Khanna v Insurance Australia Limited t/as NRMA Insurance (No 1 and No 2)

DETERMINATION OF REVIEW PANEL
CITATION:	Khanna v Insurance Australia Limited t/as NRMA Insurance (No 1 and No 2) [2023] NSWPICMP 294
CLAIMANT:	Sanjeev Khanna
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	22 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment and care and insurer’s application for review under section 63 of certificate issued by Medical Assessor (MA) Carter;(1); claimant’s application for review of the assessment of whole person impairment (WPI); (2); claimant injured in rear end car accident on 17 August 2016; MA found the claimant’s diabetic condition had been aggravated by the accident and that some of his post-accident treatment and care needs were related to the accident and that the claimant had a WPI of 2%; significant issue of causation; claimant had been diagnosed with diabetes since 1999; claimant had poor control of his diabetes and had been diagnosed with diabetic retinopathy before the accident and diabetic peripheral neuropathy after the accident; claimant alleged physical injuries and worsened cardiac condition led to deterioration in his ability to exercise, weight gain and deterioration of his diabetic condition; Held – claimant self-represented and provided no medico-legal or treatment medical evidence linking his car accident with any of his post-accident diabetic issues; Panel adopted evidence review of 5,000 pages of document including from his treating endocrinologist and other specialists and haemoglobin readings before and after the accident; Panel not satisfied claimant suffered a deterioration of his diabetes because of the accident; claimant’s weight had not increased since the date of the accident; claimant had alleged diabetes has worsened in previous court proceedings and claims; claimant’s blood sugar readings did not demonstrate worsening of his condition and development of peripheral neuropathy after the accident was a part of the disease process and not accident related; panel found no treatment and care needs were related to the accident and there was no WPI arising from the accident; certificates of MA revoked; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 In proceedings number R-M10505234/22, the Review Panel: 1. revokes the certificate of Medical Assessor Carter dated 3 December 2021, and 2. certifies that none of the disputed treatment relates to the injuries caused by the accident and therefore none of the disputed treatment is reasonable and necessary in the circumstances. In proceedings number R-M10533485/22 the Review Panel: (a) revokes the certificate of Medical Assessor Carter dated 3 December 2021, and (b) certifies that the degree of Sanjeev Khanna’s permanent impairment resulting from the injuries caused by a motor accident on 17 August 2016 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Sanjeev Khanna was involved in a motor accident on 17 August 2016. The claimant, who is now 61 years of age, was stationary in his car when he was hit from behind by another vehicle.
The claimant says he was injured in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that Mr Khanna says caused the accident and his injuries. NRMA has apparently admitted that its driver was at fault and caused the accident.
A number of medical disputes about treatment and whole person impairment (WPI) have arisen in connection with the claim as follows and those disputes were referred to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Carter was referred disputes about WPI and treatment relevant to the claimant’s diabetic condition. On 3 December 2021, Medical Assessor Carter determined that Mr Khanna sustained an injury affecting his diabetic condition, that he did not have a WPI of greater than 10% (he found 2%) but that some of Mr Khanna’s treatment needs were caused by the accident and related to this injury. The insurer lodged an application seeking a review of the Medical Assessor’s decisions about treatment and the claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision about WPI.
On 12 August 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment of the medical assessment matters concerning treatment. On 19 January 2023, another delegate of the President determined there was reasonable cause to suspect a material error in the assessment of the claimant’s WPI.
The President has convened this Panel to conduct the Review proceedings.
The Panel was made aware of four other applications for Review in respect of other medical assessment matters involving disputes between Mr Khanna and NRMA and that the President had convened the Panels in those matters.
The Panel determined that it was in the interests of the efficient administration of justice that all six Review proceedings should be heard together, albeit with separate certificates and reasons issued be each of the Panels.
The Panel in these proceedings has determined that it will issue one statement of reasons along with any necessary certification of all the medical assessment matters referred to Medical Assessor Carter.

LEGISLATIVE FRAMEWORK

Introduction

Mr Khanna’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act) and the Motor Accident Compensation Regulation 2020 (the Regulation).
The resolution of disputes under the MAC Act is governed both by the provisions of the MAC Act and the provisions of the Personal Injury Commission Act 2020 and the Personal Injury Commission Rules 2021 (the Rules).

Treatment

Section 83 of the MAC Act imposes a duty on insurers throughout the life of a claim, to provide treatment if:
(a)   the need for the treatment was caused by the injuries sustained in the accident;
(b)   the treatment is verified, and
(c)   the treatment is reasonable and necessary in the circumstances.
Section 58(1)(a) and (b) of the MAC Act provides the Commission with power to determine disputes about treatment that arise in the course of a claim.

Damages

Damages for economic or pecuniary losses are determined in accordance with common law principles subject to the limits imposed by Part 5.2 of the MAC Act. Economic loss damages include compensation for a claimant’s past and future treatment and care (including gratuitous care) needs as well as their lost earnings and lost earning capacity.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act and are regulated. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2] Section 58(1)(d) of the MAC Act provides the Commission with power to determine disputes about WPI.
[2] See s 132 of the MAC Act.

Permanent impairment assessment

Permanent impairment must be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[3] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
The AMA4 Guides and the Guidelines provide a standard framework and objective method of analysis for medical assessors to assess the impairment to any organ or system of the human body.
There are 15 chapters in the AMA4 Guides applying to 11 organs or body symptoms. In the context of Mr Khanna’s complaints of injury, the following are relevant:
(a)   chapter 3 – the musculoskeletal system;
(b)   chapter 6 – the cardiovascular system, and
(c)   chapter 12 – the endocrine system and in particular 12.6 the pancreas.

Causation of injuries

Mr Khanna can only recover damages for the losses incurred as a result of the injuries caused by the accident. The insurer is only liable to pay for treatment related to injuries caused by the accident. The MAC Act requires the Panels to undertake an assessment of impairment that results from injuries caused by the accident. Causation of injuries is therefore a significant issue to be determined, before individual treatment or impairments can be assessed.
Clause 1.6 of the Guidelines refers to the definition of causation found 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.”
The Guidelines go on to say at cl 1.7
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In undertaking an assessment of causation in Mr Khanna’s case, the Panel must consider any pre-existing or subsequent conditions to the conditions or particular parts of his body he says were injured in the accident. This is why the claimant’s pre-accident medical records are relevant particularly in Mr Khanna’s case where he says that many of his conditions are aggravations, exacerbations or worsening of conditions he was already experiencing at the time of the accident.

Method of assessment

The Guidelines provide a methodology for the evaluation of impairment which cl 1.18 explains must be done in three stages as follows:
“1.18.1    a review and evaluation of all the available evidence including:
·medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)
·medico-legal reports
·diagnostic findings
·other relevant evidence
1.18.2     an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and
1.18.3     the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.”
The assessment of the claimant’s permanent impairment is therefore not just limited to the findings made by the medical assessors at the medical examination. The assessment takes into account all of the material that has been put before the Panels by both parties, the information provided by Mr Khanna at his medical examination and the clinical findings at that examination and the clinical judgment of the medical assessors on their respective Panels and the input from the member on the Panels.

Dispute resolution

Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment (such as Medical Assessor O’Neill’s in 2017), further medical assessments (such as Medical Assessor Cameron’s) and the review of medical assessments by this Review Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENTS UNDER REVIEW

Medical Assessor Carter undertook an assessment on 2 December 2021 and issued two separate certificates on 3 December 2021 with two separate statements of reasons.
Medical Assessor Carter was asked to determine:
(a)   whether the claimant’s diabetes had been aggravated by the accident and if so the resulting WPI;
(b)   whether certain treatment provided or to be provided to the claimant was or is reasonable and necessary in the circumstances, and
(c)   whether any such treatment relates to the injury caused by the accident.
The list of treatments documented in his reasons are medications namely 0-30 tablets per month of Metformin, insulin Aspart, insulin Glargine, Gitagliptin/Metformin.
The periods of time for which the treatment is claimed and disputed by the insurer are as follows:
(a) from the date of the accident to the date of the assessment, and
(b) from the date of the assessment for up to 15 years into the future.
Medical Assessor Carter takes a history from the claimant that his diabetes was diagnosed in about 2001 and that for many years he was treated with a modified diet and Metformin. In 2011, the claimant said he commenced insulin therapy and was taking both Insulin Aspart and Insulin Glargine. At the time of the accident, Medical Assessor Carter notes the claimant was taking Metformin and both forms of Insulin.
Medical Assessor Carter takes a history from Mr Khanna that before the accident the claimant’s diabetes was well controlled and that his blood glucose levels (BGLs) were:
(a)   before the car accident less than 7 before breakfast, 9-10 before lunch and 9-10 before bed;
(b)   after the accident they increased to 12-13 on waking and 15-25 later in the day, and
(c)   in 2018 his insulin doses were increased, Sitagliptin was added and later one injection of Trulicity per week given and his fasting BGLs are now 10-11 before breakfast, 16-17 before lunch and 16-17 before bed.
Medical Assessor Carter noted this suggested that on this history from the claimant, there does indeed appear to be a deterioration in his diabetes.
However, Medical Assessor Carter also considered the HbA1c level – which is “an indirect measure of his average BGLs over the preceding three months” and says an ideal level generally is less than 7%. The documents examined by Medical Assessor Carter showed HbA1c levels of:
(a)   9.3% in December 2010;
(b)   9.0% in July 2011 and August 2012;
(c)   9.8% in January 2014,
(d)   11.6% on 16 August 2016 (the day before the accident).
(e)   10.0% in April 2018;
(f)    11.0% in October 2018;
(g)   11.2% in February 2019;
(h)   10.7% in January 2020, and
(i)    8.3% on 21 October 2021.
Medical Assessor Carter noted the post-accident average (HbA1c) is higher that the pre-accident average but that all of the post-accident figures are lower than the reading the day before the accident.
Medical Assessor Carter notes that the natural progression of diabetes is that the pancreas produces less insulin over time and that as the disease progresses insulin treatment becomes essential and that overtime the dosage of insulin needs to increase. He notes “it is therefore difficult to determine whether the increased treatment requirement for the management of his diabetes since the date of the injury is due to the natural history of type 2 diabetes or due to the factors associated with the MVA”.
The claimant reported to Medical Assessor Carter that his current symptoms relate to peripheral neuropathy in his legs and feet and that he has pain in his legs and feet and has difficulty walking or engaging in physical activity. As a result, he says he has put on 4kg in weight. The claimant was examined and weighed 80.8kg and was 164cm tall with a body mass index (BMI) of 30 (with an ideal BMI being 20-25). Medical Assessor Carter found evidence of peripheral neuropathy namely peripheral pulses were reduced in the feet.
At section 17, Medical Assessor Carter said:
“The diabetes ante-dated the subject accident but the HbA1c levels and the reported BGLs post-accident suggest there has been a small deterioration in his diabetes caused by the motor accident”.
Medical Assessor Carter therefore found all the past treatments added since the accident were reasonable and necessary and causally related to the injury, that is 0-30 tablets per month of Metformin, insulin Aspart, insulin Glargine, Sitagliptin/Metformin. In terms of the future, he allowed that medication for 0-15 years.
In terms of the separate decision concerning whole person impairment, Medical Assessor Carter considered there had been a “slight aggravation of diabetes caused by the accident”. He considered the impairment “due to diabetes is permanent as the slight aggravation has been present for 5 years”. He assessed WPI, using chapter 12 of AMA4 Guides pages
270-272 at 2% based on a current WPI of 10% and deducting 8% for the pre-existing condition. He refers to the deterioration of diabetes control being mild.

ISSUES FOR DETERMINATION

Insurer’s submissions

Treatment dispute

The insurer’s submissions in support of its application for review are dated 21 April 2022.[5] The insurer commences by noting the assessor had not, at that time issued a WPI assessment.
[5] Page 44 of the insurer’s 6 March 2023 bundle.
The insurer argues that the assessor has not engaged with the material and submissions provided and has not addressed the issue of causation in particular whether the claimant’s diabetes was poorly or well controlled at the time of the accident. The insurer suggests there is evidence it was poorly controlled.
The insurer said it had raised an issue of the reliability of the claimant’s evidence and had submitted to the original assessor that care should be taken when accepting any history he has provided.
The insurer says the Medical Assessor did not explain the mechanism as to how the claimant’s car accident worsened his diabetes and says the claimant was in poor health and that he was suffering from a number of other medical conditions at the time of the accident.
The insurer says that the Medical Assessor’s only explanation for the causation finding is the presence of slightly increased BGL and HbA1c levels.
The insurer also notes that of the medications in dispute, only one (Sitagliptin), was prescribed after the accident and Medical Assessor Carter did not explain why the other medications used before the accident were needed as a result of the accident.

