Khanna v Insurance Australia Limited t/as NRMA Insurance (No 7 and 8)

DETERMINATION OF REVIEW PANEL
CITATION:	Khanna v Insurance Australia Limited t/as NRMA Insurance (No 7 and 8) [2023] NSWPICMP 563
CLAIMANT:	Sanjeev Khanna
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Wayne Mason
DATE OF DECISION:	8 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; assessment by Medical Assessor Young of whole person impairment (WPI) and treatment, and insurer’s review of assessment under section 63; claimant injured in August 2016 accident; claimant alleged development of a psychiatric or psychological condition due to his current state of cardiac health and having been told there is nothing that can be done to prolong his life; claimant submits current state of cardiac health due to blunt force trauma of seat belt and damage to one cardiac artery stent resulting in cardiac procedures 14 months after the accident and continued deterioration of his condition; insurer argued causation, multiple previous accidents, incidents and events and other conditions affecting the claimant’s current health; no medico-legal evidence from either party; Panel conducted review of documentary evidence from treating practitioners and other related proceedings; Held – claimant was diagnosed with persistent depressive disorder with intermittent major depressive episodes related to his parlous state of health; claimant had WPI of 6% as a result of this condition; Panel relied on findings of related Panels dealing with claimant’s musculoskeletal and cardiac conditions and found claimant’s current state of health was not caused by the accident and therefore psychiatric condition not caused by the accident; while treatment was reasonable and necessary to alleviate his depressive condition, it is not treatment related to the injuries caused by the accidents; certificate as to reasonableness and necessity of treatment revoked; certificates concerning WPI and causation of treatment confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 In respect of the certificates issued by Medical Assessor Young dated 25 July 2022, the Review Panel: 1. Confirms the certificate relevant to the degree of the claimant’s whole person impairment which the Panel says is not greater than 10%. 2. Revokes the certificate relevant to whether the treatment in dispute is reasonable and necessary in the circumstances. 3. Confirms the certificate relevant to the treatment in dispute which the Panel says is not related to the injury caused by the accident.

STATEMENT OF REASONS

INTRODUCTION

Sanjeev Khanna was involved in a motor accident on 17 August 2016. The claimant was stationary in his car when he was hit from behind by another vehicle.
The claimant says he was physically injured in the accident and developed a psychological or psychiatric condition as a result.
Mr Khanna 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 caused the accident and was at fault.
A dispute about whole person impairment (WPI) and a number of medical disputes about treatment have arisen in connection with the claim and those disputes were referred to the Personal Injury Commission (the Commission) for assessment and were assessed as follows:
(a)    aggravation and exacerbation of a diabetic condition – WPI and treatment disputes assessed by Medical Assessor Carter and subject to review. Decisions were published in those matters as Khanna v Insurance Australia Limited t/as NRMA Insurance (No 1 and No 2);[1]
[1] [2023] NSWPICMP 294 referred to in these reasons as Khanna No 1 and No 2.
(b)    cardiac injury, aggravation and exacerbation of a cardiac condition – WPI and treatment disputes were assessed by Medical Assessor Herman and subject to review. Decisions were published in those matters as Khanna v Insurance Australia Limited t/as NRMA Insurance (No 3 and No 4),[2] and
[2] [2023] NSWPICMP 302 referred to in these reasons as Khanna No 3 and No 4.
(c)    musculo-skeletal injuries – WPI and treatment disputes were assessed by Medical Assessor Cameron and subject to review. Decisions in those matters were published in those matters as Khanna v Insurance Australia Limited t/as NRMA Insurance (No 1 and No 2).[3]
[3] [2023] NSWPICMP 295 referred to in these reasons as Khanna No 5 and No 6.
Medical Assessor Young was referred disputes about WPI and treatment relevant to the claimant’s psychological or psychiatric injuries. On 25 July 2022, Medical Assessor Young determined that Mr Khanna did not sustain any psychological or psychiatric injury in the accident and that he did not have a WPI of greater than 10%. He also found that none of Mr Khanna’s claimed treatment and care needs were related to injuries caused by the accident and were therefore not reasonable and necessary in the circumstances.
Mr Khanna lodged an application seeking a review of Medical Assessor Young’s decisions.
On 21 November 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment of the medical assessment matters concerning treatment as well as the medical assessment matter concerning WPI.
The insurer made an application to the delegate for her to revisit her decisions, and that application was refused on 23 January 2023. The delegate then convened this Panel to conduct the two reviews.

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 an insurer throughout the life of a claim, to provide treatment to an injured person 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 needs as well as their lost earnings and lost earning capacity.
Damages for non-economic loss (defined to include pain and suffering and the loss of amenities of life) 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[4] 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.
[4] The current maximum as of October 2023 is $620,000.
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.[5]
[5] See s 132 of the MAC Act.

Dispute resolution

Section 58(1)(d) of the MAC Act provides the Commission with power to determine disputes about impairment and s 58(1)(a) and (b) provides the power to determine disputes about treatment. Other provisions of the MAC Act provide for further medical assessments and the review of medical assessments by this Panel.[6]
[6] Sections 62 and 63.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned”
(sub-s 3A) in other words an assessment de novo.
Rule 128 of the Rules 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.

Causation of injuries and impairments

Mr Khanna can only recover damages for the losses incurred as a result of the injuries caused by the accident. The insurer is therefore only liable to pay for treatment related to injuries caused by the accident. Mr Khanna is only entitled to damages for non-economic loss if he has a WPI of greater than 10% flowing from the injuries caused by the accident.
Causation of injuries is therefore a significant issue to be determined before individual treatments or impairments can be assessed.

Permanent impairment assessment

Permanent impairment must be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[7] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[7] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
The AMA4 Guides and the Guidelines provide a standard framework and objective method of analysis 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 systems. In the context of Mr Khanna’s complaints of injury and the assessment under review in these proceedings, chapter 14, the Mental and Behavioural Disorders chapter is relevant.

Method of assessment for psychiatric injuries

The Guidelines include a chapter entitled “Mental and behavioural disorders” and require the assessment of impairment to be undertaking in accordance with the psychiatric impairment rating scale (PIRS) and that the AMA4 Guides are to be used as “background or reference only”.[8]
[8] Clause 1.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with whatever the current edition of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[9]
[9] Clause 1.213 of the Guidelines.
The PIRS provides[10] for the consideration of any psychiatric condition present before the accident in question:
[10] Clause 1.218 of the Guidelines.
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
The PIRS provides in clause 1.219 for six areas of function:
1.219.1    self-care and personal hygiene;
1.219.2    social and recreational activities;
1.219.3    travel;
1.219.4    social functioning (relationships);
1.219.5    concentration persistence and pace, and
1.219.6    adaptation.
The PIRS then provides at 1.220 for five classes with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury”.
The impairment may be adjusted for treatment[11] that is treatment such as medication being consumed to treat the psychiatric condition.
[11] See clauses 1.222-1.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a WPI percentage.[12]
[12] See clauses 1.225-1.228 and Table 17.
Clause 1.218 provides for the assessment of impairment where there is a pre-existing psychiatric diagnosis or diagnosable condition. Pre-existing impairment and subsequent injuries is also provided for in cls 1.31-1.34.

