Khanna v Insurance Australia Limited t/as NRMA Insurance (No 5 and No 6)
[2023] NSWPICMP 295
•22 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Khanna v Insurance Australia Limited t/as NRMA Insurance (No 5 and No 6) [2023] NSWPICMP 295 |
| CLAIMANT: | Sanjeev Khanna |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 22 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of treatment and care (5) and whole person impairment (WPI) (6) by Medical Assessor (MA) Cameron and claimant’s review under section 63; claimant injured in rear end car accident on 17 August 2016; MA had determined some care related to the accident and reasonable and necessary and that the claimant’s WPI was 2%; issue of causation due to multiple previous accidents and pre-existing conditions; review of two medical assessments proceedings heard with review of four other medical assessment proceedings; one re-examination conducted; Held – Panel adopted re-examination findings and review of evidence in all proceedings; Panel satisfied the claimant injured his head in the accident but not satisfied any brain injury or that dizziness and nose bleeds were caused by the head injury; Panel satisfied claimant sustained soft tissue injury to cervical and lumbar spine but no current impairment; Panel satisfied claimant injured his left shoulder but not his right shoulder in the accident; Panel satisfied claimant sustained soft tissue injury to his chest which does not attract a WPI finding; In proceedings (5); Panel satisfied soft tissue injuries to neck, back and left shoulder resulted the need for some treatment and care and that the treatment and care provided for the first 12 months after the accident was reasonable and necessary; in proceedings (6) Panel found 0% WPI; Certificates of MA revoked; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. In proceedings number R-M10538019/22, the Review Panel: (a) revokes the certificate of Medical Assessor Cameron dated 5 March 2022, in respect of the medical assessment matters referred for assessment about treatment and care, and (b) certifies that for the first 12 months after the accident, the claimant had an accident-related need for some treatment and that this treatment is reasonable and necessary. 2. In proceedings number R-M10538039/22 the Review Panel: (a) revokes the certificate of Medical Assessor Cameron dated 5 March 2022 in relation to the whole person impairment medical assessment matter, and (b) certifies that the degree of the claimant’s whole person impairment resulting from the 17 August 2016 accident is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Sanjeev Khanna (the claimant) 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.
Mr Khanna 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 (Commission) for assessment.
Medical Assessor Cameron was referred the disputes about WPI and treatment relevant to the claimant’s allegation that he injured his chest, neck, thoracic and lumbar spine, right shoulder and arm, and his head in the accident. On 5 March 2022 Medical Assessor Cameron determined that Mr Khanna sustained an injury affecting his right shoulder, that he did not have a WPI of greater than 10% but that some of Mr Khanna’s treatment needs were caused by the accident and related to this injury. The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision about WPI and the insurer lodged an application seeking a review of the Medical Assessor’s decisions about 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 assessment by Medical Assessor Cameron 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 to be issued by 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 Cameron.
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
Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of disputes about the following “medical assessment matters” that may arise during the life of a claim:
“(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident,
(c) (Repealed)
(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e) (Repealed)”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment (such as Medical Assessor O’Neill’s in 2017), further medical assessments (such as Medical Assessor Cameron’s) and the review of medical assessments by this Review Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges 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 Cameron was asked to assess Mr Khanna’s WPI arising out of the following injuries:
(a) head – injury;
(b) chest - soft tissue injury;
(c) cervical spine - soft tissue injury;
(d) shoulder – right soft tissue injury;
(e) lumbar spine - soft tissue injury, and
(f) arm – right collar bone soft tissue injury.
Medical Assessor Cameron was also asked to assess disputes about the following treatment modalities:
(a) cortisone injections – all past injections and 0 – 4 injections for the next 0 – 15 years;
(b) radiology:
(i)past radiology undertaken on 7 February 2019 (cervical spine CT and X-ray of chest), 6 February 2019 (X-ray cervical spine), 20 December 2018 (MRI cervical spine), X-rays of the chest on 27 November 2017, 6 March 2018, 5 June 2018, 4 April 2018 (lumbar spine CT);
(i)X-rays (0 – 2 per year of the neck, back, shoulder and / or chest wall) for the next 0 – 15 years);
(i)0-2 CTs and MRIs of the neck, back, shoulder or chest well for the next 0-15 years;
(c) past and future medication – Niatidine, Fenofibrate and pantoprazole = 0 – 30 tablets per month for the next 0 – 15 years;
(d) all treatment for plantar fibroma on both feet;
(e) physiotherapy 0-2 sessions per week from the date of the accident to the date of the assessment and 0 – 6 for the next 0 – 15 years;
(f) remedial massage – 0-5 sessions per month from the date of accident to the date of assessment and 0-6 for the next 0-15 years;
(g) ear, nose and throat (ENT) consultations - 0-6 for the next 0 – 15 years;
(h) domestic assistance:
(i)0-13.5 hours per week from the date of the accident to the date of the assessment, and
(i)0-13.5 hours per week from the date of the assessment for the next 0-17 years.
For each of these disputed treatment types, there were two medical assessment matters referred to Medical Assessor Cameron for assessment:
(a) whether the treatment was related to the injuries caused by the accident, and
(b) whether the treatment was reasonable and necessary in the circumstances.
Medical Assessor Cameron took a history from the claimant including the following:
(a) Mr Khanna has been in receipt of the disability support pension since 2013 apparently due to cardiac issues;
(b) the claimant has had many heart operations and further surgery was planned in March 2022;
(c) the claimant developed diabetes in 1996 and has received treatment for this condition;
(d) he has had car accidents in 2006, 2009, 2013 and 2014 with no long-term problems according to the claimant. He also fell in 2015 and was assaulted in 2019;
(e) the claimant was hit from behind and hit is head on the steering wheel. He drove home but was bleeding from his mouth or nose and his wife drove him to hospital, and
(f) he has seen his general practitioner (GP) Dr Pang and Dr Rahmanamlashi.
The claimant says he has continuing symptoms and receives treatment including physiotherapy, chiropractic and massage. He says he thought he had “plantar fibroma” in both feet but he has been told this is symptoms from his back. He complains of pain, mainly head pain and dizziness, poor sleep, continuing nose bleeds and neck pain.
Mr Khanna also complained of chest pain and unstable blood pressure and variable diabetic control.
Mr Khanna told Medical Assessor Cameron his right shoulder injury had resolved.
Medical Assessor Cameron examined the claimant’s neck, lower back, upper and lower extremities and noted “inconsistent movements in the shoulders which the claimant said was due to variable pain”.
Medical Assessor Cameron provided a concise summary of the documentation and noted there were no imaging studies.
Medical Assessor Cameron diagnosed soft tissue injuries to the head, chest, cervical spine, right shoulder, right clavicle and lumbar spine. He noted that the injury to the chest and the right clavicle had resolved leaving no impairment.
Medical Assessor Cameron assessed WPI as follows:
(a) head – while there was an injury to the head, the criteria in cl 6.164 of the Motor Accident Guidelines[5] was not met and there is no assessable permanent impairment;
[5] Assessor Cameron has used the wrong Guidelines, as Mr Khanna’s accident occurred before December 2017, the relevant guidelines are the Motor Accident Permanent Impairment Guidelines, and the correct clause is 1.164 (which is in identical terms).