The insurer notes the claimant’s other co-morbidities including high blood pressure, high cholesterol, coronary artery disease, angina and pain on exertion, chronic liver disease, weight issues and so on.

Whole person impairment

The insurer’s submissions are dated 24 November 2022.[6] The insurer says at [11] that there are no errors in the Medical Assessor’s decision and that the claimant’s allegations “are simply a manifestation of the claimant’s disagreement with the Assessor’s clinical findings”.
[6] Document AD7 in the Commission’s electronic file R-M10533485/22.
The insurer says at [13] in respect of the allegation that the insurer failed to consider the relevant material that the claimant has not identified what material it is that was not considered. The insurer says at [16] that the Medical Assessor summarised the medical material and the history of the claimant’s diabetes before and after the accident. The insurer also says at [17] the Medical Assessor’s summary of the HbA1c levels shows he has engaged with the material before him.
In relation to the allegation there has been a breach of procedural fairness, the insurer says at [18] and [19] that the claimant has failed to identify any such breach and the assessment shows the Medical Assessor has conducted an in-depth examination of the claimant.
The insurer addressed the allegation of the failure to provide reasons at [20] by saying the claimant has not provided any basis for this allegation. The insurer says at [23] the decision was detailed and addressed the issue of causation and the deterioration of the claimant’s diabetes.
The insurer says at [27] the claimant has not substantiated his allegation that the Medical Assessor has failed to adhere to the AMA4 Guides or the Guidelines.

Claimant’s submissions

The claimant’s first response to the insurer’s application for review of the treatment assessment is contained within his letter to the Commission dated 10 September 2022. He appears to submit:
(a)   Professor Kovoor has stated that the claimant’s increased diabetes was due to his inability to do regular exercise due to his injuries from the accident (for example he used to walk the dog every day before the accident but cannot do so now);
(b)   the claimant now weighs 4.4kg more than he did at the time of the accident because he cannot exercise;
(c)   the claimant has had vascular surgery since the accident and has objective evidence of peripheral neuropathy in the feet since the accident because his peripheral pulses were reduced. Peripheral neuropathy in the legs and feet is a permanent complication of advanced diabetes;
(d)   his HBA1c reading were obtained with his consent over the telephone by Medical Assessor Carter and are accurate and these show the advance of his diabetes; and
(e)   the claimant’s diabetes has increased only slightly because he is taking many medications and if he did not take these medications, his diabetes levels would be so high that he would develop organ failure.
Mr Khanna has also provided submissions in respect of both Medical Assessor Carter’s assessments in his letter to the Commission dated 16 April 2023.[7] In this letter he identifies submissions common to all of his matters (at pages 1-8) and says:
[7] This letter is found at page 1 of the claimant’s final bundle of documents.
(a)   he suffered an aggravation of previous injuries suffered in the past with new injuries [13];
(b)   he details his cardiac treatment since the accident [16]-[37];
(c)   he remains with aggravation of diabetes [38];
(d)   the heart is the main organ of the body and because of his cardiac issues, the claimant could not walk 10 steps due to shortness of breath and his diabetes suffering increased “drastically” and his HbA1c levels reached 13.4 [39];
(e)   due to shortness of breath and no exercise his weight increased to 84kg, he developed numbness in his legs and feet and was unable to sleep, this affected his organs and his diabetes increased to an extent that he required a heavier dosage of medication [40];
(f)    the claimant suffers from diabetic peripheral neuropathy confirmed by Medical Assessor Carter [41] and which has been investigated by Dr Malouf [44] and Professor Vukic [45];
(g)   the claimant now takes Spiriva capsule (tiotropium) for better lung function [47], and
(h) the claimant’s peripheral neuropathy results in his inability to walk and because of his shortness of breath his diabetes has increased [48].
At page 12 of his final bundle, Mr Khanna has provided further specific submissions in relation to Medical Assessor Carter’s assessments:
(a)   he repeats at [4]-[6] many of the matters raised in his submissions common to all matters including his heart failure, shortness of breath, inability to exercise, weight gain and the development of his diabetic peripheral neuropathy;
(b)   he says at [9]-[18] that the Medical Assessor did not mention additional medication he is regularly taken including:
(i)magnesium for blood pressure and heart disease;
(ii) vitamin D for low energy;
(iii)Finobetrate for high cholesterol and triglycerides in the blood and prevents pancreatitis;
(iv)Nervoderm for the pain in his feet;
(v)Meloxicam for arthritis (an anti-inflammatory);
(vi)Diazepam for the pain in his legs and feet;
(vii)Trulicity for his diabetes;
(viii)Jardiance to control his blood sugar levels;
(ix)Voltaren which he takes morning and evening, and
(x)Panadol which he takes 0-8 every day;
(c)   Mr Khanna also appears to be submitting at [12.1], [12.2] and [12.3] that he takes Lyrica, Pregalbin (for nerve issues) and Clopidogrel (an antiplatelet medicine);
(d)   Mr Khanna says at [19] that in additional to the medication, he has had physiotherapy which he has paid for privately, twice a week for three years and he needs it once a week in the future. He says this is for his legs and feet;
(e)   Mr Khanna says all of these medications and off this treatment is needed as a result of the injury sustained in the accident [19.1];
(f)    Mr Khanna says, at page 15, that he has been clinically examined by Medical Assessor Carter, Dr Daly and Dr Malouf [20] and that his diabetes has been raised and a heavy dosage of medication was started but that his diabetes has affected his continuous chest pains, aggravated his high blood pressure, aggravated his headaches, depression and anxiety, he has a loss of enjoyment and amenity of life and has sexual dysfunction due to high diabetes [21];
(g)   Mr Khanna also says he has disfigurement, neck pain and low back pain, walks slowly with a “lame walk” and has disfigured himself due to pain and suffering [22]-[26];
(h)   Mr Khanna repeats at [28] and [29] parts of Medical Assessor Carter’s reasons under the heading “Current Symptoms” and “Determinations” and takes issue with the Medical Assessor’s finding that there has been a “slight aggravation of diabetes caused by the accident”. He says he is on a high dosage of a number of medications and if he was not taking these medications his diabetes would be worse. He also says this medication has affected his kidneys, eyes and peripheral neuropathy [29.1];
(i)    Mr Khanna says he has been diagnosed by five doctors [30]-[33] as having peripheral neuropathy and that Medical Assessor Carter has stated he is suffering from peripheral neuropathy which he says is a permanent impairment [34];
(j)    Mr Khanna notes (at point F on page 17) Medical Assessor Carter’s assessment of current WPI at 10%, a pre-existing impairment at 8% and the WPI therefore due to the accident at 2%;
(k)   Mr Khanna puts forward his own assessment of WPI (at point G on page 17) saying he has a current WPI of 10%, a pre-existing impairment of 3% (without high medication) and that his WPI due to the motor accident is 11%, and
(l)    Mr Khanna repeats at [36]-[43] that he has peripheral neuropathy and that this is permanent damage which has led to permanent impairment which should be compensated.
Mr Khanna’s submissions in respect of the WPI dispute, when first lodged appears to adopt the insurer’s grounds in challenging other assessments namely:
(a)   that the assessor failed to consider the relevant material;
(b)   failed to afford procedural fairness;
(c)   failed to provide sufficient reasons, and
(d)   failed to adhere to the AMA4 Guides and the Motor Accident Guidelines.

Panel proceedings

The first of the Review proceedings allocated to a Panel was the insurer’s review of Medical Assessor Carter’s treatment dispute. A preliminary conference was held between the members of the Panel on 15 September 2023 and directions were issued to the parties.
The Panel then became aware of the existence of the other Review proceedings and after the President convened those Panels, the Panels determined all six proceedings would progress together. Noting the close relationship between the claimant’s diabetic issues, his cardiac issues and other physical conditions, the Panels held a joint preliminary conference on 9 March 2023 where, amongst other things the Panels determined that a re-examination of the claimant was necessary.
As Medical Assessor Gorman had been appointed by the President to all three Panels, the Panels decided that Medical Assessor Gorman would undertake the re-examination. Upon receipt of the claimant’s final bundle and the up-to-date records from the claimant’s general practitioner (GP (which included additional reports from Professor Kovoor), the Panel decided that Medical Assessor Haber should join Medical Assessor Gorman in order to ensure the claimant’s cardiac issues were well understood.
As there was no issue about the existence of the claimant’s diabetes before the accident and that the issue about the aggravation or worsening of that condition could be fairly determined on a review of the documentation, the Panel decided that it was not necessary for Medical Assessor Gibson to be present at the examination.
A teleconference was held on 11 May 2023 after the re-examination. All members of the Panels decided that it would be appropriate, that Mr Khanna be provided with an opportunity to consider the evidence the Panels considered was relevant in the proceedings.
On 15 May 2023, the Panels issued directions to the parties with their review of the evidence. Both parties were asked to advise the Panels of:
(a)   any typographical errors in the review;
(b)   documents that had not been referred to in the evidence review that should be referred to, and
(c)   information that had not been included but should be included in the review.
The Panels also asked both parties for some additional information and set a timetable for the responses which was subsequently varied and extended on the application of the claimant.
The insurer responded advising the insurer had no issue with the correctness or otherwise of the evidence review.
Mr Khanna responded with a 14 page document which the Panel will refer to as the claimant’s final response document. While the Panel advised the parties it did not invite any further submissions or commentary on the relevance or otherwise of the documents summarised in the evidence review, Mr Khanna did provide further submissions including submissions as to what evidence was relevant and what evidence, in his view, was not. The Panel has considered all of the additional submissions and amended the evidence review document addressing some of the matters raised by Mr Khanna.