ASSESSMENT UNDER REVIEW

Medical Assessor Young examined the claimant on 4 July 2022 and issued his certificate on 25 July 2022. He notes at [2] that the claimant had reported symptoms of depression and anxiety but did not refer to a specific psychiatric diagnosis. He confirms at [1] that he was asked to assess WPI and at [3] that he was asked to assess the following treatment and care disputes:
(a) future consultations with a psychologist (0-6 per year) for the next 0-15 years, and
(b)
future medication (0-30 tablets per month) related to his psychiatric injuries for

0-15 years, the medication being Mirtazapine, Diazepam and Belsomra.
Medical Assessor Young notes at [4] and [5] the issues of causation in the proceedings before him:
(a) the claimant’s allegation that the injuries that he sustained in the accident worsened his pre-existing heart troubles resulting in impairment of function that has caused secondary depression and anxiety, and
(b) the insurer refers to pre-existing psychological symptoms and the absence of any evidence linking his current symptomatology to the accident.
Medical Assessor Young documents the following history:
(a)    Mr Khanna had not worked since 2009;
(b)    he was in receipt of the disability support payment since 2013;
(c)    he has had multiple cardiac procedures over the years;
(d)    he has had motor vehicle accidents and claims in 2006, 2009, 2013 and 2014 and other incidents including a fall at a hardware store in 2015 and an assault in 2019;
(e)    the accident the subject of the proceedings occurred while he was stationary and hit from behind. He said he injured his head, neck, right shoulder, clavicle and lower back;
(f)    he drove home and his wife drove him to Westmead Hospital as he was “bleeding from his mouth or nose”;
(g)    Mr Khanna said that he had pain in his chest and saw his cardiologist who found the accident had caused damage to his coronary artery stents which necessitated surgery to replace the stents;
(h)    since the accident he has had difficulty breathing, he experiences chest pain and reduced exercise tolerance indicating the deterioration of his heart function and progression of his heart failure. This has resulted in feelings of distress and anxiety;
(i)    he reported being prescribed Mirtazapine in 2017 which was ineffective and in 2018 he saw a psychiatrist who changed his medication to Desvenlafaxine;
(j)    he has not been referred to a psychologist, and
(k)    because of his deteriorating functioning he can only walk short distances, cannot engage in his interests and social activities and as a result his mood and anxiety has deteriorated.
Mr Khanna told Medical Assessor Young that there has been further deterioration of his cardiac condition and further arterial grafts in 2019 and increasing peripheral oedema. In addition, he said his diabetes has deteriorated with the onset of retinopathy and peripheral neuropathies which he also relates to the accident.
The claimant reported “feeling despondent” due to his lack of income and poor health. He said he had nothing to do and felt handicapped and reliant on his wife. He said he had been unable to drive. His mood was low, and he refers to the loss of a successful business and four Mercedes Benz cars that he used to own.
Mr Khanna completed a test questionnaire scoring in the extremely severe range for depression and anxiety and severe for stress.
On examination the claimant was said to be alert, pleasant and co-operative. His affect was reactive, his speech was normal, and he spoke in a clear and logical fashion. Cognition was reported as intact.
Medical Assessor Young noted:
“Mr Khanna appeared to show limited insight and judgement. He was not able to recognise apparent inconsistencies in the history that he described and presented the link between the motor vehicle accident and his psychological symptoms as self-evident.”
The claimant told the Medical Assessor he usually neglects to shower and brush his teeth due to lack of motivation and his physical issues. He does not cook and has insufficient energy for domestic duties. Lack of energy was also the stated cause of his inability to participate in social and recreational activities and is mainly confined to home.
The claimant said he was too scared to drive because of poor concentration, dizziness and difficulty turning his head. He does not maintain connection with his extended family and no longer has any friends. He reported poor memory and concentration.
Medical Assessor Young considered there were inconsistencies between the documentation and the history provided (particularly concerning the pre-accident symptoms, claims and litigation).
In his review of the documentation, Medical Assessor Young notes at [18]:
“The clinical records indicate that the claimant has reported anxiety and depressive symptoms for more than ten years. There are several mental health care plans and he has been prescribed several antidepressant medications prior to the accident. There are no reports or correspondence related to mental health. The documentation shows a relationship between his physical symptoms due to medical issues but there is none linking his current symptoms to the accident.”
Medical Assessor Young considered the criteria for Major Depressive Disorder but preferred the diagnosis of an Adjustment Disorder noting the claimant’s symptoms of depression and anxiety were associated to his deteriorating medical condition and were beyond a normal reaction.
While he noted the temporal connection between the accident and the deteriorating physical condition and psychological symptoms Medical Assessor Young said there was no evidence from treating doctors or other evidence relating the deterioration of his cardiac condition to the injuries sustained in the accident. Therefore, he did not consider the Adjustment Disorder was caused or exacerbated by the motor accident.
Medical Assessor Young did not accept any of the treatment claimed was related to the accident.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant lodged submissions dated Saturday 1 October 2022 in relation to all eight of the applications for review then before the Commission.
The claimant says at [1] and [8] that a summary of injuries was not sent to the Medical Assessor and therefore it was difficult to “do the proper assessment.” He refers at [3] to the insurer’s joint bundle of documents (uploaded in the related matters) and notes that the document he relies upon “are very limited” and he wants to provide comparison evidence. He says he agrees he had medical conditions before the accident but says these have been aggravated. He says at [4] that the aggravation and continued worsening of his conditions is because of the negligence of the insured.
The claimant requested an extension of time in the related review proceedings and requested the exclusion of the insurer’s joint bundle of documents.
The claimant then at [B11]-[B12] refers to directions made in the related proceedings.
Mr Khanna appears to commence his substantive submissions in this matter at [C13]. At

[14]-[16] he cites a number of judicial authorities relevant to the President’s delegate’s decision. At [17]-[21] he cites a number of judicial decisions relevant to the Medical Assessor’s obligation to engage with arguments and at [22]-[24] and [27] the obligation to give reasons.

Mr Khanna says at [26] the Medical Assessor has not given sufficient reasons as to the medication in dispute and has not evaluated other systems that may be involved.
On 12 November 2022, Mr Khanna lodged further submissions in respect of the application for review of the impairment decision of Medical Assessor Peter Young (M10538022/22).
He says that the determination of permanent impairment is to be undertaken in accordance with chapter 12 of the AMA4 Guides (the brain), that his current WPI is 4%, that his WPI from pre-existing or subsequent causes without medication would be 6% and that the WPI due to the motor accident is therefore 6%.
No further submissions were provided.
On 7 June 2023, the Panel relayed to the parties a message advising that the Panel would be proceeding on the basis that the bundle of documents Mr Khanna has relied on in the six review matters concerning his physical injuries (the review of the assessments undertaken by Medical Assessors Cameron, Herman and Carter) is the bundle of documents that he would be relying on in the two matters concerning his psychological and psychiatric injuries.
Within the bundle of documents were submissions made by the claimant concerning primarily his physical injuries, but which have also touched upon his psychological injuries. In fairness to the claimant, these submissions have also been considered in the current proceedings. The Panel notes under the heading “A: Conclusion” the claimant says:
“The claimant concludes that due to the motor vehicle accident with belt trauma to the anterior aspect of the chest damaging the previous cardiac stent which was ballooned inserting three new cardiac stents in the year 2017 which was not
very successful lately has caused the doctors for the open heart surgery on 13 September 2013 with many developed related medical conditions such as (Pleural Effusion requiring pleural aspiration on five occasions, Pain and swelling in legs)) further stated by Professor Kovoor (cardiologist) that no further cardiac stents, grafting on arteries or CPR will be performed this statement in writing aggravated the claimant’s depression, anxiety, and frustration to an extent, further with shortness of breath including high diabetes worsening his medical condition turning into peripheral neuropathy as confirmed by Assessor John Carter, Dr G. Mark Maluf and Steve Vucic.”
The Panel notes the claimant had earlier (at paragraphs 37.1-40) submitted that:
(a)    the claimant has been advised that there is no further stenting or grating that can be done for his arteries and that no resuscitation would be performed which has caused depression;
(b)    the claimant continues to experience anxiety, depression and loss of concentration which was aggravated after the accident;
(c)    the heart is the main organ of the body which supports all other organs and because of its failure, his health has been affected and he can no longer do many things that he did before including exercise, and
(d)    his mental health has been affected “very much and [he is] suffering from depression, anxiety, frustration and low concentration with low mood.”

