Aria v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 406
•17 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Aria v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 406 |
| CLAIMANT: | Mohammad Aria |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | Josephine Bamber |
| MEDICAL ASSESSOR: | Dr Neil Berry |
| MEDICAL ASSESSOR: | Dr Michael Rochford |
| DATE OF DECISION: | 17 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (2017 Act); Medical Review Panel matter; claimant’s application for review of original Medical Assessor’s (MA) Certificate that a contusion to the left kidney caused by the motor accident was a minor injury; Held – the Panel found that incomplete hospital records had been available to the parties and original MA; complete records produced at the Panel’s direction which contained relevant urine testing showing no abnormalities; no evidence of injury to the abdomen found on examination at the hospital; Certificate revoked; replacement Certificate issued finding the motor accident did not cause the claimant to suffer from a contusion to his left kidney. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate dated 2 March 2021 and issues a new certificate determining that: The following injury was not caused by the motor accident: contusion to the left kidney. |
STATEMENT OF REASONS
Introduction
The issue to be determined in this matter is whether as a result of the motor vehicle accident on 29 December 2018 Mohammed Aria (the claimant) sustained a contusion to his left kidney, and if so, whether that is a minor injury within the meaning of s 1.6 of the Motor Accident Injuries Act 2017 (the MAI Act).
Background
On 29 December 2018 Mr Aria was driving his motor vehicle at Kenthurst and another vehicle, travelling in the opposite direction performed a U-turn in front of Mr Aria’s vehicle causing a T-bone collision.
Insurance Australia Limited t/as NRMA Insurance[1] (the insurer) concedes it is the relevant insurer with liability to pay to Mr Aria statutory compensation entitlements under the MAI Act.
[1] The name of the insurer has been amended to reflect the correct legal entity.
Following the motor accident, Mr Aria was transported by ambulance to Hornsby Hospital where he was admitted for treatment overnight.
On 16 January 2019 Mr Aria made a claim for statutory benefits following a motor accident[2].
[2] Insurer’s bundle p 299 (R2).
On 25 February 2019 the insurer accepted liability to pay statutory benefits up to 26 weeks[3]. On the same day the insurer issued a “Liability Notice- Benefits after 26 Weeks” declining liability after 26 weeks on the basis that it assessed that Mr Aria had suffered minor injury in the motor accident[4].
[3] Insurer’s bundle p 304 (R3).
[4] Insurer’s bundle p 306 (R4).
On 29 May 2019 Mr Aria sought an Internal Review by the insurer of their decision and 5 September 2019 the insurer advised that their original decision was affirmed and giving reasons for that decision[5].
[5] Insurer’s bundle p 310 (R5).
Mr Aria filed a Dispute Resolution Service (DRS) Application Form on 4 June 2020 in which he sought an assessment challenging the insurer’s decision that they do not accept liability beyond the initial 26 weeks because Mr Aria “could potentially have a non-minor injury”.
On 24 June 2020 the insurer filed a Reply to that application including its submissions, however they were focused on injuries to the cervical and lumbar spines.
By letter dated 22 June 2020 Mr Aria’s solicitor advised DRS that the specific body parts he relied on were the lumbar spine, cervical spine, right third and fourth fingers, left kidney and right ankle.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a medical assessor[6].
[6] Section 7.20 of the MAI Act.
Accordingly, two medical assessments were arranged with the appropriate specialists and on 25 February 2021 Medical Assessor David Gorman issued his certificate under s 7.23(1) of the MAI Act in which he found that injuries to the lumbar spine, cervical spine, right third and fourth fingers and right ankle were injuries caused by the motor accident and that they were minor injuries for the purposes of the Act.
On 2 March 2021 Medical Assessor Edward Korbel issued his certificate under s7.23(1) of the MAI Act in which he found that “Renal contusion- Left Kidney” was an injury caused by the motor accident and that it was a minor injury for the purposes of the MAI Act.
The review
The application for referral of the medical assessment of Medical Assessor Korbel to a review panel was made on 10 March 2021 by Mr Aria, within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[7]
[7] Section 7.26(10) of the MAI Act.
On 8 June 2021, the President’s Delegate decided that the medical assessment should be referred to a review panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[8]
[8] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[9] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[9] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[10]
[10] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11]
[11] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[12]
[12] Section 7.26(6) of the MAI Act.
The Review Panel (the Panel) issued a direction to the parties to require them each to file a bundle of documents which they wished to rely upon in relation to the review. Pursuant to this Direction Mr Aria’s solicitor filed his bundle of documents, which are paginated from page 1 to 254. The accompanying submissions remain those filed with the Personal Injury Commission Online Portal Application form (Review Application) and are set out in full later in these reasons.
The insurer has also filed its paginated bundle of documents, 719 pages, comprising of the Personal Injury Commission Medical Assessment- Minor Injury of Medical Assessor Korbel dated 2 March 2021[13], the Review Application[14], Personal Injury Online Portal Reply form[15] (Review Reply) attaching its submissions[16], Dispute Resolution Service Application Form (Minor Injury Dispute Application)[17] with annexures marked A1 to A14[18] (which are in Mr Aria’s documents) and the Dispute Resolution Service Reply Form (Minor Injury Dispute Reply)[19] with annexures R1 to R35[20].
[13] Insurer’s bundle p 2.
[14] Insurer’s bundle p 8.
[15] Insurer’s bundle p 14.
[16] Insurer’s bundle p 17.
[17] Insurer’s bundle p19.