Mr Khanna’s final responses

Mr Khanna takes issue at [5] and [6] with the “unsatisfactory and unrelated consideration” saying the directions document issued of 15 May 2023 does not explain whether one or all the Panel members will be considering the injuries separately, whether all injuries will be considered since 2009, whether injuries irrelevant to the accident on 17 August 2016 will be considered, whether causation of injuries will be considered and whether a medical certificate will be considered from a GP who is the claimant’s regular doctor.
The claimant repeats at [7] that he has provided documents which demonstrate his WPI and says at [8] that the summary of evidence was not relevant and not required by the insurer. The claimant says at [9] that causation has not been explained and that at [10] the document is “attempting to divert the matter in a different direction”.
The claimant says at [11] that the summary from 2009-2014 is not relevant and that the 17 August 2016 accident damaged and injured his heart which he describes as the “Chief Organ of the body”. He repeats at [12] the summary is not satisfactory and does not deal with the facts that the driver was negligent, admits fault and “the claimant has provided evidence for every necessary instance whereas the insurer failed and provided irrelevant documents.”
The claimant says at [13] that the summary has been “constructed by one Panel member (writer) as stated and the remaining members will concede.” He says each member of the Panel should make their own consideration “in the interest of justice” and says the summary is not the right procedure to follow.
The claimant repeats at [14] his view that many of the documents included in the summary are irrelevant and mentions the 2009-2014 time frame. He says that the writer (of the summary) has a theory which “could be considered as prejudiced rather it is prejudiced.”
Under the heading “review medical assessment” includes a number of arguments which are not easy to follow but which appear to be saying:
(a)   the summary of evidence is not a fair procedure [16];
(b)   the President’s delegate found an error in all the assessments [17];
(c)   Medical Assessor Gorman and Medical Assess Haber were not qualified to assess the claimant’s endocrine system [18];
(d)   the summary of evidence constructed by the writer will be read by the remaining panel and a decision will be made “this will be a complete miscarriage of the matter in the interest of justice” [19], and
(e) the claimant appears to raise issues of procedural fairness and says that the Panels have not provided Mr Khanna with the minutes or a transcript of the medical examination and no camera was installed in the examination room [20].
Mr Khanna has provided additional submissions as to his WPI as follows:[8]
[8] The Panel has adopted his headings.
(a) The fact injury to cardiac:
(i)the injuries in the 2016 accident have nothing to do with the 2009 and 2014 accidents [21];
(ii)the claimant was injured on 17 August 2016 by a blunt force trauma to the chest and as a result injured his heart [22];
(iii)the seat belt caused restenosis (abnormal narrowing of an artery) and he relies on the letter of 19 September 2016 from Professor Kovoor [22.1];
(iv)the claimant documents his procedures including the November 2017 Angiogram [23], his admission to hospital on 16 February 2018 [24], angioplasty [25], catheterisation [26], 13 September 2019 further surgery [27], and further angiogram on 1 March 2022 [28];
(v)the heart is the main organ of the body and the claimant could not walk far because of his diabetes, diabetic neuropathy, retinopathy and physical injuries and the claimant is depressed an anxious because Professor Kovoor has said there is nothing further than can be done for his heart, and
(vi)because of the significant injury to his heart, his diabetes has increased, and he is unable to walk due to shortness of breath.
(b) Clinical examination by Medical Assessor Carter – the claimant is suffering from peripheral neuropathy and is taking medications mistakenly not written by the assessor [31].
(c) Physical injuries:
(i)the claimant says he has sustained a whiplash injury and he provides at [32.1.1] what appears to be an extract from a medical dictionary about what a whiplash injury is and what it can cause;
(ii)chest discomfort – the claimant says that Professor Kovoor diagnosed trauma to his chest and that this caused restenosis of the left anterior descending artery (LAD) which was restented [32.2];
(iii)nose bleeding often and headaches to the left side of the head everyday [32.3.1];
(iv)shoulder pain continuously and restriction in movement [32.4.1];
(v)lower back pain and the claimant was not stable when examined by Medical Assessor Gorman [32.4.1], and
(vi)the claimant suffers from hypertension, anxiety and depression [32.5].
The claimant’s submissions then take issue with the documents in the evidence review which the Panel will include as part of the evidence review.
The claimant then concludes with the following submissions:
(a) causation has been explained due to the claimant being injured in the heart and requiring restenting and further surgery. In the process the claimant says his diabetes increased and his whiplash increased and he suffers conditions such as depression, anxiety, low mood, low concentration and no enjoyment of life [66];
(b) the cardiac condition which cannot be treated should be regarded as 100% WPI, the injury was caused by the fault of the other driver, and the injury is sufficiently serious to justify making the claim [67], and
(c) the peripheral neuropathy is a WPI according to the claimant’s GP [68].

REVIEW OF THE EVIDENCE

The bundles

In order to ensure the Panel had all the relevant documentation before it dealing, with all of the claimant’s medical disputes, the Panel directed the parties to provide bundles which have been provided as follows:
(a) the insurer lodged a bundle of documents dated 6 March 2023 with 4,051 pages, and
(b) the claimant’s final bundle of documents with 248 pages.
A number of issues have arisen in respect of the documents and evidence presented in these proceedings.

Should the additional documents be allowed in?

In addition to its bundle, the insurer sought to rely on updated records from the Rouse Hill Medical Practice[9] with 1,156 pages. The insurer sought the consent of the claimant to admit these documents into evidence and the claimant refused. In a decision communicated to the claimant on 14 April 2023, the Panels agreed to allow these documents into evidence. Mr Khanna further objected to the inclusion of these documents.
[9] Document AD9.
The Panel notes that Rule 128 of the Rules permits the Panel to determine its own proceedings and may inquire into relevant matters as it thinks fit.
In the absence of medico-legal evidence from the claimant and noting the complexity of his medical history the Panel formed the view that these documents must be allowed into evidence to ensure the Panel had as much information as possible about the claimant’s pre-accident and post-accident medical state in order to make a robust decision in relation to causation in particular.
The documents are relevant, provide an update on the claimant’s health status and have been considered.

Are the pre-accident documents relevant?

In his submissions, common to all matters, at [9.4], Mr Khanna says, “The documents supplied before the date of 17th August 2016 were completely irrelevant to the matter because the matter belonged before the accident date of 17th of August 2016.”
Mr Khanna repeats these submissions several times in his final response document and identifies some of the specific documents he says are not relevant.
NRMA has disputed the claimant’s WPI resulting from the injuries sustained in the accident. NRMA has also disputed the treatment Mr Khanna claims he needs to treat the injuries he sustained in the accident.
In order for the Panel to determine the claimant’s WPI and treatment and care needs resulting from his injuries, the Panel must first determine the nature and extent of the injuries that Mr Khanna sustained in the accident. To put it simply, not everything that has happened to Mr Khanna since the date of the accident may have occurred because of the accident.
Mr Khanna’s medical assessment matters are complicated by the existence of pre-existing conditions, previous accidents and injuries and subsequent events. For the Panel to make a robust decision about causation and determine what injuries were sustained by Mr Khanna in his accident, the Panel must examine the pre-accident medical records as well as the records of his treatment and events occurring after the accident.

Why is the evidence review necessary?

Ordinarily in a motor accident compensation claim there would be evidence adduced by medical experts retained by the legal representatives of both the claimant and the insurer. Noting the issues in dispute between the parties and the nature of the injuries alleged by the claimant the Panels would expect an expert cardiologist, endocrinologist and musculoskeletal physician to have provided reports in this matter dealing with causation, treatment needs and impairment assessment.
The only available medico-legal report submitted by the parties in this matter is a report on the claimant’s life expectancy obtained by the insurer.[10]
[10] There are other medico-legal reports obtained by the parties of other claims and litigation.
Due to this absence of medico-legal evidence, the Panel has been required to consider the voluminous evidence from the claimant’s treating practitioners in order to understand and better determine the injuries caused by the accident and the resulting impairments and treatment needs of the claimant.
Because there are six Review Panel proceedings being heard by together by three separately convened Panels, the Panels have undertaken a consolidated review of all of the documentation relevant to the issues in dispute in all of the six proceedings.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[11] said at [63]:
[11] [2022] NSWSC 1079.
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. - endnotes As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
The Panel has received over 5,400 pages of documents. While the Panel has read and considered them all, the Panel does not intend to refer to each and every document but, taking into account the words of Justice Basten, will refer only to those that are relevant and of significance to the issues in dispute between the parties.
Because there are six Review Panel proceedings being heard together by three separately convened Panels, all members of the Panels have contributed to a summary of the documentation relevant to the issues in dispute in all of the six proceedings.
The Panel adopts this consolidated summary and review of the evidence which is attached to these reasons as annexure A[12].
[12] A reference in these reasons to a paragraph in that document will be expressed as “annexure A-123”.

RE-EXAMINATION FINDINGS

Mr Khanna was examined by Medical Assessor Gorman with Medical Assessor Haber who assisted with the cardiac examination.
The Panel adopts their combined examination findings which are attached to these reasons as annexure B[13].
[13] A reference in these reasons to a paragraph in that document will be expressed as “annexure B-123”.

CONSIDERATION OF THE ISSUES RELEVANT TO THE CLAIMANT’S DIABETES

Introduction

Mr Khanna has said in his submissions at [39] and [40] that because of his cardiac issues (including shortness of breath and angina) he has been unable to exercise and his weight has increased to 84kg. As a result, he says his diabetes has increased drastically leading to peripheral neuropathy (which he says is a permanent impairment) and an increase in medication levels.
Mr Khanna also appears to be saying in his final response document at [49], [50] and [56] that as a result of his peripheral neuropathy he has been unable to exercise which has led to further deterioration of his diabetes.
Mr Khanna accepts that he had diabetes before the accident.
There is no dispute that, since the accident, Mr Khanna has developed peripheral neuropathy. He has been diagnosed as such by his GP, specialists and Medical Assessor Carter and, according to Mr Khanna, similar pre-accident symptoms in October 2012 were apparently discounted and found not due to peripheral neuropathy.[14] The Panel therefore agrees with Mr Khanna that he has peripheral neuropathy and that this is a serious condition.
[14] See the history taken by Dr Peter Wu recorded at paragraph 88 of the evidence review.
There is also no dispute in the documents that Mr Khanna’s diabetic medication has been varied since the date of the accident. The Panel therefore agrees with Mr Khanna that he is taking more medications in greater doses in order to better control his blood sugar levels.
The issue for the Panel to determine is whether Mr Khanna’s peripheral neuropathy and his need for different and higher doses of medication has been caused or materially contributed to by the injuries sustained in the accident.
The Panel notes that Mr Khanna wrote to Allianz in 2012 blaming an increase in his diabetes on the 2009 accident. Mr Khanna said in his claim form arising out of his 16 May 2014 car accident that his diabetes had worsened as a result of that accident. In the proceedings arising out of the fall at Masters, Mr Khanna said at the time of that fall his diabetes was not under control and blames his worsening diabetes on the injuries sustained in that fall.
Mr Khanna blames this accident on his worsening diabetes, but he has not placed any expert evidence before the Panel to support this. While there is a significant amount of documentation in these proceedings, none of Mr Khanna’s treating doctors (in particular his endocrinologist or other specialists) have expressed their expert opinion on the relationship between the current state of Mr Khanna’s diabetes and his 2016 accident. In simple terms no expert has expressed the opinion that Mr Khanna’s diabetes has worsened because of the accident of 17 August 2016.
The Panel will therefore consider the issue of whether Mr Khanna’s diabetes has worsened as a result of the accident by considering:
(a) whether his haemoglobin levels demonstrate a worsening of his diabetes, and
(b) whether his peripheral neuropathy was caused by the accident.

The haemoglobin A1c levels

If the Panel accepted Mr Khanna’s report of his own home tested BGLs,[15] it would appear that his diabetes control has worsened since the injury in August 2016.
[15] See paragraphs 9 and 27 of Annexure B to these reasons.
The Panel’s review of evidence includes a number of HbA1c levels recorded in the medical records. These have been converted to a graph below.