Insurer’s submissions

The insurer’s submissions in the treatment dispute matter are dated 27 October 2022.
The insurer argues that the claimant’s application for review shoulder be rejected as the claimant has not pointed to any errors in the assessment but has expressed his general dissatisfaction with the result. The insurer addresses the alleged errors and says that the claimant has not demonstrated that any of the alleged errors are material.
The insurer’s submissions in the permanent impairment dispute matter are also dated 27 October 2022 and are in nearly identical terms.

Procedural matters

On 1 May 2023 the Panel issued directions to the parties as follows:
(a)    the Panel advised it would hear both review proceedings together;
(b)
the parties should upload or lodge documents only on file number

R-M10538170/22;
(c)    the insurer was directed to upload a joint bundle of all documents relied on in the proceedings by both parties, and
(d)    the claimant was directed to check the joint bundle and provide a list of his attendances on any psychologist or psychiatrist or provide an authority to the insurer to enable the insurer to obtain these details from Medicare.
On or about 28 June 2023, the Panel requested a message be relayed to the parties requesting copies of the reports of Dr Pearson, psychiatrist and Dr Samuell, psychiatrist which had been referred to in one of the judgments included in the insurer’s joint bundle but which did not appear to have been included in the bundle.[13]
[13] The report from Dr Pearson had been included in the other proceedings and was summarised at paragraphs 134-136 but had been included within the gastrointestinal experts’ materials and therefore had been missed by this Panel when considering the documentation.
On 13 July 2023 the claimant responded attaching a copy of the report of Dr Pearson. He could not find the report of Dr Samuel and cited two excerpts from his Honour’s judgment that the fall at the Masters home improvement centre in April 2015 did not cause any psychiatric injury.
On 29 July 2023 the insurer lodged an application to admit into evidence the report of Dr Samuell. The claimant objected. On the basis that the Panel had requested it and the report is relevant to the issue the Panel has to determine, the Panel has determined the report will be allowed into evidence.
The Panel met on 31 July 2023 and reported to the parties on 1 August 2023. In its report, the Panel advised the parties:
(a)    the Panel would be assessing WPI and the treatment in dispute (consultations with a psychologist and medication);
(b)    the claimant’s submissions of 12 November 2022 suggested that permanent impairment was to be assessed by reference to chapter 12 of the AMA4 Guides which concerns brain injuries. The Panel noted the head injury had been dealt with by the Panel conducting the review of Medical Assessor Cameron’s assessment, and
(c)    the assessment of WPI for a psychological or psychiatric injury is to be undertaken in accordance with chapter 13 of the AMA4 Guides and the relevant clauses of the Guidelines.
The Panel provided the parties with a copy of the draft evidence review and requested the parties advise the Panel if they have any objection to the Panel considering it and sought suggests on any corrections or amendments to the document.
On 31 August 2023 the Panel received a message from the insurer advising that no amendments or corrections were proposed. The Panel has not received any response and no further documents or submissions from Mr Khanna in these proceedings.

REVIEW OF THE EVIDENCE

The documents and evidence review

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 psychiatrist to have provided reports in this matter dealing with causation, treatment needs and impairment assessment.
In the related proceedings concerning the claimant’s physical injuries (musculo-skeletal, cardiac and diabetes) there was also a lack of expert (as opposed to treating) medical evidence.
The only available medico-legal report submitted by either of the parties in this matter is a report on the claimant’s life expectancy obtained by the insurer.[14]
[14] There are other medico-legal reports obtained by the parties of other claims and litigation.
Due to this absence of medico-legal evidence, the Panels in the previous reviews, and the Panels in the current proceedings have been required to consider the voluminous evidence from the claimant’s treating practitioners in order to understand and better determine the injuries caused by the accident and the resulting impairments and treatment needs of the claimant.
Because the six related Review Panel proceedings were heard together by three separately convened Panels, the Panels in the previous reviews undertook a consolidated review of all of the documentation relevant to the issues in dispute in all of the six proceedings.
The current Panel adopts the consolidated summary and review of the evidence which is attached to these reasons as annexure A.[15] The Panel has included additional information and has reordered some of the material and the document is therefore similar, but not identical, to the evidence review lodged in the previous proceedings.
[15] A number in square brackets is a reference to the paragraph number of the evidence review.

Specific documents relevant to the claimant’s psychiatric or psychological injuries