(b) cervical spine – the neck injury was assessed as DRE category I – which attracts a 0% WPI. He explains why the claimant is not to be assessed as DRE category II (5%);
(c) right shoulder – Medical Assessor Cameron noted movements of the shoulder were inconsistent and they could not be used to assess WPI. He assessed this impairment by analogy at 2%, and
(d) lumbar spine – was assessed on the basis of a DRE category I with the Medical Assessor explaining why the next level DRE category II did not apply.
In terms of treatment Medical Assessor Cameron referred to his diagnosis of soft tissue injuries and found while these injuries might have required visits to the GP and some physiotherapy early on (in the first three months), there are no indications for the extensive medication and treatment disputed by the insurer.
Claimant’s submissions
The claimant lodged submissions in support of all of his applications (dated
1 October 2022) which suggest Mr Khanna alleges:
(a) that the Medical Assessor failed to consider the relevant material;
(b) failed to afford procedural fairness;
(c) failed to provide sufficient reasons, and
(d) failed to adhere to the AMA 4 Guides and Motor Accident Guidelines.
Mr Khanna has also provided submissions in respect of both Medical Assessor Cameron’s assessments in his letter to the Commission dated 16 April 2023.[6] In this letter (at pages 1 – 8) he identifies submissions common to all of his matters and says under the heading “The Causation”:
[6] This letter is found at page 1 of the claimant’s final bundle of documents.
(a) he sustained “an aggravation of the previous injuries suffered by the claimant in the past” with new injuries [13];
(b) he sustained injuries to his “neck cervical (whiplash), shoulder, lower back, chest discomfort (heart pains), nose bleeding and pain in the head, hypertension, anxiety and depression aggravated”;
(c) he details his cardiac treatment since the accident [16] – [37];
(d) 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];
(e) 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”. The Panel understands this to be a submission that the claimant’s impaired cardiac function is an impairment greater than 10%, and
(f) the claimant continues suffering from shortness of breath and he remains with aggravation of diabetes [38].
Under the heading “Aggravation of diabetes and other medical conditions after an accident”, Mr Khanna has said:
(a) 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];
(b) 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];
(c)
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];
(d) the claimant now takes Spiriva capsule (tiotropium) for better lung function [47], and
(e) the claimant’s peripheral neuropathy results in his inability to walk and because of his shortness of breath his diabetes has increased [48].
Under the heading, “The claimant aggravates pre-existing injuries and pre-existing depressive conditions and diabetes due to the accident as follows”, Mr Khanna says that because of his peripheral neuropathy, his difficulty walking because of shortness of breath, and the increase in his diabetes, the following conditions have been “increased” [48];
(a) diabetes and peripheral neuropathy;
(b) pain and sufferings;
(c) continues [continuous] chest pains;
(d) aggravated hypertension;
(e) aggravated headaches, depression and anxiety;
(f) loss of enjoyment / amenity of life (no longer being able to do the things you used to do) or sexual dysfunction due to high diabetes and further reason for depression and anxiety;
(g) disfigurement;
(h) neck pain, stiffness and restriction of movement of the neck;
(i) low back pain, and
(j) the claimant is right hand dominant.
Under the heading “Old and new injuries sustained in the accident”, Mr Khanna says at [49] that most of his injuries are aggravated or whiplash injuries. He says the injuries to his chest, cervical spine, right shoulder and lumbar spine “were aggravated after the accident” and that his head and right clavicle pain was aggravated and nose bleeding is a new injury.
At page 18 of his letter to the Commission dated 16 April 2023, Mr Khanna provides specific submissions in relation to the assessments of Medical Assessor Cameron.
Under the heading “Brief”, Mr Khanna refers to the list of injuries in the medical certificate completed by Dr Pang on 27 September 2016 at [1] and at [2] he repeats the contents of [49] and says:
(a) at [3] that he hit his head on the steering wheel and the impact was “so powerful” on his chest, head and nose;
(b) he still bleeds from his nose and his head movements are so painful that he gets dizzy while rotating his head and moving it up and down. He has poor quality of sleep and he has pain in his neck and head [4];
(c) cervical whiplash occurs when the neck is “suddenly thrashed to one direction” [5];
(d) it is “a well-proven fact” that the claimant injured his chest in the accident “and ultimately landed with open heart surgery” [6];
(e) Professor Kovoor says that “no stenting or grafting including CPR will be performed” [7] and that cl 6.233 and chapter 6 of the AMA 4 Guides applies;
(f) Medical Assessor Cameron has allocated 2% for the right shoulder [8];
(g) in respect of the collar bone and lower back, the claimant relies on MRIs at pages G216 to G 228 and he has pain in his legs on rest and he cannot walk more than 10 steps, suffers from sleep apnoea and instability and tends to fall [9], and
(h) the claimant has pain and suffering, trauma, depression, anxiety, low concentration and low mood. He has no enjoyment of life and is vulnerable due to his medical conditions [10].
In conclusion, Mr Khanna says:
“Due to the above-said reasons, the claimant is in pain and suffering, trauma, depression, anxiety, low concentration, and low mood. Frustrated, Agitated, and dizzy tend to fall are the causes of the injury which was aggravated due to the accident.
Further, there is no enjoyment of life, in-fact claimant lives all time vulnerable due to his medical conditions.
Stating all the reasons with evidence claimant is liable for all the compensation and damages.”
Insurer’s submissions
The insurer says in its submissions:
(a) the claimant has not identified what material the Medical Assessor did not consider and says that the Medical Assessor has summarised the material and engaged with the material during the course of his assessment;
(b) the claimant has not identified how he has not been afforded procedural fairness;
(c) the Medical Assessor has provided clear and detailed reasons and the claimant has not provided details of what is not clear, and
(d) the claimant has not provided details of how the Guides or the Guidelines have not been adhered to.
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 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 arguments which are not easy to follow but which appear to be saying:
(a) the summary of evidence is not a fair procedure [16];
(b) the President’s delegate found an error in all the assessments [17];
(c) Medical Assessor Gorman and Medical Assess Haber were not qualified to assess the claimant’s endocrine system [18];
(d) the summary of evidence constructed by the writer will be read by the remaining panel and a decision will be made “this will be a complete miscarriage of the matter in the interest of justice” [19], and
(e) the claimant appears to raise issues of procedural fairness and says that the Panels have not provided Mr Khanna with the minutes or a transcript of the medical examination and no camera was installed in the examination room [20].
Mr Khanna has provided additional submissions as to his WPI as follows:[7]
[7] 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 resented [32.2];
(iii)nose bleeding often and headaches to the left side of the head every day [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[8] with 1,156 pages. The insurer sought the consent of the claimant to admit these documents into evidence and the claimant refused. In a decision communicated to the claimant on 14 April 2023, the Panels agreed to allow these documents into evidence. Mr Khanna further objected to the inclusion of these documents.
[8] 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.[9]
[9] 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[10] said at [63]:
[10] [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, 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[11].
[11] 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[12].