[18] Insurer’s bundle pp 28 to 281.
[19] Insurer’s bundle p 282
[20] Insurer’s bundle pp 290 to 719
The Panel reviewed these documents and issued a further Direction to draw to the parties’ attention to the following matters:
a. “The Panel considers re-examination of the claimant is not required because a physical examination now will not assist in determining whether the claimant sustained a contusion to his left kidney in the motor accident nor in relation to the determination whether such an injury is a minor injury.”
b. The records from Hornsby Hospital filed with the Commission are incomplete, as the evenly numbered pages were missing.
“The reason why the Panel seeks these records is because the currently available Hospital records do not provide reference to a kidney contusion. There is no reference to renal pain and the abdominal examination referred to in the discharge summary says it was ‘soft’. The Panel advises this finding is consistent with no injury to the kidney as palpation of the abdomen would detect a kidney injury.”
The claimant was directed to file a complete copy of the records from Hornsby Hospital.
c. The Panel set out in the Direction details of various clinical entries and advised:
“In relation to the above entries the Panel observes that the notes for 12 January 2019 refers to no haematuria and on 24 Janaury 2019 the reference to blood in urine was to MSU, which is microscopic not macroscopic haematuria and could be due to prostatitis. The Panel is concerned that the reference on 5 March 2019 by Dr Basiri to severe haematuria is not correct in the context of these preceding findings. It also should be noted that Dr Basiri had ordered urine MCS tests on 19 September and 8 October 2018.”
d. The Panel also advised that a lumbar spine scan was performed at the hospital, and it may be possible to see the kidney on that scan. The claimant was directed to obtain a copy of that scan.
e. The Panel advised it wished to give the parties an opportunity to make further submissions in relation to the matters raised by the Panel and made directions for the filing of further submissions.
In response to this Direction, Mr Aria’s solicitors have filed the complete records from Hornsby Hospital and further submissions[21]. An electronic copy of the lumbar spine scan or the scan films from Hornsby Hospital has not been sent to the Panel.
[21] AD6
The insurer advised it tried to obtain digital copies of the imaging from PRP imaging and Synergy Imaging but were not successful and they attached copies of the following reports renal ultrasound from Dr Ong dated 21 February 2019, chest and left ribs X-ray dated 6 March 2019, CT Renal Tract 7 March 2019 by Dr Ong, MRI Brain and MRI cervical dated 25 March 2019 by Dr Christie, CT Brain and facial bones 6 April 2020 by Dr Ong, X-rays cervical spine, right hand, chest and ribs dated 6 April 2020 by Dr Ong, Chest and right thumb X-ray dated 9 July 2020 by Dr Lannan, chest X-ray dated 26 October 2020 by Dr Ong. The Panel advises most of this radiology is not relevant to subject assessment and none of these reports reveal a contusion to the left kidney. The insurer advised it did not wish to make further submissions[22].
[22] AD8.
Re-examination
As noted above, the Panel put the parties on notice that it was of the view that an examination now will not assist in determining whether there was a contusion to the left kidney caused in the motor accident. Neither party has objected to the Panel determining the matter without holding a re-examination.
In a recent decision of the Court of Appeal in Sydney Trains v Batson[23] Leeming JA (with White JA and McCallum JA agreeing) stated:
“Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the ‘Review Panel Practice Note 3/2005’, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review ‘is not limited to a review only of that aspect of the assessment that is alleged to be incorrect’, but rather ‘is to be by way of a new assessment of all the matters with which the medical assessment is concerned’: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
[23] [2021] NSWCA 143, Sydney Trains
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination of injured claimant, particularly in psychological injury cases such as discussed at [31] in Allianz Australia Insurance Ltd v Rutland[24] or in physical injury cases where matters such as radiculopathy need to be assessed.
[24] [2015] NSWCA 328, Allianz v Rutland.
However, the matter for determination in this review is quite narrow. It does not involve an assessment of permanent impairment. The only issues are whether there was an injury caused by the motor accident to Mr Aria’s left kidney and, if so, whether such an injury falls within the definition in the legislation of minor injury. The Panel notes Medical Assessor Korbel’s physical examination did not reveal any relevant clinical findings and physical examination now will not reveal whether there was a contusion to the left kidney in the motor vehicle accident.
The Panel notes that Medical Assessor Korbel recorded:
“Mr Aria states that his family Doctor is still investigating his kidneys but no results were forwarded to me. He tells me that he has had tests done and that he is due to see his family Doctor, Dr Basiri in the near future to arrange further investigations of his chronic kidney disease.”
Mr Aria has not relied upon any further documents since the time of the assessment by Medical Assessor Korbel.
Part 5.6(d) of the applicable Guidelines to this matter does refer to “a careful and thorough physical … examination”. Normally this would be performed by a member(s) of the Panel, because as Leeming JA stated a review is by way of a new assessment. Part 5.6 does not mandate that the physical examination be undertaken by the assessor, just that the assessment “should be based upon the evidence available and include all relevant findings derived from… a careful and thorough physical … examination.” The Panel relies on the physical examinations performed at the Hornsby Hospital as being the most relevant to determine the causation issue.
Statutory Provisions
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
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 minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.
Parts 5.6 to 5.9 of the Guidelines deal with assessing injuries to the neck or spine and radiculopathy, which are not relevant in the matter before the Panel. Neither are parts 5.10 to 5.12, which deal with psychological or psychiatric injuries.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[25]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[26] apply. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment and the assessment of whether an injury is minor does not involve assessing Permanent Impairment.”[27]
[25] See s 3B(2) of the Civil Liability Act, 2002.
