardiac problems were also noted.
The claimant reported a train accident in 1983, a car accident 2006 and a motor vehicle accident in October 2020. She said she recovered from the first two and did not report the last accident because it was minor.
Assessor Korbel undertook an internal examination which confirmed a three-compartment mild genital prolapse. When Ms Chami coughed, he also appears to have confirmed stress incontinence. He confirmed that the claimant was wearing pull up absorbent pants.
Assessor Korbel accepted the claimant’s reported history that her stress incontinence started at the time of the accident and while she had some slight improvement when on medication there has been continued major problems.
He noted in the conclusion that there were no urodynamic studies and said that he could not find any physical urological cause for the stress incontinence. He noted the injury was permanent and assessed it as leading to a WPI of 10%. He used chapter 4, page 149, table 17, class 2 on the basis he considered there was a neurological impairment of bladder related to her spinal injury.

SUBMISSIONS RECEIVED

Insurer’s submissions

Submissions on review

The insurer submitted that Assessor Korbel failed to regard all the medical evidence, in particular the contemporaneous clinical records, and that he determined the matter on an inaccurate and incorrect history. In particular, the insurer notes that the Assessor did not have a history of the claimant’s fall in an Aldi car park on 9 April 2018 and the treating records which suggest her incontinence worsened after that accident.
The insurer also argues the Assessor failed to provide adequate reasons on causation and incorrectly assessed whole person impairment. The Assessor notes inconsistencies in the decision of Assessor Korbel in that he says in the earlier part of his decision there were urodynamic studies but, in his conclusion says there were not.
The insurer submits the Assessor has relied on the neurological chapter of the AMA4Guides and Guidelines on the basis of a spinal cord or central nervous system disorder when there is no evidence of this and that in the medical records there is evidence that the claimant had back pain with sciatica five weeks before the accident.
The insurer says that in the light of Dr Matthias recommending surgery and that the claimant was seeking a second opinion, the Assessor should have found the claimant’s injuries not stable and deferred his assessment of WPI.

Further submissions

In answer to the Panel’s report and directions document the insurer provided additional submissions[6] which appear to concede the claimant has suffered from urinary incontinence, however the insurer says this was not caused by the accident and draws the Panel’s attention to the following:
(a)    Dr Matthias the claimant’s treating gynaecologist was of the view the incontinence related mainly to the “shock and trauma” associated with the accident. His view is the incontinence was caused by psychological factors not physical factors;
(b)    Dr Prior psychiatrist expressed the view in 2020 that the claimant’s incontinence was a physical issue not psychological;
(c)    Dr Bodel did not have a history of incontinence when he examined the claimant for the purposes of her physical injuries in June 2019;
(d)    Dr Wallace examined the claimant in April 2021 and was not given a history of incontinence and he found any lumbar and cervical spine injuries were due to pre-existing pathology or the slip and fall. He said any injuries sustained in the current car accident had resolved;
(e)    the claimant alleges in court documents that her incontinence was caused by the Aldi fall in April 2018, and
(f)    the claimant told Dr Davidson on 25 June 2018 her incontinence had worsened after the Aldi fall.
[6] The submissions are document AD6 in the Commission’s electronic file.
The insurer said it was “unable to provide any further detailed submissions as to the … cause of the claimant’s incontinence” due to the inconsistent histories and the outstanding certificate from Assessor Berry.
The insurer’s submissions in support of the original assessment[7] note pre-accident psychiatric complaints recorded in the Bankstown Family Practice records commencing with depression in May 2002 and panic attacks in January 2003. There is reference to a suicide attempt and severe depression in 2009 and admissions to hospital in 2009 and 2012. There is a record of psychological treatment from June 2013 to February 2016.
[7] Page 11 of the insurer’s final bundle.
Many other issues have emerged from the documents including allegations of domestic violence by her brother, fear of and threats from her son-in law, being shaken up after a near miss on the roads in February 2018, anxiety and stress due to a damaged new refrigerator in August 2018, a further suicide attempt in February 2019 and anxiety after the Aldi fall.

Claimant’s submissions

The claimant’s submissions are undated and unsigned but according to the records before the Panel they were uploaded to the Commission’s electronic file on 21 October 2021 from Ms Mona Yousef of Harper Legal.
The claimant says the assessor must have had the insurer’s reply and documents because he refers to submissions and the additional (late) documents filed by the insurer’s solicitors.
The claimant argues that the assessor must have had regard to the histories in the medical records “but did not, in applying his knowledge, expertise and experience to the task at hand, consider that they affected his ultimate determination”.
The claimant acknowledges there must have been a slip or omission in the Assessor’s reasons with regards to the urodynamic studies.

Procedural matters

The President convened the Panel on 8 February 2022. On 16 February 2022, the Panel issued directions to the parties seeking a bundle of documents from the insurer by 23 February 2022 and a bundle of documents from the claimant by 28 February 2022.
The insurer’s bundle was uploaded to the portal on 1 March 2022[8]. No bundle was received from the claimant.
[8] Documents AD4 and AD5 in the Commission’s electronic file.
On 3 March 2022 the Panel convened to discuss the matter and on 9 March 2022 the Panel submitted a report and directions document to the Commission to be issued to the parties. That document provided the parties with a report of the Panel’s deliberations and directed the parties to provide information and documentation as follows:
(a) the claimant was, by 8 April 2022 to upload to the portal a statement dealing with the apparent conflicting reports of when her incontinence commenced, submissions addressing the matters discussed by the Panel and the bundle of documents the subject of the 16 February directions, and
(b) the insurer was, by 29 April 2022 to upload all documents and records from Dr Matthias, the Bankstown Hospital records, details of damage to the vehicles, submissions addressing the matters discussed by the Panel and a revised bundle of documents.
The claimant’s submissions in reply to the insurer’s application for review were lodged by Ms Mona Yousef of Harper Law. At some later stage the claimant retained a new lawyer, Mr Rocco Ardino of Morgan Ardino solicitors. This became known to the Panel at the time the report and directions document was issued.
At the Panel’s request, an officer of the Commission made contact with Mr Ardino on 13 April 2022. That officer was advised that Mr Ardino had recently returned to his office from interstate. He said that Ms Chami’s file had been transferred from the previous solicitor and he had documents on a USB stick which he needed to sort out.
In the absence of a response from either the claimant or the insurer to the 9 March 2022 report and directions document, and at the request of the Panel an officer of the Commission contacted the parties on 9 May 2022 to advise them of a revised timetable set by the Panel. The Panel requested the claimant lodge her material on or before

24 May 2022. The Panel also requested the insurer comply with the previous direction by 7 June 2022.
On 10 June 2022, in the continued absence of documentation from either party and at the request of the Panel, a further message was sent to the parties advising them that the Panel was meeting on 16 June 2022 and requesting the parties attend to the matters raised in the report and directions document as a matter of urgency.
On 15 June 2022, the insurer uploaded a number of documents[9] to the portal but nothing was received from the claimant.
[9] Documents AD6, AD7, AD8, AD9 and AD10 in the Commission’s electronic file.
At the request of the Panel, an officer of the Commission again attempted to make contact with Mr Ardino. The Panel was advised that internet searches revealed the office of Morgan Ardino was “permanently closed”, that the office number of that firm had been disconnected and that Mr Ardino’s mobile number did not answer and there was an automated records advising that his message bank was full. The legal member of the Panel consulted the Law Society’s “find a lawyer” webpage which indicated

Mr Ardino was still in practice.
An officer of the Commission rang the claimant to enquire whether Mr Ardino was still acting for her and she was advised by Ms Chami and her daughter that Mr Ardino was still acting for Ms Chami and that they had spoken to him in the past two weeks.
On 16 June 2022 the Panel met again and, noting the delays occasioned to date, determined that it would proceed on the basis of the information it had and would consider any material lodged by the claimant if and when it arrived.

