Bhandari v Insurance Australia Limited t/as NRMA
[2024] NSWPICMP 453
•10 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bhandari v Insurance Australia Limited t/as NRMA [2024] NSWPICMP 453 |
| CLAIMANT: | Ashika Bhandari |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 10 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; causation; claimant suffered injury in a motor vehicle accident; Medical Assessment Certificate (MAC) certified left knee injury and left abdominal injury were threshold injuries; injury to the lower back not caused by accident; no complaint of lower back symptoms to four separate treating practitioners over a period of six months post-accident; lower back disc prolapses not caused by the accident; lower back injury not consequential to inactivity whilst recovering from leg injury; consequential injury would not cause disc prolapses suffered by claimant; imaging shows degeneration at multiple levels despite claimant’s age; Held – Medical Review Panel confirmed injury to left knee and left abdominal injury were caused by the accident and both threshold injuries; lower back injury not caused by the accident; MAC confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel affirms the certificate of Medical Assessor James Wong dated 30 January 2024. |
STATEMENT OF REASONS
INTRODUCTION
On 12 May 2022 Ms Ashika Bhandari (the claimant) was working as a COVID-19 swab collector at a drive through collection centre. She opened the passenger door of a car and leaned in to take swabs from a child when the driver accidently stepped on the accelerator causing the car to move forwards causing injury (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Bhandari under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Ms Bhandari submitted an Application for personal injury benefits dated 9 September 2022.
On 21 March 2023 the insurer determined that Ms Bhandari had sustained a threshold injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Ms Bhandari sought an Internal Review of the threshold injury decision and on 26 April 2023 the insurer affirmed the determination that the claimant’s injuries met the definition of a threshold injury.[2]
[2] Claimant’s bundle p 20.
Ms Bhandari filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold 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.[3]
[3] Section 7.20 of the MAI Act.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 13 March 2024 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction on
20 March 2024 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 113 (claimant’s bundle).On 22 March 2024 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 273 (insurer’s bundle).
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Wong in respect of the dispute as to threshold injury were the following:[5]
· left abdominal injury;
· left knee injury, and
· lower back injury.
[5] Insurer’s bundle p 7.
In his certificate dated 30 January 2024 Medical Assessor Wong certified the following injuries caused by the accident were threshold injuries:
· left knee injury, and
· left abdominal injury.
Medical Assessor Wong found the lower back injury was not caused by the accident.
Medical Assessor Wong noted the hospital reported pain in the left knee and left flank after the accident. He noted the first record of lower back pain was not until 22 December 2022 when physiotherapist Ms Vlasov recorded “lower back”. Ms Bhandari reported she first had lower back pain about two to three weeks after the accident, but it was not recorded by treating practitioners. She reported she had an injection to her lower back in December 2023, but it was not helpful. Ms Bhandari had seen Dr Hsu three times since December 2023 and was due to have another injection in her lower back.
Medical Assessor Wong reported whilst the mechanism of injury could cause injury to the lumbar spine there was insufficient objective medical evidence to indicate the accident did cause injury to the lumbar spine. There was no record in the hospital discharge summary and the first mention of lower back pain was by the physiotherapist over seven months after the accident. He concluded most clinicians would agree that any significant acute injury would manifest immediately or within hours or days, but not weeks or months later.
Medical Assessor Wong reported the pain in the left flank had subsided. She complained of pain over her sacral and lumbosacral region, pain in the left knee and down the left to the left lateral foot.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Wong on 12 February 2024 within 28 days of the date on which the certificate of Medical Assessor Wong was made available to the parties.
On 7 March 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[6]
[6] AD2 p 9.
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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE PANEL
Application for personal injury benefits
In the Application for personal injury benefits dated 9 September 2022 Ms Bhandari described her injury as follows:
“I was rushed to Campbelltown Hospital. 2 months after the accident, doctor recommended me to get back to work even though I still had problems for a few hours in a week but its been almost 4 months now, I still have pain and swellings on my left leg which is making me weak to walk properly and even stand for long. My injuries include left abdomen pain, both legs and back.”[8]
Treating medical records
[8] Claimant’s bundle p 47.