[12] A reference in these reasons to a paragraph in that document will be expressed as “annexure B-123”.
CONSIDERATION OF THE ISSUES
What injuries does Mr Khanna say were caused by the accident?
Mr Khanna originally referred the following injuries for assessment:
(a) head;
(b) chest;
(c) cervical spine;
(d) lumbar spine;
(e) right shoulder, and
(f) right clavicle.
In his submissions, Mr Khanna referred to disfigurement on several occasions however the Panel is not aware of any scarring or similar arising from the accident.
In his final response document Mr Khanna said he injured his left shoulder in the accident.
Did Mr Khanna sustain a head injury in the accident?
In his submissions lodged with the Commission on 16 April 2023, Mr Khanna says he hit his head on the steering wheel.
The Panel notes that the speed of NRMA’s insured vehicle was stated by the claimant at Westmead Hospital on the day after the accident to be 50 kmph (annexure A-27). The claimant’s vehicle was stationary. The Panel accepts that the claimant could have hit his head on the steering wheel in those circumstances. The claimant might also have hit his head on the headrest as his body moved backwards, after the initial forward impact with the steering wheel.
Mr Khanna went home after the accident but attended Westmead Hospital later in the day where he was examined (annexure A-26). The Panel notes that there is no mention of a head strike against the steering wheel in the records from the Hospital.
The absence of a contemporaneous note of an injury does not determine whether an injury did not occur. The Panel accepts that the claimant did hit his head on some part of the car in the accident.
Did the head injury cause a brain injury?
While the Panel accepts Mr Khanna had an impact to his head there is no record in the hospital notes of an abnormal Glasgow Coma Score, there is no history of a loss of consciousness and on examination by Medical Assessor Gorman there was no evidence of post-traumatic amnesia. Finally, the Panel notes there are three MRI imaging studies of the claimant’s brain after the accident (annexure A-160, 161 and 162) showing age related changes but no abnormality suggesting any brain trauma.
The Panel is not therefore satisfied that the claimant sustained a brain injury in this accident.
The Panel is satisfied that the claimant sustained a soft tissue injury to the head from which he has recovered.
Did the head injury cause dizziness?
Mr Khanna’s claim form (dated 23 December 2016 annexure A-3) says he sustained a nose-bleed and pain in his head in the accident. Mr Khanna told Medical Assessors Gorman and Haber that he has pain and dizziness and a fear of falling.
In respect of the 2009 car accident, in 2012 the claimant said that as a result of the injuries sustained in that accident he has “all the time headache” (annexure A-9).
On 28 April 2016 and 11 May 2016 in the Rouse Hill records is a reference to the claimant falling and having pain on the top of his head (annexure A-52(k)).
In the court proceedings concerning the claimant’s 2015 fall at the Masters Home Improvement Centre, the claimant alleges in a document dated July 2019 that he sustained a head injury in that accident including “dizziness while moving my head” (annexure A-15).
There is no medical evidence from any medico-legal expert or any of the claimant’s treating practitioners drawing a link between Mr Khanna’s head pain or dizziness and the August 2016 accident. The Panel is not satisfied that Mr Khanna suffers from head pain or dizziness caused by this particular accident.
Did the head injury cause nose-bleeds?
The first attendance at Westmead Hospital has no record of a head-strike or nose-bleed. The medical members of the Panel would expect there to be such a reference if the claimant had reported hitting his head on the steering wheel and having a nose-bleed.
The Rouse Hill notes record that Mr Khanna attended his GP on 27 August 2016 complaining of body aches and chest pain with “shooting pain on left temperal site”. The Panel interprets this as a left temporal side pain in the head. The claimant reported he had haemoptysis (he had vomited or coughed up blood) and had chest and shoulder pain (annexure A-52(n)).
The claimant attended Westmead Hospital on 27 August 2016 complaining of chest pain, intermittent headache and facial pain and reported an episode of coughing or vomiting up of blood and with blood-streaked mucus from his sinuses (annexure A-30). The claimant submitted two photographs of blood-stained tissue which he says were taken on the day of the accident at the hospital but these appear more likely to have been taken at this later attendance.
The first record in the Rouse Hill notes of nose bleeds occurs on 12 October 2016 (annexure A-52(r)). Dr Pang records it was caused by a burst capillary and there are further attendances after that although the Panel notes that Dr Pang’s medical certificate dated 21 September 2016 includes nose bleeding and pain in the head and headaches as part of his diagnosis or description of injuries. The next mention in on 17 April 2018 where the claimant said he had been getting nosebleeds every month since the accident (annexure A-53(e)).
The medical members of the Panel note the claimant has been prescribed blood thinning medication before and after the accident and there have been other episodes of bleeding including vomiting blood (annexure A-47(h)) and rectal bleeding (annexure A-47(u). It is their clinical experience that the claimant’s diabetes and can cause broken capillaries which along with the claimant’s blood thinning medication would cause nose bleeds.
The claimant has not provided any medico-legal evidence or evidence from his treating practitioners that draws a link between the car accident and the occurrence of nose-bleeds.
The Panel is not satisfied that the claimant’s nose bleeds are related to the injury to his head that he sustained in the accident. There is no satisfactory evidence of any nose bleeds before 27 August 2016 the medical members of the Panel say it is not medically plausible for an injury to have occurred 10 days previously to the claimant’s face or nose but for bleeding to then occur 10 days later. In addition, if the claimant had hit his nose or face severely enough to cause an injury and nosebleeds, the Panel would expect there to be a record in the Westmead Hospital notes of 17 August 2016.
Has the claimant’s head injury caused a permanent impairment?
The Panel is not satisfied that Mr Khanna’s soft tissue head injury sustained in the
17 August 2016 car accident has caused dizziness or nose bleeds or any other ongoing symptoms.
The Panel draws the parties’ attention to cl 1.23 of the Guidelines which states that “certain injuries may not result in an assessable impairment”. The medical members of the Panel are of the view that there are no objective clinical findings of a condition caused by the claimant’s soft tissue head injury or that there is a condition that could be assessed under any chapter of the AMA4 Guides or the Guidelines including by analogy under cl 1.24.
Did Mr Khanna sustain a neck injury in this accident?
At 50 kmph, the Panel accepts that the claimant could have sustained a whiplash injury to his neck. The claimant complained of neck pain on admission to hospital the day after the accident and there are complaints in the GP records after the accident of neck pain (annexure A-27 and 28). The Panel is therefore satisfied that Mr Khanna did injure his neck in the accident.
The claimant alleged in 2012 that he injured his neck in 2009 (annexure A-7). The claimant says he injured his neck in the 2014 accident (annexure A-12 and A137-139). The GP records indicate that in February 2015 (Rouse Hill annexure A-52(h)) and April 2015 (Blacktown annexure A-47(q)) the claimant was complaining of neck pain with neurological symptoms including numbness, pins and needles in his fingers and scans were taken showing a disc protrusion.
Of significance to the Panel is that on 10 August 2016, a week before the accident, the claimant was still experiencing neck pain radiating to his arm (annexure A-52(l)).
There is therefore evidence of a pre-existing cervical spine condition, and that condition was causing pain and radicular symptoms a week before the car accident.