Procedural decisions

In the report and directions document the Panel drew to the attention of the claimant the contents of the Statement of claim and Statement of Particulars documents filed at Court in respect of a fall at Aldi in May 2018.
The Panel asked the claimant to:
(a)    advise if the District Court has determined the claim and made any findings with regards to the onset of Ms Chami’s incontinence?
(b)    provide the medical evidence filed and or served in the District Court proceedings in relation to the claimant’s incontinence only, and
(c)    clarify by way of a signed statement when the claimant says her incontinence commenced and the relationship between her incontinence and the car accident in the light of the District Court documents.
The Panel directed the insurer to provide:
(a)    all records from Dr Matthias noting he appeared to have treated the claimant both before and after the accident. The insurer advised that multiple attempts had been made to obtain the records, but the insurer had been informed “the practice was unable to locate the clinical notes”;
(b)    Bankstown Lidcombe Hospital records from the date of the accident to July 2017. These have been provided (AD7), and
(c)    any documents from the drivers or details of the damage done to the two cars noting the claimant’s varied histories about the speed of the car that hit the vehicle she was in – the insurer has provided the police report but said it did not have any statements from the two drivers or photographs of the vehicles.
The Panel advised the parties it did not intend to conduct a re-examination of the claimant based on the information before it and subject to submissions. The Panel noted the claimant has a long history of many different complaints and conditions and has been described in some of the hospital notes and elsewhere as a poor historian. The Panel noted that there was extensive documentation which, along with the additional documents are likely to assist it with the assessment.
In its further submissions, the insurer did not object to the proposed course of action. No submissions have been received from the claimant.
The Panel has determined that no re-examination will take place and the matter will be determined on the papers. There are extensive records before the Panel, the claimant has been noted as a poor historian and the Panel has received no submissions from the claimant seeking a re-examination.

REVIEW OF THE EVIDENCE

No documents were provided by the claimant other than her submissions (document AD1 in the Commission’s file). The claimant was directed to provide a bundle of documents including all documents before Assessor Korbel. The claimant has not provided the bundle.
The only documents before the panel therefore were those lodged by the insurer with the reply form, the documents in the insurer’s updated bundle (identified as AD8) and subsequent documents filed by the insurer on 15 June 2022.

Due to the absence of any documents provided to the Panel by the claimant and noting that the submissions of both parties and Assessor Korbel refer to documents from the original medical assessment file, the Panel requested an officer of the Commission make the original medical assessment file available to it.
The documents in that file have been read and considered.

Contemporaneous documents

Ambulance records have been produced[10] and provide this description:
“[on attendance] patient seated in car, front seat restrained passenger, leaving driveway at low speed, hit by oncoming car approximately 20 km/hr into driver side.”
[10] Page 31 of the insurer’s updated bundle
The claimant complained to Ambulance personnel of pain in left side of head, neck, left shoulder left arm and left leg. The claimant said she was feeling nauseous.
The police report was created by Constable Powell on 16 May 2017, four days after the accident[11]. The report of the accident is that the claimant’s friend, Ms Moussa, was reversing out of a driveway and entered the second lane (the first or kerbside lane appears to have been occupied by parked cars) when there was a collision with a Toyota Pudo driving in the second lane. That collision caused Ms Moussa’s vehicle to collide with a parked Toyota Corolla.
[11] The police report is document AD10 in the Commission’s electronic file.
Ms Moussa’s vehicle was said to be travelling at 5 km per hour and the other vehicle at 60 km per hour.
The Bankstown Hospital notes[12] include details of the 12 May 2017 admission on the day of the accident and a discharge possibly early in the morning of 13 May 2017. The discharge summary and progress notes indicate the claimant had headache, left jaw pain, central spine pain, left arm pain, lower back pain with difficulty walking.
[12] AD7 in the Commission’s electronic file.
On examination is this note “abdo[men] tender epigastric with guarding”. X-rays and scans were ordered.
The triage note has a history of the claimant behind a front seat passenger when hit by a car driving at “?20 km” and minimal damage to the car. The claimant had drunk water and was vomiting. At a later time, there is a history of the car being driven at 50 km and that the claimant had abdominal pain with “soft, non-distended, tender epigastrium”.
The entry in the Bankstown Hospital notes on 16 May 2017 was that the presenting problem was “Pain, abdominal”. The pain was noted as “intermittent epigastric pain and pleuritic pain” and it was suggested she have a follow up gastroscopy for investigation of gastritis or a gastric ulcer due to this upper abdominal pain. There is a reference to the car that hit her car having been driven at 60 kmph. An ultrasound of the abdomen reported on the kidneys, gall bladder, bowel and spleen which were essentially normal. A CT scan was undertaken of the abdomen and pelvis again showing no abnormality. On 19 May 2017 there was a neurology consultation regarding headache and dizziness. A further neurological consultation on 22 May 2017 noted vertigo.
The Panel has carefully reviewed these notes and cannot see any obvious mention of lower abdominal or pelvic pain or any mention of urinary problems in particular incontinence.
The claimant’s personal injury claim form[13] records a version of the accident that includes the suggestion that Ms Moussas was driving at speed, that both impacts occurred in lane one and that the collision happened on the left side of the car where Ms Chami was sitting.
[13] A18 in the documents before Assessor Korbel.
The claim form is dated 10 November 2017 and lists injuries to the neck, shoulder, left arm and hip, elbow and head. There is no mention of the lower back or incontinence or urinary tract issues.
The medical certificate attached to the claim form is dated 24 May 2017 and was completed by a Dr Douglas at Bankstown hospital. Dr Douglas diagnoses “post concussive syndrome and whiplash injury, soft tissue left shoulder injury”. He suggested the claimant’s benign positional vertigo had been exacerbated by trauma.

Treating doctors

Dr Al Khawaja (neurosurgeon) wrote a letter to the claimant’s general practitioner (GP) dated 3 September 2018[14]. He was treating the claimant for headaches, neck and lower back pain. He has a history of three weeks in hospital with severe neck pain and lower back pain. He took a history of the claimant’s Aldi fall which gave her a “loss of smell”. He has no history of any urinary issues and does not report on any bladder symptoms or incontinence.
[14] Page 59 of the insurer’s final bundle.
In a report dated 12 August 2020 sent to the claimant’s solicitor[15], Dr Al Khawaja says that all Ms Chami’s current symptoms are accident related because Ms Chami told him she was asymptomatic before the accident.
[15] A24 in the documents before Assessor Korbel.
Dr Kordian, gastroenterologist wrote to Dr Hatoum on 20 August 2019[16]. She complained to him of abdominal pain, nausea, occasional vomiting, blood in her vomit and constipation with occasional rectal bleeding. She gave a history of the car accident (but not the Aldi fall) and said that these symptoms have occurred since then because of her multiple medications. He recommended a gastroscopy and colonoscopy and abdominal ultrasound.
[16] A13 in the documents before Assessor Korbel.
Associate Professor Matthias provided a report dated 9 June 2020[17] to Harper Law who were then acting for the claimant in relation to the car accident but not the Aldi fall.
[17] AD9 in the Commission’s electronic file.
Associate Professor Matthias has a correct history of the car accident and records that the claimant injured her head, neck, abdomen and lower back and spent two days in Bankstown Hospital before being admitted again on 18 May 2017 and discharged on 24 May 2017.
Associate Professor Matthias records that the claimant complained of:
“… mixed urinary symptoms of urgency, urge incontinence and stress incontinence since the accident. In addition to frequency of micturition and sometimes enuresis.”
He also had a history of two episode of post-menopausal light vaginal bleeds and anxiety and depression.
He examined the claimant and noted a mild three compartment genital prolapse and demonstrable stress incontinence on coughing. He diagnosed “mixed urinary incontinence (stress and overactive bladder)” which he said, “appears to be dated from the motor vehicle accident”. He was of the view it could be “multifactorial” and mainly related to the shock and trauma associated with the accident.
He suggested various treatments and possibly surgery.
Dr Hatoum from the Bankstown Medical Practice and one of the claimant’s longstanding GP provided a report to the claimant’s solicitor dated 18 May 2020[18]. He says her injures included neck and lumbar spine, “heightened anxiety and depression”, soft tissue chest wall injuries (fully recovered), left sided hip, knee and wrist injuries (mostly recovered) and shoulder tendonitis, rotator cuff injury and possible supraspinatus tear. He does not mention bladder or urinary incontinence.
[18] A7 in the documents before Assessor Korbel.
He noted the claimant’s “well documented, long-term issues with her mental health” and a longstanding lumbar spine problem before the accident.
He considered that her condition was worsening as a result of the accident.