Campbelltown Hospital
The ED Discharge summary reported Ms Bhandari worked as a COVID-19 tester. She was caught in a moving car at low speed. Pain to bilateral knees, pain to the left flank.
Ms Bhandari was ambulant and with no headache and no loss of consciousness. A haematoma was reportedly forming on the medial left knee and lateral right knee. The impression was of minor soft tissue injuries.[9][9] Insurer’s bundle p 37.
Priority Medical Centre
On 14 May 2022 Dr Hossain, general practitioner (GP) diagnosed a possible ligament/tendon and soft tissue injury and recorded:
“presented post crush injury to both knee and left side of lower abdomen of by a car (SUV) on 12/05/2022 as seen in Campbelltown Hospital …
Pt still complaining pain on both knee
Difficult to standing and walking for pain
And also developed swelling on left knee.”[10]
[10] Claimant’s bundle p 79.
On 21 May 2022 Dr Hossain recorded the symptoms had improved and the swelling was down. The claimant was limping. On 26 May 2022 Dr Hossain reported Ms Bhandari was still complaining of left knee pain.
In a Certificate of capacity/certificate of fitness dated 2 June 2022 Dr Hossain provided a diagnosis of “left knee pain, possible bursitis, ligamental tear, ligamental sprain”. On
14 June 2022 Dr Hossain reported Ms Bhandari had pain and swelling and recommended a CT of the left knee to rule out a fracture.Ms Bhandari saw Ms Gemma Kim physiotherapist on 25 June 2022 in respect of injury to the right knee and left ankle.
On 11 July 2022 Dr Hosseini reported Ms Bhandari felt pain due to cold left lower limb. His examination showed mild inflammation of the left knee.
On 23 July 2022 Ms Kim reported Ms Bhandari had returned to work with an aggravation of left knee pain when working. On 25 July 2022 Dr Hosseini reported Ms Bhandari had not been able to work for five days following a flare up of pain. On 5 August 2022 Dr Hosseini reported the pain was significantly better and Ms Bhandari had started working.
Ms Bhandari underwent physiotherapy with Ms Kim on 6 August 2022. She reported increased swelling in calf, all the way to the ankle with increased load – walking. She also noted full knee range of motion and nil pain.[11]
[11] Claimant’s bundle p 86.
On 19 August 2022 Dr Hosseini reported pain in the lateral aspect of the leg.
On 27 August 2022 Ms Gemma Kim reported increased swelling in calf, all the way to the ankle with walking but full knee range of motion and nil pain.
On 15 September 2022 Ms Kim reported:
“L) leg discomfort continues, has noticed an increased discomfort into the L) thigh – mainly just above the patella & up the lower back as well. Will be travelling overseas for a month.
O/ Full knee ROM, nil pain
Full L) ankle ROM, nil pain
Tight L) ant thighs, peroneals and glute
Lump around the L) tib ant noted to be reduced
Gait: reduced weight bearing on L)
STS: stands mainly on the R).”[12]
[12] Claimant’s bundle p 89.
On 22 December 2022 and again on 5 January 2023 Ms Tanya Vlasov reported left knee problem and lower back.[13]
[13] Claimant’s bundle p 91.
On 9 January 2023 Dr Hosseini reported Ms Bhandari had knee pain, back pain with radiation to right knee.[14] He noted the neurological examination was fine. He recommended an MRI scan.
[14] Claimant’s bundle p 92.
On 17 February 2023 Dr Hosseini referred the claimant to Dr Alister Ramachandran for management of left knee pain and lower back pain with radiation to bilateral legs.