The Panel has extracted from that evidence review, documents specifically addressing Mr Khanna’s mental health issues.
The claim form in the current claim [3] refers to anxiety and depression. The medical certificate attached to the claim form from Dr Pang [4] refers to a mental health plan and advice that Mr Khanna take an overseas holiday.
The Panel notes in respect of the other accidents and claims:
(a)    the medical certificate in respect of the 30 October 2009 [7] accident refers to depression;
(b)    the medical certificate in respect of the May 2014 accident [12] refers to worsening of his depression;
(c)    the claimant alleged in respect of the April 2015 accident [14] his “snowballing worries, racing heart and tightening of the chest” were caused by that accident;
(d)    Dicker DCJ said at [177.5] of his decision concerning the April 2015 accident [21]:
“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’”, and
(e) in 2012 he was said to have uncontrolled levels of stress and depression [49].
Mr Khanna says that his mood has deteriorated and worsened after the motor accident of 2016 particularly as his cardiologist has advised there are no further procedures he can offer.
Mr Khanna relies on a number of medical certificates[16] as follows:
[16] The medical certificates have been provided in a bundle identified as AD2 in the Commission’s file.
(a)    13 August 2018 – Dr Rahmanamlashi (Rouse Hill) certified the claimant had a significant restriction to his ability to work that the was suffering from severe iron deficient anaemia and a major depression “which has had significant effect on routine lifestyle and performance. His quality of life has been affected seriously since January 2018.”
(b)    24 October 2018 – Dr Rahmanamlashi certified the claimant unable to work due to chronic medical condition affecting his function and concentration and attention. He was said to be under investigation and required more assessment and treatment;
(c)    21 May 2019 – Dr Rahmanamlashi certified the claimant as suffering from multiple chronic medical conditions affecting his concentration;
(d)    3 June 2019 – Dr Rahmanamlashi certified the claimant unfit for work due to suffering an acute medical condition secondary to diabetes and depression;
(e)    24 June 2019 – Dr Rahmanamlashi certified the claimant was suffering from a chronic medical condition which was under investigation, being managed by a specialist and may require major cardiac surgery. His condition was said to have deteriorated and affected his ability to function;
(f)    2 April 2020 – Professor Kovoor’s registrar said the claimant was currently admitted to hospital due to pericarditis;
(g)    18 August 2020 – Dr Rahmanamlashi certified the claimant was suffering from chronic anxiety and depression affecting his concentration and attention. He also said the claimant suffered from low mood and being hopeless and helpless. He was said to have cardiopulmonary conditions and was at higher risk of Covid complications;
(h)    25 November 2020 – Dr Rahmanamlashi certified Mr Khanna as suffered from significant chronic medical conditions including uncontrolled diabetes, depression / anxiety and his chronic cardiac state. Because of this the doctor considered his concentration, attention, immediate judgment and short term memory were impaired;
(i)    1 March 2021 – Dr Rahmanamlashi certified the claimant was suffering from diabetes not under control and that this could affect his concentration significantly. He also considered his ability to concentrate could be influenced by his depression, anxiety and chronic cardiac conditions;
(j)    16 March 2021 – Dr Rahmanamlashi certified the claimant was suffering from poor concentration and attention having a significant impact on his decision making. He refers to underlying medical conditions including diabetes, hypertension and cardiac condition. She refers to an MRI (of his brain) which support his clinical symptoms;
(k)    24 October 2021 – Dr Zeng of Westmead Hospital certified the claimant was an inpatient for at least a week due to an acute illness;
(l)    26 April 2022 – Dr Rahmanamlashi certified the claimant as suffering from diabetic neuropathy and vascular complications in his lower limbs;
(m)     1 August 2022 – Dr Biswas (Blacktown) certified the claimant unable to attend teleconferences from 4 to 11 August 2022 due to a “low level of concentration due to depression”, and
(n)    7 September 2022 – Dr Rahmanamlashi certified the claimant as suffering from peripheral neuropathy, a permanent complication of advanced diabetes.
Mr Khanna relies on a letter from Dr Rahmanamlashi to NRMA Insurance dated 2 February 2019 [58]. This letter does not specifically mention the accident, but it would appear it has been written in response to a series of questions from NRMA. Relevantly for the purposes of this claim, Dr Rahmanamlashi says the claimant’s neck injury and low back injury has “aggravated” his anxiety and depression indirectly affecting his hypertension. The aggravation of anxiety and depression has caused a loss of motivation and energy.
Dr Rahmanamlashi said the claimant would benefit from psychological assessment and treatment and that lifestyle changes including diet, exercise, “refreshing times including travelling” would assist. The Panel notes that Dr Rahmanamlashi practices at the Rouse Hill centre where the claimant has been a patient since 2010.
Mr Khanna relies on a letter from Dr Pearson psychiatrist to Dr Rahmanamlashi dated 6 November 2020.[17] Dr Pearson has a history of the 2009 accident and two myocardial infarctions immediately afterwards and that the claimant had not worked since. The claimant told Dr Pearson that because of these events he lost everything he owned including a “highly lucrative business” and developed ill health as a result.
[17] Document AD3 in the Commission’s electronic file and summarised at [129].
Dr Pearson also has a history of further injuries in 2016 when he was hit from behind by a motor vehicle.
The claimant reported that his mood has deteriorated over the years despite the prescription of Mirtazapine. He was shamed by not being able to provide a dowry for his daughter and was said to find little joy in life.
Dr Pearson states “he is immensely restricted physically in what he can achieve because of cardiac symptoms. He is highly anxious about the fragility of 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. He was to see the claimant again in several weeks but there is no record of any further attendance.
The Panel notes that Dr Pearson expresses no views about causation of the claimant’s psychological condition in this report.
Mr Khanna has provided the Panel with an MRI of the brain was done on 1 December 2022[18] 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.
[18] Document AD5 in the Commission’s file.
A copy of Dr Samuell’s letter to the solicitors for the insurer in Mr Khanna’s litigation arising out of the fall at Masters home improvement centre has been provided.[19] It is dated 20 August 2019, three years after the current car accident. Dr Samuell had limited documentation namely the court documents, written submissions, a statement from the claimant’s wife, Dr Machart’s report and clinical notes from Rouse Hill Medical Centre.
[19] It has been uploaded to the Commission’s electronic file but does not bear a document number. A summary of it is included from [144] in the evidence review.
Dr Samuel has the following history:
(a)    the claimant commenced receiving the disability pension from 2013 following being run over by a truck in 2010, him having two heart attacks and 17 stents;
(b)    he reported diabetes, hypertension and forgetfulness and not wanting to talk to people;
(c)    he had been prescribed mirtazapine for three years and diazepam for eight or nine months and other medication relevant to his physical conditions;
(d)    the claimant said he first had psychological difficulties in 2010;
(e)    Dr Samuel had read the medical records and found the claimant had been prescribed antidepressants for the first time in March 2015, and
(f)    he had a history of “two motor vehicle accidents” neither of which are given a date, but later Dr Samuell says these pre-date the Masters fall and therefore neither of them is the current 2016 accident.
In terms of his current state, Mr Khanna reported back pain, difficulty dressing and trouble standing after he had been sitting. Mr Khanna told Dr Samuel he does not shave or change his clothes or go out. Mr Khanna said he gets agitated and snaps at his wife. She has received, since 2014, the carer’s payment to look after him.
Dr Samuell has a history of an action against the owner of a property where he had been renting. Apparently, the claimant may have fallen in early 2015. Dr Samuell says, “He acknowledges that there were two motor vehicle accidents preceding Masters, but he maintained that he became depressed only after his [Masters] accident”.
The claimant said he seldom drove, does not cook or clean or shop. He requires his wife’s assistance to get dressed and does not shower for seven or eight days.
Mr Khanna gave a history to Dr Samuell of seeing a psychiatrist or psychologist at Westmead Hospital, but he had no further consultations because he “cried a lot”.
Dr Samuell noted the claimant’s low mood and generally poor quality of life which Mr Khanna attributed to the car accidents (that is the car accident pre-dating the fall). Dr Samuell said due to Mr Khanna’s own concession that he has a poor memory, “his self-report should be corroborated with objection [sic] information”.
Dr Samuell accepted the claimant had a persistent Depressive Disorder however was not sure this was caused by the Masters’ accident. He considered, “On balance, the contemporaneous medical notes would suggest that if there was any contribution from the subject (Masters’ fall) accident from a mental health perspective that it was incremental”.

The Panel notes this report was written in 2019. While Mr Khanna reported two previous car accidents (before the fall at Masters) he did not mention the car accident that is the subject of these review proceedings. In other words, Mr Khanna was telling Dr Samuell that his presentation in 2019 was due solely to the fall at Masters. Mr Khanna now tells this Panel that his current presentation in 2023 is solely due to the car accident of August 2016 and not the fall at Masters in April 2015 or any other event.