[26] See cls 6.5-6.7 of the Guidelines.
[27] See cl 6.3 of the Guidelines.
Clearly, the first consideration of the Panel is one of causation, whether the motor accident caused the injury alleged and then, if so, whether that injury is a minor injury for the purposes of the MAI Act.
Assessment under Review
Medical Assessor Korbel certified the motor accident caused a “Renal Contusion - Left Kidney” injury which was a minor injury for the purposes of the Act. The relevant aspects of the Medical Assessor’s decision are reproduced below.
The Medical Assessor referred to the submissions of the insurer and stated:
“The Respondent has referred to a renal ultrasound dated 21st February 2019 which showed multiple right renal cysts and a solitary left renal cyst. The Respondent states that this scan was compared to one from 2013 and the Respondent also states that Mr Aria had been diagnosed with chronic renal disease before the motor vehicle accident.
I note from his family Doctor’s notes, this chronic renal disease was noted on the 21st March 2018.”
The Medical Assessor makes the following comments about Mr Aria’s family doctor notes:
“From his family Doctor’s notes, Mr Aria had chronic renal disease in 2018 prior to the motor vehicle accident. I have reviewed the family Doctor’s active past history record which was printed on the 6th March 2019. In this he notes gastro oesophageal reflux disease, ischemic heart disease, bilateral supraspinatus tendon tear, chronic tendon disease in 2018, hypertension, hypercholesterolemia, glucose intolerance as well as diabetes, anxiety and depression. He also noted prostatitis and prostatomegaly in his list of active past medical history. His family Doctor’s record states that Mr Aria was on numerous medications for most of these conditions and I will not list these as they are not relevant to his present condition. I note that they were listed in the medical assessment minor injury carried out by Dr Gorman dated 25th February 2021.”
After recording his history about the motor vehicle accident on 29 December 2018 the Medical Assessor cites the following history of symptoms and treatment:
“Mr Aria was treated for his various soft tissue injuries at Dural Physiotherapy and Sports Injury Clinic. He had physiotherapy and multiple investigations carried out. He also was referred by his family Doctor on the 19th March 2019 to Dr David Ende, Urologist because of left loin pain and haematuria which had settled by the time he saw Dr Ende. Dr Ende’s medical report states that he did have lower urinary tract symptoms and he asked for a formal CT/IVP. This was not carried out.
…
He is on no relevant medication for his kidney. He has had physiotherapy. He takes Norspan, Voltaren Gel, Panamax, Dencorub for his pain. He is also on medications for his cardiac condition and his diabetes.
Mr Aria states that his family Doctor is still investigating his kidneys but no results were forwarded to me. He tells me that he has had tests done and that he is due to see his family Doctor, Dr Basiri in the near future to arrange further investigations of his chronic kidney disease.
I questioned Mr Aria about his urinary symptoms today. At present he has day frequency x 3 with nocturia x 1. He has a good stream. He has no urgency or terminal dribbling and has had no macroscopic haematuria that he knows of recently.”The Medical Assessor set out his clinical examination findings including that Mr Aria complained of left sided lumbar pain over the spine, not in the region of the kidney. He notes Mr Aria has memory lapses in his history but did not embellish his symptoms and was consistent in his presentation.
The Medical Assessor states:
“Mr Aria’s family Doctor notes chronic renal disease on 21st March 2018 which pre-dates his motor vehicle accident. His GP also recorded the fact that he had haematuria after the motor vehicle accident and referred him to Dr Ende, Urologist, who found no cause for the haematuria. He thought he had lower urinary tract symptoms. It appears that this gentleman suffered a seat belt contusion of his left kidney which has resolved.”
In relation to the documentation, the Medical Assessor stated:
“The only documentation provided that was relevant was the history of haematuria and Dr Ende, Urologist’s report dated 2nd July 2019. His lower urinary tract symptoms as described by Dr Ende have now settled. Dr Ende asked for a CT/IVP which was not in the file.
18. Summary of relevant medical imaging and other investigations
There were notes in the Insurer’s report of an ultrasound dated 21st February 2019 which showed multiple right renal cysts and a solitary left renal cyst. This had been compared to the ultrasound of 2013 and he had been diagnosed with chronic renal disease before the motor vehicle accident.
No relevant imaging was brought to the assessment.”
In relation to causation the Medical Assessor found that the seat belt caused left renal contusion in the motor accident and that the injury of “Renal Contusion- Left Kidney” was caused by the motor accident.
The Medical Assessor referred to the legislative provisions regarding minor injury. However, in terms of reasoning all he stated was:
“This gentleman had left renal contusion due to his seat belt during his motor vehicle accident on the 29th December 2018. His condition has resolved and there is no evidence of any recurring problem from the motor vehicle accident.
The assessment of whether the injury is a ‘minor injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘minor injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a minor injury under the Act and the Regulation.” (bold in original)In the footnote the Medical Assessor referred to the incorrect version of the Guidelines. In any event, on the review, it is now version 8 that applies to this matter.
The Medical Assessor concluded that Mr Aria suffered a minor injury within the meaning of s 1.6(2) of the MAI Act and Part 1, cl 4 of the MAI Regulation.