Strategic Industry Solutions/Maddie Mulcahy
In a report dated 15 June 2022 rehabilitation provider Strategic Industry Solutions (SIS) recorded a diagnosis of “left knee injury with possible fracture” which occurred when
Ms Bhandari “attempted to run forward with the car to avoid injury, however, twisted her knee when doing so”. [15] On 28 June 2022 the diagnosis was reported as “left knee pain ?bursitis ?ligamental sprain”.[15] Insurer’s bundle p 168.
In an email dated 11 July 2022 Maddie Mulcahy rehabilitation consultant reported on a case conference that she facilitated with Dr Mir and Ms Bhandari. She reported “Ashika informed Dr Mir of her symptoms across the last two weeks, i.e. swelling of the knee, inability to warm up the leg/knee despite attempts with blankets and socks”.[16] On 25 July 2022 Ms Mulcahy following a case conference with Dr Mir and the claimant reported the claimant’s knee remained slightly swollen. The claimant had commenced a graded return to work program.
[16] Insurer’s bundle p 181.
In a progress report on 29 July 2022 SIS noted Ms Bhandari was undergoing physiotherapy for pain and strengthening of her left knee. She reported her role required prolonged standing which caused flare-ups of symptoms within her left knee.[17]
[17] Insurer’s bundle p 207.
In an email dated 11 December 2022 Ms Mulcahy reported on a case conference with
Ms Bhandari and Dr Mir. She reported whilst overseas for eight weeks the claimant was able to continue with physiotherapy. Her condition had improved, she was no longer walking with an antalgic gait and could stand for a greater period of time.[18][18] Insurer’s bundle p 212.
On 12 December 2022 SIS reported poor compliance with treatment, noting she had not engaged with physiotherapy since her return from Nepal on 17 November 2022.
In a report dated 30 January 2023 SIS reported the treating physiotherapist had advised on
6 January 2023 that Ms Bhandari undergo an MRI of the lumbar spine to identify pathology causing reported pain and symptoms within the lower back.[19] The consultant Maddy Mulcahy facilitated a case conference with Ms Bhandari and Dr Mir on 10 January 2023. She reported:“During this meeting, the notions raised by Treating Physiotherapist were corroborated by Ms Bhandari whereby some improvement in pain symptoms in the left knee were reported. However, Ms Bhandari noted that the pain symptoms in her lower back pain were worsening, particular over the past 5-6 weeks. Ms Bhandari reported that this is inhibiting her ability to perform some daily tasks and walk with a normal gait.”
Dr Alister Ramachandran, pain specialist
[19] Insurer’s bundle p 217.
Dr Ramachandran provided a report following an initial assessment on 18 April 2023.[20] He reported the accident resulted in the sudden onset of low back pain and left knee pain. He reported the pain gets worse with walking movements and standing for long periods of time. She had been involved with physiotherapy weekly. He reported she sometimes feels like the left lower limb gets twitchy and her left leg feels cold. Her walking capacity was limited to 15 minutes before the pain becomes severe and her sitting capacity limited to 20 to 30 minutes before needing to change position. On 30 May 2023 Dr Ramachandran recommended
Ms Bhandari undertake the Aspire Pain Management Programme.[20] Claimant’s bundle p 66.
On 8 June 2023 Dr Ramachandran diagnosed chronic axial lumbosacral spinal pain with somatic referred pain from probably discovertebral origin and chronic left knee pain.[21] He referred to the recent bone scan and stated, “we had a discussion regarding the findings of the scan and I explained that there is no any sinister cause for her current presentation”.
[21] Claimant’s bundle p 72.
On 19 September 2023 Dr Ramachandran reported Ms Bhandari had persistent pain in the lower back associated with somatic referred pain to the left lower limb as well as left-sided knee pain.[22] He considered Ms Bhandari unfit for work and in need of a comprehensive allied health treatment approach.
[22] Claimant’s bundle p 66.
Imaging/investigations
Ultrasound left knee, 24 May 2022 – the report concludes:
“Small suprapatellar knee effusion.”