What is the nature and extent of the neck injury?
In court documents filed in July 2019, the claimant says he injured his neck in the fall at the Masters store when he felt a sudden jerk. He told the court in that document that as a result of that fall he sustained a whiplash injury in his cervical spine which has worsened the movement of his neck and that it is difficult for him to get in or out of the car, he is unable to work on his computer for more than 30 – 40 minutes and his neck gets stiff when he watches TV while sitting on the couch[13].
[13] Page 2770 of the insurer’s bundle.
In April 2019, the claimant told Dr Machart, for the Masters’ insurer in the court proceedings, that he had neck pain from March 2016 and that, as there was no other cause, it must have been the fall that caused his current symptoms (annexure A-140). It is of significance to the Panel that the car accident of August 2016 was not mentioned to Dr Machart and not identified as a possible source of the claimant’s 2019 symptoms.
The person who knows best what symptoms he experienced following and because of the fall in Masters and the symptoms he experienced following and because of the car accident is the claimant. Mr Khanna has told the court that that the Masters’ fall was to blame for his neck condition yet now tells the Panel that it was the car accident that has caused all his neckproblems.
The Panel notes that in the Rouse Hill records there is no mention of neck pain from
10 September 2016 to 17 July 2017 although there is mention of headaches on
12 October 2016. In the Blacktown notes there is no mention of the car accident at all.
The Panel accepts that the claimant injured his neck in the accident and that the injury was a soft tissue injury on a background of a symptomatic pre-existing condition dating back at least to the very significant injury he sustained in 2009 and the further injuries in 2014 and 2015.
It is the clinical judgment of the medical members of the Panel that the claimant’s soft tissue injury sustained on 17 August 2016 aggravated and exacerbated a pre-existing cervical spine condition. The medical members of the Panel are further satisfied that this would have and did cause symptoms of pain and restriction of neck movement for a period of no longer than 12 months after the accident.
Has the claimant’s neck injury caused a permanent impairment?
Assessment of impairment to the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.115) into three regions one of which is the cervical spine.
There are five diagnostic related categories (DRE I, II, III, IV and V) and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see table 7).
The first is DRE category I which is selected if there are symptoms which may include pain in the neck.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion which is called dysmetria, or
(c) non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but where there is no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
In Mr Khanna’s case, he reports pain in his neck and he therefore qualifies for a finding of DRE category I.
There are no symptoms or signs that justify assessment of DRE category II in this spinal region. Specifically, when examined by Medical Assessor Gorman there was no muscle spasm or guarding and while there was loss of movement in the neck the loss of uniform and symmetrical therefore no dysmetria were present.
There were also no non-verifiable radicular complaints present. There was no shooting pain, burning sensation or tinging reported which followed the distribution of a specific nerve root.
There were no objective signs in that all upper limb reflexes were within normal limits, nerve tension signs were negative and there was no atrophy, weakness or loss of sensation in the upper limbs.
Mr Khanna is therefore assessed as having an impairment categorised as DRE category I which attracts a WPI of 0% in accordance with table 73 at page 110 of the AMA 4 Guides.
Bearing in mind the finding in relation to the degree of impairment, the Panel does not propose to engage further with the issue of causation and or consider apportionment.
Did Mr Khanna sustain a lower back injury in the accident?
Mr Khanna says in his claim form that he injured his lower back in the accident (annexure A-3). Dr Pang’s medical certificate supports this (annexure A-4). The claimant was tender in the thoracic and lumbar spine when examined at hospital the day after the accident. The claimant reported lower back pain and stiffness at his Rouse Hill GP on 10 September 2016 (annexure A52-o).
On the basis of these records, close in time to the accident, the Panel accepts that the mechanism of the accident could have and did cause an injury to the claimant’s lumbar spine.
What is the nature and extent of the claimant’s lower back injury?
There is evidence in the records of a pre-existing lower back condition. The claimant alleged, in 2012, an injury to the whole of his spine in 2009 (annexure A-9). In his 2014 car accident claim he alleged a worsening of back pain (annexure A-12). In 2019, he told Dr Machart he had lower back pain after the Masters’ fall with no other possible cause (annexure A-140).
The Panel notes a CT scan of the claimant’s lower back on 21 September 2013 found degenerative changes including disc degeneration at L4/5 and L5/S1 and that post accident radiology made similar findings.
The Blacktown GP notes (annexure A-47) include reports of back pain in 2009, 2011, 2012, 2013 (including radiating pain after lifting furniture in September), 2014 (including sciatica in January) and 2015 (intermittent back pain in April). In the Rouse Hill GP records (annexure A-52) there are complaints of back pain in 2013 (with numbness after lifting furniture in August) and 2016 (February).
The Panel accepts that the claimant injured his lower back in the accident and that the injury was a soft tissue injury on a background of a symptomatic pre-existing condition including degenerative changes in the discs of his spine.
It is the clinical judgment of the medical members of the Panel that the claimant’s soft tissue injury sustained on 17 August 2016 exacerbated or aggravated a pre-existing lumbar spine condition. It is the medical members of the Panel’s clinical judgment that this would have and did cause symptoms of pain and restriction of movement for a period of no longer than 12 months after the accident.
Has the claimant’s lower back injury caused a permanent impairment?
As with the cervical spine, there are five DRE categories for injuries to the lumbar spine. The first is DRE category I which is selected if there are symptoms which may include pain in the lumbar spine.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion which is called dysmetria, or
(c) non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but where there is no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
On examination by Medical Assessor Gorman, there was no muscle atrophy, no muscle spasm, no muscle guarding and no dysmetria. Non-verifiable radicular complaints were also not present. Reflexes were normal, nerve root tension signs were negative and there was no weakness or loss of sensation in the claimant’s lower limbs following a dermatomal pattern that might suggest a spinal nerve root injury.
Mr Khanna is therefore assessed as having an impairment to his lumbar spine categorised as DRE category I which attracts a WPI of 0% in accordance with table 72 at page 110 of the AMA 4 Guides.
Bearing in mind the finding in relation to the degree of impairment, the Panel does not propose to engage further with the issue of causation or consider apportionment.
Did Mr Khanna injure his left shoulder in the accident?
The claimant has complained of shoulder problems before his accident as follows:
(a) June 2010 – right shoulder pain (Blacktown);
(b) September 2010 – right shoulder frozen, subacromial bursitis and supraspinatus tendinosis and a Celestone injection (Blacktown);
(c) October 2011 – left shoulder pain (Blacktown);
(d) May 2012 – neck pain radiating to left shoulder (Rouse Hill);
(e) February 2013 and May 2015 – Centrelink records suggest the claimant had a shoulder and upper arm disorder which may have prevented him from working;[14]
[14] Page 3,944 of the insurer’s bundle.
(f) In a report dated 30 June 2015, the claimant complained to Dr Bentevoglio that he had neck pain with symptoms radiating into the left upper limb (annexure A-137), and
(g) February and March 2016 – worsening right shoulder pain with painful abduction at 90 degrees (Rouse Hill).