Mr Aria’s submissions
The Review Application form filed by Mr Aria’ solicitor, Kushal Kant, on 10 March 2021, states that the “Details for Review assessment” is in relation to the decision of Edward Korbel dated 2 March 2021. The form asks: “What is the error made by the decision maker”. Mr Aria’s solicitor replied:
“We note the finding: ‘This gentleman had left renal contusion due to his seat belt during his motor vehicle accident on the 29th December 2018. His condition has resolved and there is no evidence of any recurring problem from the motor vehicle accident.’ A renal contusion is found and linked to the subject incident, however, a minor injury finding was provided due to the injury now being possibly resolved. We submit that the fact that the injury has resolved, some (2) years after the subject motor vehicle accident, is not to be the determining factor in whether an injury meets the non minor threshold as per the regulations. The Assessor is to determine whether the injury was non minor during a period of time after the motor vehicle accident. In essence, a healed fracture some years after the incident does not render an injury to be minor. Mr Aria has been shown to have suffered a renal contusion, to his kidney, that is an organ. The injury has been linked to the subject motor vehicle accident. We submit that this is grounds for a review of decision under obvious error, or in the alternative, a re-assessment. We submit this decision be overturned and be found as a non minor
Insurer’s submissions
The Insurer submits the following in response to the Review Application.
“2. The Insurer notes the applicant submits ‘renal contusion – left kidney’ was causally related to the subject accident and as an injury to an organ, it is by definition a non-minor injury.
3. The Insurer notes Mr Aria was involved in a motor vehicle accident for which he was seen in Hornsby Hospital and no fractures or other acute injures were noted.
4. The Insurer highlights Mr Aria had a long history or (sic, of) renal issues with cysts noted on imaging as well as a diagnosis of chronic renal disease in 2018 prior to the subject accident.
5. The Insurer highlights the 12.01.2019 clinical note by Dr Basiri does not evidence any kidney injuries and merely describes Mr Aria’s long standing chronic renal disease. Relevantly, mild prostatomegaly is noted which is often associated with urinary stream issues.
6. The Insurer highlights that the first mention of haematuria is nearly one month after the accident, and it appears to have resolved shortly thereafter. Relevantly, there are no renal or urinary sequalae including any impacted renal or urinary dysfunction.
7. The Insurer highlights the definition of soft tissue injury is ‘an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as […] fibrous tissue, fat, blood vessels…’.
8. The Insurer submits a contusion to any body region, in the absence of any ongoing dysfunction, does not evidence injury to an organ, in this case the left kidney. This is analogous to how bony contusion does not equate to a fracture or bruising in the abdomen equate to a gastric injury. Specifically, the Insurer submits a contusion to a kidney is a bruise which is caused by a capillary reaction due to the forces of the subject accident. This bruising may result in temporary haematuria as the pooled blood is processed or enters into the urinary system. Once the pooled blood is removed, there are no lasting effects as evidenced by Mr Aria’s case and described by the Assessor.
9. The Insurer submits that this bruising or ‘contusion’ is not an actual injury to the kidney as would be a laceration, puncture, or tearing to the kidney or medication induced renal disease impacting renal function. Thus, as determined by the Assessor, regardless of whether it is resolved or otherwise, it would satisfy the minor injury definition.
10. The insurer submits Mr Aria has not provided sufficient reasons to the Proper Officer to have reasonable cause to suspect that the PIC Assessment of Mr Aria by Assessor Korbel is incorrect in a material respect. The insurer submits that the Proper Officer is therefore not obligated, under section 7.26 of the Act and the principles enclosed within Meeuwissen v Boden [2010] NSWCA 253, to refer the matter to the Review Panel for further consideration of these pertinent issues.
11. The insurer respectfully requests that Mr Aria’s PIC Application for a Review of a Medical Assessment be dismissed. Should the Proper Officer be persuaded otherwise, the Insurer reiterates the issues highlighted on internal review and submissions in the DRS replies.”
It is not helpful for the insurer to present submissions to be considered by the Panel by referencing other submissions in this manner, especially as those other submissions deal with matters that are not the subject of this review.
The internal review decision is that dated 5 September 2019[28]. It refers to the documentation relating to Mr Aria’s kidney, to which the Panel refers in its summary of the documentation above. The decision states that because Dr Ende has not responded to a request for further information the insurer is “unable to determine if your reported visible blood in your urine and urgency with occasional urge incontinence occurring since motor accident are reflective of pathology that does not meet the criteria of a minor injury”. Later in that decision the insurer states:
“I refer to the left kidney trauma diagnosed by Dr Basiri. I note you were diagnosed with chronic kidney disease, Stage 3a prior to the motor accident of which you had received management for before the motor accident. I believe the clinical examination by Dr Ende did not indicate there had been a traumatic finding from the effects of the motor accident. Given the lack of response from Dr Ende, I am unable to verify that you have sustained an injury to your left kidney that falls outside the criteria of a minor injury based on the medical evidence present at the Internal Review.”
[28] Insurer’s bundle p 310 (R5).
The submissions of the insurer in the DRS reply appear to be that signed S Rapaport dated 24 June 2020[29]. These submissions are focused on the other injuries sustained by Mr Aria in the motor accident. At [27] it is noted by the insurer that Mr Aria attended Dr Basiri on 31 December 2018 when a diagnosis was made of the injuries and including “left kidney trauma”. At [29] the insurer refers to the report of Melissa Waugh, occupational therapist, and the history Mr Aria had reported difficulties urinating since the accident, with repeated visits to the bathroom during the night and that Dr Basiri reported that Mr Aria had haematuria in his urine test with urinary symptoms since the motor accident. It was noted that Mr Aria reported a normal kidney ultrasound. At [39] the insurer refers to Mr Aria’s pre-existing and co-morbid health conditions including chronic kidney disease -stage 3 diagnosed on 21 March 2018. Under the heading of “submissions” at [40] the insurer states “All the areas of injury are minor injury by definition”. However, the submission is very brief and does not overtly refer to the kidney injury.