X-ray left knee, 24 May 2022 – the report concludes:
“No acute displaced fracture. Joint spaces are preserved and bony alignment appears normal.”[23]
[23] Insurer’s bundle p 140.
MRI left knee, 6 June 2022 – the report concludes:
“No significant meniscal, ligamentous chondral pathology within the knee.”[24]
[24] Insurer’s bundle p 149.
CT scan left knee, 28 June 2022 – the report concludes:
“No abnormality detected on this non-contrast CT scan.”[25]
[25] Insurer’s bundle p 150.
MRI lumbosacral spine, 9 February 2023 – the report reads:
“Clinical Notes: Low back pain radiating to knee.
Findings:
At L4/5: The disc is degenerate with loss of height and there is a central broad bulge with appears to contact the origins of the L5 nerve roots. There is mild foraminal stenosis.
At L5/S1: The disc is degenerate with a central/right paracentral protrusion which may just contact the right S1 nerve root. The foramina are patent.
At L3/4: The disc is desicc ated with slight loss of height and there is a broad central bulge without nerve root contact. There is minor foraminal stenosis.
At the remaining levels, appearance is unremarkable.
The distal cord/cauda equina defines normally.”[26]
[26] Insurer’s bundle p 156.
MRI lumbar spine, 27 February 2024 – the report reads:
“Findings:
The conus medullaris is normal in appearance and tapers normally at T12/L1. No abnormal thickening or clumping of the cauda equina nerve roots is noted.
At T12/L1, there is no significant central canal or foraminal stenosis.
At L1/2, there is no significant central canal or foraminal stenosis.
At L2/3, there is no significant central canal or foraminal stenosis.
At L3/4, there is moderate intervertebral disc dehydration with a posterior disc protrusion superimposed on a posterior disc bulge. There is no significant central canal or foraminal stenosis.
At L4/5, there is moderate intervertebral disc dehydration with a posterior annual fissure associated with a posterocentral disc protrusion, with bilateral subarticular zone narrowing and potential contact of the bilateral descending L5 nerve roots on weightbearing. There is mild central canal stenosis and mild bilateral foraminal stenosis.
At L5/S1, there is moderate intervertebral disc dehydration with a posterior annular fissure associated with a posterior central disc protrusion, without significant central canal or foraminal stenosis.
Comment:
Multilevel lumbar spondylotic changes are as described.”[27]
Medico-legal reports
[27] Claimant’s bundle p 110.
Dr Anil Nair, orthopaedic surgeon
Dr Nair provided a report addressed to the solicitors for the workers compensation insurer, Hicksons dated 13 October 2023.[28] In relation to causation, he noted when the car moved Ms Bhandari was thrown off balance and there was a twisting torque to her lumbar spine.
Dr Nair diagnosed a left L4/5 disc herniation with consequent left lower extremity radiculopathy.[28] Claimant’s bundle p 52.
In a supplementary report dated 9 November 2023 he stated Ms Bhandari had a lumbar disc herniation at L4-L5 resulting in extrinsic compression of the left L5 nerve root.[29] He recommended operative treatment on the basis she had a significant and addressable neurocompressive lesion in the lumbar spine.
[29] Claimant’s bundle p 50.
Dr James Bodel, orthopaedic surgeon
Dr Bodel provided a report dated 27 July 2023 at the request of the claimant’s lawyers.[30]
[30] Claimant’s bundle p 58.
He reported Ms Bhandari “was still standing on the ground outside the car leaning into the car and reaching over to the middle seat of the back seat to attend to the young child who is being tested. As the car moved, she was thrown off balance and this twisted her back”. He reported she was also hit on the left side of the abdomen by the open door, and on the left side of the chest wall and had bruising on the left knee. He reported her main complaint was the back and referred pain into her legs.
Dr Bodel reported the lower back pain steadily deteriorated. On examination he found no signs of radiculopathy in the left leg although there was referred pain down the leg to the feet but without any objective sign of reflex abnormality, weakness, sensory loss or dermatomal distribution.
