Khanna v Insurance Australia Limited t/as NRMA Insurance (No 3 and No 4)

DETERMINATION OF REVIEW PANEL
CITATION:	Khanna v Insurance Australia Limited t/as NRMA Insurance (No 3 and No 4) [2023] NSWPICMP 302
CLAIMANT:	Sanjeev Khanna
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Richard Haber
DATE OF DECISION:	30 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment and care (3) and whole person impairment (4) by Medical Assessor (MA) Herman and claimant’s review under section 63; claimant injured in rear end car accident on 17 August 2016; MA found no cardiac injuries caused by the accident and therefore none of the claimant’s extensive post-accident cardiac treatment was related to the accident and there was 0% whole person impairment (WPI); significant issue of causation; claimant had heart attack in 2009 after first car accident; claimant had multiple stents and cardiac therapy thereafter; claimant sustained chest injury in car accident and alleged chest injury caused re-stenosis or other damage to his heart leading to further angioplasty and open-heart surgery and subsequent deterioration of his cardiac and general health; Held –  claimant self-represented and provided no medico-legal nor treatment medical evidence linking his car accident with any of his post-accident cardiac treatment; Panel adopted evidence review of 5,000 pages of document including his treating cardiologist’s multiple letters to the GP and blood pressure readings before and after the accident; Panel satisfied claimant injured his chest in the accident but not satisfied his cardiac stents were damaged in the accident or that re-stenosis occurred because of the accident; Panel not satisfied hypertension caused by the accident; Panel not satisfied that the claimant’s cardiac condition which had worsened after the accident, was worsened because of the accident; Certificates of MA confirmed; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. In proceedings number R-M10538234/22, the Review Panel confirms the certificate of Medical Assessor Herman dated 1 August 2022 in respect of the treatment and care medical assessment matters. 2. In proceedings number R-M10538163/22 the Review Panel confirms the certificate of Medical Assessor Carter dated 1 August 2022 in relation to the whole person impairment medical assessment matter.

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 Herman was referred disputes about WPI and treatment relevant to the claimant’s cardiac condition. On 1 August 2022, Medical Assessor Herman determined that Mr Khanna did not sustain any cardiac injury in the accident on

17 August 2016, that he did not have a WPI of greater than 10% and that none of

Mr Khanna’s treatment needs were caused by the accident and related to the alleged cardiac injury. The claimant lodged two applications with the Commission seeking a review of the Medical Assessor’s decisions about WPI and treatment.
On 18 November 2022, a delegate of the President determined both applications for review in a single document. She found there was reasonable cause to suspect a material error in the assessments of both medical assessment matters undertaken by Medical Assessor Herman and has allowed the Review.
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 Herman.

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% 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 and s 44(1)(c) 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 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 then 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, further medical assessments 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 for 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.