Mr Aria’s further submissions
[29] Insurer’s bundle p 290.
Mr Aria’s solicitors provided brief further submissions in response to the further Direction issued by the Panel wherein the Panel advised of its concerns that there was no evidence of a left kidney contusion having been sustained in the motor accident. It is submitted that there was a renal contusion in the accident, and he relies on the finding of Medical Assessor Korbel that there was a haematuria related to seat belt trauma. It was also submitted that the Hornsby Hospital notes contain a reference to severe lower back, and it is stated that this also substantiates injury to the kidney. The solicitors also submit that the entry by Dr Adam Gauday on 24 January 2019 acknowledges the ongoing pain in the lumbar spine region and it is contemporaneously noted that Mr Aria has had urination issues also.
Pre-medical accident records
In addition to the references in the documents summarised below to chronic kidney disease before the motor accident on 29 December 2018, the clinical notes from the Kenthurst Medical Centre[30] record the following:
[30] Claimant’s bundle pp105-250.
a. On 12 May 2015 Dr Basiri ordered various tests including Urine MCS[31].
[31] Claimant’s bundle p106.
b. On 14 May 2015 Dr Basiri records that the results of the urine micro/culture were given to Mr Aria and he notes “No PR blood. No PR Mass. No PR tenderness. No prostatomegaly” [32]. The doctor requested further tests including a urine protein test.
[32] Claimant’s bundle p 107 (R35).
c. On 19 May 2015 Dr Basiri records the results of the urine chemistry [LEL/PRO] were given to Mr Aria and he noted that Mr Aria had impaired glucose intolerance[33].
[33] Claimant’s bundle pp107-108.
d. On 29 May 2015 urine tests were ordered to check for STI[34]. The results were given on 1 June 2015.
[34] Claimant’s bundle p 108.
e. On 22 October 2015 and 28 January 2016 various tests were requested by Dr Basiri including a urine protein test[35].
f. On 1 February 2016 Dr Basiri diagnosed diabetes and gave results of various tests to Mr Aria including the urine tests[36].
g. On 21 April 2016 the doctor requested various tests including urine MCS[37] and results were given on 27 April 2016[38].
h. On 11 January 2017 urine MCS and urine alb tests were requested and results given on 9 February 2019[39].
i. On 3 August 2017 urine alb test was requested and 11 September 2017 urine MCS test and results given on 22 September 2017[40].
j. On 24 March 2018 various results were given to Mr Aria including MSU, microalbumin and sexual matters[41].
k. On 8 June 2018 various tests were ordered including urine MCS and also on 24 July 2018[42].
l. On 8 August 2018 a CT chest scan was undertaken and included reference to small bilateral renal cysts[43].
m. On 10 August 2018 results were given to Mr Aria from the urine MCS test and a request was made for an ultrasound scan of abdomen with a query “?liver haemangioma, ?chronic kidney failure”[44].
n. On 19 September 2018 and 8 October 2018 Dr Basiri requested several tests including urine MCS[45].
[35] Claimant’s bundle p 113.
[36] Claimant’s bundle p114.
[37] Claimant’s bundle p115
[38] Claimant’s bundle p116.
[39] Claimant’s bundle p119.
[40] Claimant’s bundle pp121-122.
[41] Claimant’s bundle p126.
[42] Claimant’s bundle pp 127-128.
[43] Claimant’s bundle p 138
[44] Claimant’s bundle p129.
[45] Claimant’s bundle p131.
Annexure A11 is stated to be clinical notes from Hornsby Hospital and contains records relating to the presentation with cardiac symptoms on 10 June 2013[46]. On 23 July 2013 Mr Aria presented to hospital with a three-day history of intermittent bilateral foot swelling and to the hands[47]. In the entry regarding attendance on 4 March 2015 the history is noted “nil recent illness- Denies fevers, coughs, colds, urinary or bowel symptoms.[48]”
[46] Claimant’s bundle pp 67-90.
[47] Claimant’s bundle p76.
[48] Claimant’s bundle p78.
In addition to the above-mentioned documents, Annexure A10 is described as clinical notes from Ku ring gai Hospital[49]. It is comprised of 45 pages relating to admission to hospital from 10 to 11 June 2013, 23 July 2013 and 4 to 5 March 2015. All the records seem to relate to treatment for cardiac complaints, various tests results including blood tests are included. There has been no submission referring to these documents and while the Panel has read the same, they do not appear to be relevant to the issue to be determined, therefore, the Panel will not summarise their contents further.
[49] Claimant’s bundle pp 23-66.
Throughout the period for which the Kenthurst Medical Centre - Patient Health Summary records are available from 12 May 2015 to when they were printed on 6 March 2019, Mr Aria attended his general practitioners, mainly seeing Dr Basiri, on many occasions other than those listed.
Post- accident medical evidence
Mr Aria filed documents numbered A1-A14 in support of the Application for Review. Unhelpfully these appear to be in no particular order. This order has been replicated in the bundle filed pursuant to the Panel’s direction. The Reply has many of the same documents attached. The Panel has summarised below the relevant content of Mr Aria’s and insurer’s documents in chronological order.