Mr Khanna’s claim form (dated 23 December 2016) and the certificate completed by
Dr Pang say Mr Khanna injured his “shoulder” in the accident (annexure A-3 and 4). Shoulder is in the singular, not plural suggesting the claimant may have injured only one of his shoulders and not both.
In the Rouse Hill records is a reference on 10 September 2016 to whiplash injuries and neck and shoulder pain with pins and needles in the left arm. The next entry is on
15 December 2018 which records pain radiating into the left shoulder and on
19 January 2019 there is a reference to tingling and pins and needles in the left arm.
Mr Khanna did not complain of any symptoms in his left shoulder at the examination with Medical Assessor Gorman, did not refer it to the Commission for assessment and says in his final response document that the left shoulder was injured in the accident.
There is no left shoulder radiology available to the Panel and the symptoms reported in the records are, in the clinical judgment of the medical members of the Panel typical of referred symptoms from the neck rather than any frank injury to the shoulder.
The Panel is satisfied that the claimant did experience symptoms in his left shoulder after the accident but that these symptoms are related to his neck injury.
While Mr Khanna did not mention his left shoulder to the examining Medical Assessors, the Panel is of the view that it should be included in the assessment.
It is the clinical judgment of the medical members of the Panel that the claimant’s soft tissue neck injury sustained on 17 August 2016 would have and did cause symptoms of pain and restriction of left shoulder movement for a period of no longer than 12 months after the accident and has not caused a permanent impairment.
The Panel is of the view that any current impairment to the claimant’s left shoulder function is not related to the soft tissue neck injury or any other accident-related injury and is likely due to his long-standing diabetes or pre-existing injuries from his 2009, 2014 or 2015 accidents.
Did Mr Khanna injure his right shoulder in the accident?
There is no specific mention of right shoulder symptoms or injury in the GP notes.
The medical certificate attached to the claim form lists “collarbone” but does not indicate the precise nature of the collarbone injury of which collarbone. The distal collarbone is at the shoulder end of that bone and is also known as the clavicle. The Panel will therefore proceed by considering whether there is a right shoulder, collarbone or clavicle injury.
The claimant had a right shoulder ultrasound in February 2019, three and a half years after the accident (annexure A-166). At the examination conducted by Medical Assessor Cameron, Mr Khanna is reported to have said his right shoulder injury and pain had resolved. Mr Khanna made no complaint of pain in the collarbone or clavicle at the time of the examination by Medical Assessor Gorman (annexure B-34).
The claimant sought treatment from Ms Wu, a physiotherapist in June 2018 and
Dr Vasili an orthopaedic surgeon in August 2019 but made no complaint of pain or restriction of movement in either shoulder or the collarbone (annexure A-117–124).
The claimant has reported shoulder symptoms caused by the 2009 accident (annexure A-9 and A47(e)) and had an ultrasound with a frozen shoulder diagnosed (annexure A-47(e) and (f)) treated with cortisone injections. He was seen at Rouse Hill for right shoulder problems on 25 February 2016 (annexure A-52(j)).
As the claimant was the driver of the vehicle with the seat belt over his right shoulder at the time of the accident, it is the clinical judgment of the medical members of the Panel that Mr Khanna could have injured his right shoulder and collarbone in the accident. However, the absence of any specific mention of a right shoulder injury or records of any right shoulder symptoms in the GP notes in the first few months after the accident does not satisfy the Panel that Mr Khanna did sustain a significant right shoulder injury in the accident or any injury to his collarbone that has resulted in any permanent impairment present today.
Did Mr Khanna injure his chest in the accident?
There is clear evidence of an injury to Mr Khanna’s chest in the accident. He reported it to Westmead Hospital on the day of the accident (annexure A-28) and, one month after the accident Professor Kovoor found evidence of a chest injury with the claimant reporting tenderness to the anterior aspect of his chest (annexure A-74).
The medical members of the Panel are of the view that this chest injury was a soft tissue injury. Chest and sternum X-rays undertaken on the night of the accident did not reveal any fractures.
Clause 1.23 of the Guidelines explains that some injuries do not attract an assessable impairment and cites uncomplicated healed sternal and rib fractures as two example of this. No impairment or a 0% impairment does not mean that an injury did not occur but that the Guidelines do not provide for an impairment of that injury.
Summary - what is the degree of the claimant’s whole person impairment?
Of the injuries referred to it for assessment the Panel finds as follows:
(a) head resolved, no assessable impairment;
(b) neck DRE category I = 0% or resolved;
(c) back DRE category I = 0% or resolved;
(d) chest resolved, no assessable impairment;
(e) left shoulder resolved, no assessable impairment, and
(f) right shoulder no injury and no impairment.
WHAT ARE THE CLAIMANT’S TREATMENT AND CARE NEEDS
As the Panel is not satisfied the claimant sustained an injury to his right shoulder (including his right collarbone or clavicle), the Panel allows no treatment in relation to the claimant’s right upper limb.
The Panel is satisfied that the claimant’s head and chest injuries gave rise to a need for investigation at hospital but no treatment from the date of the accident. These injuries were, in the view of the medical members of the Panel, soft tissue in nature and resolved soon after the accident.
The soft tissue injuries the claimant sustained to his neck (including the left shoulder symptoms) and his back were exacerbations or aggravations of previous conditions. It is the clinical judgment of the Medical Assessors that those exacerbations and aggravations would have ceased within 12 months of the date of the accident and that Mr Khanna’s musculoskeletal conditions would have returned to the state they were in immediately before the accident. The Panel accepts that the claimant would have required some treatment in those 12 months from the date of the accident but not to the date of this assessment or into the future.
The Panel is of the view that the following treatment is related to the injuries sustained by Mr Khanna:
(a) pain relieving medication for his soft tissue injuries;
(b) investigations by way of imaging of the neck, back and left shoulder;
(c) physiotherapy to the neck, back and left shoulder;
(d) consultations with his GP and specialists relevant to his musculoskeletal injuries, and
(e) domestic assistance and home maintenance for the heavier cleaning, laundry and garden care above and beyond that which was already provided to him following his 2009 accident, 2015 fall and due to his pre-existing cardiac and diabetic complaints.
The Panel does not intend to be prescriptive as to the precise amount of treatment that is reasonable and necessary noting that there is no schedule of treatment and details of accounts and receipts and noting the complexity of Mr Khanna’s pre and post injury medical state.
The Panel is of the view that the GP and other records available to the Panel suggest that all of the investigations and treatment the claimant received in the first 12 months after the accident for his back and neck injuries (including left shoulder symptoms) would be reasonable and necessary in the circumstances.
CONCLUSION
In proceedings R-M10538019/22, the Panel finds that the injuries sustained by the claimant to his back and neck (including left shoulder symptoms) in the accident of 17 August 2016 gave rise to a need for treatment and care in the first 12 months after the accident. Medication, investigations, physiotherapy, GP and specialist consultations along with heavier cleaning, laundry and garden care provided to Mr Khanna for those injuries in the first 12 months is reasonable and necessary in the circumstances.
As the Panel has come to a different view to Medical Assessor Cameron, the Panel revokes his certificate and will issue a new certificate.