ASSESSMENT UNDER REVIEW

Medical Assessor Herman issued one document comprising:
(a)   a certificate in respect of the WPI dispute (assessment of permanent impairment not required);
(b)   two certificates in respect of the treatment dispute (no treatment disputed relates to the injuries caused by the accident and none of the treatment disputed is reasonable and necessary in the circumstances), and
(c)   a single statement of reasons explaining his decisions.
The specific types of treatment in dispute were:
(a)   “over the counter” medication listed as Aspirin, Clopidogrel, Isosrbide mononitrate, Nicorandil, ferrous sulphate, Panadol, hydrochlorothiazide, metroprolol, perindopril/amlodipine, oxycondone, spironolactone, endone, ezetimibe, nitrliguinal spray, frusomide 0 – 30 tables per month in the past and into the future for 0 – 15 years;
(b)   prescription medication which includes the same list 0 – 30 tablets per month in the past and into the future for 0 – 15 years;
(c)   whether the 7 November 2019 readmission to hospital was related to the injuries sustained in the accident and reasonable and necessary;
(d)   whether 0 – 6 cardiology consultations for the next 0 – 15 years is causally related to the injury sustained in the accident and reasonable and necessary in the circumstances;
(e)   whether the claimant’s readmission to hospital on 6 October 2019 is related to the accident caused injuries and reasonable and necessary;
(f)    whether the claimant’s readmission to hospital on 25 September 2019 is related to the accident caused injuries and reasonable and necessary;
(g)   whether the claimant’s readmission to hospital on 1 September 2019 is related to the accident caused injuries and reasonable and necessary;
(h)   whether the claimant’s readmission to hospital on 27 November 2019 is related to the accident caused injuries and reasonable and necessary;
(i)    whether the claimant’s readmission to hospital on 13 September 2018 is related to the accident caused injuries and reasonable and necessary, and
(j)    whether the claimant’s readmission to hospital on 28 January 2017 is related to the accident caused injuries and reasonable and necessary.
The claimant lodged separate applications for review with each of the applications being the subject of separate review proceedings.
Medical Assessor Herman recorded at [7] the claimant’s “extensive past cardiac history” as follows:
(a)   a heart attack in December 2009 treated with angioplasty of the blocked right coronary artery (RCA);
(b)   stenting in December 2011 of the left anterior descending artery (LAD) due to “unstable angina”;
(c)   stenting in January 2012 for a chronic total blockage of the right coronary artery (RCA);
(d)   stenting of the proximal RCA and further stenting in November 2013 to the distal RCA;
(e)   the Medical Assessor notes the claimant’s coronary artery disease was “extremely premature and aggressive” occurring on a background of type 2 diabetes, previous smoking, high cholesterol and family history, and
(f)    he has been “very unstable” with recurrent episodes of unstable angina requiring multiple hospital admissions and by 2014 the claimant had 13 coronary stents.
The claimant described the accident as a rear end collision occurring at 50 kmph. The airbags of the claimant’s car did not deploy, he was wearing a seatbelt and was not knocked out.
The claimant says he went home but due to persistent chest pain attended Westmead Hospital the next day with chest pain worsening with deep breaths. An X-ray revealed no sternal fracture, blood tests showed no evidence of recent infarction, and an ECG revealed no signs of ischaemia. His gamma GT (test for liver damage) was elevated, and he had a very high blood sugar level. He was reported to have sustained a seatbelt trauma and discharged home.
The claimant was then seen by Professor Kovoor on 19 September 2016.
The claimant told Medical Assessor Herman that two or three months after the accident the frequency and severity of the anginal episodes increased and became particularly severe after 2017 and the claimant went on to have coronary artery bypass grafting on 13 September 2019. The claimant did not recover well developing pleural and pericardial effusions requiring drainage.
The claimant reported two or three episodes of angina every fortnight, difficulty walking more than 20m but denied shortness of breath or paroxysmal nocturnal dyspnoea (PND), palpitations or syncope.
Medical Assessor Herman noted the claimant had not been hospitalised for six months but had new medications including Fenofibrate, magnesium, Nicorandil, Hydrochlorothiazide, Metoprolol and Spiracin.
Medical Assessor Herman noted the claimant was on “maximal medical therapy” for his coronary artery disease and that no further [surgical] intervention would be viable, and that ongoing therapy involves modifying risks and symptomatic control of the episodes of angina.
On examination the claimant weighted 81.8 kg and was measured at 165cm tall.