On 29 December 2018 ambulance officers attended the scene of the motor accident. Their report refers to their initial assessment of back pain, traumatic chest pain, joint pain head and both arms and ankle pain. Morphine was administered. Mr Aria was conveyed to Hornsby Hospital[50].
[50] Insurer’s bundle p 345 (R13).
On 29 December 2018 Mr Aria was admitted to the Emergency Department of Hornsby Hospital following the motor vehicle accident that day. It is noted that he was due to be discharged on 30 December 2018[51], however as noted below there are further records relating to this admission in Annexure A11. The Discharge Summary has a history that:
“after a 70km/H motor vehicle accident where a car suddenly pulled in front of him and was forced to brake suddenly. He impacted the windscreen with the top of his head. No airbags were deployed. He denied loss of consciousness although vomited directly afterwards. He was given 7.5mg morphine IV with the paramedics.
On examination he was haemodynamically stable and afebrile with a GCS of 15. Pupils were equal and reactive. He had minor lacerations to the top of his head and right forearm. He had pain on palpitation of his C-spine, right ankle, right hand and over his anterior right chest wall and lumbar spine. Lungs were clear, heart sounds dual, abdomen soft and calves soft and non-tender, EFAST showed no intra-abdominal free fluid and lung bases appeared normal.
ECG showed normal sinus rhythm. Bloods were unremarkable.”
[51] Claimant’s bundle p19 (A8) and Insurer’s bundle p351 (R14).
On page 2 of the discharge summary, it is noted the radiological investigations did not show any acute injuries[52]. The results of the CT scans of the brain, cervical and lumbar spines, X-rays of the chest, right hand and right ankle are recorded.
[52] The second page of the discharge summary is missing from A8 but is contained in the insurer’s copy at Insurer’s bundle p 351.
There are various records from Hornsby Hospital relating to a series of admissions. Those relevant to the motor vehicle accident start at about page 91 of Mr Aria’s bundle[53], being the ED Assessment and the complete motor accident records are in the additional documents which were filed by Mr Aria at the Panel’s request.[54]
[53] Also, again in Mr Aria’s bundle pp 67-104 (A11) and insurer’s bundle pp 94-131.
[54] AD6
Under the heading “Assessment Documents” in the hospital’s records there is reference to:
“E- nil abd wall bruising
SNT
No organomegaly”[55]
[55] AD6 p 3.
The Panel advises this entry means on examination there was nil abdominal wall bruising, and the abdomen was soft, non-tender and “organomegaly” refers to enlargement of the organs and the examination found this was not present. The Panel advised the parties in its further Direction that this finding of a soft abdomen after the motor accident is consistent with no injury to the kidney, as palpation of the abdomen would detect a kidney injury in the opinion of the medical members of the Panel based on their clinical experience and expertise.
Mr Aria did not refer to this finding in his further submissions as discussed below. However, he did refer to the hospital examination revealing back pain. The Panel notes the reference to the examination of the back is as follows:
“Back:
Symmetrical, nil bruising/swelling
Tender right paralumbar buttock area.[56]”
[56] AD6 p 4.
The Panel advises this finding is relevant because the tenderness is not in the area of the left kidney, but over the right paralumbar buttock area.
In addition, the full records of the Hornsby Hospital contain urine testing under the heading “Clinical Patient Information”[57]. On 29 December 2018 at 23:59 and 30 December 2018 at 05:58 Urine colour was noted as “yellow”, Urine Generic Glucose was “negative” and “Urine Generic Protein” was “negative”. On 30 December 2018 at 05:58 the “Urine Strip Type Selection” was “Bayer Multistix”, and it is noted “nil abnormalities detected”. At this time the other results were also negative such as for generic urobilinogen, generic bilirubin, generic ketones, generic nitrite, generic leukocytes. The Urine Generic pH was normal at 6.0.
[57] AD6 p 15.
The members of the Panel include Medical Assessor Rochford, urologist, and Medical Assessor Berry, general surgeon. They advise that the urine test results recorded by the hospital are not consistent with an injury to the left kidney having been sustained in the accident. These urine test results mean there was no blood in Mr Aria’s urine after the accident. The Panel has read all of the Hornsby Hospital notes and there is no record of any kidney contusion, blood in urine or of any complaint by Mr Aria seeing blood in his urine.
On 31 December 2018 Mr Aria attended the Kenthurst Medical Centre and saw Dr Elaheh Basiri. The clinical notes for this visit are very brief. Reference is made to pain from the car accident to the neck, headache and right ankle swelling; and that he was hospitalised. Vitamin D Deficiency, diabetes and chronic kidney disease stage 3a are also recorded as reasons for the visit[58].
[58] Claimant’s bundle p132.
The Panel also considers the entry in Dr Basiri’s clinical records on 12 January 2019 to be significant. He records: “Genito-urinary: No dysuria. Urinary frequency, Urgency. No haematuria. Right loin pain. Difficulty voiding. Terminal dribbling. Haematospermia.” A diagnosis was made of Prostatitis. An ultrasound scan was requested “KUB, prostate (full and empty bladder ? prostatomegaly)” and Dr Basiri also requested a Urine MCS.[59] The finding of no haematuria means no blood was detected in the urine.
[59] Claimant’s bundle p 133.