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When Mr Khanna’s HbA1c levels obtained from the Panel’s analysis of the medical records are reviewed, it cannot be said that his diabetes control has deteriorated.
The medical members of the Panel note that the HbA1c test is one of the primary ways for treating doctors to monitor and manage their patient’s diabetes. The HbA1c level is a record of a patient’s average blood sugar level over the previous three months. The test does this by measuring the percentage of a person’s red blood cells that have sugar attached to them. Everyone has a level of sugar-coated haemoglobin but diabetics have a higher percentage of these cells. Normal is considered to be below 5.7% and a level of 6.4% or more indicates diabetes. An ideal level is less than 7.0%.
The HbA1c level gives an indirect measure of a person’s individual BGLs over the preceding three months and because it is undertaken by way of a blood test analysed in a laboratory, it is a more objective measure of control that a person’s reports from their home-based glucose testing.
Since 2010, Mr Khanna’s levels have never been below 8% which suggests since 2010 he has not had the inability to control his BGLs and keep them at the ideal level of less than 7%.
Mr Khanna’s HbA1c levels recorded in the documents date from February 2010 (8.4%) to 2 March 2023 (8.4%). The claimant’s levels now are where they were 13 years ago. However, between the two there has been significant variation with a high of 11.6% on 16 August 2016 the day before the accident. In other words, for the three months before the car accident, the claimant’s average BGL was 11.6%, higher than it had ever been. Mr Khanna’s HbA1c levels following the car accident have been less than the value on 16 August 2016 apart from one result dated 27 November 2020 which was 11.7%.
In the records of a clinical care co-ordinator on 15 May 2019 (annexure A-54) is a note that the claimant’s self-monitoring was problematic, and Mr Khanna did not like “injectables. On 21 May he was given advice about injection techniques but was still not happy with four injections a day (annexure A-55). On 25 May 2019 his blood sugar was “out of control” at 17% and on 3 June 2019, up to 24%. By 24 July 2019 his blood sugar levels were said to be very well controlled, and he reported his fasting blood sugar levels were not more than 8% (annexure A-55). The Panel notes the HbA1c levels for this period were 10.7 in May 2019 and 9.3 in June 2019 (annexure A-90).
It is the clinical judgment of Medical Assessors Gorman and Gibson that a person’s HbA1c results can be affected by certain medications (including opioids) and kidney failure, liver disease or severe anaemia. Levels can also be affected by exercise (or lack of it) and stress. The claimant has both liver disease and anaemia neither of which could be caused by the accident and his kidney function is diminished according to the creatinine levels reported in the records. Mr Khanna has reported to various practitioners over time his high stress levels due to financial matters involving his business and it is possible he would have experienced stress pursuing his tenancy and claims litigation through the courts without legal representation.
Mr Khanna says that he has put on 4kg since the accident because he has been unable to exercise because of his cardiac issues including shortness of breath. Mr Khanna has made claims similar to this in his other personal injury matters.
Mr Khanna has not had an increase in weight since the accident. His weight now is less than it was before the accident according to the records. He weighed 85kg in December 2013, 84kg in March 2016 and 84kg in September 2016 (annexure A-92). In his final response document Mr Khanna concedes that his weight before his 2009 heart attack was 74kg and that after the heart attack his weight increased. Mr Khanna cannot attribute his weight gain before the accident to a lack of exercise caused by the injuries he says he sustained in the accident.
The records suggest that Mr Khanna may not have been a frequent exerciser in any event. For example, the nurse who undertook his 2012 medication reviews and Dr Chipps his endocrinologist have commented and informed Mr Khanna of the importance of exercise and losing weight in helping him to control his diabetes (annexure A-95).
The Panel also notes Mr Khanna has had episodes of angina and shortness of breath before the accident well documented in the reports of Professor Kovoor (annexure A-64, 65, 69 and 72).
Dr Zraghoum in May 2016 (annexure A-126) noted the claimant’s diabetic control was poor due to the claimant’s poor compliance (which the Medical Assessors of the Panel note would be poor compliance with diet, exercise and medication). On 8 August 2016, nine days before the car accident, the claimant was seen in the gastrointestinal clinic at Westmead with significant anxiety, poor energy levels, difficulty with breathing, anaemia and kidney impairment (annexure A-127). All of these are factors which the medical members of the Panel note affect diabetes control.
When all of this evidence is considered, the Panel is not satisfied that the fluctuations in Mr Khanna’s HbA1c levels were caused by the accident. His levels have certainly been more volatile since the accident, but they were increasing before the accident. The Panel is of the view the fluctuations are due to causes other than the accident including the claimant’s pre-accident poor compliance, his pre-accident cardiac complaints and his general health, stress and anxiety levels.

What is the cause of the claimant’s peripheral neuropathy?

Whatever the cause of the fluctuations in HbA1c levels, the Medical Assessors note that the variation in levels does not, necessarily mean that Mr Khanna’s control of his diabetes was “worsening”.
The Panel notes that the claimant was diagnosed with non-proliferative diabetic retinopathy in 2012 which, according to Professor Mitchell has progressed to the proliferative form of the disease in 2018.
The Medical Assessors note that over time, as the diabetic disease progresses, the small blood vessels of the body, including in the eye weaken. Diabetic retinopathy occurs when tiny blood vessels in the retina burst leaking blood and other fluids into the eye. While diabetic retinopathy can occur in anyone with diabetes, it is most common when diabetes is poorly controlled.
As the claimant had diabetic retinopathy before the 17 August 2016 car accident, this lends further support to the conclusion that his diabetes was poorly controlled before the accident.
The medical members of the Panel agree with Mr Khanna that his diabetes has further progressed to now include peripheral neuropathy. Peripheral neuropathy involves damage to the peripheral nerves of the nervous system and can involve only one nerve or multiple nerves. Peripheral neuropathy can be caused by many conditions, but the most common cause is the progression or advancing of long-term diabetes. The claimant’s peripheral neuropathy has been thoroughly investigated and Dr Vukic has diagnosed sensorimotor neuropathy secondary to diabetes.
While Mr Khanna’s peripheral neuropathy has been diagnosed after the accident, but that does not necessarily mean it was caused by the accident.
The Medical Assessors note that type II diabetes mellitus is caused by a combination of two primary factors: defective insulin secretion by pancreatic beta-cells and the inability of insulin sensitive tissue to respond appropriately to insulin. Weight gain is, in the clinical judgment of the medical members of the Panel a common cause of increased insulin resistance. The Panel notes there was no significant and progressive weight gain after the accident, so this was not a factor in Mr Khanna’s case. He did report a 2009 weight before his heart attack of 74kg and a 10kg weight gain before the accident which would appear to be relevant in his case and may be the cause of his deteriorating diabetes control reflecting in the slow but steady increase in his HbA1c levels before the accident.
The progression of diabetes leads to microangiopathy (disease of the small blood vessels) including retinopathy and the development of peripheral neuropathy and while the former commenced before the accident the latter appears to have developed after the accident
This is again, an indication to the Medical Assessors on this Panel of the natural progression of the claimant’s diabetes rather than any accident-related worsening of the underlying condition.

Has Mr Khanna’s diabetes worsened?

Mr Khanna says that as a result of the accident his diabetes has worsened and as a result his medication needs have increased and that if it was not for these medications his diabetes would cause organ failure.
It is the medical members of the Panel’s clinical judgment that the natural history of type II diabetes is that insulin production falls with age, and therefore insulin treatment becomes essential, and doses have to be gradually increased as further time elapses and medications changed to deal with these and other factors (such as the progression of cardiac and kidney disease).
Mr Khanna says he was diagnosed with diabetes in 1999, 17 years before the accident. Mr Khanna's control of his diabetes has worsened with time (and age) and his insulin medications have needed to be gradually increased. New medication, such as sitagliptin (Januva) and dulaglutide (Trulicity), were added after 2018 by his endocrinologist which would be aimed at reducing Mr Khanna’s insulin resistance and stimulating his own insulin production.
Again, the Panel notes that there is no report from the claimant’s endocrinologist to link the state of the claimant’s current diabetes with the accident.
While the claimant’s diabetes has progressed since the accident, there is no medical evidence from any of his doctors to support Mr Khanna’s submission that this progression has been caused by the injuries sustained in the accident.

CONCLUSION

It is the clinical judgment of the medical members of the Panel that having considered the clinical history given by Mr Khanna and the documents provided by both parties, that the changes in Mr Khanna’s diabetes were no more than the expected progression with time, of his underlying pre-existing condition.
The Panel is not therefore satisfied that the motor accident resulted in any worsening of his condition and any permanent impairment.
The Panel is also of the view that any change in the claimant’s diabetic medication is not due to the accident but due to the progression of his disease, his doctor’s attempts to control it, and new drugs being made available to treat it.
It therefore follows that the certificate of Medical Assessor Carter is revoked, and a new certificate is to be issued by the Panel.

ANNEXURE A - EVIDENCE REVIEW

Preliminary

This review is a summary of the material the Panels consider relevant to the matters in dispute between the parties. It references documents found in:
(a)   the insurer’s bundle submitted on 6 March 2023;
(b)   the additional documents from the Rouse Hill Town Medical and Dental Centre (Rouse Hill) submitted on or about 3 April 2023;
(c)   the claimant’s bundle received by the Panel on 17 April 2023 and lodged by the claimant on 16 April 2023,
(d)   the insurer’s letter to the Panel received 26 May 2023, and
(e)   the claimant’s final response document dated 4 June 2023.[16]
[16] This review will refer to these documents as the insurer’s bundle, the additional Rouse Hill bundle, the claimant’s bundle and the claimant’s final response bundle.
This review of the evidence has been agreed upon by all members of each of the Panels.

Claim form and claim documents

Current claim

Mr Khanna’s claim form[17] was sworn as correct and dated 23 December 2016. In that claim form Mr Khanna:
(a)   discloses a previous claim made against AAMI arising out of an accident on 16 May 2014 and previous conditions of diabetes and ischaemic heart disease;
(b)   in the current accident the claimant was the driver, wearing a seatbelt when he was run into from the rear;
(c)   the accident was reported to the police 10 days after the car accident, an ambulance did not attend, but the claimant was treated in hospital;
(d)   Mr Khanna says he went to the hospital on 18 and 29 August 2016;[18]
(e)   he says he sustained a whiplash injury, chest discomfort, nose-bleed and pain in head, neck, shoulder and lower back injuries, hypertension, anxiety, depression and headaches, and
(f)    his general practitioner (GP) was disclosed as Dr Paw who had arranged for pain killers and physiotherapy.
[17] Page 2,757 of the insurer’s bundle.
[18] While the claim form states 18 August 2016, the claimant says at 33.2 of his final response document that he attended Westmead on 17 August 2016.

Dr Pang completed the medical certificate on 21 September 2016.[19] The certificate is typed and includes the same injuries listed in the claim form as well as a collarbone injury. The doctor says the claimant has been referred for “physiotherapy, cardiology review, mental plan and advice for overseas holidays”.
[19] Page 2,767 of the insurer’s bundle.
While the Panel does not have the liability notice issued by NRMA, the Panel understands from Mr Khanna that the police have accepted that the other driver was the driver responsible for the accident and that NRMA has admitted its insured caused Mr Khanna’s accident and his injuries.[20]
[20] Paragraph 12 of the claimant’s final response document.