Medical Assessor Herman undertook an ECG showing the claimant’s heart was in sinus rhythm with an old infarct and otherwise there was a normal cardiovascular examination.
Medical Assessor Herman found there was no cardiac injury caused by the motor accident on the basis that all cardiac pathology was pre-existent. He was of the view that Mr Khanna had musculoskeletal chest pain which he did not assess because it was outside his expertise. He found none of the treatment was related to the injuries or reasonable and necessary.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant lodged submissions in support of all his applications (dated 1 October 2022) which says that the Medical Assessor:
(a)   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 AMA 4 Guides and Motor Accident Guidelines.
A document dated 12 November 2022 and numbered AD1 has been filed in both the WPI dispute and treatment disputes related to the assessment by Medical Assessor Herman. While entitled “Application for Review of Permanent Impairment Dispute” it includes submissions relevant to both disputes.
The claimant notes that the Medical Assessor was asked to assess cardiothoracic injury and hypertension [2.1]. The claimant seems to submit at [2.2] and [2.3] that the Medical Assessor did not consider certain material or explain his reasons.
The claimant details at [2.4] – [2.6] what he says occurred to his cardiac health after the accident (catheterisation in 2017 and angioplasty) and that “open heart surgery which is self-explanatory of being WPI”.
The claimant says at [4.1] that the motor accident caused an acute cardiac injury and relies on the report from Professor Kovoor. He says at D6 that he has a WPI of 7%.
The claimant says at point G that all of his treatments after the accident are related to the accident and are reasonable and necessary.
Mr Khanna has also provided submissions in respect of both Medical Assessor Herman’s assessments in his letter to the Commission dated 16 April 2023.[5] In this letter he identifies submissions common to all of his matters (at pages 1 – 8) and says:
[5] 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)   on 28 November 2017 Mr Khanna says “Dr Kovoor found that there was damage to the previous cardiac stenting which was operated on and re-stented with three (3) new cardiac stents inserted” [20] and [22];
(d)   on 1 March 2022, Professor Kovoor “clearly states to the claimant is ‘whole person impairment’ WPI being the heart is the most important organ of the body”;
(e)   the claimant continues suffering from shortness of breath and he remains with aggravation of diabetes [38];
(f)    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];
(g)   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];
(h)
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];
(i)    the claimant takes Spiriva capsule (tiotropium) for better lung function [47], and
(j) 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 10 of his final bundle, Mr Khanna has provided further specific submissions in relation to Medical Assessor Herman’s assessments and says that “due to the motor vehicle accident with belt trauma to the anterior aspect of the chest damaging the previous cardiac stent which was ballooned inserting three new cardiac stents in the year 2017” he has had subsequent cardiac procedures and developed further medical conditions which has increased his mental health issues and caused shortness of breath aggravating his diabetes.
At page 11 of his final bundle, Mr Khanna says that he is “suffering from WPI” and relies on the letter and relies on the letter of Professor Kovoor dated 1 March 2022 which says that no stenting or grafting can be performed on his heart, and he has to “manage his suffering on his own”. He says his heart is permanently impaired and is more than 10%.

Insurer’s submissions

The insurer says at [10] summarises the errors identified by the claimant and says at [13] that the Medical Assessor provided a full and detailed summary of the material he considered, and the claimant has not identified with any specificity what material the Medical Assessor has not considered.
The insurer says at [18] the claimant has not provided any example of a breach of procedural fairness.
The insurer submits at [20] that the Medical Assessor has provided clear and detailed reasoning.
At [26], the insurer says the claimant has not provided any reasoning or evidence to identify which part of the Guides or Guidelines have not been adhered to.
The insurer says that the claimant has not demonstrated any errors but has:
“Simply provided a list of ‘errors’ generally, as applicable to three different decisions concurrently, without analysis or evidence as to how those ‘errors’ in fact arise in those separate decisions. It is also observed that the claimant’s submissions appear to mirror those utilised by the insurer’s representatives in dispute (R-M10505234/22).”