He referred to the report of the MRI of the lumbosacral spine dated 9 February 2023 but did not have an opportunity to view the films. He stated the reported pathology at the L4/5 level and at L5/S1 could lead to the correct determination of a non-threshold injury if the films showed any sign of cartilaginous injury to the cartesian plate which was the likely cause of damage to that disc and could allow it to protrude and cause nerve root compromise.
Dr Bodel provided a supplementary report dated 1 September 2023 after he was given an opportunity to view the radiological imaging.[31] He concluded the imaging did not alter his earlier assessment.
SUBMISSIONS
[31] Claimant’s bundle p 56.
Claimant’s submissions
The claimant provided submissions dated 12 February 2024.[32]
[32] Claimant’s bundle p 1.
The claimant submits Medical Assessor Wong was wrong when he said no mention was made of any back complaint until 22 December 2022, over seven months after the accident. The accident occurred on 12 May 2022. The claimant notes the back was mentioned in the Application for personal injury benefits dated 9 September 2022 and in the notes of treating physiotherapist Gemma Kim of 15 September 2022.
The claimant submits she flew to Nepal on 18 September 2022 where she remained for two months and as a result was not in a position to inform her doctor of her back complaint until she returned in late 2022.
The claimant submits language and cultural factors should be considered in relation to the apparent failure to mention the back to the emergency doctors at the hospital on the day of the accident. The claimant was an anxious 22 year old Nepalese woman inside a packed and understaffed Campbelltown Emergency hospital during COVID-19. It is submitted the claimant has a thick accent and fails to pick up and understand the nuances of the Australian accent. Similarly, it is submitted the claimant told her GP she had lower back pain but whilst she is of Nepalese background Dr Hosseini is of Middle Eastern background and it is likely there was a communication problem. The claimant submits she should be believed.
The claimant notes that Dr Bodel and Dr Nair both found that the back condition was caused by the accident as did the pain specialist Dr Alistair Ramachandran.
Insurer’s submissions
The insurer provided submissions dated 16 February 2024.[33]
[33] Insurer’s bundle p 2
The insurer submitted Medical Assessor Wong had provided detailed reasons as to why he concluded the claimant did not sustain an injury to the lumbar spine in the accident.
The insurer notes on 14 May 2022 Dr Hossain reported pain at both knees and swelling at the left knee but no mention of lumbar spine pain at that consultation or on
7 September 2022 or 30 September 2022. Significantly the insurer notes even the physiotherapist who noted “lower back” did not undertake an assessment or offer treatment of the lumbar spine.The insurer submits the rehabilitation provider SIS did not reference lower back pain in the report dated 15 June 2022 or in the progress report dated 1 September 2022. The progress report of 12 December 2022 reported the claimant had returned from Nepal for two months, there was an improvement in the left knee symptoms but again no mention of lower back symptoms. The first mention made by SIS of lower back symptoms was in the progress report of 30 January 2023.
MEDICAL EXAMINATION
Ms Bhandari was examined by Medical Assessor Gibson at her rooms at St Leonards on
21 June 2024. Ms Bhandari attended unaccompanied. She brought no imaging studies with her to the assessment.
Past medical history
Ms Bhandari had no prior history of back, knee or abdominal injuries or conditions.
There was no prior history of any medical or surgical issues and no prior injuries or accidents.
Personal history
Ms Bhandari lives with a friend in an apartment in Parramatta. She said the friend helps with cooking, shopping and cleaning. Ms Bhandari would wash dishes and also wash her own clothes using a washing machine and then hang items on an airer on the balcony. She said she doesn’t go shopping. She doesn’t have a driving licence.
When asked about her day-to-day schedule of activities, she said on Monday and Tuesday she attends a physiotherapist and a psychologist. She travels to these appointments using an Uber. She attends university on a Wednesday.
She is currently in receipt of workers' compensation insurance payments.
Occupational and educational history
Ms Bhandari was born in Nepal where she completed high school.