Other claims and litigation

The insurer has provided details from the Personal Injury Register[21] which indicates the claimant has been involved in four motor accidents. The accidents occurred in 2009, 2013, 2014 and the current accident of 2016. Mr Khanna says[22] that the 2013 and 2014 accidents were “minor and [were] settled by the insurer”.
[21] Page 3,929 of the insurer’s bundle.
[22] At point 34 of his final response document.
The medical certificate supporting the claimant’s 30 October 2009 accident[23] was completed by Dr Leung on 5 March 2012 and refers to an examination on 2 November 2009. Dr Leung says the claimant was a pedestrian hit by a reversing vehicle and experienced pain in the back (the entire spine), muscular pain in the neck, left pelvis, hip and thigh pain, bilateral knee pain and depression.
[23] Page 2,786 of the insurer’s bundle.
Mr Khanna wrote to Allianz dated 26 July 2012[24] in relation to the incident that occurred on 30 October 2009. It appears this letter was sent in support of the claimant’s application to allow him to pursue a late motor accident claim.
[24] Page 2,792 of the insurer’s bundle – Allianz was the third-party insurer dealing with the 2009 claim.
According to this letter, a tow truck driver came to repossess Mr Khanna’s car, which Mr Khanna objected to on the basis the paperwork was not correct. The driver is said to have reversed his truck and run over the claimant and then deployed the tilt tray from the truck and hit the claimant repeatedly causing injury to Mr Khanna which caused pain in his lower back, shoulders and left leg. After this, the tow truck driver is said to have entered the claimant’s garage and pushed Mr Khanna and hit him. In this letter, the claimant attributes his 29 December 2009 heart attack to this incident and says that he now has depression, his diabetes has “increased”, his “gastro” has increased and says that he is neither a smoker nor drinker and all his health problems are due to stress and the injuries sustained in this accident. He provides a list of “multiple soft tissues injuries involving” his neck, armpits and shoulders, “all time headache”, back bone injury, left, left hip, pelvis and thigh injury.
Mr Khanna says[25] that court proceedings were commenced “for physical abuse by the truck driver and hitting continuously … with a tilt tray on the claimant’s legs and going into the house without the permission of the claimant.” He says that this abuse caused his heart attack and other injuries.
[25] At point 15.3(1c) of the claimant’s final response document.
The insurer has provided a copy of a judgment from the Court of Appeal in relation to that claim.[26] Mr Khanna apparently settled the claim in 2013, but the insurer failed to pay the claim. Mr Khanna then commenced proceedings in the District Court in 2019 and consent orders were signed before Gibb DCJ on 20 November 2020. Mr Khanna appealed to the Court of Appeal on the basis that “for medical reasons, he did not understand the effect of the orders to which he consented”.[27] The Court of Appeal dismissed the appeal. Mr Khanna represented himself both in the District Court and at the hearing in the Court of Appeal on 13 May 2021.
[26] Khanna v Allianz Australia Insurance Limited [2021] NSWCA 231.
[27] Paragraph 12.
The medical certificate for the claimant’s 16 May 2014 accident[28] was signed by Dr Schindler of Rouse Hill and dated 13 June 2014. He lists the injuries Mr Khanna sustained in this accident as, “whiplash injury of the neck, worsening of back pain, worsening of depression and worsening of diabetes”. Mr Khanna agrees with this[29] and says[30] that his wife was more injured in this accident and his memory was that this “settled out of court.”
[28] Page 2,787 of the insurer’s bundle.
[29] At point 35 of his final response document.
[30] At point 15.3(1c) 15.3.1 of the claimant’s final response document. It is not clear whether the reference to the settlement is to his wife’s claim, his claim or both.
The insurer has included in its bundle a Statement of Claim filed in the District Court proceedings involving Mr Khanna and Woolworths and a fall on 18 April 2015 at a Masters Home Improvement shop.[31]
[31] This will be referred to as the Masters fall.
In the Statement of Particulars filed in those proceedings, signed by the claimant and dated 27 June 2019,[32] Mr Khanna alleged the following injuries were sustained in this accident:
(a)   knee injury;
(b)   cervical spine injury and head injury including dizziness while moving his head;
(c)   pelvis and right hip – strain or twist, and
(d)   anxiety and depression including “snowballing worries, racing heart and tightening of the chest.
[32] Mr Khanna was self-represented in those proceedings and prepared the Particulars document himself. The two documents are found at page 2,770 of the insurer’s bundle.
The particulars also include the following continuing disabilities Mr Khanna says arose from those injuries:
(e) inability to walk his dog and because of this, his diabetes has increased “abnormally high”, and
(f) because of his high diabetes, his insulin dose has increased, his blood pressure is not under control, he has increased his weight and his eyes have started bleeding.
Mr Khanna says that he was unable to walk the dog because of his shortness of breath and his increased diabetes and that his insulin dose was increased because his eyes had been affected and he suffered from retinopathy.[33]
[33] See point 37 of the claimant’s final response document.
The insurer has provided a copy of the judgments of both Dicker DCJ[34] and the Court of Appeal[35] in respect of the Masters’ fall.
[34] Khanna v Woolworths Group Limited (no 2) [2021] NSWDC 567.
[35] Khanna v Woolworths Group Limited [2022] NSWCA 94.
The claimant was self-represented in the District Court and the hearing took place over eight days in May, June and August 2021. Written and oral submissions were given and made during September 2021 and Dicker DCJ handed down his judgment on 20 October 2021.
His Honour referred to the Statement of Particulars at [5] and summarised the evidence, much of which is before the Panels in the current proceedings.
His Honour had the benefit of oral evidence from the claimant. At [55] of the judgment his Honour records “he said that good exercise was required to keep the diabetes under control. He said that at the time of the 18 April 2015 accident his diabetes was not under control.” Mr Khanna then gave evidence about his fall and that four to five months after the accident he developed terrible pain in his back, his legs and his hip [68]. At [76] he gave evidence that since he fell in 2015, “he continued to have significant heart problems which included more stents being inserted in 2017 and open-heart surgery in 2019.”
Mr Khanna was apparently cross examined at length[36] about the 2009 accident and the “fairly significant” injuries he said he had sustained in it. He was said to have agreed at [91] that his diabetes had worsened since that accident and at [93] that his heart condition was caused by the 2009 accident.[37] The 2019 proceedings he commenced in relation to the 2009 accident included an Amended Statement of Claim and Particulars before his Honour (not before the Panels) and he agreed that as at 8 May 2020 he was still claiming that he was experiencing symptoms from that accident.
[36] His Honour summarises the cross-examination commencing at [85].
[37] See [93] in particular.
The claimant says[38] that in these proceeding there was a judgment for the defendant and Mr Khanna quoted two paragraphs from Dicker DCJ’s decision. For completeness all of his Honour’s medical findings are reproduced below:
[38] At point 15.4(1d) of the claimant’s final response document.
“[177] I make the following medical findings:
1.     The plaintiff has had long term serious diabetes. This condition commenced well before 2009.
2.     The plaintiff was seriously injured in the incident in 2009. This resulted in pain and stiffness to various areas including the plaintiff’s neck, upper back, shoulders, left hip and left thigh. The plaintiff also suffered serious depression as a result of his injuries in the incident which will be considered further below.
3.     Following the 2009 incident, the plaintiff had two heart attacks, the insertion of numerous cardiac stents and serious and ongoing heart problems. The plaintiff had open heart surgery in 2019. The medical evidence does not establish on the balance of probabilities that any of the plaintiff’s heart problems or the open-heart surgery have any connection to the 2015 accident complaints of the plaintiff.
4.     The plaintiff has had medical treatment for his diabetes over the last 25 years. The plaintiff claims that the 2015 accident has worsened his diabetes due to his inability to exercise following a knee injury in the accident. Despite the plaintiff’s claims, I am not satisfied on the medical evidence that the plaintiff’s diabetes has worsened due to the accident. There was no clear medical opinion to that effect. The plaintiff has claimed in 2012, 2019 and 2020 that his injuries arising from the 2009 incident were still causing him considerable pain and restrictions.
5.     The plaintiff claims that he has suffered from depression and anxiety arising from the 2015 accident. However, the plaintiff also accepted that he had depression arising from the 2009 incident. This is clearly established from his general practitioner consultation notes. Although the plaintiff claims this had substantially improved by 2015, Dr Samuell points out in his report that as at April 2015, the plaintiff had recently been prescribed an antidepressant. The opinions of Dr Samuell and Dr Pearson (who does not mention the 2015 accident in his report) do not, in my view, support the plaintiff’s claim of depression linked to the April 2015 accident. Dr Pang’s report dated 26 August 2015 (Exhibit A page 206) does not provide the basis for his opinion or connect it to the 18 April 2015 accident. There was no medico-legal opinion obtained by or on behalf of the plaintiff establishing this claim. The plaintiff claimed depression in 2019-20 linked to the 2009 accident … I therefore find it not established on the balance of probabilities. The 26 August 2015 general practitioner notes refer to ‘multiple medical issues causing patient to be mentally unwell’.
6.     The plaintiff was in a motor vehicle accident in May 2014 which caused neck problems, shoulder pain and a worsening of lower back pain.
7.     The plaintiff had ongoing issues with his left arm, including tingling in his left fingers with neck discomfort and stiffness before the 2015 accident. This is established in my view by the April 2015 CT scan report by Dr Kariappa which referred to a history of: ‘2 months of radicular symptoms radiating to C8’: Exhibit A page 54. I find these complaints were not caused by or made worse by the 18 April 2015 accident. I accept the defendant’s submissions on this issue.
8.     The plaintiff claims he attended his general practitioner on 19 or 20 April 2015, shortly after the accident. There are no general practitioner notes of any consultation. Why that is so is unclear. I accept the plaintiff’s evidence as to having a consultation. It is supported by the 21 April 2015 CT scan report and the Medicare printout (Exhibit 1 page 277- although the plaintiff appears to link the consultations in April 2015 to the 2009 accident: Exhibit 1 page 263).
9.     The plaintiff gave evidence that he complained to his general practitioner on 19 or 20 April 2015 about pain in the following areas after the 18 April 2015 accident: his right knee, his right hip, his right shoulder and his lower back. The only area referred to in consultation notes before 25 February 2016 arising from the accident was right knee pain. I find that the plaintiff injured his right knee in the subject accident when he fell on it. The other complaints are likely to have been much less serious and secondary as they are not referred to in the later general practitioner consultation notes up to February 2016. The physiotherapy report dated 28 June 2018 does refer to lower back pain but relates it ‘to a history of a motor vehicle accident and recurrent hospital admissions’. I am also not satisfied that any of the complaints relating to the plaintiff’s cervical spine referred to in the 21 April 2015 CT scan report related to the 18 April 2015 accident, having regard to the history provided to the radiologist. The MRI scan reported on by Dr Dugal on 25 September 2015 does not support a different conclusion.
10.   Later reports on scans of the plaintiff’s lumbar spine dated 4 April 2018 and 26 November 2019 do not connect the complaints to the April 2015 accident. Congenital spinal canal stenosis and other degenerative changes, on the evidence, are not satisfactorily linked to the accident. Dr Vasili, the plaintiff’s orthopaedic surgeon, does not refer to lower back pain in his last report. Dr Nima’s report at Exhibit A page 209 refers to back pain starting after the fall, but this must have been based on the plaintiff’s complaints.
11.   Earlier longstanding problems with the plaintiff’s right shoulder, hips and lower back, including sciatica, establish, in my view, that any worsening of the plaintiff’s problems in these areas as a result of the April 2015 accident were soft tissue only and were only an aggravation. Even without the 2015 accident, the plaintiff would have had ongoing problems in these areas, arising from the earlier accidents: see Dr Machart’s opinion on this issue and the plaintiff’s claims in relation to the 2009 incident and 2016 accident made in 2019 and 2020: Exhibit 1 pages 239, 296, 304 and 320.
12.   I am not satisfied that the plaintiff’s need for podiatry services is connected to the April 2015 accident. There is no medico-legal opinion to that effect. Dr Nima, the plaintiff’s general practitioner, suggested the plaintiff’s need for regular podiatric assessments was as a result of his diabetes.
13.   After the April 2015 accident, the plaintiff had two accidents in 2016, including a fall and a motor vehicle accident. Increasing lower back pain and stiffness and pain to the neck and shoulder were referred to as arising from the 2016 accident.
14.   In summary, I find that the plaintiff injured his right knee in the 2015 accident. He also mildly aggravated pre-existing injuries to his right hip, right shoulder and lower back. I am not satisfied that anything other than soft tissue injuries were occasioned by the accident. Even after taking into account the defendant’s written submissions, I prefer Dr Vasili’s report to Dr Machart’s report in relation to the plaintiff’s hip and knee as the latter had incomplete material and the former’s report is much later. I find the plaintiff’s pain in the knee and right hip is continuing. There is no indication of the need for surgery.”
Dicker DCJ entered a verdict for the defendant and Mr Khanna was ordered to pay the defendant’s costs. Mr Khanna appealed. The Court of Appeal hearing in relation to the fall at Masters occurred on 9 June 2022 and judgment was given on 14 June 2022. Leave to appeal was refused. The claimant again appeared without legal representation. The claimant was ordered to pay the costs of the defendant/respondent of the Appeal.
The insurer provided a copy of a Court of Appeal decision in the matter of Khanna v Bond Realty Pty Limited[39] which appears to be a matter involving the claimant and his wife against two defendants concerning what appears to be a tenancy matter. The judgment of the court identifies a number of interlocutory proceedings, motions and the like in those proceedings. It is not clear to the Panel what the relevance is of these documents other than to suggest that in 2017, 2018 and 2019 the claimant was involved in a significant piece of litigation including Mr Khanna’s appeal to the Court of Appeal without legal representation.

Treatment records

[39] [2019] NSWCA 128.