RE-EXAMINATION FINDINGS

Medical Assessors Mason and Chew examined Mr Khanna on 20 September 2023 using the Microsoft Teams application. Mr Khanna was at his home accompanied by his 61-year-old wife Geeta who supported him throughout the interview but did not participate in it.
Mr Khanna said he is in receipt of the disability support pension which commenced in about 2013 and his wife receives the carers pension to look after him. He has adult children, a son aged 30 years and a daughter aged 25 years, who live independently. He has two grandchildren aged seven years and four years.

History from the claimant

History of the accident

When asked to describe the motor accident, he said on 17 June 2016 he was stationary in his Toyota vehicle when he was hit from the rear by another car. He was alone in the car and was wearing a seatbelt. The airbags did not deploy. He said witnesses estimated the speed of the other vehicle at 50kmph. The car was pushed forward but did not impact another vehicle. He said he blacked out for a few moments and then the person driving the other vehicle came to lend assistance and asked if he was okay.
Neither police nor ambulance attended. He and the other driver exchanged details and then Mr Khanna drove home, a journey which took approximately 15 minutes.

History of symptoms that developed after the accident

Mr Khanna said he vomited blood when he got home so his wife took him to Westmead Hospital and he was assessed in the emergency department. He said he had a painful collarbone (clavicle) and pain in his chest had been aggravated by the seat belt and he was given morphine. He said he was also checked for a heart attack but his troponin levels were normal and he was discharged the following day wearing a cervical collar. He also started having pain in his back and in other places. He then began to have bleeding from his nose (epistaxis) which occurred regularly. He confirmed he was on blood thinners at the time.
After the accident he said he was having regular chest pains and was admitted to hospital on a number of occasions. He said an angiogram indicated a stent that had been inserted before the accident had been damaged or infected and it was replaced by ballooning. In addition, he said three new stents were inserted at the same time.
Mr Khanna said he was informed by “the hospital” that the damage to the stent and the three new stents were needed due to blunt trauma from the seatbelt resulting in the artery being narrowed. He said this has since been confirmed in writing by Dr Jay Thakkar and Professor Kovoor. He then searched amongst his papers for, and produced a document dated 4 September 2019 referring to a cardiac catheterisation in 2017[20]. This indicated stenosis of the distal right coronary artery which was treated with a drug eluding balloon and angioplasty; three new stents were also inserted in the proximal right coronary artery. Mr Khanna then re-asserted his contention that the damage to his coronary arteries after August 2017 was due to blunt trauma sustained in the motor accident that occurred in August 2016.
[20] Document A49 referred to at paragraph 35 of the evidence review.
When asked how he had been affected psychologically as a result of the accident, Mr Khanna said he had been told by Professor Kovoor that he cannot have any further cardiac procedural interventions. He cannot be given any more stents and he cannot undergo coronary artery graft surgery or cardiopulmonary resuscitation if he presents with further chest pain. He produced a document from 1 March 2022 to this effect.[21] He said as a result of this he became extremely depressed because no therapy is available to him, and this has caused significant added stress.
[21] The letter is dated 1 March 2022, is document B140 in the claimant’s bundle and is referred to at paragraph 85(i) of the evidence review.
Mr Khanna said if he becomes disabled and cannot get off the bed, he worries about who will look after him. He said his wife suffers almost as much as he does because of his disabilities and no one else is available. He said that is one of the reasons that he is depressed. He went on to say he is unable to walk more than 10 steps due to breathlessness (cardiorespiratory insufficiency) and leg and foot pain (peripheral neuropathy). If he starts thinking about how he is so affected, he becomes even more depressed. He said he is unable to enjoy his life and he has no urge to live. He said he thinks many times "what is the point of living?" He said he worries that he will become so disabled he will be unable to even clean himself and he does not want to be in that position.
Mr Khanna was asked if he was able to enjoy anything. He said he did in the past when he was able to wash his cars, do his gardening and groom the dog. He said his wife is the best cook in the world and he always enjoyed her food but now he eats very little because he has no appetite. He said he cannot stand, he cannot walk and he cannot sleep. He said he has fallen a number of times, and finds it very difficult to enjoy anything. He said he has no interest in reading or watching television. He simply wants to stay alone in his room. He no longer enjoys going to the shops with his wife and if she insists he accompany her, then he sits in the car. He said to live like this makes him not want to be here. He said his sleep is disturbed; he sleeps from 10.30pm until 1.30am and then is unable to sleep any longer.
Mr Khanna was again asked to confirm the Panel’s understanding that it his contention that his cardiac deterioration was due to the blunt force trauma of the seatbelt on his chest in the motor accident, and that his depression had arisen as a consequence of that deterioration. Mr Khanna confirmed this was the case and was clear that it is his view that his depressive symptoms have arisen solely as a consequence of his physical deterioration and this his physical deterioration has been caused by the accident. He explained he was very angry about the situation, although his anger was not directed towards the Medical Assessors.

History of treatment since the accident

The panel asked Mr Khanna about the treatment he has received for his psychological condition. He said he was referred to a psychologist and he started “crying like a baby”. The psychologist suggested coming to subsequent appointments, but he did not want to submit himself to further humiliation. He was unable to provide the name of the psychologist.
He has subsequently attended his GP, Dr Rahmanamlashi, who is able to counsel him in positive ways and makes him feel better. He said the doctor would listen to him for 15, 30 or 60 minutes and tell him that he had seen patients who have many worse conditions and would reassure him that he would be okay. Mr Khanna found this much more helpful than attending the psychologist. The medical members of the Panel believe he has used his general practitioner (GP) very effectively as a counsellor.
At the time of the motor accident, he was using the antidepressant agent mirtazapine 30mg to help with both depression and sleep.
Mr Khanna said he had been referred to psychiatrist Dr Pearson in November 2020. Dr Pearson commenced him on the antidepressant Pristiq (desvenlafaxine) 50mg in addition to the mirtazapine and suggested he return for further consultations. Mr Khanna said he was unable to afford the fee charged by Dr Pearson, so he did not return, although he did comply with the addition of desvenlafaxine.
He is not certain the medication has been effective, but he is reluctant to stop using it because of his current state of severe depression.

Current and proposed treatment

Mr Khanna continues to attend counselling with his GP, Dr Rahmanamlashi as required. He continues to use the antidepressant mirtazapine 30mg at night and the antidepressant desvenlafaxine 50mg in the morning. He also uses diazepam 5mg at night to initiate sleep.

Current state

Mr Khanna was questioned about the state of his physical health during 2023. He said he was admitted again to Westmead Hospital two months ago and was "resuscitated". When asked what the condition was, he said and had recurrent pains in his back and in his legs. He said he had pins-and-needles, his feet were swollen, he had heart pain and he had no strength. He said his blood pressure was 270 (presumably systolic) and he was unable to breathe. He said he had both pneumonia and an infection in the heart and he was in intensive care for two or three days and in a general ward for four or five days after that. He said during the admission he was under the care of Professor Kovoor.
He added he is also under the care of neurologist Dr Steve Vucic for diabetic peripheral neuropathy and haematologist Dr Knox for liver disease. He added he has ophthalmological difficulties consisting of cataracts and diabetic retinopathy which requires regular injections. He said he also has a problem with his hearing, and he is not able to participate in conversations easily and he said, "everything goes over my head".