On 24 January 2019 Dr Adam Gauday issued a SIRA Certificate of capacity/certificate of fitness in relation to injuries relating to a motor vehicle accident on 29 December 2019[60]. The doctor records that Mr Aria was first seen at the doctor’s practice for this injury on 31 December 2019 [sic, 2018]. The diagnosis on this certificate is “Neck pain, lower back pain, right ankle pain”. The doctor also states “no pre-existing back pain or other pain issues. Anxiety unrelated to current issue”. A description of the motor vehicle accident is recorded as “Car performed U turn in front of him- travelling at 70 km/hr hit other car on passenger side – taken by ambulance to hospital”. In the clinical note made by Dr Gauday for this consultation he adds that the reason for the visit was the car accident:
“Poor urine stream -says since accident
Getting up at night
Blood in urine MSU
Need to repeat msu
If persistent haematuria for urology referralTry tamsulosis”[61][60] Claimant’s bundle p 204 (A5) and Insurer’s bundle p 327 (R9).
[61] Claimant’s bundle p134.
The Panel advises that this reference to “Blood in urine MSU” means the blood was microscopic not macroscopic, which means it was not visible in the urine and was detected via testing. The Panel advises that given the testing in Hospital after the accident did not reveal microscopic or macroscopic blood in the urine and the fact that Mr Aria’s abdomen was soft, this later finding of “blood in the urine MSU” is more likely than not on the balance of probabilities not due to a contusion having been sustained to the left kidney in the accident. The Panel considers a more likely explanation is Mr Aria’s prostatitis condition.
On 1 February 2019 Mr Aria saw Dr Basiri who records in his clinical notes that he “still has problems with urine, taking ab and tamsulosin”[62]. The Medical members of the Panel note that Tamsulosin is a medication in capsule form that is used to treat an enlarged prostate gland, known as the condition benign prostatic hyperplasia (BPH). Tamsulosin helps relax the muscles in the prostate and the opening of the bladder, which may help increase the flow of urine.
[62] Claimant’s bundle p 134.
On 15 February 2019 Dr Basiri issued a Medical Certificate stating that Mr Aria has headaches and neck pain since the motor accident[63] and issued a referral for MRI scans of these areas.
[63] Insurer’s bundle p 354 (R16).
On 21 February 2019 a renal Ultrasound was undertaken Dr Ong reported mild prostatomegaly, multiple right renal cysts and a solitary left renal cyst[64]. Reference is made to “comparison study: ultrasound 2013”. The results were given to Mr Aria on 25 February 2019 and Dr Basiri requested various tests including Urine MCS[65].
[64] Claimant’s bundle p 142 and insurer’s bundle p 469.
[65] Claimant’s bundle pp135-136.
On 27 February 2019 Dr Basiri records that Mr Aria “would like to know about his kidney situation, just had blood test, started his bp tablet recently that probably help his kidney, he is also on med for his prostate as he has frequency”[66].
[66] Claimant’s bundle p 136.
On 5 March 2019 Dr Basiri issued a Medical Certificate stating that Mr Aria has severe haematuria in his urine test and urinary symptoms since the car accident[67]. The doctor noted that there was a normal kidney ultrasound, and that Mr Aria was asked to undergo a CT scan of his kidney to check the reason for his urine blood. The referral states “car accident haematuria”[68]. In addition, in his medical certificate Dr Basiri recorded that Mr Aria has had chest pain since the car accident secondary to seat belt trauma that could be related to muscle contusion and that Mr Aria was asked to have an x-ray to rule out any fracture[69]. Dr Basiri advises that Mr Aria needs to go to a pain clinic as he has neck pain, chest pain, headaches, low back pain and right ankle pain[70].
[67] Claimant’s bundle p 13 (A6) and insurer’s bundle p 378 (R21).
[68] Insurer’s bundle p 353 (R15).
[69] Insurer’s bundle p 358 (R17).
[70] Insurer’s bundle p 417 (R33).
The Panel finds that the history recorded by Dr Basiri to Mr Aria having “severe haematuria in his urine test and urinary symptoms since the car accident” is based on an incomplete and erroneous history, as the Panel’s findings about the Hornsby Hospital records indicate. The Panel finds this erroneous reference to haematuria having been caused by the car accident is thereafter repeated in the medical records.
The note in the clinical records for 5 March 2019 is brief and does not have the above detail recorded. It notes a request for a CT scan – Kidneys (car accident haematuria).[71]
[71] Claimant’s bundle p 137.
On 7 March 2019 a CT Renal Tract was undertaken by Dr Ong at the request of Dr Basiri[72]. The history on the report says “Car accident. Haematuria”. Dr Ong found simple cysts in both kidneys and mild prostatomegaly.
[72] Insurer’s bundle p 363 (R18).
On 12 March 2019 Dr Basiri wrote a referral for Mr Aria to see Dr Mohan Arianyagam referring to his difficulty voiding and haematuria since the motor accident[73]. On 12 March 2019 Dr Basiri completed the insurer’s Request for Medical Information form and includes reference to “blood in urine, kidney trauma” and under treatment strategy he includes “urology- check kidney trauma and voiding difficulty since accident”.[74]
[73] Insurer’s bundle p 406 (R31).
[74] Insurer’s bundle p 421 (R34).
On 25 March 2019 an MRI brain and cervical spine scan was undertaken[75].
[75] Claimant’s bundle p 253 (A14).
On 27 March 2019 Dr Basiri provided a report to the insurer[76]. The doctor sets out his current diagnosis of conditions as a result of the motor vehicle accident, being “whiplash, head trauma, neck injury, right shoulder pain, right 3rd and 4th finger trauma, chest trauma, and left loin pain from the car seat belt, right lower back pain, right ankle pain, haematuria in his urine and difficulty urinating”. The doctor recommended a consultation with a urologist.