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 and his cardiac issues and his 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.
The Panels determined that 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, it was decided that it was not necessary for Medical Assessor Gibson to be present at the examination.
A preliminary teleconference was held on 11 May 2023 after the re-examination. All members of the Panels decided that it would be appropriate, to ensure procedural fairness to Mr Khanna that he be provided with an opportunity to consider the evidence the Panel considered was relevant to the decisions the Panels had to make.
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 in the evidence review that should be included.
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” Mr Khanna includes a number of submissions 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:[6]
[6] 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 Medical 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 LAD which was re-stented [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 re-stenting 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[7] comprising 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.
[7] 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.[8]
[8] 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.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[9] said at [63]:
[9] [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. 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[10].
[10] 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[11].
[11] A reference in these reasons to a paragraph in that document will be expressed as “annexure B-123”.

CONSIDERATION OF THE ISSUES

General matters

Mr Khanna asserts in his first submissions that he injured his chest in the accident and that this caused damage to one of his cardiac stents which was repaired in an operation on 28 November 2017. The claimant says that since then, he has developed worsening symptoms including shortness of breath and angina, and multiple complications from this cardiac procedure and a need for other cardiac procedures and surgery in 2019 which has led to increasing depression and worsening of his diabetes.
In his final response document, Mr Khanna also appears to be arguing that his right coronary artery re-stenosed because of the accident and had to be ballooned and re-stented as a result.
The claimant appears to be submitting that everything that has happened to his cardiac health since the accident has occurred because of the accident and in particular because of his chest injury which caused damage to one of his stents.
The Panel notes the claimant does not rely on any medico-legal opinion to support this submission and despite the many reports and letters from Professor Kovoor and other cardiologists, not one of the doctors who has treated the claimant has provided a report that relates the claimant’s current presentation to the injuries he sustained in the car accident.
The Panel notes that Mr Khanna blames his original heart problems on the 2009 accident, and he told the Court in his claim against Masters that his April 2015 fall was responsible for the cardiac events after that including the 2017 and 2019 procedures. Mr Khanna now tells this Panel that it is the car accident of 2016 that has caused his cardiac condition to deteriorate.
The Panel notes that no-one, other that Mr Khanna have expressed the opinion that Mr Khanna’s accident-related injuries caused the re-stenosis of his right coronary artery, damage to a stent and the need for re-stenting and further surgery.

Did Mr Khanna injure his chest in the accident?

The Panel notes that on the day after the accident, the claimant was assessed in Emergency at Westmead Hospital (annexure A-30) and by Professor Kovoor his cardiologist on 19 September 2016 (annexure A-73). The hospital examiners were of the view the claimant’s chest discomfort was from seatbelt trauma.
Professor Kovoor’s thorough report of 19 September 2016 (annexure A-73) did not find any cardiac implications and considered the claimant may have sustained trauma to his ribs in the accident.
The Panel is satisfied that the claimant did sustain an injury to his chest in the accident caused by the retraction of the seatbelt as the claimant moved forward in his seat after his car had been hit from behind.

Did Mr Khanna damage a stent in the accident?

The claimant relies on documents from his bundle[12] in support of his submissions that the claimant’s stent was damaged and repaired by Professor Kovoor on 28 November 2017. The Westmead Hospital discharge summary to Dr Pang states that the elective angiogram was successful with a previous LAD stent patent and a stenosed RCA stent which was re-stented. At (claimant’s bundle A27) is further detail of the successful ballooning and re-stenting. At (claimant’s bundle A39) is a single page of a report from Professor Kovoor to Dr Pang dated 11 March 2019 which provides a summary of the claimant’s treatment and stenting.
[12] At pages A25 – A30 and document A39
There is nothing in these records to suggest the claimant’s stent was damaged in the accident and had to be re-stented because of the chest injury or any other injury sustained in the accident. The hospital records indicate the stent was “re-stenosed”.

Was the re-stenosis caused by the accident?

It is the medical members of the Panel’s clinical experience that atherosclerosis is caused by the build-up of plaque which narrows and eventually may occlude a cardiac artery. Atherosclerosis is caused by lifestyle factors such as diet, disease such as diabetes or genetic disposition.
Restenosis of a stented artery is usually caused by clot formation often as a result of scar tissue that grows inside the stent. The scar tissue can grow and obstruct the flow of blood through the stented artery requiring treatment. If that was the cause of the restenosis in Mr Khanna’s case, that would not be related to the motor accident but is a common progression of the original surgery. Restenosis can also be caused by further deposits of plaque (fat, cholesterol and other substances) which is part of the natural history of worsening of coronary artery disease. The build-up of plaque in Mr Khanna’s coronary arteries was not caused by the car accident.
Restenosis occurs gradually. Symptoms of restenosis are similar to the symptoms of atherosclerosis and include increasing chest pain, shortness of breath, nausea, weakness, irregular heart-beats and sweating. Many of these symptoms Mr Khanna experienced in the lead up to his November 2017 admission to hospital and angioplasty procedure.
Restenosis is treated by either re-expanding the stent by ballooning or re-stenting or bypass graft surgery. In Mr Khanna’s case his re-stenosed RCA stent was ballooned and re-stented with a stent that had been infused with a drug designed to prevent further re-stenosis.
The re-stenosis in Mr Khanna’s artery is not, in the clinical judgment of the medical members of the Panel’s caused by the accident because of the time between the date of the accident and the event in November 2017. If the trauma sustained to Mr Khanna’s chest in the accident was so great as to cause damage to the stent or a rupture of plaque deposits, the clinical judgment of the medical members of the Panel is that they would have expected the claimant to have developed acute severe symptoms immediately after the accident, abnormal test results in the records of the hospital in August 2016 or severe symptoms much closer to the date of the accident requiring more urgent attention by his specialists.