She arrived in Australia at the age of 18 years in November 2018. Ms Bhandari initially worked as an office cleaner and then for two months as a sales assistant at a Priceline store.
Her next job was at a seafood restaurant where she worked for two years as a waiter and a supervisor.
Her next position, and her job at the time of the accident, was as a full-time swab collector with Histopath on a fixed term contract basis. Ms Bhandari had been in the role for 12 months.
Ms Bhandari said she had attempted a return to work after the accident for 1-2 hours a shift but found she couldn’t manage due to her back and knee symptoms. As it was a contract position no ongoing work was later available.
Ms Bhandari has not worked in any capacity since. However, she is still enrolled in a Bachelor of Community Services degree. This is a 2½-year course and she has 12 months to go before it is completed. She is currently on a student visa and she needs to continue her studies to fulfil the visa conditions.
History of the accident
On 12 May 2022 Ms Bhandari was working at the Lurnea collection centre run by Histopath. It was about 10.30am. She and a colleague were attending to a vehicle with five passengers, two parents and three children. The three children were in the backseat. Ms Bhandari had tested the father and then opened the backdoor of the car to reach the middle child. She completed the mouth swab. Her colleague who was working on the other side of the vehicle testing another child asked for the father's help in calming the child. As the father moved over to assist, he had taken his foot off the hand brake, so the car started moving forwards, and then he accidentally pressed the accelerator, rather than the brake. Ms Bhandari was half in and half out of the vehicle at this point.
Ms Bhandari said she was then "completely blank" until she was on her way to the hospital. Her colleague had her foot run over by the car. The police report from the day of the accident had mentioned the incident but only mentioned her colleague's foot injury.
Ms Bhandari’s supervisor had taken them both to Campbelltown Hospital by car. The discharge referral from the day of the accident had noted that she "presents with L abdominal pain and bilateral knee pain after being caught in a moving car earlier today". She had complained of bilateral knee and left flank pain. She was noted to be ambulant without any complaints of headache or loss of consciousness. On examination there was a haematoma forming over the medial left knee and lateral right knee. The initial impression was of minor soft tissue injuries. She was discharged home with analgesia, advice on rest, ice and elevation and to visit her own general practitioner the following day.
When asked about the lack of mention of any low back complaint at the time, Ms Bhandari responded that she was "so confused" but she also said that the low back pain had not come on until two to three weeks after the accident.
The Personal Injury Claim form described the accident, noting Ms Bhandari had been attending to patients in a Hyundai SUV and that her injuries had included left abdomen pain, both legs and back.
Ms Bhandari said she had initially come under the care of Dr Hossain at Priority Medical Centre in Harris Park. She had visited the doctor over several weeks and the only recommendation at that stage had been to take analgesics. She later came under the care of a different doctor at the practice, Dr Ahmad Mir.
When asked about the onset of low back pain, Ms Bhandari said she was not used to sitting at home and thinks the low back pain had developed due to the inactivity. She said that she had mentioned these symptoms to the GP but they were not recorded.
Ms Bhandari returned to Nepal to visit family in September 2022. When asked how she managed the luggage and the flight, she said that friends had accompanied her and helped with the luggage.
Ms Bhandari said she had mentioned the onset of the low back pain to Dr Mir prior to her departure. She said she also mentioned it to her physiotherapist.
Ms Bhandari was referred to a pain specialist, Dr Alister Ramachandran and in early December 2023, she had an epidural injection. She said this was of no assistance at all for her pain, in fact, it made her pain worse. She was then referred to Dr Hsu, a neurosurgeon. He recommended another injection and so in February/March 2024, she had a CT-guided L4/L5 injection and then a third injection at L5/S1. She said none of these injections had helped at all and on reflection she feels her back pain is worse since they were performed. She said Dr Hsu has recommended she return to her pain specialist for further review, and she has an appointment with him on 1 July 2024.