[76] Claimant’s bundle p 251 (A13) and Insurer’s bundle p 390 (R25).
Dr Basiri also issued WorkCover NSW – certificates of capacity on 2[77] and 30 April 2019[78], 28 May 2019[79] 7 June 2019[80], 18 June 2019[81] and 29 August 2019[82] and 4 October 2019[83]. They refer to the date of injury as 29 December 2018 and a diagnosis of “neck pain, back pain, R 3th & 4th finger injury, kidney trauma, R ankle swelling & pain.” The management plan included referral to a urologist. It is noted that Mr Aria was first seen at the medical practice for the injury on 31 December 2018.
[77] Claimant’s bundle p 4 (A2) and insurer’s bundle p 318 (R6).
[78] Claimant’s bundle p1 (A1) and insurer’s bundle p 333 (R10).
[79] Insurer’s bundle p 324 (R8.)
[80] Claimant’s bundle p7 (A3) and insurer’s bundle p 337 (R11).
[81] Insurer’s bundle p 321 (R7).
[82] Claimant’s bundle p10 (A4) and insurer’s bundle p408 (R32).
[83] Insurer’s bundle p 341 (R12).
On 2 April 2019 Dr Basiri wrote a referral to Dr Nimeshan Geevasinga relating to head trauma sustained in the car accident[84]. However, included in the list of conditions relating the past medical history is a reference to “chronic kidney disease, stage 3a” with no corresponding date and also further down the list is mention of the same condition with the date “21/03/2018” and appearing again with the date “31/12/2018”.
[84] Claimant’s bundle p 17 (A7).
On 2 April 2019 Melissa Waugh, occupational therapist, issued an Initial Needs Assessment Report following request from the insurer[85]. It has the history “Mr Aria reported experiencing difficulties with urinating since the accident, in particular limited flow and repeated visits to the bathroom during the night and has been referred to an urologist for further examination.” Ms Waugh also states that while Mr Aria’s medical records do report chronic kidney disease stage 3a prior to the motor accident his “doctor reported that prior to the accident there was no haematuria”
[85] Insurer’s bundle p 366 (R19).
On 26 April 2019 Dr Basiri wrote a referral to Dr David Ende, referring to the motor vehicle accident and advising since then Mr Aria has had “difficulty voiding and haematuria”[86]. The same references to “chronic kidney disease, stage 3” are recorded in the past history given to Dr Ende as referred to above.
[86] Claimant’s bundle p 20 (A9) and insurer’s bundle p 405 (R30).
On 28 May 2019 A/Prof Geevasing, neurologist, reported to Dr Basiri[87] and on 29 May 2019 recommended nerve conduction tests[88]. The report has been read but is not relevant to the issue before the Panel.
[87] Insurer’s bundle p 379 (R22).
[88] Insurer’s bundle p 404 (R29).
On 2 July 2019 Dr Ende, urologist, recommended to the insurer that Mr Aria undergo a flow study to investigate his symptoms[89]. On the same day Dr Ende reported to Dr Basiri that Mr Aria on the day of his discharge from hospital after the motor accident he saw his doctor with significant difficulty passing urine and it was just dripping. Dr Ende states that it was now variable. Mr Aria also told him that he has “visible blood in his urine for a month or so and has had microscopic blood in his urine is tested for many months [sic]” He also described urgency with occasional urge incontinence and is up between four to six times at a night and during the day voids every three or four hours. He advised that such symptoms were not present before the accident. The doctor examined his prostate and said it felt a little bulky but is rubbery, smooth and clinically benign. The doctor sets out the tests he was arranging including formal CT/IVP, urine cytology, micro urine, PSA, flow study and cystoscopy.
[89] Insurer’s bundle p 387 (R24).
On 22 July 2019 Dr Nazha, pain physician, reported to Dr Basiri[90]. The report has been read by the Panel but is not relevant to the issue before the Panel.
[90] Insurer’s bundle p 385 (R23).
Determination
The Panel has considered all of the medical evidence before the Commission and finds that the motor accident on 29 December 2018 did not cause Mr Aria to sustain an injury to his left kidney. Unfortunately, it does not appear that those treating Mr Aria are aware that, in fact, the records from Hornsby Hospital do not support a finding that there was an injury to the kidney. As explained earlier in these reasons the physical examination at the hospital found Mr Aria’s abdomen was soft and non-tender, there was no abdominal wall bruising, and no organomegaly.
In addition, there was testing undertaken at Hornsby Hospital of Mr Aria’s urine and no blood was present nor was any abnormality detected. The Panel finds had there been a contusion to the left kidney this testing would have detected the presence of blood. Furthermore, on 12 January 2019 Dr Basiri recorded there was no haematuria.
The Panel finds that the subsequent references to haematuria cannot be due to the motor vehicle accident given the above-mentioned facts because had there been a contusion to the kidney there would have been evidence of blood immediately after the accident.
Unfortunately, the urine tests from Hornsby Hospital were on a page that was not included in either the insurer’s documents or those in Mr Aria’s application and so these test results would not have been apparent on the initial assessment by Medical Assessor Korbel. It also appears that Dr Basiri and Mr Aria’s subsequent treating doctors may not have been aware of these results.
Mr Aria suffers from chronic kidney disease stage 3 and prostatitis and the Panel finds that these conditions are more likely than not on the balance of probabilities the cause of the later findings of haematuria.
In view of the Panel’s findings relating to causation, it is not necessary to consider the issue in relation to whether a contusion to the kidney is a minor or non-minor injury.
0
4
0