Westmead Hospital

Mr Khanna has provided photographs of him lying in a hospital bed and two photographs of a paper towel or tissue with what looks like blood on it.[40] Mr Khanna says[41] all of these photographs were taken on 17 Augusts 2016.
[40] The photographs of Mr Khanna in the hospital bed are found at A9, A10 and A11 of his bundle of documents and the photograph of blood on the tissue is found at A12 and A13.
[41] At point 15.2(1b) of his final response document.
The discharge summary from Westmead Hospital[42] following the car accident notes the claimant was admitted on 17 August 2016 and discharged the next day. Elsewhere in these records are records which suggest the claimant may have attended the hospital at around 7.00pm on 17 August 2016. The claimant presented with chest pain.
[42] Page 3,518 of the insurer’s bundle and page A-4 in the claimant’s bundle.
The claimant reported he was stationary and was hit from behind at about 50kmph. He was wearing a seatbelt and the airbags did not deploy. The hospital records Mr Khanna went home after the accident, but he has had chest pain ever since the accident, which was worse on deep inspiration, but he was not short of breath. He reported neck pain but there was no weakness or sensory deficits recorded in the upper or lower limbs.
The claimant was examined and there was tenderness in the cervical spine, chest wall and left lower chest and in the thoracic and lumbar spine. There was abdominal epigastric tenderness but no guarding or rigidity.
The conclusion by the attending medical officer was that the claimant had sustained a seatbelt injury to the chest. Mr Khanna was discharged home on 18 August 2016 advised to take ibuprofen or paracetamol and follow up with his GP the next day.
On 28 August 2016, Mr Khanna attended Westmead Hospital[43] and was discharged the next day. The claimant had complained of chest pain since the car accident, intermittent headache and facial pain, particularly the left temple. “yesterday, he had an episode of haemoptysis / haematemesis, where a ‘chunk’ of fresh blood came from his mouth. He also had some blood-streaked mucus from the sinuses”. He was advised to follow up with his GP, cardiologist and gastroenterologist.
[43] The discharge summary is found at page A-16 of the claimant’s bundle.
The claimant attended Westmead Hospital on 18 August 2017 and was discharged later that day.[44] The discharge letter says that the claimant had presented with chest pain which began while at home and lasted 3-4 hours overnight. The claimant was noted as being a 55 year old male with high risk typical chest pain upon a background of ischaemic heart disease. The claimant was investigated with an ECG and blood tests which were normal. The impression recorded by the medical officer was of unstable angina and Professor Kovoor’s team were advised and the claimant was discharged home with Mr Khanna to be seen by Professor Kovoor for a coronary angiogram and his medications were reviewed.
[44] The discharge summary is found at page A-20 of the claimant’s bundle.
The claimant attended Westmead Hospital for an angiogram undertaken on 28 November 2017. The report notes the previous left descending artery (LAD) stent was patent, but that a re-stenosed right coronary artery (RCA) stent “was successfully ballooned and re-stented with a drug-eluding stent”. The claimant was discharged the next day.[45]
[45] The discharge summary is found at page A-25 of the claimant’s bundle.

He referred to the claimant’s “fairly large amounts of insulin”. The claimant weighed 81.5kg and exhibited significant peripheral neuropathy as well as reduced peripheral perfusion. r Boyages altered the claimant’s medication and requested Mr Khanna return to see him in four weeks after blood tests and more intensive blood sugar monitoring.
On 11 June 2021, Dr Boyages again wrote to Dr Rahmanamlashi[122] recommending a variation to the medication regime and introducing dulaglutide which works as an insulin sensitiser, reduces appetite, improves insulin sensitivity, protects the kidneys and heart.
[122] The additional Rouse Hill bundle page 967.

Renal physicians

Dr Wavamunno, renal physician wrote to Dr Rahmanamlashi on 11 July 2022[123] saying the claimant was complaining of continued pain on both lower limbs and breathlessness on minimal exertion. He expressed the view “I think a significant component of these symptoms could be his anxiety disorder”. His kidney function was further impaired which could have been caused by the residual effects of the contrast dye used for the cardiac procedure and the vascular procedure.
[123] The additional Rouse Hill bundle page 1,038.
Dr Komala, nephrologist wrote to Dr Rahmanamlashi on 11 January 2023.[124] He notes a “significant history of diabetes going over the last 30 years with diabetic retinopathy and diabetic peripheral neuropathy”. Dr Komala also notes ischaemic heart disease, chronic kidney disease. There was reported significant stress associated with his medical problems but Mr Khanna was “getting on top of this”. He reported significant pain in his lower limbs. He considered the claimant’s renal dysfunction to be due to diabetic nephropathy. Further tests were ordered and a review scheduled.
[124] The additional Rouse Hill bundle page 1,066.
Dr Komala saw the claimant again on 15 March 2023.[125] He notes the claimant had recently been admitted to hospital with heart failure and hyperkalaemia (high levels of potassium). The claimant reported feeling reasonably well and his kidney function was stable. The claimant is to be reviewed in six months’ time.

Diabetes complications

[125] The additional Rouse Hill bundle page 1,074

Peripheral neuropathy and neurologist

Dr Daly, vascular and endovascular surgeon wrote to the GP and Dr Wavamunno after seeing the claimant on 6 September 2021[126] as the claimant had stenosis in his right popliteal artery which required angioplasty. The claimant was prescribed Lyrica but Dr Daly wished to check that in the light of his kidney function whether this was appropriate.
[126] The additional Rouse Hill bundle page 980.
Dr Daly wrote again to the claimant’s GP on 16 November 2021[127] noting that the claimant’s pain in his lower leg may be due to blockages in his popliteal artery which is likely to be relieved by angioplasty but that if he has peripheral neuropathy relevant to his previous back injury this will not be improved.
[127] The additional Rouse Hill bundle page 993.
Dr Daly’s final letter of 20 July 2022[128] noted the claimant’s mobility had improved but he continued to have bilateral painful peripheral neuropathy which may have been a legacy of the diabetes. He simply planned to review the claimant in a year’s time.
[128] The additional Rouse Hill bundle page 1,050 and page D-159 of the claimant’s bundle.
The claimant was seen by Dr Mark Malouf, surgeon on 7 October 2022 for what appears to be an alternative opinion to that of Dr Daly.[129] Dr Malouf confirmed the arterial treatment has worked well but that the claimant was still “terribly disabled” from his peripheral neuropathy. He suggested a referral to a neurologist.
[129] The additional Rouse Hill bundle pages 1,052 and D-166 in the claimant’s bundle.
Mr Khanna was seen by Dr Vucic neurologist on 17 February 2023.[130] The claimant reported first developing symptoms in 2017 such as cramps in his calves and feet with numbness and a sensation of walking on rocks. This has spread to his knees and a burning sensation in his feet. The claimant has developed an uneven gait and had recently fallen. He denied any other neurological symptoms.
[130] The additional Rouse Hill bundle pages 1,071 and D-167 in the claimant’s bundle.
Dr Vucic has no history of any of the claimant’s accidents but does have a history of the claimant’s diabetes, heart disease, heart failure, high blood pressure, high cholesterol, GORD, depression and anxiety. He formed the view the claimant had sensorimotor neuropathy secondary to non-insulin dependent diabetes and requested nerve conduction studies, EMG and an MRI of the brain and the whole spine. He prescribed an increase in Lyrica.
Mr Khanna relies on a medical certificate from Dr Nima Rahmanamlashi dated 7 September 2022[131] certifying that Mr Khanna suffers from peripheral neuropathy which is “a permanent complication of advanced diabetes.”
[131] Page D-148 of the claimant’s final bundle.
Mr Khanna says[132] that it is important to note that he takes very high levels of medicine to control his diabetes and that it has been mentioned many times by his doctors that “exercise is very important to control diabetes” and that “aridic centres established in India” may be of benefit to him.
[132] Point 56 of his final response document.

Ophthalmologists

On 25 August 2010, Dr Banerjee of Marsden Eye Specialists wrote to Dr Paw concerning the claimant’s eye health noting he had bilateral retinopathy in the form of microaneurysms. In a further letter dated 7 May 2012,[133] Dr Banerjee reported the claimant’s diabetic retinopathy had increased.
[133] Page 272 of AD8.
There is a report from Dr Paul Mitchell ophthalmologist dated 9 February 2021.[134] He refers to his treatment of the claimant since 2012 when the claimant was first detected with non-proliferative diabetic retinopathy and the development in 2018 of proliferative disease with the requirement for laser treatment to his right eye. The claimant’s retinopathy was stable, and no further treatment was needed.
[134] The additional Rouse Hill bundle pages 946 and D-164 in the claimant’s bundle.
The claimant relies on a report from Dr Paul Mitchell dated 8 April 2022.[135] At the time of writing this report the claimant had blurred vision caused by a fresh vitreous haemorrhage, an injection was given, and further tests were suggested.
[135] The additional Rouse Hill bundle at page 1,032.
In his final response document, the claimant says that his diabetic retinopathy is a manifestation of the worsening of his diabetes.

Orthopaedic injuries

Dr Vasili

Dr Vasili, orthopaedic surgeon, wrote to Dr Rahmanamlashi on 26 August 2019.[136] The claimant reported right lower back and buttock discomfort radiating into his groin which limited his ability to walk to 10 minutes and Mr Khanna reported difficulty putting on his shoes, negotiating stairs and entering a motor vehicle. He says:
“Sanjeev describes a complicated past medical history. In 2009, immediately following trauma where, as a pedestrian he was struck by a truck, Sanjeev suffered two acute cardiac events in quick succession, and he has since then undergone coronary stenting on multiple occasions and is scheduled for bypass surgery on 24 September 2019 at Westmead Hospital.”
[136] The additional Rouse Hill bundle page 881.
The claimant had a mildly antalgic gait, positive Trendelenburg sign, reduction in right hip movements and irritability in the right hip joint. The lower limb neurological assessment reported no deficit. The doctor referred the claimant for MRI scans and the claimant was to return.
Dr Vasili saw the claimant again and reported to Dr Rahmanamlashi on 2 March 2020.[137] He reported on the MRI scans of the lumbar spine. The claimant related his “persistent right hip and knee symptoms to a fall in Masters Hardware on 18 April 2015.” The claimant was advised to have CT guided right hip injections and X-rays of the right knee.
[137] The additional Rouse Hill bundle page 919 and page G-219 of the claimant’s final bundle.
On 23 November 2020, Dr Vasili wrote again to Dr Rahmanamlashi[138] which states “since the fall at Masters Hardware on 18 April 2015, Sanjeev states that he has suffered constant severe lower back pain, moderate right hip pain … painful paraesthesia below the knee bilaterally, and the feeling of walking on cotton wool when mobilizing barefoot.” There were absent reflexes, altered light touch sensation on both feet but no weakness. He was advised to see a neurologist for assessment of peripheral neuropathy.
[138] The additional Rouse Hill bundle page 928.

Physiotherapists

There is a “to whom this may concern” letter dated 28 June 2018 from Ms Wendy Wu physiotherapist. She refers to the claimant’s “complex history of musculoskeletal problems” and that she commenced treating him on 6 April 2018. She has a history of the car accident and recurrent hospital admissions but none of the claimant’s other accidents, falls or conditions. She records complaints of a dull ache to moderate pain across the lower back radiating into the “glutes” and thighs with numbness. Mr Khanna also complained of a dull ache across his neck radiating into his upper back and associated with headaches. He has glenohumeral joint pain and bilateral calf and foot pain with cramping sensations in the calf and foot. She expressed the view he required two treatments a week for 24 weeks as a minimum.
Ms Wu wrote an email to Alan Cooper dated 28 June 2018[139] referring to complex problems secondary to a history of a motor vehicle accident. The claimant had complained of lower back pain radiating into his “glutes” and thighs aggravated by walking or sitting. He also had pain across his neck radiating into the upper back and associated with headaches. He also complained of glenohumeral joint pain and bilateral calf and foot pain.
[139] Page G-223 of the claimant’s bundle.
Ms You of Betta Physiotherapy reported to Dr Rahmanamlashi on 23 December 2019[140] concerning the claimant’s lower back and leg pain. There is no mention of any of the claimant’s accident or injuries.
[140] The additional Rouse Hill bundle page 903.
P360 Performance, a physiotherapy practice, reported to Dr Rahmanamlashi on 18 December 2020[141] noting that the claimant was complaining of pain in both feet and legs “on the background of two motor vehicle accidents and an extensive medical history”. The opinion of the physiotherapist was the pain was secondary to diabetes and that the claimant was an inappropriate candidate for physiotherapy.

Gastroenterologists

[141] The additional Rouse Hill bundle page 941.

Dr Zarghoum and Westmead clinic

Dr Zarghoum a gastroenterologist saw the claimant at the request of Dr Rahmanamlashi on 17 May 2018.[142] The claimant had “new onset iron-deficiency anaemia” with a risk factor for gastrointestinal bleeding due to his Plavix therapy (for cardiac issues). There is also a referral to an accident in 2009 which resulted in “significant disability issues and loss of his job with depression / anxiety”.
[142] The additional Rouse Hill bundle page 858.
Dr Zarghoum noted liver tests suggested an alcoholic liver disease pattern and that the claimant continues to drink. The claimant was said to have “poor diabetic control due to his poor compliance”. He made a number of recommendations but did not appear to seek a further consultation.
The claimant was seen in the gastrointestinal clinic of Westmead Hospital on 8 August 2018.[143] The claimant gave a history of poor energy levels and discomfort with breathing on exertion. Dr Zarghoum had no history of rectal bleeding or dark stools. He required ongoing iron infusions due to anaemia. Blood tests revealed iron deficiency and some renal impairment. He wished to do more tests and noted “significant anxiety and depression” which was impacting on his relationship with his wife and his activities of daily living and that he might need a mental health plan and referral to a psychologist.
[143] The additional Rouse Hill bundle page 863.
On 23 January 2019, Mr Khanna was again seen in the gastrointestinal clinic of Westmead Hospital and the attending doctors wrote to Dr Pang.[144] The claimant had a video capsule endoscopy. The claimant was lethargic but there was no evidence of gastrointestinal bleeding. He was advised to have a further iron infusion. In terms of his liver function tests these were to be monitored by the Liver Clinic.
[144] The additional Rouse Hill bundle page 871.