Has Mr Khanna’s hypertension worsened since the accident?

Within the documentation review is a list of the claimant’s blood pressure readings taken from the records. The Panel has tabulated these as follows:
[image unable to render]
The Panel has considered whether Mr Khanna’s hypertension worsened after the accident associated with stress and whether this caused deterioration from the cardiac point of view. However, Mr Khanna was hypertensive before the accident and remains hypertensive. His blood pressure when measured by Professor Kovoor on 19 September 2016, in the weeks after the accident, was 120/70. An analysis of his blood pressure readings from the GP and specialist records suggests it had dropped below 120/70 on only one occasion (January 2012). In the years before and after the accident the claimant’s systolic blood pressure has reached over 140 on more than a dozen occasions.
There is therefore no evidence that Mr Khanna’s hypertension particularly worsened after the accident and hypertension is not the cause of his progressive cardiac deterioration after August 2016. While hypertension can be exacerbated by stress, including stress caused by a car accident, the claimant has had multiple stressors in the years before the August 2016 accident including other car accidents, a fall, claims and litigation and the financial woes of his business activities. Even if there was a suggestion that stress might have increased his blood pressure, the Panel would not be satisfied this was because of a material contribution from the accident.
It is the clinical judgment of the medical members of the Panel that the readings above and an analysis of the records do not demonstrate a worsening of the claimant’s hypertension as alleged.

Has Mr Khanna’s cardiac condition worsened since the accident?

The Panel notes that the day before the accident the claimant attended his GP with complaints of chest pains on and off for two days and he was advised to got to Westmead Hospital to rule out unstable angina (annexure A-52(m)).
Mr Khanna says that there was an increase in his anginal episodes occurred two to three months after the accident (which would be October / November 2016) and then throughout 2017. Professor Kovoor’s records indicate that the claimant was seen in September 2016 (annexure A-73 and onwards) and was to be reviewed in February 2017. There is no report or letter concerning any February 2017 attendance. This does not indicate to the Panel increasingly severe anginal episodes. If the claimant was experiencing increasingly severe or more frequent episodes, the Panel would have expected him to have attended Professor Kovoor in February 2017 or earlier.
The claimant did attend Westmead Hospital in August 2017 (annexure A-32) complaining of increasing and severe chest pain and other cardiac symptoms.
There is a report from Professor Kovoor in January 2018 (annexure A-77) during which the claimant complained of recurrent chest tightness on moderate exertion and the next letter is dated 19 March 2019 by which stage the claimant was experiencing recurrent angina.
The claimant has provided a record from Westmead Hospital of an attendance on

16 February 2018 where he complained of chest pain radiating to the jaw and left shoulder (annexure A-33).
The Rouse Hill Town and Medical Centre records indicate complaints of chest pain on 13 September 2016 (annexure A-52(p)). The claimant was advised to go to hospital but did not. On 30 November 2016 there was a further complaint of chest pains at 2.30am with vomiting and the claimant was advised to go to hospital, but there is no evidence to suggest he went (annexure A-52(s)). This is not behaviour consistent with someone who was experiencing increasingly severe episodes of angina. The claimant attended for various unrelated complaints before 19 July 2017 when there is then a note of shortness of breath and mild ankle swelling (annexure A-52(w)).
In the Blacktown Family Medical Centre records is a note from 30 October 2017 of the claimant experiencing daily chest pains (annexure A-47(t)).
When the above records are considered as a whole, the evidence supports a finding that Mr Khanna’s symptoms indicating the emergence of restenosis occurred in July 2017, 11 months after the accident.
After the 28 November 2017 re-stenting procedure, the Panel does get the impression from the records that the claimant’s cardiac health has worsened. He had a series of attendances to drain fluid from around his heart and lungs and his attendances on Professor Kovoor have become more frequent.
However, the Panel is not satisfied that what has happened to Mr Khanna cardiac-wise after 19 July 2017 and leading up to the 28 November 2017 re-stenting procedure has happened because of the accident.
Mr Khanna has had a complicated pre-accident cardiac history on a background of poorly controlled diabetes before the accident. He was overweight before the accident and anxious and stressed before the accident.
It is the clinical judgment of the medical members of the Panel that Mr Khanna’s presentation was not as a result of any injury sustained in the accident but is a result of the natural progression of his cardiac disease.