Other records

Ambulance

Records from NSW Ambulance have been provided[19] revealing multiple callouts and transport to hospital:
[19] Page 537 in the insurer’s bundle and these are dated as at 10 February 2021. These were not in date order but the Panel has put them in order and omitted the attendance on the day of the accident as details have been provided earlier.
(a)    20 July 2013 – case identification “sick person – defecation” and case description of earache, headache and nausea;
(b)    11 September 2013 – claimant was vomiting and unresponsive – multiple days of left side abdominal pain and vomiting. Now dizzy;
(c)    13 September 2013 – vertigo like dizziness and vomiting, left lower abdominal pain “nil bowel or urinary symptoms’;
(d)    14 November 2013 – dizzy with nausea, increasingly anxious;
(e)    2 December 2013 – call to vomiting – six-week history of nausea, vomiting and dizziness secondary to ear problems;
(f)    15 March 2014 – case identification “sick person – defecation” with a description of the claimant suffering from dizziness and vomiting and ringing in her ears;
(g)    13 June 2014 – pre-existing history of vertigo, aggravated over past four day. Two vomits today;
(h)    21 August 2014 – vertigo, dizzy and vomiting;
(i)    23 January 2015 – ongoing vertigo, left ear problems over many years, three episodes of vomiting, dizziness;
(j)    12 May 2017 – attendance on accident the subject of this claim. See paragraph 54 above;
(k)    21 December 2017 – possible acute heart problem – at the GPs, chest heaviness radiating down left arm with nausea, vomiting and anxiety;
(l)    9 April 2018 – fall at Aldi, tripped on a stick and pen landing forwards on her hands, knees and face. No reference to urinary symptoms;
(m)     20 September 2018 – assault from bucket of water poured on her from the 5^th floor, hit her shoulder, chest and body – now feeling nauseous. Pain on palpation of cervical spine and left shoulder;
(n)    4 October 2018 – ate banana with a needle inside it and had upper palate pain. The needle was sighted and taken with the claimant to Bankstown Hospital;
(o)    7 February 2019 – chest pain clammy – neck and back pain, too much medication, very anxious and crying. Chronic neck, back, bilateral arm and chest pain due to disc problem and nerve pain;
(p)    19 February 2019 – unconscious / faint. Found at entrance to PCYC – police officer and staff on scene and patient well known to him. “States he was exiting the building when he witnessed patient turn, see him and lower herself to the ground”. Patient complains of dizziness, right lateral neck pain and lower back pain and cannot move. Auditory hallucinations;
(q)    16 April 2019 – acute severe pain, epigastric with vomiting over eight days. Pain when urinating;
(r)    24 July 2019 – chest pain clammy – central chest pain for two days, altered vision, unable to sleep, headache, abdominal pain, vomiting, nausea, dizziness, shortness of breath and loss of appetite;
(s)    26 September 2019 – chest pain not alert – anxiety, neck pain, chest pain abdominal pain;
(t)    6 February 2020 – chest pain abnormal breathing. Vomit bag full of food and fluid. Patient states neck, chest, left arm, abdominal pain and headache. Upset at recent tragic events in news and very anxious;
(u)    21 February 2020 – vomiting with dizziness, nausea and sweats. Found with empty packets of Endone and Mirtazepine but denied self-harm;
(v)    15 June 2020 – chest pain clammy – nausea and vomiting, dizziness, mild headache and neck pain;
(w)   9 September 2020 – chest pain and clammy, nausea and vomiting. Claimant had been released from hospital on 6 September, and
(x)    22 October 2020 – chest pain and clammy – vomit on floor in hallway and living room. Nausea and left flank pain, reports pain on urination and odour.
The Panel has examined these records and there are no complaints of urinary incontinence and no evidence of urinary complaints until April 2019.

Dr Hatoum - GP

Dr Hatoum of the Bankstown Family Medical Practice appears to have been the claimant’s GP since 2011. He has an active past history of:
(a)    mild chronic vitamin D deficiency;
(b)    moderate chronic disc prolapse;
(c)    high cholesterol;
(d)    moderate chronic anxiety / depression;
(e)    back surgery, and
(f)    mild chronic vertigo.
The entries in his records comprise the bulk of the Panel’s chronology which is attached to these reasons. There are many entries concerning urinary problems both before and after the accident, but the Panel cannot see any entry suggesting urinary incontinence before the accident.
There was an injury to a finger in 2011 and reference to a lawyer and a possible case regarding the finger injury in June 2012 and “multiple problems with doctors and lawyers”.
Dr Hatoum has provided what appears to be the bulk of the care after the date of the car accident and distinguishes in many of his entries “3^rd party related medical consult” from “medicare related part of the consult only”. Neck, back and shoulder issues appear in the third-party consultations. Urinary tract, vertigo and vomiting appear in the medicare-related consultations.

Dr El Jaam - GP

Records from the surgery of Dr El Jaam (1 Sir Joseph Banks Street) have been provided[20] which include the following list of previous conditions:
[20] Page 682 in the insurer’s final bundle.
(a)    2002 depressed;
(b)    2003 hypertension and panic attacks;
(c)    2006 schizophrenia – chronic;
(d)    2007 mixed hearing loss left, poor compliance with medications, urticaria;
(e)    2009 sensorial hearing loss, vertigo, injury to auditory canal and vestibular system;
(f)    2010 diverticulitis, otitis media;
(g)    2011 alleged assault, breast lump;
(h)    2013 brain MRI + cervical lumbar spine CT scan (no abnormality detected);
(i)    2014 gromet removal and vertigo, and
(j)    2015 and 2017 ear issues.
Inactive conditions were listed including a cervical strain and L4 disc prolapse in 2000.
The chronology attached to these reasons documents a number of pre-accident attendances. There are various issues before the date of the accident concerning the claimant’s urinary tract and several tests undertaken but no urodynamic tests available. The claimant also reported pre-accident vertigo, abdominal pains and ear problems. There are no third-party specialist or allied health documents or referrals in these documents.
The more contemporaneous attendances start on 31 January 2017 where there was an entry suggesting Ms Chami was requesting physiotherapy for neck pain radiating down to her left arm which she complained had occurred since a fall in April 2006. On 14 March 2017 there was an entry for “very painful” back pain with bilateral sciatica and Ms Chami reported having had physiotherapy with no benefit. There is a further entry on 21 June 2017 “had car accident last month, looked after by another GP”.
There is an entry on 12 February 2018 for mainly psychological issues including “irrational fear” related to a stranger wanting to run her over because of her religion. The claimant had a urodynamic study done that day and there is a note “?court ordered 900 000 in compensation she is very happy”.
The final entry in these records is dated 29 September 2020 where the claimant reported her brother was threatening her and a police officer was harassing her to change religion.
There is no evidence in these records of any urinary incontinence complaints although there is a reference to the February 2018 urodynamic study done at the request of

Dr Hatoum from a different surgery.