In proceedings R-M10538039/22, the Panel finds that the claimant does not have a WPI of greater than 10% resulting from the injuries caused by the accident of 17 August 2016.
While the Panel has come to the same conclusionas Medical Assessor Cameron (that is that the claimant has a whole person impairment of not greater than 10%), the Panel has come to a different view about causation of the right shoulder injury and has found symptoms in the left shoulder were caused by the accident. In those circumstances the Panel is of the view that the certificate of Medical Assessor Cameron should be revoked.
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.[15]
[15] 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[16] 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;[17]
(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.
[16] Page 2,757 of the insurer’s bundle.
[17] 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.[18] 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”.
[18] 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.[19]
[19] Paragraph 12 of the claimant’s final response document.
Other claims and litigation
The insurer has provided details from the Personal Injury Register[20] 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[21] that the 2013 and 2014 accidents were “minor and [were] settled by the insurer”.
[20] Page 3,929 of the insurer’s bundle.
[21] At point 34 of his final response document.
The medical certificate supporting the claimant’s 30 October 2009 accident[22] 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.
[22] Page 2,786 of the insurer’s bundle.
Mr Khanna wrote to Allianz dated 26 July 2012[23] 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.
[23] 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[24] 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.
[24] 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.[25] 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”.[26] 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.
[25] Khanna v Allianz Australia Insurance Limited [2021] NSWCA 231.
[26] Paragraph 12.
The medical certificate for the claimant’s 16 May 2014 accident[27] 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[28] and says[29] that his wife was more injured in this accident and his memory was that this “settled out of court.”
[27] Page 2,787 of the insurer’s bundle.
[28] At point 35 of his final response document.
[29] 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.[30]
[30] 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,[31] 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.
[31] 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.[32]
[32] See point 37 of the claimant’s final response document.
The insurer has provided a copy of the judgments of both Dicker DCJ[33] and the Court of Appeal[34] in respect of the Masters’ fall.
[33] Khanna v Woolworths Group Limited (no 2) [2021] NSWDC 567.
[34] 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[35] 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.[36] 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.
[35] His Honour summarises the cross-examination commencing at [85].
[36] See [93] in particular.
The claimant says[37] 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:
[37] 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.”
Dr Chipps wrote to the claimant’s GP[119] on 16 June 2021 advising of the claimant’s HbA1c result of 8.4% suggesting a review of his diabetes management.
[119] The additional Rouse Hill bundle page 969
Doctor Boyages
Dr Boyages wrote to Dr Rahmanamlashi on 14 January 2021[120] noting that it was about 15 years since he had last seen the claimant. His diagnoses for “insulin requiring type 2 diabetes mellitus complicated by extensive macrovascular disease and peripheral neuropathy”.
[120] The additional Rouse Hill bundle page 942.
Dr Boyages has a history of a “major road trauma” in 2006 (likely to be an error and a reference to 2009) complicated by myocardial infarction and multiple cardiac stents. There is also reference to the September 2019 bypass grafting. He referred to the claimant’s “fairly large amounts of insulin”. The claimant weighed 81.5kg and exhibited significant peripheral neuropathy as well as reduced peripheral perfusion.
Dr Boyages altered the claimant’s medication and requested Mr Khanna return to see him in four weeks after blood tests and more intensive blood sugar monitoring.
On 11 June 2021, Dr Boyages again wrote to Dr Rahmanamlashi[121] recommending a variation to the medication regime and introducing dulaglutide which works as an insulin sensitiser, reduces appetite, improves insulin sensitivity, protects the kidneys and heart.
[121] The additional Rouse Hill bundle page 967.
Renal physicians
Dr Wavamunno, renal physician wrote to Dr Rahmanamlashi on 11 July 2022[122] saying the claimant was complaining of continued pain on both lower limbs and breathlessness on minimal exertion. He expressed the view “I think a significant component of these symptoms could be his anxiety disorder”. His kidney function was further impaired which could have been caused by the residual effects of the contrast dye used for the cardiac procedure and the vascular procedure.
[122] The additional Rouse Hill bundle page 1,038.
Dr Komala, nephrologist wrote to Dr Rahmanamlashi on 11 January 2023.[123] He notes a “significant history of diabetes going over the last 30 years with diabetic retinopathy and diabetic peripheral neuropathy”. Dr Komala also notes ischaemic heart disease, chronic kidney disease. There was reported significant stress associated with his medical problems but Mr Khanna was “getting on top of this”. He reported significant pain in his lower limbs. He considered the claimant’s renal dysfunction to be due to diabetic nephropathy. Further tests were ordered and a review scheduled.
[123] The additional Rouse Hill bundle page 1,066.
Dr Komala saw the claimant again on 15 March 2023.[124] He notes the claimant had recently been admitted to hospital with heart failure and hyperkalaemia (high levels of potassium). The claimant reported feeling reasonably well and his kidney function was stable. The claimant is to be reviewed in six months’ time.
Diabetes complications
[124] The additional Rouse Hill bundle page 1,074
Peripheral neuropathy and neurologist
Dr Daly, vascular and endovascular surgeon wrote to the GP and Dr Wavamunno after seeing the claimant on 6 September 2021[125] as the claimant had stenosis in his right popliteal artery which required angioplasty. The claimant was prescribed Lyrica but Dr Daly wished to check that in the light of his kidney function whether this was appropriate.
[125] The additional Rouse Hill bundle page 980.
Dr Daly wrote again to the claimant’s GP on 16 November 2021[126] noting that the claimant’s pain in his lower leg may be due to blockages in his popliteal artery which is likely to be relieved by angioplasty but that if he has peripheral neuropathy relevant to his previous back injury this will not be improved.
[126] The additional Rouse Hill bundle page 993.
Dr Daly’s final letter of 20 July 2022[127] noted the claimant’s mobility had improved but he continued to have bilateral painful peripheral neuropathy which may have been a legacy of the diabetes. He simply planned to review the claimant in a year’s time.
[127] The additional Rouse Hill bundle page 1,050 and page D-159 of the claimant’s bundle.
The claimant was seen by Dr Mark Malouf, surgeon on 7 October 2022 for what appears to be an alternative opinion to that of Dr Daly.[128] Dr Malouf confirmed the arterial treatment has worked well but that the claimant was still “terribly disabled” from his peripheral neuropathy. He suggested a referral to a neurologist.
[128] The additional Rouse Hill bundle pages 1,052 and D-166 in the claimant’s bundle.
Mr Khanna was seen by Dr Vucic neurologist on 17 February 2023.[129] The claimant reported first developing symptoms in 2017 such as cramps in his calves and feet with numbness and a sensation of walking on rocks. This has spread to his knees and a burning sensation in his feet. The claimant has developed an uneven gait and had recently fallen. He denied any other neurological symptoms.
[129] The additional Rouse Hill bundle pages 1,071 and D-167 in the claimant’s bundle.
Dr Vucic has no history of any of the claimant’s accidents but does have a history of the claimant’s diabetes, heart disease, heart failure, high blood pressure, high cholesterol, GORD, depression and anxiety. He formed the view the claimant had sensorimotor neuropathy secondary to non-insulin dependent diabetes and requested nerve conduction studies, EMG and an MRI of the brain and the whole spine. He prescribed an increase in Lyrica.