Current medications and medical conditions

Mr Khanna provided the Medical Assessors with the following list of medications which he read out from a report from Westmead Hospital dated 24 March 2023:
(a)    Mirtazapine 30mg;
(b)    Desvenlafaxine 50mg daily;
(c)    Diazepam 5mg at night;
(d)    Advantan 10 ointment 0.1%;
(e)    Amlodipine 10mg;
(f)    Pantoprazole 40mg;
(g)    Pregabalin 75mg at night for leg pain;
(h)    Clopidogrel 75mg;
(i)    Frusemide 40mg (twice a day);
(j)    Imdur SR60 milligrams;
(k)    Jardiance 10 mg Lipidil 145mg;
(l)    Trulicity injections 1.5mg/0.5ml weekly (subcutaneously);
(m)     Optisulin Solostar pen 100 units/ml 24 units at night, and
(n)    Novorapid Flexipen injection 100 units per ml 30 units twice daily SC.
From the medical records, Mr Khanna's current medical conditions are listed below: -
(a)    diabetes onset 1995;
(b)    peripheral neuropathy and peripheral vasculopathy;
(c)    diabetic nephropathy and diabetic retinopathy;
(d)    acute myocardial infarction (heart attack) in 2009 and 2011;
(e)    coronary artery disease;
(f)    cardiac stents x 19;
(g)    right popliteal artery stent;
(h)    hypertension;
(i)    chronic liver disease;
(j)    Gastro-oesophageal reflux disease (GORD);
(k)    oesophageal varices;
(l)    past alcohol use disorder but nil current;
(m)     pericardiocentesis;
(n)    cerebral atrophy;
(o)    cerebral microvascular changes;
(p)    sleep apnoea requiring CPAP 2012, and
(q)    iron deficiency anaemia
In summary Mr Khanna is seriously physically limited and he says he is in constant pain because of his multiple medical conditions. It is not an exaggeration to say that his future physical prognosis is poor.

Past psychiatric history

Mr Khanna told the Medical Assessors that he had no psychological problems between 2009 and 2016.
This contention is not supported by copious documentation in regard to past motor accidents and court cases in which his psychiatric condition is well documented. Given his absolute denial of pre-existing psychological conditions, and his previous history of extremely high blood pressure (including the most recent admission to hospital) the panel concluded there would be no benefit, and could be dangerous to the claimant’s health, in challenging this assertion, putting the past history to him and seeking a response.

Substance Use

Mr Khanna denied the use of cigarettes, alcohol and recreational drugs. He said he does not gamble. He was asked about alcohol use in the past and said he had never been a big drinker.
He said he did take pride in buying expensive bottles of wine when he entertained clients and friends but these were not bought regularly for himself. Again, there is some documented evidence of periods of problematic drinking in the past which the Panel did not wish to put to the claimant for fear of increasing his blood pressure.

Personal history

Mr Khanna said he was born in New Delhi India and came from a well-off family. He has a university degree and migrated to Australia in the 1990’s and he said he established a successful food products import/export business.
As noted above, he has two adult children living independently in Australia and two grandchildren. He explained he has a good relationship with his children but sees less of them than he would like because of his various medical conditions. He is distressed that he is not well enough to play with his grandchildren and feels shame regarding his financial position and physical condition.

MENTAL STATE EXAMINATION

Mr Khanna is a 61-year-old right-hand dominant man who was seated at a desk in his home. His wife Geeta was present in the same room and assisted him from time to time but did not participate in the interview. He was identified from his photograph on his driver’s license. He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 1.00pm and concluded and 2.30pm. At the beginning of the interview the claimant said his concentration was impaired and he had difficulty with his hearing and asked the assessors to speak more loudly.
He had dark greying hair and wore glasses. His appearance was consistent with his stated age. He appeared not to have shaved for two or three days and said it was necessary for his wife to shave him because of his physical problems. When it was necessary for him to read from documents, he asked to use his wife's reading glasses.
He related in a rather gruff and straightforward manner. He gave the impression that he would not tolerate fools gladly. However, he was respectful and cooperative with the interview. He became distressed on occasion as he described the impact of his physical conditions on his life. He was depressed in appearance and frequently made reference to the fact that his life was not worth living. He made it clear that further deterioration of his physical condition was intolerable for him. He was angry about this. He was regretful and angry that his wife also had to bear the burden of his deterioration. He described suicidal ideation but indicated he had not formulated any plans and did not feel in imminent danger.
Mr Khanna was fully oriented in time, person and place. He described no psychotic symptoms. He had a fixed belief that his cardiac condition had been exacerbated by a blunt force trauma from the seatbelt in the motor accident. He was adamant he did not suffer from any pre-existing psychological injury. He did not appear to be cognitively impaired in that he could respond appropriately to questions and read from complex documentation.
At the conclusion of the interview the panel expressed concern for Mr Khanna’s welfare arising from his seriously depressed state of mind and recurrent suicidal ideation. He was encouraged to inform his treating GP of the extent of his suicidal thoughts. He said his GP was aware of this, but he would mention it to him.

RELEVANT DOCUMENTATION

Psychiatrist Dr Samuell provided a medico-legal report dated 20 August 2019 in relation to a fall at a Masters Home Improvement Centre in April 2015. He noted Mr Khanna’s psychological difficulties dating back to 2010 and had a history of two motor accidents before the April 2015 fall. Dr Samuell diagnosed a persistent depressive disorder but stated it was not due only to the subject fall.
In November 2020, treating psychiatrist Dr Pearson diagnosed significant depression with a hint of grief and trauma. He suggested the addition of the antidepressant Pristiq (desvenlafaxine) 50mg. Mr Khanna did not return for further sessions. Dr Pearson did have a history of the 2009 accident as well as the 2016 accident but not the Masters’ fall and offered no opinion about causation.
In July 2022 Medical Assessor Young diagnosed a pre-existing adjustment disorder and attributed symptoms of depression and anxiety to Mr Khanna’s deteriorating physical condition. He concluded the pre-existing adjustment disorder was not caused by the accident.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

It is the Panel’s view that Mr Khanna’s oral evidence about his injury is unreliable.
Mr Khanna denied three times to Medical Assessors Mason and Chew that he had any psychological or psychiatric condition before the current August 2016 car accident.
The records from his treating doctors establish that Mr Khanna has reported symptoms of anxiety and depression since 2010.[22] Mr Khanna wrote to the insurer in respect of his 2009 car accident asserting that he had depression as a result of that accident. The claim form arising out of the May 2014 accident asserts a worsening of depression and the court documents filed in the District Court of New South Wales (and Mr Khanna’s evidence in that case) allege he sustained an anxiety and depressive state as a result of the fall at Masters. Finally, the Panel notes that Mr Khanna has been prescribed anti-depressants since 2015 a year before the current accident.
[22] Paragraph 47(c) of the evidence review.
The Panel therefore prefers the documentary evidence in this matter over the oral evidence of the claimant.

Does Mr Khanna have a psychological or psychiatric condition?