Alpha-Cure Medical Centre - GP

The claimant also attended the Alpha-Cure Medical Centre until 2016 and their records are before the Panel[21].
[21] Page 739 of the insurer’s final bundle.
The active past history list includes back pain radiating to the buttock in 2006, a motor vehicle accident in 2006, neck pain with radiculopathy and shoulder pain in 2006. Degenerative disc disease in the lumbar spine is listed on 5 April 2017.
On 18 November 2016 there was an attendance for lower mood for the last six months and Ms Chami was diagnosed with depression and a mental health plan was developed. A similar attendance occurred on 15 April 2017.
On 13 January 2017 the claimant attended Alpha-Cure complaining of a depressed mood secondary to chronic pain and stiffness and she was referred for physiotherapy opinion and management of chronic neck and back pain. The claimant then attended on 13 May 2017 the day after the accident complaining of ongoing vomiting and abdominal pain.
The Panel has examined these records and there are no complaints of urinary incontinence or urinary problems.

A2Z medical centre - GP

The A2Z medical centre in Lakemba’s records[22] commence with attendances in 2014 up to April 2021. They document a relevant past history of back pain, neck pain with radiculopathy and shoulder pain in 2006, the car accident in 2017, the Aldi fall (with broken teeth, neck and back pain) and the heavy object falling on her head (described as a metal bar) and another car accident in 2020. There is also a note of the train accident in 1984 and a car accident in 2013. The first attendance was 13 February 2014 and the doctor noted neck pain with radiculopathy and back pain with sciatica.
[22] Page 792 of the insurer’s updated bundle.
There are other attendances in 2014 for neck and back pain, psychological issues (relating to a fall in a hospital in 2006), vomiting, vertigo dizziness and nausea.
On 12 June 2014 the claimant presented due to a two-week history of pain with urination and on 12 July 2014 for a urinary tract infection. In October 2014 Ms Chami attended for mental health issues and a urine test was requested. Further attendances occurred in 2014 for mental health and back, neck and shoulder problems as well as ear issues.
In 2015 Ms Chami attended less frequently but for similar conditions including reflux and abdominal issues. In October 2015 she was “worried from her son-in-law he threatened her to shot her”.
In 2016 there is another entry relating to her son-in-law and further consultations for vertigo, dizziness and ear problems as well as blood in her stools.
The claimant did not attend the practice in 2017, 2018 or 2019 but recommenced on

30 September 2020 with symptoms of depression, back pain and neck pain with radiculopathy.
The very next day, on 1 October 2020, Ms Chami attended due to “an MVA” saying she had teeth damage, hip pain, nose-bleed, cartilage damage and lumbar pain as a result. On 9 October 2020 Ms Chami attended again in relation to a “new accident on

3 October 2020”.
An entry on 7 January 2021 refers to the fall at Aldi where the claimant reports she lost her tooth, and she was planning to see a fascio-maxillary surgeon.
In February 2021 there are two entries confirming a urinary tract infection and on

14 April 2021 Ms Chami attended for depression and chronic pain. She then complained of dysuria and pain with urinating on 26 April 2021.
The Panel has examined these records and there are no complaints of urinary incontinence.

Other practices

Records of Rickard Road Medical Centre[23] show a handful of attendances for dizziness and ear problems but nothing of relevance to the issues in this case. So too the records of Restwell Medical Centre[24] which date back to 2001.
[23] Page 779 of the insurer’s updated bundle.
[24] Page 786 of the insurer’s updated bundle.
There are a number of records from other practitioners which are of interest but which are not greatly relevant to the matters that the Panel needs to decide. The claimant has seen specialists for her vertigo and dizziness and Dr Smilie for cardiac issues.

Dr Smilie has a history of “bladder dysfunction” in her letters to the GP from 2018 onwards but not in the earlier letters of 2013 and 2015.
Auburn Ear Nose and Throat Centre[25] have produced notes which include a discharge summary from Bankstown Hospital dated 11 September 2013 suggesting urinary problems of pain and constipation the claimant attributed to Panadeine Forte use.

Dr Greenberg saw the claimant in 2014 following referral from Dr El Jaam and noted that the claimant had significant left ear pain and she referred to a claim for damages for her ear troubles after a fall at Bankstown Hospital. He notes in a later letter her left ear grommet was removed in Bankstown Hospital. He recommended exploratory surgery in a letter dated 12 December 2014 but there is no record of any surgery.
[25] Page 885 of the insurer’s updated bundle.
The claimant was seen again on 31 March 2017 with blood in her ear and a suspected infection. A letter dated 26 May 2017 has a history of the claimant’s “balance flaring up” after the car accident. In September 2017 he expressed the view “she has had a number of significant insults to the left ear and as a result has a permanent hearing loss”. He suggested there was no further treatment for her.

In the records is a letter from another ear, nose and throat surgeon, Dr Forer who in

21 December 2017 wrote to Dr Hatoum who noted the claimant was complaining of significant pain in the left ear and left side of her neck following a car accident. He thought any ear issues were related to a neck injury sustained in the May 2017 accident.
Dr Kalish appears to have taken over the claimant’s treatment and in February 2018 in a “to whom it may concern” letter notes the claimant has had multiple high volume nose bleeds following a car accident. In his letter to Dr Hatoum of 13 February 2018 he outlined her past treatment and advised he would be reviewing her in three months. On 22 May 2018 she reported the Aldi fall with reports of damage to her nose, teeth and loss of smell.
In a letter dated 26 March 2019 he notes:
“Unfortunately, there has really been no change to her overall issues. She continues to have random falls with possible loss of consciousness which either be related to proprioceptive issues as she has problems with her hips and knees or cardiac. We have excluded vestibular cause on a number of occasions.”
The final letter dated 15 December 2020 refers to a “recent car accident” and the onset of nose bleeds.

Court documents

Within the insurer’s bundle was the claimant’s statement of claim relating to her public liability claim against Aldi following a fall in April 2018 and the statement of particulars of injury and damage.
The statement of claim was filed in April 2021 and the claimant tells the court that her incontinence commenced after the fall at Aldi. She also makes a claim for broken spectacles at a cost of $300.
Mr Ardino was her solicitor at the time representing her in that claim and has certified that the claim has reasonable prospects of success. Ms Chami has signed an affidavit saying that she believes the allegations of fact in the statement of claim are true.
At the time the statement of claim was filed, Ms Mona Yousef or Harper Law was representing the claimant in relation to her motor accident.

Medico-legal reports

Dr Wallace provided a report to the insurer dated 12 March 2018[26]. This is a date before the Aldi fall. While his WPI assessment has an incorrect method of assessing pre-existing cervical spine impairment, the main report appears comprehensive.
[26] Page 44 of the insurer’s bundle.
Dr Wallace took a consistent history of the accident and the claimant’s immediate treatment. Under the heading “Past History”, Dr Wallace has some details of the 2006 accident, a 2012 attendance on a doctor for back pain and the June 2013 investigations for back and neck pain.
Under the heading “Present Complaints” he records complaints of neck and lumbar pain, paraesthesia and numbness of the left leg and left hand. Importantly to the Panel there were no complaints made to Dr Wallace of urinary incontinence or frequency or pain when urinating.
Dr Wallace diagnosed musculoligamentous strains to the neck and lower back which he though had aggravated previous symptomatic degenerative conditions in