Mr Khanna relies on a medical certificate from Dr Nima Rahmanamlashi dated 7 September 2022[130] certifying that Mr Khanna suffers from peripheral neuropathy which is “a permanent complication of advanced diabetes.”
[130] Page D-148 of the claimant’s final bundle.
Mr Khanna says[131] that it is important to note that he takes very high levels of medicine to control his diabetes and that it has been mentioned many times by his doctors that “exercise is very important to control diabetes” and that “aridic centres established in India” may be of benefit to him.
[131] Point 56 of his final response document.
Ophthalmologists
On 25 August 2010, Dr Banerjee of Marsden Eye Specialists wrote to Dr Paw concerning the claimant’s eye health noting he had bilateral retinopathy in the form of microaneurysms. In a further letter dated 7 May 2012,[132] Dr Banerjee reported the claimant’s diabetic retinopathy had increased.
[132] Page 272 of AD8.
There is a report from Dr Paul Mitchell ophthalmologist dated 9 February 2021.[133] He refers to his treatment of the claimant since 2012 when the claimant was first detected with non-proliferative diabetic retinopathy and the development in 2018 of proliferative disease with the requirement for laser treatment to his right eye. The claimant’s retinopathy was stable, and no further treatment was needed.
[133] The additional Rouse Hill bundle pages 946 and D-164 in the claimant’s bundle.
The claimant relies on a report from Dr Paul Mitchell dated 8 April 2022.[134] At the time of writing this report the claimant had blurred vision caused by a fresh vitreous haemorrhage, an injection was given, and further tests were suggested.
[134] The additional Rouse Hill bundle at page 1,032.
In his final response document, the claimant says that his diabetic retinopathy is a manifestation of the worsening of his diabetes.
Orthopaedic injuries
Dr Vasili
Dr Vasili, orthopaedic surgeon, wrote to Dr Rahmanamlashi on 26 August 2019.[135] The claimant reported right lower back and buttock discomfort radiating into his groin which limited his ability to walk to 10 minutes and Mr Khanna reported difficulty putting on his shoes, negotiating stairs and entering a motor vehicle. He says:
“Sanjeev describes a complicated past medical history. In 2009, immediately following trauma where, as a pedestrian he was struck by a truck, Sanjeev suffered two acute cardiac events in quick succession, and he has since then undergone coronary stenting on multiple occasions and is scheduled for bypass surgery on 24 September 2019 at Westmead Hospital.”
[135] The additional Rouse Hill bundle page 881.
The claimant had a mildly antalgic gait, positive Trendelenburg sign, reduction in right hip movements and irritability in the right hip joint. The lower limb neurological assessment reported no deficit. The doctor referred the claimant for MRI scans and the claimant was to return.
Dr Vasili saw the claimant again and reported to Dr Rahmanamlashi on 2 March 2020.[136] He reported on the MRI scans of the lumbar spine. The claimant related his “persistent right hip and knee symptoms to a fall in Masters Hardware on 18 April 2015.” The claimant was advised to have CT guided right hip injections and X-rays of the right knee.
[136] The additional Rouse Hill bundle page 919 and page G-219 of the claimant’s final bundle.
On 23 November 2020, Dr Vasili wrote again to Dr Rahmanamlashi[137] which states “since the fall at Masters Hardware on 18 April 2015, Sanjeev states that he has suffered constant severe lower back pain, moderate right hip pain … painful paraesthesia below the knee bilaterally, and the feeling of walking on cotton wool when mobilizing barefoot.” There were absent reflexes, altered light touch sensation on both feet but no weakness. He was advised to see a neurologist for assessment of peripheral neuropathy.
[137] The additional Rouse Hill bundle page 928.
Physiotherapists
There is a “to whom this may concern” letter dated 28 June 2018 from Ms Wendy Wu physiotherapist. She refers to the claimant’s “complex history of musculoskeletal problems” and that she commenced treating him on 6 April 2018. She has a history of the car accident and recurrent hospital admissions but none of the claimant’s other accidents, falls or conditions. She records complaints of a dull ache to moderate pain across the lower back radiating into the “glutes” and thighs with numbness. Mr Khanna also complained of a dull ache across his neck radiating into his upper back and associated with headaches. He has glenohumeral joint pain and bilateral calf and foot pain with cramping sensations in the calf and foot. She expressed the view he required two treatments a week for 24 weeks as a minimum.
Ms Wu wrote an email to Alan Cooper dated 28 June 2018[138] referring to complex problems secondary to a history of a motor vehicle accident. The claimant had complained of lower back pain radiating into his “glutes” and thighs aggravated by walking or sitting. He also had pain across his neck radiating into the upper back and associated with headaches. He also complained of glenohumeral joint pain and bilateral calf and foot pain.
[138] Page G-223 of the claimant’s bundle.
Ms You of Betta Physiotherapy reported to Dr Rahmanamlashi on 23 December 2019[139] concerning the claimant’s lower back and leg pain. There is no mention of any of the claimant’s accident or injuries.
[139] The additional Rouse Hill bundle page 903.
P360 Performance, a physiotherapy practice, reported to Dr Rahmanamlashi on 18 December 2020[140] noting that the claimant was complaining of pain in both feet and legs “on the background of two motor vehicle accidents and an extensive medical history”. The opinion of the physiotherapist was the pain was secondary to diabetes and that the claimant was an inappropriate candidate for physiotherapy.
Gastroenterologists
[140] The additional Rouse Hill bundle page 941.
Dr Zarghoum and Westmead clinic
Dr Zarghoum a gastroenterologist saw the claimant at the request of Dr Rahmanamlashi on 17 May 2018.[141] The claimant had “new onset iron-deficiency anaemia” with a risk factor for gastrointestinal bleeding due to his Plavix therapy (for cardiac issues). There is also a referral to an accident in 2009 which resulted in “significant disability issues and loss of his job with depression / anxiety”.
[141] The additional Rouse Hill bundle page 858.
Dr Zarghoum noted liver tests suggested an alcoholic liver disease pattern and that the claimant continues to drink. The claimant was said to have “poor diabetic control due to his poor compliance”. He made a number of recommendations but did not appear to seek a further consultation.
The claimant was seen in the gastrointestinal clinic of Westmead Hospital on 8 August 2018.[142] The claimant gave a history of poor energy levels and discomfort with breathing on exertion. Dr Zarghoum had no history of rectal bleeding or dark stools. He required ongoing iron infusions due to anaemia. Blood tests revealed iron deficiency and some renal impairment. He wished to do more tests and noted “significant anxiety and depression” which was impacting on his relationship with his wife and his activities of daily living and that he might need a mental health plan and referral to a psychologist.
[142] The additional Rouse Hill bundle page 863.
On 23 January 2019, Mr Khanna was again seen in the gastrointestinal clinic of Westmead Hospital and the attending doctors wrote to Dr Pang.[143] The claimant had a video capsule endoscopy. The claimant was lethargic but there was no evidence of gastrointestinal bleeding. He was advised to have a further iron infusion. In terms of his liver function tests these were to be monitored by the Liver Clinic.