The medical members of the panel note the evidence from Dr Rahmanamlashi and in particular his letter of 2 February 2019, Dr Samuell’s report of 20 August 2019 and Dr Pearson’s report of 6 November 2020. These and other treatment records such as Dr Rahmanamlashi’s multiple certificates, support a finding that the claimant does have a psychological or psychiatric condition.
It is the medical members of the Panel’s clinical judgment that, at the time of the examination on 20 September 2023, Mr Khanna suffers from a persistent depressive disorder with intermittent episodes of major depressive disorder.
Mr Khanna meets criteria set out in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5) for this condition as follows:
(a)    Criterion A – he suffers from depressed mood for most of the day, for more days than not;
(b)    Criterion B – he described poor appetite, insomnia, low energy, low self-esteem, poor concentration, difficulty making decisions and feelings of hopelessness;
(c)    Criterion C – during the last two years he has never been without the symptoms for more than two months at a time;
(d)    Criterion D – criteria for major depressive disorder have been intermittently present. At these times he has felt intensely suicidal and felt life was not worth living;
(e)    Criterion E – he has never been manic, hypomanic or cyclothymic;
(f)    Criterion F – the condition is not better explained by a psychotic disorder;
(g)    Criterion G – the symptoms are not due to a substance or another medical condition, and
(h)    Criterion H – the symptoms caused severe impairment in social and occupational functioning.

Does Mr Khanna have a permanent impairment resulting from that condition?

The Panel is satisfied that the claimant has a WPI arising from his Persistent Depressive Disorder.
The medical members of the Panel note it has been difficult in this case and assign a class of impairment to some of the six areas of function due to the significant impact of the claimant’s physical conditions on his ability to function. Each of the six areas of function will be assessed below with respect to the psychological impact only.

Self-care and personal hygiene

Mr Khanna has to be assisted by his wife to have a shower. He is unable to shave himself because of his physical condition. He relies on his wife to provide clean clothing. He appreciates her cooking but said he is now unable to enjoy it. Impairment in this area is mainly due to his physical condition. From a psychiatric point of view, he is at most mildly impaired and would be assessed as class 2.

Social and recreational activities

Mr Khanna said he does not entertain and does not see any friends because he is ashamed of his physical state and his financial circumstances. He does not go out to entertainment venues. He does not accompany his wife to shopping centres saying he would sit in the car and wait for her. His children and grandchildren visit but he is not keen to see them because of his depression, physical state and financial circumstances. From a psychiatric point of view, he is mildly impaired and would be assessed as class 2.

Travel

Mr Khanna said he is able to drive but finds it difficult and does so with fear. He is able to use public transport. He does not believe he could travel by air. He is mildly impaired and is assessed as having a class 2 impairment.

Social functioning

Mr Khanna said his relationship with his wife is solid, but he feels sorry for her because she has to put up with him being such a burden. His relationship with his children and grandchildren is also stable is but he does not enjoy the relationship because of his circumstances and symptoms. He has no friendship group. He is mildly impaired and is assessed as having a class 2 impairment.

Concentration, persistence and pace

Mr Khanna participated in the interview with two psychiatrists for 90 minutes. During that time, he was able to provide the information required. He was also able to consult his own documentation to provide further information. He did not become confused or disorganised. He was assisted by his wife. He was assessed as having no impairment (class 1).

Adaptation

Mr Khanna continues to receive the disability support pension as he did more three years before the subject motor accident. He described being able to assist more around the house before the accident such as washing the car, attending to the garden and looking after the dog. He can no longer do these things because of his physical state. He is moderately impaired and is assessed as class 3.
In accordance with cl 1.225 of the Guidelines, when arranged in ascending order, the six class scores are 1, 2, 2, 2, 2, and 3 which provides a total, aggregate score of of 12 and a median class of 2.
Using the conversion Table 17, the claimant’s aggregate score provides a WPI of 6%.

What is the cause of Mr Khanna’s psychological or psychiatric injury?

While s 3 of the MAC Act defines “injury” as personal or bodily injury it includes within the definition, “psychological or psychiatric injury.” In the motor accidents context, a psychological or psychiatric injury presents as a mental health condition which develops as a response to a motor accident.
Some psychological or psychiatric conditions, such as post-traumatic stress disorder develop as a response to the accident (crash) itself. In Mr Khanna’s case, he was involved in a motor accident which was not life threatening. There was no requirement for emergency services. He was able to drive home after the accident. He did not report trauma-related symptoms such as flashbacks, nightmares or constant intrusive recollections. His condition is not a post-traumatic one and has not therefore developed as a response to the actual collision between two vehicles in August 2016.
There are however many psychological or psychiatric conditions that develop as a response to physical injuries sustained in an accident. For example, an adjustment disorder may develop when an injured person has difficulty coming to grips with the pain and disabilities flowing from an accident.
In Mr Khanna’s case he claimed he sustained a whiplash injury, nose-bleeds, pain in his head, neck, shoulder and lower back. He still complains of pain in these and other areas. Mr Khanna has also complained of physical symptoms arising from his 2009 car accident, a 2014 car accident, his 2015 fall at Masters and other incidents and accidents.[23] His GP notes record complaints of depression as far back as 2010.[24] It would appear therefore that the claimant has developed psychological or psychiatric conditions in relation to a number of external stimuli other than the current accident which, in the clinical judgment of the medical members of the Panel are likely to be contributing to the claimant’s current presentation and his current impairment to functioning.
[23] Paragraphs 9, 12 and 14 of the evidence review.
[24] Paragraph 47(c) of the evidence review.
There is a clear record of an injury to Mr Khanna’s chest when he attended Westmead Hospital on the day of the accident[25] and this was noted by his cardiologist, Professor Kovoor.[26] In the days, months and years after the motor accident Mr Khanna suffered a significant progression and deterioration in cardiac health requiring multiple procedures including stents and open-heart surgery.
[25] Paragraphs 25–28 of the evidence review.
[26] Paragraphs 76-78 of the evidence review.
It is Mr Khanna’s case, clearly put to Medical Assessors Mason and Chew at the re-examination, that his current psychiatric or psychological condition has developed as a response to his current physical state.
It is the clinical judgment of the medical members of the Panel that the state of Mr Khanna’s physical condition is the cause of the depressive condition diagnosed at 140-142 above.

What is the cause of the claimant’s cardiac condition?