Dr Gill

Dr Gill, gastroenterologist, hepatologist and advanced endoscopist wrote to Dr Rahmanamlashi on 7 December 2021[145] after seeing the claimant for “further evaluation of deteriorating liver function test”. He reviewed the blood tests noting some evidence of deteriorating liver function and mild chronic kidney disease. The claimant was overweight at 82.2kg he requested a comprehensive liver screen and FibroScan and he was concerned there was right hear failure affecting his liver.
[145] The additional Rouse Hill bundle page 987.
Dr Gill wrote to the claimant’s GP again on 2 February 2022 after the blood tests.[146] He considered the liver screen “essentially unremarkable” but there was evidence of kidney disease and the FibroScan was concerning for cirrhosis, and he was organising a liver biopsy.
[146] The additional Rouse Hill bundle page 997.
Dr Gill’s next letter[147] is dated 22 June 2022 and he was arranging a screening gastroscopy to assess for oesophageal and gastric varices, repeat blood tests and an ultrasound of the liver.
[147] The additional Rouse Hill bundle page 1,036.
The next letter to the GP from Dr Gill is dated 24 February 2022[148] confirms the presence of non-alcoholic cirrhosis of the liver. He notes Mr Khanna will need to have ongoing monitoring and endoscopy.
[148] The additional Rouse Hill bundle page 1,002.
The last letter from Dr Gill is dated 4 January 2023[149] a number of oesophageal varices were noted. The plan was to repeat the gastroscopy procedure in six month’s time and, if Dr Kovoor approved, stopping the claimant’s blood thinners to enable the varices to be banded to prevent the risk of uncontrolled bleeding.
[149] The additional Rouse Hill bundle page 1,063.

Psychiatrist

Dr Pearson psychiatrist provided a letter to Dr Rahmanamlashi dated 6 November 2020.[150] He has a history of the 2009 accident and two myocardial infarctions immediately afterwards. He also had a further injury in “2015” when he was hit from behind by a motor vehicle.
[150] The additional Rouse Hill bundle page 936.
The claimant reported that his mood has deteriorated over the years. He is restricted physically and highly anxious about his physical state. Dr Pearson noted the claimant’s involvement in litigation concerning the third-party claim and an action against Mercedes Benz in relation to the 2009 incident. Dr Pearson thought the claimant was significantly depressed and recommended Pristiq.
Mr Khanna says[151] that the claimant’s mood has deteriorated and worsened after the motor accident of 2016 particularly as his cardiologist has advised there is no further stenting or grafting to be done.
[151] At point 60 of his final response submissions.

Medico-legal reports

Dr John Bentevoglio wrote a report for the claimant’s solicitors dated 30 June 2015 in relation to the 16 May 2014 accident.[152]
[152] Page 2,815 of the insurer’s bundle.
The claimant complained of neck pain present most of the time and dizziness when he moved his neck suddenly. The claimant complained of five or six headaches a week and symptoms radiating down his left arm to three fingers on the ulnar side. He felt his neck pain was worsening
Dr Bentevoglio reports that the claimant had reduced his domestic activities, was walking less because of his injuries, and had given up jogging and table tennis. He diagnosed the claimant with a musculoligamentous strain of the cervical spine aggravating pre-existing degenerative changes in the neck. There was no evidence of any nerve root or compression, but he said this injury was causing ongoing neck pain, headaches and symptoms radiating into the left upper limb.
Dr Machart provided a report to the insurer in the claim following the Masters fall dated 7 April 2019.[153] Mr Khanna gave the doctor a history of the accident in the shop on 18 April 2015 saying that it was 16 March 2016 when the injuries from his fall “had accrued” in that he became aware of pain in other areas including the right knee, lower back, right hip and neck.
[153] Page 2,817 of the insurer’s bundle.
Mr Khanna is reported to have said “he was of the opinion that these additional symptoms were as a result of the injury because that was the only injury he remembered in the past and hence no other cause was identified”.
Dr Machart takes a history of Mr Khanna having ongoing symptoms, could not walk more than 20 steps and could not cut the lawn or wash dishes. The severity of his pain had not eased.
Dr Machart observed the claimant to be limping heavily.
Dr Machart was of the view there was no evidence of substantial or long-lasting injury and a substantial pre-existing history of lumbar and hip pain with another fall and car accident after the event.
The insurer relies on a report from Dr Slezak dated 24 March 2020.[154] This report is a file review and is concerned with the claimant’s life expectancy. Dr Slezak summarises the cardiac history. He also noted that the claimant’s blood pressure appears well controlled although a transthoracic echocardiogram in January 2016 revealed moderate concentric left ventricular hypertrophy.
[154] Page 2,825 of the insurer’s bundle.
Dr Slezak notes the development of the claimant’s diabetes which takes back to 2009 and was treated by oral medication but which since 2012 has been treated with insulin. He notes elevated HbA1c levels of 11.1% in September 2017 and that complications of Mr Khanna’s diabetes include coronary artery disease and diabetic retinopathy.
Dr Slezak notes the claimant has Grade 1 obesity with a BMI of 31.8 as at March 2014.
The claimant was said to be at risk of fatty liver disease but may already have “early hepatic cirrhosis”. His diagnosis with sleep apnoea was also mentioned and Dr Slezak considered confirming whether the claimant was utilising CPAP therapy was important.
Dr Slezak expressed the view that while a man of the claimant’s age might be expected to live a further 26.8 years on the medium life expectancy data from 2019, he only expected the claimant to live a further 8-10 years based on his current health problems.

Radiology

Cervical spine

A CT of the cervical spine was done on 21 April 2015[155] with a history of two months of radicular symptoms radiating to C8. There were multilevel degenerative changes and a broad based disc bulge seen at C5/6 and an MRI was recommended.
[155] Page G-227 of the claimant’s final bundle.
An MRI of the cervical spine dated 25 September 2015[156] was done because of neck pain and pain down the left arm and with suspected radiculopathy. The results were small disco vertebral complex at C4/5, with mild foraminal stenosis and possible C5 nerve root irritation and a CT nerve root block was suggested.
[156] Page G-228 of the claimant’s bundle.
The further MRI of the cervical spine dated 20 December 2018[157] was performed due to neck pain radiating to the left arm. The conclusion was cervical spondylosis and facet arthropathy are present. Left C5 nerve root impingement suspected and left C6 nerve root minimally effaced but no impingement. A CT guided nerve root block was suggested.
[157] Page G-225 of the claimant’s bundle.
At [61] of his final response document, Mr Khanna appears to rely on an extract from an unknown document referring to cervical radiculopathy, pinched nerves and a C5-6 spinal motion segment. As the source of this document has not been identified by Mr Khanna and it does not appear to relate to his particular circumstances, the Panel will not consider it further.

Lumbar spine

A CT scan of the lumbo-sacral spine on 21 September 2013[158] showed disc degeneration L4/5 andL5/S1 with mild canal stenoses, mild bilateral L4/5 and L5/S1 foraminal stenoses.
[158] Page 2,919 of the insurer’s bundle.

Another CT scan of the lumbar spine on 4 April 2018[159] showed multilevel vertebral body and bilateral facet joint osteophyte formation with generalised mild lumbar canal stenosis. There was no definite nerve root compression and a CT guided nerve root block was suggested.
[159] Page G-222 of the claimant’s bundle.
A further CT scan of the lumbar spine was performed on 6 February 2019 due to chronic low back pain. There was early endplate degeneration with a 2mm broad based disc protrusion at L5/S1 with moderate left facet arthropathy but no significant vertebral or neural exit foraminal stenosis.
On 21 May 2021 another CT scan of the lumbar spine[160] showed a small broad based disc bulge at L4/5 with mild central and foraminal stenosis. Mild facet joint arthropathy throughout most marked at L5/S1.
[160] Page G-216 of the claimant’s bundle.
The scan of 1 December 2022 showed mild multilevel degenerative change of the lumbar spine. No suspicious site of lumbar nerve root impingement at any level.
Mr Khanna again appears to provide an extract of a medical document describing the function of the lumbar vertebrae.

Brain

The claimant had an MRI brain on 7 May 2018[161] because of chronic unexplained headache, he was pale anaemic and had visual change. The conclusion was age related changes. No mass effect or acute infarct evidence and no specific cause was evident for the headaches.
[161] The additional Rouse Hill bundle page 123.
An MRI of the claimant’s brain was undertaken on 11 December 2020[162] again for unexplained chronic headaches and uncontrolled diabetes. There were chronic microvascular ischaemic changes said to be stable since 7 May 2018 “there are generalised volume loss … which appear slightly prominent for patient’s age”.
[162] The additional Rouse Hill bundle page 200.
A further MRI of the brain was done on 1 December 2022[163] due to unexplained chronic headaches. No comparison was made with the previous studies but there were similar findings, “probably chronic microvascular ischaemic change” and no other features which might explain the headaches.
[163] The additional Rouse Hill bundle page 263.

Chest

An X-ray of the claimant’s chest and an X-ray of his sternum were performed at Westmead Hospital at 9.30pm on the night of the accident and revealed no evidence of rib or sternal fractures.[164]
[164] Page 3520 of the insurer’s bundle.
An X-ray of the claimant’s chest was undertaken on 5 November 2019 showing previous coronary artery bypass graft surgery and a left-sided pleural effusion with left basal collapse / consolidation.

Other

On 24 September 2010, Dr Paw requested an X-ray of the claimant’s cervical spine and an ultrasound of his right shoulder.[165] The findings in the right shoulder were early signs of adhesive capsulitis, supraspinatus tendinosis and thickened bursa and with abduction it was reported there was bunching and pain at 80 degrees.
[165] Page 2930 of the insurer’s bundle.
A right shoulder ultrasound on 6 February 2019[166] showed mild subacromial bursal thickening but no significant findings in the acromioclavicular or glenohumeral joint.
[166] The additional Rouse Hill bundle page 872.
X-rays of the claimant’s pelvis, right hip and right knee were done on 2 April 2019 due to a clinical history of osteoarthritis.[167] There was said to be mild osteoarthritis in the right and left hip joints. Sacroiliac joints were normal but there was mild to moderate lower lumbar spondylitic change. Also X-rayed was his right knee where there was spurring at the quadriceps insertion on the superior patella pole.
[167] Page G-220 of the claimant’s bundle.
An ultrasound of the claimant’s feet on 15 June 2021 showed degenerative osteoarthritic changes throughout the metatarsophalangeal (MPT) joints in both feet. Plantar plate tears at third and fourth MPT joints in both feet and bursitis overlying the fourth and fifth metatarsal head.

Medication

In his final response document,[168] Mr Khanna has provided a list of his current daily medications which are set out below:
[168] Point 68.2.
(a)   Ldactone tablet 25mg;
(b)   Amlodipine tablet 10mg;
(c)   Cartia EC tablet (Aspirin) 100mg;
(d)   Imdur SR tablet (lsosorbide mononitrate) 60mg;
(e)   Metformin Sandoz tablet 1000mg;
(f)    Metformin AN tablet 1000mg 1bd;
(g)   Spiriva capsule (Tiotropium) 18mcg;
(h)   Spiriva handihaler device;
(i)    Ventolin Inhaler 100mcg/dose;
(j)    Finobetrate – 1OD;
(k)   Lyrica 25 mg – 1BD (Now 1TDS);
(l)    Clopidogrel (antiplatelet medicine);
(m)     APO Meloxicam – 1 daily;
(n)   Diazepam 5 mg – 1BD;
(o)   Trulicity 1 injection/week;
(p)   Jardiance tablet;
(q)   Insulin aspart;
(r)    Novorapid flexipen injection 100 units/ml 30u tds;
(s)   Optisulin solostar flexpen injection 100 units/ml 10u in morning 44u evening, and
(t)    Frusemide 40mg 1 in the morning 1 in the afternoon.
In addition, Mr Khanna says he takes the following non pharmaceutical benefit scheme medication every day:
(a)   Transiderm-nitro patch 10mg/one patch every day;
(b)   Trans (Glyceryl trinitrate) (50mg);
(c)   Vitamin D – 1bd;
(d)   Magnesium – 1 bd, and
(e)   Nervoderm Lignocaine – one patch daily to both feet.
Mr Khanna says he also has regular physiotherapy paid for privately on his legs and feet which he has had twice a week for three years and that further physiotherapy is required. Mr Khanna says he sees a podiatrist and needs continuous visits.