[143] The additional Rouse Hill bundle page 871.
Dr Gill
Dr Gill, gastroenterologist, hepatologist and advanced endoscopist wrote to Dr Rahmanamlashi on 7 December 2021[144] after seeing the claimant for “further evaluation of deteriorating liver function test”. He reviewed the blood tests noting some evidence of deteriorating liver function and mild chronic kidney disease. The claimant was overweight at 82.2kg he requested a comprehensive liver screen and FibroScan and he was concerned there was right hear failure affecting his liver.
[144] The additional Rouse Hill bundle page 987.
Dr Gill wrote to the claimant’s GP again on 2 February 2022 after the blood tests.[145] He considered the liver screen “essentially unremarkable” but there was evidence of kidney disease and the FibroScan was concerning for cirrhosis, and he was organising a liver biopsy.
[145] The additional Rouse Hill bundle page 997.
Dr Gill’s next letter[146] is dated 22 June 2022 and he was arranging a screening gastroscopy to assess for oesophageal and gastric varices, repeat blood tests and an ultrasound of the liver.
[146] The additional Rouse Hill bundle page 1,036.
The next letter to the GP from Dr Gill is dated 24 February 2022[147] confirms the presence of non-alcoholic cirrhosis of the liver. He notes Mr Khanna will need to have ongoing monitoring and endoscopy.
[147] The additional Rouse Hill bundle page 1,002.
The last letter from Dr Gill is dated 4 January 2023[148] a number of oesophageal varices were noted. The plan was to repeat the gastroscopy procedure in six month’s time and, if Dr Kovoor approved, stopping the claimant’s blood thinners to enable the varices to be banded to prevent the risk of uncontrolled bleeding.
[148] The additional Rouse Hill bundle page 1,063.
Psychiatrist
Dr Pearson psychiatrist provided a letter to Dr Rahmanamlashi dated 6 November 2020.[149] He has a history of the 2009 accident and two myocardial infarctions immediately afterwards. He also had a further injury in “2015” when he was hit from behind by a motor vehicle.
[149] The additional Rouse Hill bundle page 936.
The claimant reported that his mood has deteriorated over the years. He is restricted physically and highly anxious about his physical state. Dr Pearson noted the claimant’s involvement in litigation concerning the third-party claim and an action against Mercedes Benz in relation to the 2009 incident. Dr Pearson thought the claimant was significantly depressed and recommended Pristiq.
Mr Khanna says[150] that the claimant’s mood has deteriorated and worsened after the motor accident of 2016 particularly as his cardiologist has advised there is no further stenting or grafting to be done.
[150] At point 60 of his final response submissions.
Medico-legal reports
Dr John Bentevoglio wrote a report for the claimant’s solicitors dated 30 June 2015 in relation to the 16 May 2014 accident.[151]
[151] Page 2,815 of the insurer’s bundle.
The claimant complained of neck pain present most of the time and dizziness when he moved his neck suddenly. The claimant complained of five or six headaches a week and symptoms radiating down his left arm to three fingers on the ulnar side. He felt his neck pain was worsening
Dr Bentevoglio reports that the claimant had reduced his domestic activities, was walking less because of his injuries, and had given up jogging and table tennis. He diagnosed the claimant with a musculoligamentous strain of the cervical spine aggravating pre-existing degenerative changes in the neck. There was no evidence of any nerve root or compression, but he said this injury was causing ongoing neck pain, headaches and symptoms radiating into the left upper limb.
Dr Machart provided a report to the insurer in the claim following the Masters fall dated 7 April 2019.[152] Mr Khanna gave the doctor a history of the accident in the shop on 18 April 2015 saying that it was 16 March 2016 when the injuries from his fall “had accrued” in that he became aware of pain in other areas including the right knee, lower back, right hip and neck.
[152] Page 2,817 of the insurer’s bundle.
Mr Khanna is reported to have said “he was of the opinion that these additional symptoms were as a result of the injury because that was the only injury he remembered in the past and hence no other cause was identified”.
Dr Machart takes a history of Mr Khanna having ongoing symptoms, could not walk more than 20 steps and could not cut the lawn or wash dishes. The severity of his pain had not eased.
Dr Machart observed the claimant to be limping heavily.
Dr Machart was of the view there was no evidence of substantial or long-lasting injury and a substantial pre-existing history of lumbar and hip pain with another fall and car accident after the event.
The insurer relies on a report from Dr Slezak dated 24 March 2020.[153] This report is a file review and is concerned with the claimant’s life expectancy. Dr Slezak summarises the cardiac history. He also noted that the claimant’s blood pressure appears well controlled although a transthoracic echocardiogram in January 2016 revealed moderate concentric left ventricular hypertrophy.
[153] Page 2,825 of the insurer’s bundle.
Dr Slezak notes the development of the claimant’s diabetes which takes back to 2009 and was treated by oral medication but which since 2012 has been treated with insulin. He notes elevated HbA1c levels of 11.1% in September 2017 and that complications of Mr Khanna’s diabetes include coronary artery disease and diabetic retinopathy.
Dr Slezak notes the claimant has Grade 1 obesity with a BMI of 31.8 as at March 2014.
The claimant was said to be at risk of fatty liver disease but may already have “early hepatic cirrhosis”. His diagnosis with sleep apnoea was also mentioned and Dr Slezak considered confirming whether the claimant was utilising CPAP therapy was important.
Dr Slezak expressed the view that while a man of the claimant’s age might be expected to live a further 26.8 years on the medium life expectancy data from 2019, he only expected the claimant to live a further 8-10 years based on his current health problems.
Radiology
Cervical spine
A CT of the cervical spine was done on 21 April 2015[154] with a history of two months of radicular symptoms radiating to C8. There were multilevel degenerative changes and a broad based disc bulge seen at C5/6 and an MRI was recommended.
[154] Page G-227 of the claimant’s final bundle.
An MRI of the cervical spine dated 25 September 2015[155] 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.
[155] Page G-228 of the claimant’s bundle.
The further MRI of the cervical spine dated 20 December 2018[156] 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.
[156] 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[157] showed disc degeneration L4/5 andL5/S1 with mild canal stenoses, mild bilateral L4/5 and L5/S1 foraminal stenoses.
[157] Page 2,919 of the insurer’s bundle.
Another CT scan of the lumbar spine on 4 April 2018[158] 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.
[158] 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[159] 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.
[159] 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[160] 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.
[160] The additional Rouse Hill bundle page 123.
An MRI of the claimant’s brain was undertaken on 11 December 2020[161] 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”.
[161] The additional Rouse Hill bundle page 200.
A further MRI of the brain was done on 1 December 2022[162] 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.
[162] 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.[163]
[163] 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.[164] 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.
[164] Page 2930 of the insurer’s bundle.
A right shoulder ultrasound on 6 February 2019[165] showed mild subacromial bursal thickening but no significant findings in the acromioclavicular or glenohumeral joint.
[165] 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.[166] 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.
[166] 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,[167] Mr Khanna has provided a list of his current daily medications which are set out below:
[167] 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.
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