FINDINGS

The Panel is satisfied that the claimant did injure his chest in the accident, but this injury and any impairment resulting from it (and treatment related to it) will be considered by the Panel undertaking the assessment of Mr Khanna’s musculoskeletal injuries.
The Panel is of the view that having considered the results of investigations, the clinical history and the reports of Professor Kovoor in particular that the motor accident did not cause any cardiac injury or result in any worsening of Mr Khanna’s cardiac condition. The Panel is not satisfied that the injuries sustained in the accident have resulted in any permanent cardiac impairment.
The Panel is also of the view that any change in the claimant’s cardiac medication, his need for cardiac consultations with his cardiologist and the multiple attendances at hospital are not due to the accident but due to the progression of his underlying, pre-existing ischaemic heart disease.
The Panel therefore confirms the certificates of Medical Assessor Herman.

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.[13]
[13] 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[14] 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;[15]
(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.
[14] Page 2,757 of the insurer’s bundle.
[15] 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.[16] 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”.
[16] 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.[17]
[17] Paragraph 12 of the claimant’s final response document.

Other claims and litigation

The insurer has provided details from the Personal Injury Register[18] 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[19] that the 2013 and 2014 accidents were “minor and [were] settled by the insurer”.
[18] Page 3,929 of the insurer’s bundle.
[19] At point 34 of his final response document.
The medical certificate supporting the claimant’s 30 October 2009 accident[20] 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.
[20] Page 2,786 of the insurer’s bundle.
Mr Khanna wrote to Allianz dated 26 July 2012[21] 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.
[21] 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[22] 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.
[22] 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.[23] 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”.[24] 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.
[23] Khanna v Allianz Australia Insurance Limited [2021] NSWCA 231.
[24] Paragraph 12.
The medical certificate for the claimant’s 16 May 2014 accident[25] 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[26] and says[27] that his wife was more injured in this accident and his memory was that this “settled out of court.”
[25] Page 2,787 of the insurer’s bundle.
[26] At point 35 of his final response document.
[27] 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.[28]
[28] 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,[29] 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.
[29] 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.[30]
[30] See point 37 of the claimant’s final response document.
The insurer has provided a copy of the judgments of both Dicker DCJ[31] and the Court of Appeal[32] in respect of the Masters’ fall.
[31] Khanna v Woolworths Group Limited (no 2) [2021] NSWDC 567.
[32] 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[33] 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.[34] 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.
[33] His Honour summarises the cross-examination commencing at [85].
[34] See [93] in particular.
The claimant says[35] 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:
[35] 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[36] 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

[36] [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.[37] Mr Khanna says[38] all of these photographs were taken on 17 Augusts 2016.
[37] 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.
[38] At point 15.2(1b) of his final response document.
The discharge summary from Westmead Hospital[39] 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.
[39] 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[40] 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.
[40] 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.[41] 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.
[41] 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.[42]
[42] The discharge summary is found at page A-25 of the claimant’s bundle.
Mr Khanna attended Westmead on 16 February 2018 and was discharged on 20 February 2018.[43] On presentation, Mr Khanna reported the onset of chest pain “like a rock on my chest” which radiated to his left shoulder and jaw with associated shortness of breath. The claimant told the hospital he had taking Mylanta thinking his symptoms might have been a gastric upset. He then had sprays of his angina medication with no relief from the pain and came to Emergency. Mr Khanna was given a medical certificate certifying him unfit for work from 16 February to 3 March 2018.
[43] The discharge summary is found at page A-31 of the claimant’s bundle.
The clinical summary from the hospital was:
(a) gastrointestinal bleed due for investigation with scopes, and
(b) shortness of breath – acute on chronic most likely from ongoing iron deficiency anaemia.
Mr Khanna was admitted to Westmead on 1 September 2019 and discharged on 20 September 2019.[44] The claimant had coronary artery bypass grafting on 13 September 2019. There were said to be complications including ongoing chest pain, irregular heartbeats, difficult glycaemic control, pain, “deranged liver function tests” and an acute kidney injury.
[44] The additional Rouse Hill bundle page 890 and A-40 in the claimant’s bundle.
The hospital’s report on the angiography[45] was that the left main coronary artery was normal, the previously deployed mid LAD stent was patent with minor restenosis. There was a new lesion in the mid LAD just past the stent with severe stenosis. The high obtuse marginal artery had mild (less than 50%) stenosis and there was diffuse disease in the distal circumflex artery. The dominant RCA had a “subtotal in stent occlusion in the mid segment with poor distal flow”.
[45] Page A-45 and A-49 of the claimant’s bundle.
There are three discharge summaries dated 27 September, 18 October and 2 December 2019 from Westmead Hospital[46] after admissions on 25 September, 6 October and 27 November 2019 for left sided pleural effusions which were drained. The claimant had presented with worsening shortness of breath and difficulty breathing. There was also a pericardial effusion which was not drained due to the claimant’s complex cardiac history.
[46] Pages A-52, A-57 and A-62 of the claimant’s bundles.
The parties have both provided a discharge summary from Westmead Hospital dated 23 December 2020 noting the following issues arose in hospital after the claimant was admitted on 21 December 2020:[47]
(a)   chest pain – intermittent left-sided stabbing pain;
(b)   hyperglycaemia – insulin dependent diabetic HbA1c 11.1% – reviewed by Endocrine team and for follow up with Doctor Boyages;
(c)   anaemic – chronic anaemia, and
(d)   chronic shortness of breath on exertion – unlikely to be cardiac, reduced haemoglobin levels, no documented lung disease or workplace exposure “able to ambulate with no objective shortness of breath and no change in oxygen saturation”.
[47] The additional Rouse Hill bundle page 813 and page A-81 of the claimant’s bundle.
The claimant attended Westmead Hospital again on 9 June 2021 with chest pain[48] radiating to the right shoulder and back. The pain was not relieved by the usual nasal sprays but was relieved by morphine.
[48] The discharge summary is at page A-88 of the claimant’s bundle.
On 25 October 2021 the claimant was discharged from Westmead Hospital following admission a few days earlier with acute pulmonary oedema and left basal pneumonia.[49] The claimant was noted to have poorly controlled blood sugar levels, chronic liver disease and fluid overload. Mr Khanna has provided[50] an extract from an unnamed document about what pneumonia is and how it is caused.
[49] The additional Rouse Hill bundle page 1,088.
[50] At point 41 of his final response document.
Mr Khanna attended Westmead Hospital again on 31 December 2021 with right sided chest pain and he was discharged the following day.
On 16 June 2022, the claimant had surgery at Westmead Hospital by way of a right leg angiogram and right popliteal artery angioplasty[51] which was said to have been occluded by 75%.
[51] Page D-150 in the claimant’s bundle.
There was a further admission to Westmead Hospital on 17 August 2022 for management of “multi-factorial dyspnoea and hypertensive crisis”.[52] He was found to have community acquired pneumonia, acute pulmonary oedema, blood pressure at 236 when taken in Emergency and sinus pause for up to five seconds. He was discharged four days later
[52] Discharge summary is found at A-95 in the claimant’s bundle.
Mr Khanna attended Westmead hospital on 2 March 2023 with left-sided chest pain and difficulty breathing and was discharged on 9 March 2023.[53] During the course of his admission:
(a)   he developed a high potassium level to be followed up with his nephrologist;
(b)   he experienced leg pain (longstanding) which was to be reviewed by the neurology team;
(c)   there were diabetes issues to be reviewed by the endocrinology team;
(d)   he experienced a urinary tract infection, and
(e)   Mr Khanna reported decreasing activities of daily living.
[53] The additional Rouse Hill bundle page 1,112 and page A-104 in the claimant’s final bundle.