Ms Chami’s cervical and lumbar spine. He noted she “exhibited significant pain behaviour” and had an “exaggerated response to the examination” and formed the view that the claimant was “exaggerating her current functional disability”.
Dr Bodel undertook an assessment of the claimant’s injuries and provided a report dated 7 June 2019 to the claimant’s former solicitors[27].
[27] Document A8 before Assessor Korbel.
Dr Bodel has a completely different history of the accident that is:
“… an oncoming motor vehicle made a right-hand turn into the driveway of premises on the left-hand side. The driver of the vehicle that she was in, was unable to stop in time and ran into the passenger side of the turning vehicle as it crossed in front of them.”
Dr Bodel has a history of a previous neck injury in 2006 resulting in a claim but eventual complete recovery. Under the heading “subsequent accidents or injuries”

Dr Bodel records “nil”. He therefore does not have a history of the Aldi fall.
He takes no history of bladder or urinary incontinence disorders.
Dr Bodel assessed the claimant’s WPI at 16%. He assessed 6% for each of the shoulders and 5% for the claimant’s neck injury because of the presence of asymmetry and guarding. He found no asymmetry of movement or guarding or any signs of radiculopathy in the lumbar spine and assessed that WPI as 0%.
Dr Prior, psychiatrist examined the claimant and provided a report dated 18 June 2020 to her previous solicitor[28]. He diagnosed a post-traumatic stress disorder and exacerbation of pre-existing persistent depressive disorder and generalised anxiety disorder. He noted difficulties obtaining a history and answers to his questions and assessed WPI at 17% less 2% for pre-existing complaints.
[28] Documents A4 and A5 before Assessor Korbel.

Medical assessments

On 8 June 2021, Assessor Berry undertook an assessment of the claimant’s cervical and lumbar spine and both of Ms Chami’s shoulders.
The claimant gave Assessor Berry a history of a minor car accident in 2006 injuring her neck and back and that she had “fully recovered”. Ms Chami told Dr Berry she was “troubled by vomiting and haematemesis” and that she had “developed bladder problems with incontinence”.
Assessor Berry said it was difficult to get a history from the claimant, but she said she went to hospital for two days with back and neck pain and then returned with abdominal pain and vomiting.
The claimant was wearing a wrist support as she said she had fallen in the bathroom two days before.
Under the heading “Current symptoms” Assessor Berry records from the claimant continuing pain in the neck, difficulties with her eyes, back pain, nausea, vomiting and abdominal pain and pain in the shoulders. There is no record in this section of bladder or incontinence issues.
Assessor Berry summarised the reports of Dr Bodel, Dr Wallace and Occupational Therapist Carolyn Grinter. He also reviewed four imaging studies. There is no specific reference to any of the pre-accident medical records or the claimant’s pre-existing issues contained therein. Assessor Berry considered the claimant was not exaggerating and was telling the truth.
He considered the mechanics of the accident (impact on the passenger side and a second collision with a parked vehicle) and found that “it is reasonable to assume that as a result of such an accident she has sustained soft tissue injuries to the neck, back and shoulders”. While Ms Chami complained of pain in the shoulders, she had a normal range of motion and therefore 0% WPI. Her neck injury was classified as DRE category 1 (0% WPI) due to normal range of movement. In the lumbar spine he noted tenderness, guarding and restricted range of motion which was asymmetrical leading to a classification of DRE 2 or 5%. He made no deduction for any pre-existing or subsequent cause.

Claimant’s evidence

The claimant provided a statement[29] dated 12 June 2020. She gives a history of the 2006 car accident and says she recovered but had “some mild and intermittent pain in my low back”. She says before the car accident “I had no significant problems with my neck or back”. She concedes some anxiety and intermittent psychological problems but said she was “psychologically well” before the accident.
[29] Document A1 in the documents before Assessor Korbel
Ms Chami said the accident involved a hit from the left-hand passenger side of the car and a collision with a parked car. She says she was “thrown sideways and backwards then sideways again, I was thrown across the car, back to the door, back across the car and back to the door in each collision”.
She said she experienced immediate back and neck pain with severe headaches. She says after remaining overnight she was discharged then re-admitted because of back and neck pain nausea and dizziness. She says that since the accident she has had pain in her shoulders and numbness in her hands and arms which she never had before the accident.
She says in 2013 she had a near miss while in a car, felt neck pain and went to hospital. Ms Chami says before the accident she was not taking any medication except for medication when she vomited. Ms Chami said she tried to take her own life after the accident because of the pain medication she was taking. She says she goes to the PCYC and that everyone knows her and her situation and they have had to call the ambulance twice because of her deteriorating health.
Ms Chami says:
“I have also developed incontinence as I cannot control my bladder. I know that this condition is caused by the accident due to my back pain. My GP has confirmed that this condition is related to the car accident because the collision was very forceful. I did not have this condition before the car accident.”
Ms Chami says she has been referred to a specialist that he has recommended an operation and that she wears sanitary pads for the incontinence problem.
There is no mention in this statement of the claimant’s fall at Aldi.
Ms Chami’s son Bilal has also provided a statement dated 10 June 2020[30]. He says that before the accident he and his sister helped his mother but that after the accident her condition deteriorated, and more help was needed. He also said that before the accident his mother had a problem with her hearing and dizziness and vertigo but that she had an operation and her problems resolved. He says that after the car accident “she was regularly vomiting, feeling dizzy and has suffered from severe and regular headaches”.
[30] Document A2 in the documents before Assessor Korbel.
Mr Chami says that before the accident his mother never complained of back or neck pain although she had back and neck pain many years before the accident. Now he says she has almost constant and severe neck pain and lower back pain.
Mr Chami refers to his mother’s pre-accident psychological problem as being related to his parent’s divorce and that before the accident she was happy with no “obvious signs of being depressed or anxious”.
Mr Chami does not refer to the claimant’s fall at Aldi and how that has impacted her health.

PANEL’S CONSIDERATION OF THE ISSUES

Reliability of the claimant’s evidence

Dr Prior and Assessor Berry have indicated that Ms Chami was a vague and difficult historian. Hospital and Ambulance records also record the claimant as being a poor historian.
The claimant’s statement says the impact occurred from the passenger side whereas Ambulance records, Dr Hatoum and Dr Matthias have a history of an impact from driver’s side. The speed of impact varies from 20 kmph (in the Ambulance report) to
50 kmph (at triage) and then 60 kmph(later) in the hospital notes.
The claimant tells the Panel in her statement that her incontinence commenced after the car accident. The claimant has sworn an affidavit telling the court that her incontinence commenced after the fall in Aldi.
The car accident occurred over five years ago. The fall at Aldi occurred over four years ago. Between the two incidents and since the Aldi incident the claimant has had multiple trips to hospital by Ambulance, had significant upsets in her life recorded by her longstanding GP including threats from her son-in-law, disputes with a retailer over a refrigerator, confrontation with her brother, long running litigation following a fall in a hospital, an assault from a bucket of water (or metal bar) and a further car accident. It is therefore not surprising that the claimant may be mistaken or confused about events and dates and times.
The Panel prefers to rely on the evidence of the medical providers and examiners and in particular those who have a full and correct history of the mechanism of the accident and the claimant’s previous and subsequent accidents and conditions.

Does the claimant have incontinence?

Urodynamic studies were undertaken on 7 February 2018 showing that there was stress incontinence with low mean urethral closure pressure along with a mild three compartment prolapse.
The claimant has been examined by Dr Matthias and Assessor Korbel both of whom have confirmed the presence of incontinence and the prolapse.
The insurer concedes the claimant does experience incontinence.
Assessor Korbel diagnosed “mixed urge and stress incontinence requiring the use of pull up pants”. Dr Matthias diagnoses “mixed urinary incontinence (stress and overactive bladder)”.
The Panel is comfortably satisfied that the claimant does experience incontinence.

What is the cause of the claimant’s incontinence?