ANNEXURE B – RE-EXAMINATION FINDINGS

General

The assessment occurred at the Commission’s rooms on 19 April 2023.
Mr Khanna attended in the presence of his wife Geeta who he described as his support person.
While he sometimes relied on his wife for additional detail or confirmation of a date, in general Mr Khanna’s memory of the accident and his treatment after the accident appeared to be accurate.
Mr Khanna was pleasant and co-operative throughout the examination however he did appear to be agitated at times during the course of the examination. His blood pressure was measured at 175/85 (high) and 191/84 (critically high). As a result of these readings, the examining members of the Panel determined that the examination should be modified and that, for example, the inconsistencies apparent in the history given (when compared to the documents) should not be put to him.

History

The history is comprised of the significant and relevant facts ascertained from the original medical assessments supplemented by a history given by Mr Khanna at the medical examination.

Pre-accident medical history and relevant personal details

Mr Khanna is 61 years of age and lives with his wife. He has two adult children who live elsewhere aged 30 and 35 years.
He was born in India and came to Australia in 1995. He had a business importing and exporting prior to his myocardial infarction (heart attack) in 2009.
Mr Khanna was diagnosed with diabetes mellitus in 1999 and Mr Khanna said that for many years he was treated with a diabetic diet and Metformin tablets. He commenced insulin therapy around 2011 and was taking Insulin Aspart, Insulin Glargine and Metformin tablets at the time of the accident.
Mr Khanna said that between 2011 and 2016, before the accident, his diabetes was well controlled with his fingertip blood glucose levels (BGLs) being less than 7 mmol/L before breakfast, around 9 to 10 before lunch, and around 9 to 10 before bed.
Mr Khanna said he has been in receipt of a Disability Support Pension since approximately 2013 because of his ischaemic heart disease and depression.
Mr Khanna says he is currently a non-smoker.
There have been multiple cardiac procedures reported by Mr Khanna including multiple stents details of which are included in the documentation.
There is a history of motor vehicle crashes reported in 2006, 2009, 2013 and 2014.
Mr Khanna said that each of these were minor and did not cause him any long-term problems, but he did concede having intermittent neck pain as a result of these accidents. Mr Khanna also accepted he had some shoulder pain before the accident.
The records also suggest Mr Khanna had a fall in 2015 and an assault in 2019. These incidents were not put to the claimant due to the Medical Assessor’s concern about his blood pressure. The fall at the Masters Home Improvement Centre has been well documented and the assault does not appear to have caused significant ongoing issues for him.
In addition to his cardiac disease, Mr Khanna has had recurrent gastrointestinal bleeding, iron deficiency anaemia, non-alcoholic cirrhosis with varices and obstructive sleep apnoea. Mr Khanna has been prescribed blood thinners due to his cardiac condition and admitted to having occasional nose bleeds before the accident.

History of the motor accident

Mr Khanna says he was involved in a motor vehicle accident on 17 August 2016.
He was stationary when he was rear-ended at approximately 50kmph by another vehicle. He was wearing a seatbelt, his airbags were not deployed, and there was no loss of consciousness.
Mr Khanna recalled he hit his head on the steering wheel and his neck was painful.
Mr Khanna said he drove his car home. Police and ambulance did not attend, and
Mr Khanna reported the accident to the police later.

History of symptoms and treatment following the motor accident

Mr Khanna says he initially went home after the accident but because he was experiencing chest pain, he went to Westmead Hospital later in the day reporting pain in the centre of his chest which worsened with breathing but was not associated with shortness of breath. Mr Khanna also said after the accident he had been bleeding from his mouth or nose (he was unclear which) and his wife drove him to Westmead Hospital where he was admitted.
Mr Khanna had a chest X-ray at hospital which revealed no sternal fracture.
Mr Khanna’s serial cardiac troponins were not elevated which the Medical Assessors note suggests there was no recent myocardial infraction or other acute cardiac event and there was no evidence of ischemia on an electrocardiogram (ECG) undertaken.
His gamma GT was elevated at 660 with mildly elevated ALT and AST with a very high blood sugar level.
He was appraised as having “seatbelt trauma” with no apparent fracture and was discharged home the next day and advised to take analgesics.
Mr Khanna says he saw Professor Kovoor (the Panel notes on 19 September 2016) who examined him and confirmed he had sustained trauma to the chest. The Panel notes Professor Kovoor found local tenderness over the anterior aspect of the chest suggestive of rib trauma. An ECG was undertaken which was normal and there were no other cardiovascular abnormalities noted by Professor Kovoor at the time.
According to the records, at the time of his motor accident, Mr Khanna was taking aspirin 100mg daily, Perindopril/Amlodipine 10/10mg daily, Frusemide 40mg daily, Isosorbide mononitrate 60mg daily, Clopidogrel 75mg daily, Simvastatin/Ezetimibe 80/10mg daily, Insulin as well as Duloxetine 60mg daily, Metformin 1000mg daily, Lyrica 75mg daily and Nexium 40mg daily.
Mr Khanna said he had ongoing symptoms of “whiplash”, but he said he could not afford to go to specialists to seek treatment for it. He said it was also the time of the COVID-19 pandemic and he only had one physiotherapy assessment which he said occurred in 2020. The Panel notes that Mr Khanna was referred to the period of 2016 and 2017 and that the pandemic commenced in 2020.
Following the accident in August 2016, Mr Khanna says that his fasting BGLs were around 12 to 13 mmol/L and later in the day around 15 to 25. He saw his endocrinologist around 2018 (he could not be more specific) and his insulin dose was increased, Sitagliptin was added, and later Trulicity (one injection per week) was also added. He states that currently his fasting BGLs are around 10 to 11 mmol/L, before lunch around 16 to 17, and before bed around 16 to 17.
Mr Khanna stated that two to three months after the motor vehicle accident, he developed increasing frequency and severity of anginal episodes which he says he reported to his GP, and which became particularly severe and was investigated by an angiogram in November 2017 and required stenting procedures.
Mr Khanna required coronary artery bypass grafting on 13 September 2019. His recovery was complicated by recurrent pleural and pericardial effusions requiring drainage and multiple hospital admissions.
Mr Khanna has had vascular surgery in 2021 on his right leg for claudication.

Current symptoms

Mr Khanna reported multiple symptoms. He gets short of breath even walking from the bedroom to the kitchen. The shortness of breath mainly limits his ability to walk but he also gets some chest pain on exertion as well, in the centre of his chest as well as the left side. Mr Khanna reported unstable blood pressure. He uses Anginine tablets and sprays to relieve these symptoms.
Mr Khanna also complains of peripheral neuropathy in his legs and feet. He has pain in the legs and feet both on walking and whilst in bed, and he is treated with Lyrica for this. He gets leg and feet symptoms after only 10 steps and is unsteady on his feet because of the neuropathy. He has poor sleep and wakes with foot and leg pain.
Mr Khanna said that his diabetic control is variable.
Mr Khanna told Medical Assessor Cameron that his right shoulder injury and pain had resolved. Mr Khanna said he still has symptoms of pain and loss of movement.
Mr Khanna did not report any left shoulder injury or pain in his history.
Mr Khanna says that he currently weighs 4 kg more than he did at the time of the accident because his physical activity has been significantly reduced since the accident. He says before August 2016 he was walking his dog for about half an hour per day on most days of the week, but he is unable to do this currently.
Mr Khanna reports he does not have motivation for anything. He is depressed that he cannot exercise and that his diabetes is poorly controlled and that his quality of life was poor.
He said he gets head pain and dizziness when moving associated with fear of falling.
He recalled as well on 1 March 2023 he woke with shortness of breath – he took his Nitrolingual spray on that occasion.
Mr Khanna said that there have been nose bleeds since the accident that were continuing, and he said there was neck pain on occasions.
He said that he is “forgetful”, sometimes “confused”, “frustrated” and “agitated”. He said he has needed help from his wife, daughter, son and friends to complete the extensive paperwork for this matter he said. He said that he did less than half the typing required for the submissions.

Current and proposed treatment

For his diabetes, Mr Khanna says he takes Novorapid insulin 30 units tds, Lantus insulin 20 units bd, Trulicity 1 injection/week, Jardiance tabs and Metformin 2g at night.
His cardiac medications include Fenofibrate, magnesium, Nicorandil, hydrochlorothiazide, Metoprolol, Coveram and Spiractin.
He is on Mirtazapine an antidepressant and Pristiq.
For his diabetic neuropathy he takes Lyrica 150mg at night and he takes diazepam every night for sleep.
He says Professor Kovoor has said there is nothing more that can be done for him other than medication.

Clinical examination

General presentation

Mr Khanna was a gentleman of stated age with a height of 164cm and weight of 81.3kg. He told the examiners that his weight has varied over time and that he has put on 4 kg since the accident.
Mr Khanna walked slowly.

Cardiovascular

As stated earlier, Mr Khanna’s blood pressure was 175/85 and 191/84 when measured twice. His pulse rate was 61 beats per minute.
His cardiovascular examination was normal with no evidence of mitral or tricuspid regurgitation and no gallop rhythm. His lung fields were clear. There was no peripheral oedema observed and therefore no signs of cardiac failure.

Cervical spine

At the cervical spine there was reduced range of motion in all planes to two thirds normal, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present.
There were no neurological abnormalities in the upper extremities. Power, sensation and reflexes in the upper limbs were normal. There was no evidence of muscle atrophy or wasting.

Upper extremities

At both shoulders there were inconsistent movements that Mr Khanna said, when it was brought to his attention, was due to variable pain in the trapezii.
The right shoulder was more restricted than the left for example he could only reach his buttock on the right but could reach to the lumbar spine on the left.
Mr Khanna appeared able to move his shoulders to a greater extent on informal examination, for example when taking off his shirt for the cardiac examination and putting it on again.
The maximum ranges of motion measured by the goniometer of the three measurements obtained are outlined below.

Shoulder Movements Active ROM Measured RIGHT Active ROM Measured LEFT

Flexion 110° 160°

Extension 30° 40°

Adduction 30° 40°

Abduction 80° 90°

Internal Rotation 60° 40°

External Rotation 70° 80°

There was a full range of motion at the other upper extremity joints (hands, wrists and elbows) on both sides.

Chest

There were no signs or abnormalities related to the right clavicle or chest. There was a central chest scar consistent with a thoracotomy for coronary artery bypass grafting.

Lumbar spine

At the lumbar spine there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present.
Sciatic nerve root tension signs were negative. There was no muscle atrophy or wasting in the lower limbs.
All reflexes were present and normal in the lower limbs. There was a sensory loss in both feet consistent with peripheral neuropathy but not indicative of lumbar nerve root compression.
Mr Khanna walked with a wide based gait. Romberg’s test was positive. He could not walk heel to toe and was clearly unsteady on his feet when attempting to do so.

Lower extremities

There was a full range of motion at both knees. There was no crepitus or instability. There was a full range of motion at other lower extremity joints.

Comments on consistency

Mr Khanna was pleasant and cooperative.
During the formal clinical examination, the ranges of movement in his shoulders were not as great as observed when performing other activities during the consultation. Due to the claimant’s extremely high blood pressure and the Medical Assessors’ concern about his health these inconsistencies during the examination were not able to be put to the claimant.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110°	160°
Extension	30°	40°
Adduction	30°	40°
Abduction	80°	90°
Internal Rotation	60°	40°
External Rotation	70°	80°

[2023] NSWPICMP 294

22 June 2023