Blacktown Family Medical Centre

Documents form the Blacktown Family Medical Centre (Blacktown) have been provided.[54]
[54] Page 2,829 of the insurer’s bundle.
Mr Khanna’s past medical history is stated as including cardiac issues since 2009, depression since 2010, frozen shoulder and subacromial bursitis in 2010, lumbar back pain in 2012, TMJ dysfunction in 2012, sciatica and sleep apnoea in 2013.
Some of the entries and records of relevance are listed:
(a)   On 2 November 2009 there is a note that Mr Khanna was hit by reversing truck two days ago, multiple injuries, pain along entire spine and lower back pain, left pelvis hip pain, bilateral leg pain. The claimant denied a head injury. Symptoms were similar on 9 November 2009.
(b)   There is a discharge summary regarding an admission to Westmead Hospital following the claimant’s presentation to Emergency with recurrent left sided and central chest pain associated with shortness of breath. A stent was inserted during a coronary angiogram on 29 December 2009. Mr Khanna’s HbA1c was noted to be 10.3 and he was given advice about controlling his diabetes.
(c)   In early 2010 there were two entries concerning depression and on 13 January 2010 there is a reference to the hip and back being better but not 100% recovered.
(d)   On 19 May 2010 the claimant attended for what appears to be angina symptoms and he also complained that for a few months he has been having “night-time paraesthesia both feet over the toes”. His back was said to be non-tender with an ache.
(e)   On 28 June 2010 the claimant attended for several matters including right shoulder pain and an ultrasound was requested. On 30 June 2010 the claimant was having flare-ups of his lower back pain and hip.
(f)    The entry on 27 September 2010 was for the purpose of discussing the ultrasound result of “frozen shoulder, subacromial bursitis and supraspinatus tendinosis”. There was a further attendance for this issue on 25 November 2010 following a Celestone injection and the claimant was referred to Dr Woo and for physiotherapy.
(g)   On 17 January 2011, the claimant attended complaining of lower back pain and shoulder pain.
(h)   There is a letter dated 1 September 2011 from gastroenterologist Dr Lee at Westmead Hospital to Dr Paw.[55] This letter documents an attendance due to the claimant vomiting blood. He was seen in the outpatient department, he had no further episodes of vomiting blood, and Mr Khanna’s medication was adjusted.
[55] Page 2,967 of the insurer’s bundle.
(i)    On 19 October 2011 the claimant attended with the note of “very poor diabetes control lack of exercise, [blood sugar levels] BSL 20.8 today”. The claimant was also complaining of left shoulder pain with signs of impingement, and he was referred for ultrasound and X-ray.
(j)    There are regular attendances thereafter for ultrasound and transcutaneous electrical nerve stimulation (TENS) treatment to the left shoulder.
(k)   On 2 March 2012 there is a record of a back issue and hip problems with pain and Mr Khanna is reported as seeking compensation. Dr Paw filled out the insurance form for this two weeks later. The Panel notes this appears to be related to the 2009 incident with the tow truck.
(l)    On 2 November 2012 the entry suggests a long discussion was held about weight loss (83kg) and sleep apnoea.
(m)     The claimant attended on11 February 2013 reporting a fall two earlier when Mr Khanna says he was hit by car while on the road. Mr Khanna said he fell and landed on buttock and knocked the back of head on the road. On examination he complains of neck and back pain.
(n)   On 13 September 2013 Mr Khanna reported back pain after lifting furniture with pain radiating to both legs.
(o)   Mr Khanna attended on 3 January 2014 in respect of a whiplash injury sustained in a car accident and he was referred for ultrasound and TENS treatment. There were no neurological signs and no pain at the scene but developed pain the day after. The claimant still had sciatica and was advised to have physiotherapy.
(p)   On 10 January 2014 Mr Khanna had a back issue with sciatica which had improved but he will need further physiotherapy and Lyrica was prescribed. There is a reference to a third party claim.
(q)   The claimant attended on 20 April 2015 with a three-month history of a fall (this would appear to be the Masters fall) with symptoms starting two months earlier affecting the left C8 dermatome with pins and needles in his third, fourth and fifth fingers. Radiculopathy was suspected and a CT scan was ordered.
(r)    The claimant attended on 21 April 2015 with notes recording Mr Khanna was involved in a motor accident on 16 May 2014, “was physically fine. Now still have intermittent back pain”.
(s)   In 2015 and 2017 Mr Khanna reported issues of depression and stress with health and legal issues.
(t)    On 30 October 2017 Dr Pang wrote a letter “to whom it may concern”[56] advising that the claimant was experiencing daily chest pains, worsening depression and anxiety and that he has been “unfit for since August due to his physical health.”
[56] Page A-24 of the claimant’s final bundle.
(u)   On 1 May 2018 Mr Khanna was referred to Westmead Hospital’s Emergency department.[57] This refers to a recent admission to hospital with a bleed (per rectum) and anaemia. The claimant had become more anaemic and short of breath with some consolidation of the left lung.
[57] Page A-37 of the claimant’s final bundle.
(v)   Dr Asim saw the claimant on 17 January 2019 with Mr Khanna reporting he had been assaulted. It was said to be a “very long consult”. The note includes words from some form of certificate suggesting:
(i)Mr Khanna was depressed due to neck pain referred to the chest;
(ii)he had been pushed by a person in a car workshop in Blacktown today;
(iii)he was in pain and experienced a sudden neck jerk;
(iv)his range of movement was normal but painful on extremes;
(v)there were no bruises and no neck stiffness, vision was normal, he had chest pain but no shortness of breath, and
(vi)he did not suffer a head injury.
(w)   The claimant returned on 19 February 2019 to see Dr Asim. Mr Khanna gave further details of the assault saying he was assaulted physically (hit in the back) and verbally (the perpetrators threatened to kill him) and his mobile phone was damaged in the incident. The radiology was reviewed and showed osteophytes in the neck with some stenosis but no fractures of the neck or chest. The claimant complained of continuing left sided pain and left sided chest wall tenderness and had been to Westmead Hospital for follow up.
It does not appear that the claimant was attending this practice at the time of the car accident. He last attended before the accident was in October 2015 and the first attendance after the accident was in September 2017.
Within these records is a home medicines review report to Dr Paw[58] dated 9 May 2012. The claimant reported worsening retinopathy and there was a long discussion about his diabetes management. He was advised to lose weight and join a gym for exercise. In a further review dated 15 May 2012[59] the claimant said he has recently initiated exercise going to the gym for an hour every day. The claimant complained of pins and needles, cramping aches and pains in the calf and soles of his feet. His blood sugar levels were up, and his level of stress and depression were said to be uncontrolled due to financial matters. The claimant was having trouble sleeping at night.
[58] Page 2,979 of the insurer’s bundle.
[59] Page 2,988 of the insurer’s bundle.
On 22 October 2013 the Department of Human Services wrote to Dr Paw seeking information with regards the claimant’s eligibility for the Disability Support Pension. The claimant had given this history which was confirmed by Dr Paw:
“The client noted severe shortness of breath and chest pains with even light physical activities such as talking and walking 2 steps. He is not able to climb stairs, go to the shops or catch public transport independently and has to rely on the support of his wife to complete all domestic activities and assist with self-care tasks such as dressing.”
The claimant relies on a further single entry from this practice dated 1 August 2022.[60] The claimant attended for an iron infusion and felt dizzy after coughing which was said to have started after his recent vascular surgery.
[60] D-160 in the claimant’s bundle.