The Panel identified in the report and directions document that there would appear to be three possible physical causes for incontinence:
(a)    a neurological cause;
(b)    a urological cause, or
(c)    a gynecological cause.
Dr Bodel and Dr Wallace do not have a history of any incontinence. Neither the insurer nor the claimant have engaged a medico-legal expert to provide an opinion on the causation of the incontinence.

Is there a neurological cause?

Assessor Korbel says the urinary incontinence dates from the car accident and therefore is related to the car accident and considers the cause a neurological one “as it appears to be related to her spinal injury”. It is not clear whether Assessor Korbel had the entirety of the claimant’s pre-accident histories before him at the time of the assessment.
The claimant’s treating neurologist, Dr Al Khafaja, has no history of Ms Chami’s incontinence and neither does Dr Kordian the claimant’s gastroenterologist. While
Dr Hatoum’s note of 23 August 2017 speculates the cause of the incontinence may have been neurological, the investigations he ordered do not support this. The Panel notes that in Dr Al-Khafaja’s report to the claimant’s solicitor in May 2020, he does not refer to the claimant’s urinary incontinence or claim it as being related to the accident. The Panel also notes that Dr Hatoum records in his notes those part of his consultations which relate to “third-party” matters and those which are “medicare related” and presumably not related to a compensable claim. Dr Hatoum has consistently referred to neck, back and shoulder problems as third-party related but not the urinary issues.
The Panel notes the claimant has a long history of lower back complaints including disc bulges, sciatica and possibly back surgery (as suggested in Dr Hatoum’s notes) which suggests if there was a neurological cause it is not accident related. But in any event the Panel notes that there is no radiology which would support a neurological cause for Ms Chami’s incontinence.

Is there a urological cause?

The claimant has had long standing complaints of urinary problems before the accident including pain on urinating, recurrent urinary tract infections and frequency.
There are multiple entries in the clinical notes at Bankstown Hospital on the day of the injury on 12 May 2017 indicating that there was trauma to the left side of Ms Chami’s face, neck, and arm caused by the accident, but there was no reference to any trauma to the abdomen and in particular to the bladder or genital area.
The hospital notes from the subsequent admission on 16 May 2017 refer to epigastric or upper abdominal pain.
An entry in Dr Hatoum’s notes on 18 May 2017 records “PV [pelvic] discharge” and on 29 May 2017 he records “Pain at seatbelt”. The hospital notes reviewed by the Panel do not have any history of pelvic discharge or seat belt pain and neither admission contains any reference to urinary incontinence.
The first documentation in the clinical notes of urinary incontinence being present was on 23 August 2017, over three months after the accident. There were several attendances on Dr Hatoum before 23 August for urinary issues, but these issues were similar to the issues that appear to have plagued the claimant for years before the accident (recurrent infections, frequency, pain when urinating and so on).
After a careful review of the treatment records and the other material, the Panel is not satisfied that there is a urological injury causing the claimant’s incontinence.

Is there a gynecological cause?

Dr Matthias, a urogynecologist with therefore someone with particular expertise in this area, does not have any history of the Aldi fall or the claimant’s version as set out in her sworn declaration before the Court, that her incontinence commenced after the fall. He also does not have a history of the other stressors in the claimant’s life at the time. He has a history from the claimant of pelvic bleeds post-accident, but the Panel notes the GPs notes suggest pelvic bleeds occurred after the Aldi fall.
Dr Matthias suggests the cause of Ms Chami’s incontinence is multifactorial but “appears to be” due to the shock and trauma of the car accident and the finding of a vaginal prolapse.
The Panel notes that according to Dr Hatoum’s notes, the claimant was referred to
Dr Matthias in October 2012, sought a review by him in July 2013 and was referred in November 2017 due to a “deterioration” in her incontinence.
Dr Matthias’ clinical notes, reports or records if there are any, from before 12 May 2017 have not been located. The panel has not been provided with any documentation as to whether Ms Chami’s vaginal prolapse had been present before the car accident.
Dr Matthias does not engage with the cause of the vaginal prolapse, but the medical members of the Panel note the claimant’s age and that she has had three pregnancies (including one resulting in twins) which are more likely to have caused the prolopse. In the light of an absence of complaints immediately following the car accident of lower abdominal or genital injury or symptoms and noting the mechanism of the car accident, the Panel is not satisfied that the claimant’s mild three comportment prolapse was caused by the accident.
The medical members of the Panel would expect, in their clinical experience, for there to have been some record in the hospital notes of lower abdominal pain or genital injury if the prolapse had occurred as a result of the car accident.

Is there another cause?

Both Dr Matthias and Assessor Korbel formed the view that the claimant suffers from stress incontinence. Dr Matthias says this is because of the shock and trauma of the
12 May 2017 car accident.
Dr Prior does not offer a psychiatric diagnosis to explain the claimant’s urinary incontinence. He has clearly read Dr Hatoum’s notes and documents extensive
pre-accident and post-accident psychological issues affecting the claimant. He diagnosed post-traumatic stress disorder which appears to be based on a history that Ms Moussa “was going fast” and she saw the other vehicle coming and the “lady wasn’t looking”. The claimant also reported hitting her head on the windscreen and breaking her glasses which is a history not contained elsewhere. Dr Prior does not have a history of the Aldi fall in which the claimant alleges she hit her head, damaged six teeth and broke her glasses. The Panel is not satisfied Dr Prior an accurate history of the accident and the injuries which affects the confidence of the Panel in his opinions.
Stress incontinence can, in the clinical experience of the medical members of the Panel, be caused by psychological issues. It is noted that Ms Chami has a past history of mental health problems including an admission to a mental health facility in 2009 and a possible further admission in 2012. Ms Chami also has had multiple other stressors in her life including lengthy litigation concerning a fall at a hospital in 2006, family discord, complaints about doctors and a broken refrigerator, assaults and so on which are well documented in the records of Dr Hatoum and referred to in various medico-legal reports.
Taking into consideration the past history of multiple stressors and the nature of the soft-tissue injuries to the left side of her face, neck, and arm, the panel does not believe that any psychological injury associated with the car accident on 12 May 2017 would be sufficient to cause ongoing urinary incontinence.
The medical members of the Panel also believe that if psychological factors, including stress were relevant to the causation of the claimant’s incontinence, the stress would have been greater shortly after the car accident than on 23 August 2017, when the first documentation of the urinary incontinence was made.

Stress incontinence is, in the experience of the medical members of the Panel, usually experienced by women who have experienced pregnancy, childbirth and is also related to obesity and menopause. All of these things cause weakness to a woman’s pelvic floor or damage to the urethral sphincter which then leads to it failing to close properly and urine leaking.
The Panel notes from the records of Dr Hatoum, Dr El Jaam and others that the claimant is over 60 and post-menopausal and has struggled with her diet from time to time.

Findings on causation

The Panel is not therefore satisfied that the claimant sustained any physical injury in the car accident which would explain the onset of urinary incontinence. There is no neurological cause related to the accident and there is no evidence of injury to the lower abdomen, urinary tract, bladder or reproductive organs to provide a urological or gynecological explanation for it.
The most likely explanation for the claimant’s stress incontinence, in the clinical experience of the medical members of the Panel is her age and weight or psychological factors, of which there appear to be many.

CONCLUSION

The Panel is not therefore satisfied that the claimant’s urinary incontinence is caused by the motor vehicle accident on 12 May 2017. As a result, the claimant has no impairment that can be attributed to the accident.
If the trauma and shock of the car accident did cause the onset of the claimant’s incontinence the Panel notes the claimant’s allegation before the District Court that her incontinence commenced after the Aldi fall and that she told Dr Davidson in June 2018 that her incontinence had worsened since that fall, and she had developed faecal incontinence. In the light of those two particular histories, the Panel would not be of the view that any ongoing stress incontinence is related to the car accident but that it is more likely related to subsequent events in particular the fall at Aldi.
It therefore follows that the certificate of Assessor Korbel should be revoked, and a fresh certificate issued.
The Panel was advised that a certificate needs to be issued combining the assessment of the Panel with the assessment of Assessor Berry whose WPI finding was 5%.