Current complaints
Ms Bhandari said there is constant midline low back pain which averages at 8/10 severity, 0 being no pain, 10 being severe pain, and it was 10/10 today. She said nothing helps to relieve the pain. She finds it worse if she is sitting for periods of up to an hour. She said she can’t walk any distance or stand for very long. At times the pain is so severe she feels she develops a fever.
In relation to the left knee, there is pain under the kneecap, which is present most of the time. It is worse with walking and is even uncomfortable when seated. The pain from the knee spreads over the lateral aspect of the left lower leg and down over the lateral half of the left foot. Ms Bhandari said the knee pain is now 7/10 severity.
On specific questioning, there were no other symptoms in the lower limbs. There were no left abdominal or left flank symptoms.
Current treatment
Ms Bhandari takes 75mg Nortriptyline and 2mg Mmelatonin each night, both of which she has been taking for over six months. She has been taking two Celecoxib daily for almost 12 months and three Gabapentin tablets three times a day for the last four to five months. She takes Palexia as required, usually two tablets, and she had last taken this medication a week ago.
She continues to receive weekly physiotherapy treatment at the Norwest PainMed Centre. She has been having the treatment for over 12 months. She visits a psychologist at the same centre on a weekly basis.
She last visited Dr Hsu 10 days ago and was scheduled to see Dr Alister Ramachandran on
1 July 2024.
Physical examination
Ms Bhandari was 156cm tall, weighed 79kg, with a BMI of 32.5. She walked with a slight limp favouring the left knee but also reported some low back pain when walking and standing. She was able to walk on heels and toes. She would only squat to a third normal, reporting left knee and low back pain as the limitation.
On examination of the low back, there was no local tenderness. Forward flexion was half-normal, extension one-third normal, lateral flexion two-thirds normal bilaterally. Rotation was normal range bilaterally. There was some guarding with extension.
On examination of the abdomen, there was no tenderness and no masses felt. There was no left flank tenderness.
On examination of the lower limbs, circumferential measurements of both thighs 10cm from the superior pole of the patella was 47cm. Calf measurements were 36cm bilaterally at both calves.
On examination of both knee movements there was full extension bilaterally. Right knee flexion was 120°, left knee flexion was 110°. Both knees were stable and there was no crepitus.
Lower limb power and reflexes were normal bilaterally. There was some patchy sensory loss in the left lower limb which did not follow a dermatomal distribution. Straight leg raise was positive on the left at 60°.
DIAGNOSIS AND CAUSATION
Ms Bhandari is a 24-year-old right-handed woman who was involved in the accident whilst at work as a pathology collector. At the time, she had been leaning into a vehicle. When the vehicle moved forwards her body was jolted. After the accident she was taken to Campbelltown Hospital. There was contemporaneous evidence from the hospital record of bilateral knee injury and left flank region symptoms, but no complaints in relation to the low back.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2] His Honour stated at [70 – 72]:
[2] Briggs [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71.The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72.Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
Lower back injury
Ms Bhandari maintained that the low back pain had not come on until two to three weeks after the accident. She attributed the onset of these symptoms to her inactivity whilst recovering from her lower limb injuries.
There was no evidence of any immediate injury to the low back as a consequence of the accident.
The accident occurred on 12 May 2022. Ms Bhandari attended Campbelltown Hospital where she reported pain to the knees and the left flank. There was no complaint of lower back pain.