Rouse Hill Town and Medical and Dental Centre

Also provided are records from the claimant’s other GP practice, Rouse Hill.[61] These records include the following attendances:
[61] Page 3,034 of the insurer’s bundle.
(a)     The first attendance at this practice was on 15 June 2010 and there were irregular attendances thereafter for diabetes management, cardiac and general health issues.
(b)     On 30 August 2013 Mr Khanna reported the sudden onset of lower back pain yesterday while moving heavy furniture, reported bilateral lower leg numbness denied shooting pains. He was advised to avoid heavy lifting and return if symptoms persisted.
(c)     On 17 May 2014 the claimant attended in respect of a car accident the day before saying he later developed pain in neck and left side of chest. When he attended on 22 May 2014 there is a note that the neck had been problematic since the accident and was radiating to the left shoulder.
(d)     A long consultation took place on 22 July 2014 concerning the claimant’s poor diabetic control with an HbA1c reading of 10.1.
(e)     On 24 July 2014 the claimant was said to have been unwell yesterday whilst at work. He had been standing up for a long time and suddenly felt hot and faint with nausea. This was thought likely to be vasovagal.
(f)     On 18 December 2014 Mr Khanna reported feeling light headed with pins and needles in his left arm and a “slipped disc” was suspected.
(g)     The claimant attended the practice on 22 January 2015 saying he fell down stairs injured bottom teeth.
(h)     There is a series of attendances commencing on 11 February 2015 where Mr Khanna complained of numbness down the left arm in the T7-11 dermatomes. There was a referral for a CT report and it was suggested that the claimant would try physiotherapy. On 13 April 2015 is an entry about numbness on the left 3^rd small fingers and the CT scan had shwon disc protrusions impinging the nerve roots at C7-T1. Also, on 24 Jun 2015 was a report of left arm issues, tingling and numbness in the left third, fourth and fifth fingers with neck discomfort. An MRI scan was requested.
(i)      There are several attendances in 2015 for knee pain following the fall at Masters.
(j)      On 25 February 2016 Mr Khanna attended concerning his lower back and the lumbar spine X-ray was reviewed. The claimant was still having lower back pain and worsening right shoulder pain with painful abduction at 90 degrees. There are similar complaints on 30 March 2016 with right knee pain as well.
(k)     On 28 April 2016 Mr Khanna reported a fall on 2 April 2016 and said he was seen at Westmead Hospital. Mr Khanna had pain on the top of his head and pain in the chest wall since that fall. On examination there was a sensitive spot on the top of his head and chest wall tenderness on palpation. A similar attendance on 11 May 2016 also noted pain on the top of the head. There is reference to a 2 May 2016 discharge summary from Westmead Hospital but no further details.
(l)      On 10 August 2016 Mr Khanna attended complaining of neck pain radiating to arm.
(m)    On 16 August 2016 the claimant said he had been experiencing chest pains on and off for two days, no radiation, feels off, no palpitations, pain relieved by spray – no acute changes. In view of his history there was a need to rule out unstable angina and so the claimant was referred to Westmead Hospital.
(n)     After the accident there are no records of attendance until 27 August 2016 when Dr Chang referred the claimant to Westmead Hospital.[62] The referral says:
[62] The referral is found at page A-14 in the claimant’s final bundle.
“Thank you for seeing Mr Sanjeev Khanna, who had car accident 10 days ago and admitted to Westmead Hospital then discharged on following day, since he was back to home, he experienced body aching and chest pain every day, today he developed severe shooting pain on left temperal site and then haemoptysis associated with chest pain and right shoulder pain and his blood sugar level reached to 18. He needs further assessment at hospital basis.”
(o)     The next attendance after that was 10 September 2016 with the claimant referring to his accident in mid-August and the notes say, “whiplash injuries, neck and shoulder pain, headaches occur on daily basis, pins and needles left arm. Also has lower back pain and stiffness, no red flags worse after [car accident]”.
(p)     Mr Khanna attended again on 13 September 2016 with right sided chest pain the day before. He said he went to hospital but did not wait and his pain was relieved. He was advised to go to hospital but declined to do so.
(q)     On 21 September he attended with elevated blood pressure (156/80), his medication was altered and his paper work for insurance was completed (this would appear to be the medical certificate for the claim form).
(r)     The claimant attended on 12 October 2016 and reported “nose-bleed right nostril burst capillary”. There is also a separate record on that day of the claimant complaining of memory loss and poor concentration after car accident in August and stating that he continues to have headaches, with anterior chest wall pain and pain in the right clavicle.
(s)     On 30 November 2016 Mr Khanna attended after early morning chest pains and vomiting and a suspected acute coronary event was suspected and he was referred to hospital.
(t)     A long consultation occurred on 8 December 2016 concerning mental health issues of depression and lack of engagement, lack of libido and sleep disturbance. Mirtazapine was prescribed and referral to a psychiatrist given.
(u)     There was a further attendance for depression and nose-bleeds on 22 December 2016.
(v)     On 17 July 2017 the claimant attended for a motor accident consultation with no further details given.
(w)    On 19 July 2017, Mr Khanna attended with more shortness of breath, mild ankle swelling but no orthopnoea or night time breathing difficulties.
(x)     On 8 August 2017 he attended with symptoms of vertigo and tinnitus and on 4 October 2017 for back pain due to soft unsupportive sofa.
(y)     The last attendance in the first bundle of these records is cardiac related in October 2017.

An MRI of the cervical spine dated 25 September 2015[153] 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.
[153] Page G-228 of the claimant’s bundle.
The further MRI of the cervical spine dated 20 December 2018[154] 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.
[154] 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[155] showed disc degeneration L4/5 andL5/S1 with mild canal stenoses, mild bilateral L4/5 and L5/S1 foraminal stenoses.
[155] Page 2,919 of the insurer’s bundle.
Another CT scan of the lumbar spine on 4 April 2018[156] 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.
[156] 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[157] 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.
[157] 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[158] 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.
[158] The additional Rouse Hill bundle page 123.
An MRI of the claimant’s brain was undertaken on 11 December 2020[159] 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”.
[159] The additional Rouse Hill bundle page 200.
A further MRI of the brain was done on 1 December 2022[160] 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.
[160] 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.[161]
[161] 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.[162] 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.
[162] Page 2930 of the insurer’s bundle.
A right shoulder ultrasound on 6 February 2019[163] showed mild subacromial bursal thickening but no significant findings in the acromioclavicular or glenohumeral joint.
[163] 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.[164] 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.
[164] 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,[165] Mr Khanna has provided a list of his current daily medications which are set out below:
[165] 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 302

30 June 2023