CHRONOLOGY[31]

[31] This is not a chronology of all the Claimant’s medical attendances but focuses on the matters relevant to urinary issues. The references are to page numbers in the insurer’s bundle of documents.

29 Sep 2006 Dr El Jaam – urinary frequency and dysuria [p 710].
20 Sep 2011 Dr Hatoum – presents with frequency and dysuria but no gross haematuria. Urinalysis shows++ leucocytes and trace of blood and ketones [p 416].
7 Nov 2011 Dr Hatoum – very upset about the lack of progress with her case. Large folder noted. Presents with frequency and dysuria, prescribed Triprim (for bacterial urinary tract infections UTI) and urine microscopy and culture test (MCS) requested [p 417].
12 Nov 2011 Pelvic ultrasound requested by Dr Caroline Davidson – fibroids detected [p 533].
1 Sep 2012 Letter / statement Merna Flaifel concerning her constantly visiting the claimant at Bankstown Mental Hospital in March 2006. Ms Flaifel reports that Ms Chami was left unattended and fell in the shower having slipped on a bar of soap [p 273].
9 Oct 2012 Dr Hatoum - frequency and dysuria – lower back pain, long history of pain on and off. No sensory neural problems urine MCS requested [p 82 and 419]
20 Oct 2012 Referral to Dr Matthias which notes amongst other things “Moderate, Chronic Anxiety / Depression” [p 456]
19 Dec 2012 Dr El Jaam – no urinary frequency no dysuria [p 696].
21 Mar 2013 Dr El Jaam - urinary frequency and dysuria, urinalysis considered [p 695]
25 Mar 2013 Dr Hatoum letter to Dr Medhat Guirgis - the claimant wanted a disability sticker “but we have no records of her surgery or injury”. The history includes “moderate chronic disc prolapse”.
21 Jun 2013 Dr El Jaam - urinary frequency and dysuria. UTI and urine MCS requested [p 82 and 419].
16 Jul 2013 Dr El Jaam – claimant wants review by Dr Matthias and Smilie – Brain MRI and cervical lumbar spine CT show no abnormalities. Referrals given [p 693].
25 Jul 2013 Dr Hatoum - vertigo, recent hospital admission, saw Dr Smilie, persecutory ideation involved in a chase of a security guard who chased a young girl who had stolen $2. Still feel that she was mistreated and does not accept her diagnosis of schizophrenia [p 421].
11 Sep 2013 Discharge summary Bankstown Lidcombe – two-day history of sudden onset vomiting, left ear pain, dizziness and left flank pain. Previous presentations twice this year. History of diverticulitis [p 889].
12 Sep 2013 Discharge referral – attack of vertigo and left sided abdominal pain. Intermittent episodes weekly for close to 10 years. Dysuria for two days. Recurrent UTI, most recently treated two months ago for dysuria and positive UA by GP (as per patient) [p 893].
13 Feb 2014 Dr Al Sayed and A2Z nurse – Ms Chami presented due to burning of urine started one week ago. Claimant not taking anything denies any pain. Urinalysis requested [p 862].
27 Feb 2014 Dr Al Sayed – pyuria (pus in urine) – sterile pathology requested MCS requested [p 859].
6 Mar 2014 Dr Alsayed - microscopic haematuria in urine - neck pain with radiculopathy [p 868].
12 Jun 2014 Dr Mohammed and A2Z nurse– pain associated with urination. Ms Chami stated that she has been experiencing pain when passing urine for about two weeks. Patient also stated that the more urine she passes, she experiences pain on her back. UTI and urinalysis requested [p 851]. Dizziness and UTI symptoms. Urine Analysis positive nitrate.
21 Aug 2014 Dr El Jaam - reference to urinalysis, claimant refused change of medication, Panaedine Forte given [p 688].
10 Oct 2014 Dr El Jaam - urinary frequency dysuria urinalysis report requested possible UTI [p 689]
4 Dec 2014 Dr El Jaam – genito-urinary and urinalysis requested but reason for contact said to be vertigo [p 687].
19 Mar 2015 Dr Alsayed A2Z - UTI recurrent, pathology urinalysis requested and Keflex prescribed [p 837].
11 Aug 2015 Dr Smilie cardiologist to Dr El Jaam – no mention of bladder dysfunction [p 1029].
11 Feb 2016 Sam Albassit psychologist “to whom it may concern” letter advising he was initially referred on 1 June 2013 and re-referred and consulted on regular basis – depression and anxiety.
18 Aug 2016 Dr Kaya (Alpha Cure) – follow up regarding urine test and cough [p 742].
7 Nov 2016 Dr Abdalla (Alpha Cure) – pain during urination UTI. Results of urine tests given to patient [p 743].
13 Jan 2017 Referral Dr Abdalla (Alpha Cure) to Masnad Health Clinic for opinion and management neck and back pain for years [p 770].
31 Jan 2017 Dr El Jaam requesting physio for her neck pain that radiates down to left arm since the fall in 6 April 2006 [p 684].
11 Mar 2017 Dr Abdalla follow up regarding urine test and cough sore right foot [p 745].
14 Mar 2017 Dr El-Jaam back pain, sciatica, bilateral had physio no benefit. MRI requested, Mobic prescribed [p 684].
12 May 2017 Date of accident
13 May 2017 Dr Nawaz (Alpha Cure) - passenger in accident yesterday went to hospital for review. T-boned from driver side but collision with other car left side. 60 mph. Ongoing abdominal and vomiting [p 747].
Referral to Bankstown Hospital by Dr Nawaz for ongoing monitoring of abdominal pain, high BP and facial tenderness investigation.
18 May 2017 Dr Hatoum – motor vehicle accident a few days ago, ambulance called admitted to Bankstown hospital, pain on left face, neck and bruising anterior abdomen. Also, lower back pain and numbness in both hands. P/V discharging [p 420].
24 May 2017 Discharge summary Bankstown Lidcombe – post concussive syndrome whiplash. Ongoing dizziness and vomiting [p 514].
29 May 2017 Dr Hatoum - in car, passenger, coming out of driveway. Speed 50 according to police. Pain in back of neck, lower back and left hip, left knee wrists and shoulder. Pain at seat belt. Loss of consciousness for a few minutes. No neurological deficits [p 422].
30 May 2017 Dr Hatoum – (medicare) from 12 May 2017 dysuria, frequency, haematuria, pelvic pain. MCS requested [p 424].
2 Jun 2017 Dr Hattoum - (third party) pain and unable to sleep [ p 424]
13 Jun 2017 Dr Hatoum - recent UTI Urine MCS request [p 425].
21 Jun 2017 Dr El Jaam - had car accident last month and looked after by another GP [p 684]
16 Aug 2017 Dr Hatoum - frequency “++ US + ketone” request for MCS [p 427].
23 Aug 2017 Dr Hatoum – (medicare) – MSU (midstream specimen urine) noted urinary incontinence? Due to spinal nerve compression? Ultrasound KUB (abdominal) for haematuria [p 428]. Renal tract ultrasound received 28 August 2017.
25 Sep 2017 Pain vasovagal type collapse, also attendance for nose-bleed, headache, dizzy yesterday had fall [p 429]
27 Oct 2017 Discharge summary Bankstown Lidcombe hospital – swallowed swimming pool water 18 October and since then has been suffering abdominal pain and vomiting. Complaining of dysuria last seven days. Has had rude texts from solicitor makes her more dizzy. Room spinning very distressed.
6 Nov 2017 Dr Hatoum – letter “to whom it may concern” concerning “post MVA urinary incontinence” and request for help with a couple of pads per day at a cost of $50 per week [p 361 and 409].
14 Nov 2017 Referral to Dr Matthias for “deterioration in her urinary incontinence” post MVA [p 471].
18 Dec 2017 Pelvic ultrasound – two small fibroids unable to assess for uterine prolapse as the claimant was unable to perform the valsalva (breathing) maneuvre [p 1071].