On 14 May 2022 Dr Hossain GP reported a crush injury to both knees and the left side of the lower abdomen and on 21 May 2022 he reported Ms Bhandari was continuing to complain of left knee pain. Dr Hossain issued a Certificate of capacity/certificate of fitness dated
2 June 2022 which referred to left knee pain. On 11 June 2022 Dr Hossain reported inflammation of the left knee and on 23 June 2022 he reported an aggravation of left knee pain following a return to work.On 15 June 2022 and 28 June 2022, the rehabilitation provider Maddie Mulcahy of Strategic Industry Solutions referenced a left knee injury. On 11 July 2022 following a case conference with Dr Mir and Ms Bhandari Ms Mulcahy reported the claimant’s symptoms which all related to the left knee and left leg. Following a further case conference on 25 July 2022
Ms Mulcahy reported the claimant’s knee remained swollen and on 29 July 2022 it was noted Ms Bhandari was undergoing physiotherapy for pain and strengthening of her left knee.Ms Gemma Kim physiotherapist saw Ms Bhandari on 25 June 2022 in respect of injury to the knee and left ankle. On 6 August 2022 Ms Kim reported swelling in the calf and a full range of motion to the knee. On 19 August 2022 Dr Hosseini reported pain in the left leg and on
27 August 2022 Ms Kim referred to increased swelling in the calf.Whilst Ms Kim referenced the lower back on 15 September 2022 it was in the context of increasing left leg discomfort into the left thigh and up the lower back as well. There is no suggestion of an injury to the lumbar spine and Ms Kim did not treat the lumbar spine.
On 11 December 2022 following a case conference with Ms Bhandari and Dr Mir,
Ms Mulcahy reported the claimant’s condition had improved, she was no longer walking with an antalgic gait, and she could stand for a greater period of time.The first mention of a specific problem in the lower back is found in the clinical notes of
Ms Tanya Vlasov on 22 December 2022 and subsequently by Dr Hosseini on
9 January 2023 when he reported back pain with radiation of the right knee, although the neurological examination was fine.Notwithstanding the legal test of causation does not require scientific certainty the Panel is not satisfied the claimant sustained injury to her lower back caused by the accident where there is no record of lower back complaint for at least four months and in terms of a specific complaint relating to the lumbar spine over six months post-accident. Furthermore, it cannot simply be a question of poor record keeping where not just one, but four separate treatment providers have failed to report an injury to the lower back including Dr Hossain, Dr Hosseini, Ms Kim and Ms Mulcahy.
Medical Assessor Gibson assessed Ms Bhandari without the assistance of an interpreter and did not have a problem with communication. The Panel does not accept the claimant’s submission that the failure to record injury to the lower back was due to a problem with communication.
The Panel also notes the MRI of the lumbar spine of 27 February 2024 shows degeneration at multiple levels despite the claimant’s age. The Panel considers if Ms Bhandari had sustained an injury to her back which produced the findings as demonstrated on spinal imaging this would have been evident well before four months post-accident.
The Panel does not find the opinions of Dr Bodel and Dr Nair to be persuasive where neither doctor was provided with an accurate history of the lack of complaint following the accident.
Ms Bhandari suggested the injury to the lower back may have been a consequential injury due to her inactivity whilst recovering from her left leg injury. Whilst the Panel accepted she may have had some temporary muscular discomfort in association with the enforced inactivity, the Panel does not consider this period of incapacity sufficient to cause soft tissue injury to the lumbar spine. In any event consequential injury would not cause the disc prolapses suffered by Ms Bhandari.
Left knee injury
There is no dispute Ms Bhandari sustained an injury to her left knee. It was well documented in the Discharge Summary of Campbelltown Hospital, the records of Priority Medical Centre, the records of Ms Gemma Kim and the records of Ms Mulcahy of Strategic Industry Solutions.
The injury to the left knee is a soft tissue injury where it is an;
“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.”
A soft tissue injury is by definition a threshold injury.
Left abdominal injury
Campbelltown Hospital reported pain to the left flank and Dr Hossain reported a crush injury to the left side of the lower abdomen.
Any left flank or abdominal pain has long since subsided.
The left abdominal injury has resolved.
The left abdominal injury was a soft tissue injury and in accordance with the definition contained in s 1.6 of the MAI Act would constitute a threshold injury.
CONCLUSION
The Panel finds the following injuries caused by the accident were threshold injuries:
·left knee injury, and
·left abdominal injury.
The Panel finds the following injury was not caused by the accident:
·lower back injury.
The Panel affirms the certificate of Medical Assessor James Wong dated 30 January 2024.
0
4
0