21 Dec 2017 Discharge summary Bankstown Lidcombe - chest pain, epigastric pain and neck pain on background of similar presentations and chronic neck pain [p 1045].
23 Jan 2018 Dr Hatoum – (third-party related) pain in neck and back (medicare related) Dr Matthias awaiting urodynamic studies [p 86].
12 Feb 2018 Dr Hatoum – (third-party related) medical consult re pain and Panadeine Forte prescribed (medicare related) has new lawyer for case against the hospital [p 87].
12 Feb 2018 Dr El Jaam - irrational fear, urodynamic study done today, court ordered 900,000 in compensation she is very happy [p 683].
14 Feb 2018 Dr Hatoum – (medicare related) in Bankstown shopping, almost run over, almost fight between two cars, she asked them to stop “all shook up” – bruise on right hip. Since the accident at the council, she has been in a lot of pain, almost panic attacks [p 88].
2 Mar 2018 Dr Smilie cardiologist report to Dr Hatoum – lots of ongoing issues since car accident including chronic pain, blood pressure, nose bleeds. Diagnoses includes bladder dysfunction [p 189, similar at 212 and 230].
19 Mar 2018 Dr Hatoum – (third party) lost $1,000 on the day she went to see the orthopaedic surgeon pain increased. (medicare related) pain in left ankle and depression. Reference also to a HCCC complaint and the claimant feeling let down and then there is a note “recurrent stress incontinence” [p 91].
9 Apr 2018 Discharge summary Bankstown Lidcombe after fall – no history of incontinence [p 202].
11 Apr 2018 Dr Hatoum - had a fall in the ALDI driveway / carpark – overnight in hospital lost her glasses. Bruises all over the knees, arms, hands, elbows, face, two loose teeth. Shoulder tenderness and reduced range of motion both shoulders [p 92].
28 May 2018 Dr Hatoum – [public liability], insurance related medical consult – pain in nose and face, dental etc. [medicare] ‘urinary incontinence’ [p 96].
20 Jun 2018 Dr Hatoum – [third party] pain stable [medicare] urinary incontinence and urgency asking about options. Dr Mathias not helping her, so Ms Chami was advised to get 2nd opinion.
25 Jun 2018 Dr Hatoum – [third party] back pain no better, wants MRI [medicare] MRI of the brain (hearing) [p 97].
25 Jun 2018 Dr Davidson - urinary incontinence worse since fall on 9 April admits to faecal incontinence and has leg numbness. Had pelvic bleed two months ago after fall, pelvic spotting on and off since. On examination with speculum – mild prolapse. Lumbar spine MRI to exclude spinal canal stenosis due to incontinence [p 97].
20 Sep 2018 Discharge summary Bankstown Lidcombe after assault by allegedly contaminated bucket of water. Overnight stay [p 221].
4 Oct 2018 Discharge summary Bankstown Lidcombe after eating banana with sewing needle inside. Superficial scratch to hard palate [p 224].
12 Dec 2018 Discharge summary Bankstown Lidcombe for four-day history of abdominal pain and vomiting, chest pain, bleeding nose and neck pain [p 233].
8 Jan 2019 Discharge summary Bankstown Lidcombe after spider bite on right index and middle finger had pain went to beach complains of being nauseous and dizzy [p 231].
23 Jan 2019 Whole body scan – “except for mild degenerative arthropathy in the peripheral joints, the study is within physiological limits and no skeletal cause has been identified in the bone scan to explain the patient’s neck and back pain” [p 238].
31 Jan 2019 MRI Cervical spine – mild discal degenerative changes in the cervical region. No evidence of neural compromise. No fracture. MRI Lumbar spine - minor degenerative changes in the discs at the lower lumbar spine. No neural compromise, no evidence of recent trauma [p 243].
7 Feb 2019 Discharge summary Bankstown Lidcombe – neck and back pain, heavy chest pain, intermittent nausea and vomiting and notable mood liability and tearfulness. Considerable psychological stressors involving a family member and an AVO. Stress is contributing to the presentation [p 246].
19 Feb 2019 Discharge summary Bankstown Lidcombe – vertigo and generalised pains. Thoroughly investigated and nil acute abnormalities were identified. Reviewed by medical physician and neurology team [p 251].
22 Feb 2019 Discharge summary Bankstown Lidcombe – chest pain [p 261].
16 Apr 2019 Discharge summary Bankstown Lidcombe – chest pain, vomiting and severe epigastric pain reports dysuria, bowel motions normal, abdominal pain and left shoulder pain [p 280].
24 Apr 2019 NCAT order regarding a consumer claim made by the claimant against Bing Lee set aside [p 291]
10 Jul 2019 Dr Kordian gastroenterologist report to Dr Hatoum - abdominal pain, nausea, vomiting and haematemesis and constipation. No mention urinary or faecal incontinence [p 303].
25 Jul 2019 Discharge summary Bankstown Lidcombe – wide variety of symptoms acute exacerbation of chronic neck and back pain, chest pain, abdominal pain, nausea and vomiting, paraesthesia and pain in the left arm, shortness of breath and dysuria. Blood on urinalysis but otherwise not acute problem [p 306].
26 Sep 2019 Discharge summary Bankstown Lidcombe - increased neck and back pain for three days with weakness in both arms. Took Endone then ran out [p 321].
25 Nov 2019 Canterbury hospital – colonoscopy normal.
6 Feb 2020 Discharge summary Bankstown Lidcombe diagnosis acute cystitis – dysuria and haematuria over last day. Lightheaded with fever. Chronic back pain. Urinalysis haematuria [p 330].
12 Feb 2020 Discharge summary Bankstown Lidcombe - head injury three days ago – worsening nausea and dizziness over last 12 days after being hit on the head by a metal bar which fell onto her from the third floor of her apartments on 9 January. Complains of headaches and left sided neck pain. Vomited [p 336].
21 Feb 2020 Discharge summary Bankstown Lidcombe – worsening nausea and dizziness over last 12 days since being hit on the head pain settled with Panadeine Forte – given Valium anxiety related [p 341].
11 Mar 2020 Discharge summary Bankstown Lidcombe – headache and vomiting. Headache for four days has been having this since a head injury a month ago. Dizziness and vomiting [p 354].
9 Sep 2020 Discharge summary Bankstown Lidcombe – ongoing vomiting and central chest pain. Vomiting last six days, burning in stomach, dizzy, room spinning denies burning micturition – states neck pain and numbness unable to move left arm and left leg for last six days. Urinary incontinence. Normal neurological examination other than inability to move left arm and left leg but “patient was observed moving left arm in fully functional status and left leg in ED when unnoticed” [p 1041].
17 Sep 2020 Discharge summary Bankstown Lidcombe – “very vague and distressed historian”. Main reason for attendance neck and chest pain which is chronic since car accident. Also noted under past history is mental health disorder and urinary incontinence [p 1036].
9 Oct 2020 Dr Ara (A2Z) – new accident on 3 October 2020, in back seat on left side. Their car just parked and suddenly another car hit their car. Referral to Dr Mo (p 819).
26 Feb 2021 Dr Ara - UTI results consultation Urine MCS and Keflex prescribed [p 820]
26 Apr 2021 Dr Ara - dysuria no fever. Patient presented complaining of pain when urinating. Requested scrips and pathology request given. Urine MCS [p 825].

[2022] NSWPICMP 285

13 July 2022