The Panel notes the evidence review suggests that Mr Khanna’s physical condition is compromised due to other pre-existing complications such as his long-standing diabetes. He has developed painful legs and feet (peripheral neuropathy), deterioration of sight (retinopathy), peripheral vascular disease (requiring popliteal artery grafting), renal complications, chronic liver disease and oesophageal varices.
It is Mr Khanna’s case, clearly put to Medical Assessors Mason and Chew at the re-examination, that his current physical state results only from his cardiac condition which he further says has been caused by the accident.
Mr Khanna says he was advised by his cardiologist in March 2022 that it was not possible to perform any further cardiac interventions to prolong his life. Mr Khanna was very clear that this was the cause of his severe depression. He believed the deterioration in his cardiac condition was due to the blunt force trauma of the seatbelt during the motor accident which caused re-stenosis and damage to an existing stent and damaged other arteries and created the need for additional and new stents.
Apart from his own evidence, Mr Khanna relies on three pieces of medical evidence, which he says provides a link between the accident and his current depressive state:
(a)    the evidence of the hospital where he went on 17 August 2016 confirming he sustained a seat-belt injury to his chest;
(b)    the evidence of the hospital concerning the 28 November 2017 cardiac procedures, and
(c)    the 1 March 2022 correspondence of Professor Kovoor that states nothing further can be done for the claimant’s cardiac condition.
The insurer has not disputed this evidence and the Panel accepts:
(a)    that the claimant had a seat-belt injury to his chest caused in the accident,
(b)    the claimant had cardiac stenting procedures in November 2017, and
(c)    there would appear to be no further possible cardiac intervention and that from a cardiac perspective the claimant’s condition is dire.
However, there is no medical evidence to establish a causal connection between the seat belt injury and the stenting over a year later, and there is no medical evidence to establish that the stenting in November 2017 is the sole cause of the claimant’s current state of cardiac health.
Mr Khanna appears to be arguing that if he had not had the accident, he would not have had the stenting in November 2017 and if he had not had that stenting he would not be in the state of cardiac health that he is in today.
Cases such as May v Military Rehabilitation and Compensation Commission[27] suggest there is no prohibition on a tribunal finding there has been an injury based on the account of the injured person.
[27] [2015] FCAFC 93.
[212] “Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case.”
In this case, the Panel cannot accept the claimant’s evidence unsupported, uncorroborated and unconfirmed by medical evidence for the following reasons:
(a)    the Panel’s findings as to the reliability of the claimant’s evidence in paragraphs 136-139 above;
(b)    the longstanding nature of the cardiac complaints (dating back to 2009);
(c)    Mr Khanna’s other physical conditions, and
(d)    Mr Khanna’s assertions in previous claims that it was previous incidents that caused his cardiac complaints. Mr Khanna has blamed his cardiac problems (including the 2009 heart attack) on the 2009 accident, and he told the District Court in his claim against Masters that the April 2015 fall was responsible for the cardiac condition after that event.
The Panel also notes [100] and [102] of the Review Panel’s decision of June 2023 concerning the Medical Assessor Herman assessment. Mr Khanna has been on notice since then of the importance of medical evidence to support a finding of causation in respect of medical assessment decisions.
In the absence of any expert evidence from either Mr Khanna or the insurer in this case, the Panel has considered the findings of the Review Panel determining the claimant’s cardiac injury (Khanna No 3 and No 4 at [129] and [130]) and the findings of the Review Panel determining the claimant’s musculoskeletal injuries (Khanna No 5 and No 6 at [169]-[170]). According to the Medical Panels in those proceedings, Mr Khanna suffered a soft tissue injury to his chest which had resolved, and the motor accident of August 2016 did not cause Mr Khanna any cardiac injury or any additional cardiac injury.
On the basis of those two determinations, the Panel is satisfied that the claimant’s current physical condition, including his cardiac health is not related to the injuries sustained in the motor accident of 17 August 2016.
The Panel is satisfied that Mr Khanna’s persistent depressive disorder with intermittent major depressive episodes is related to the parlous state of the claimant’s physical condition, but the Panel is not satisfied that this parlous state of health is caused by the accident.
Because of the findings in paragraphs 170 and 171 above, the Panel is not satisfied that Mr Khanna’s psychiatric disorder is caused by the subject motor accident.

CONCLUSION

What is the claimant’s whole person impairment resulting from the accident?

Because his current psychiatric condition is not caused by the subject motor accident there is no whole person impairment resulting from it. Mr Khanna does not therefore have a whole person impairment resulting from the injuries caused by the accident of greater than 10%.
As the Panel has come to the same conclusion as Medical Assessor Young, it follows therefore that his certificate issued in respect of the s 58(1)(d) medical assessment matter should be confirmed.

Is the disputed treatment reasonable and necessary?

Whether the treatment in dispute (psychological and psychiatric consultations and medication) was or is “reasonable and necessary in the circumstances”, does not require a consideration of causation as it does not direct attention to the relationship between the accident and the treatment. The words “in the circumstances” must refer to the particular circumstances of the claimant only in the proceedings before the Panel.
The Panel is of therefore of the view that the disputed treatment provided or to be provided to Mr Khanna has been and is reasonable and necessary to treat the claimant’s depressive condition. The counselling provided by Dr Rahmanamlashi has been effective as is the claimant’s medication regime.
As the Panel has come to a different conclusion from the original assessment, the Panel therefore revokes the certificate of Medical Assessor Young in relation to the s 58(1)(a) medical assessment matter.

Does the disputed treatment relate to the injury caused by the motor accident?

The Panel is of the view the claimant has sustained no psychiatric or psychological injury as a result of the 17 August 2016 accident.
The Panel is of the view that the claimant’s psychiatric condition has emerged in response to his general state of health in particular his cardiac problems which commenced in 2009 and have developed and deteriorated since then. In addition, the claimant has had other injuries, events and conditions (such as his 2009 motor accident, 2015 fall at Masters and his diabetes with complications) playing a part in his current state.
The Panel is therefore of the view that the need for past, present and future consultations with a psychologist (or psychiatrist) and psychotropic medication (such as but not limited to Mirtazapine, Diazepam and Belsomra) has been caused by events and conditions other than the motor accident of 17 August 2016.
The treatment in dispute provided or to be provided to Mr Khanna is not related to the injuries caused by the motor accident.
As the Panel has come to the same conclusion as Medical Assessor Young, it follows therefore that the certificate of Medical Assessor Young in relation to the s 58(1)(b) medical assessment matter should be confirmed.

Member Cassidy and Medical Assessors Chew and Mason

Personal Injury Commission

OutcomeDocumentSignee

OutcomeDocumentSignature

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 (in the assessment of the claimant’s physical injuries by the three Panels considering the reviews of Medical Assessor Cameron, Carter and Herman’s decisions);
(b)    the additional documents from the Rouse Hill Town Medical and Dental Centre (Rouse Hill) submitted on or about 3 April 2023 (in the previous review proceedings);
(c)    the claimant’s bundle received by the three Panels on 17 April 2023 and lodged by the claimant on 16 April 2023 (in the previous review proceedings),
(d)    the insurer’s letter to the three Panels (in the previous review proceedings) received 26 May 2023;
(e)    the claimant’s final response document (lodged in the previous review proceedings dated 4 June 2023,[28] and
(f)    the documents provided by the parties in the current review proceedings concerning the assessment by Medical Assessor Young of the claimant’s psychiatric or psychological injuries.
[28] 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 the Panel.

Claim form and claim documents

Current claim

Mr Khanna’s claim form[29] 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 his vehicle 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;[30]
(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.
[29] Page 2,757 of the insurer’s bundle.
[30] While the claim form states he went to hospital on 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.[31] 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”.
[31] 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.[32]
[32] Paragraph 12 of the claimant’s final response document.

Other claims and litigation

The insurer has provided details from the Personal Injury Register[33] 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[34] that the 2013 and 2014 accidents were “minor and [were] settled by the insurer”.
[33] Page 3,929 of the insurer’s bundle. The Panel understands the PIR is a database maintained by the State Insurance Regulatory Authority of NSW containing records of all motor accident claims made.
[34] At point 34 of his final response document.
The medical certificate supporting the claimant’s 30 October 2009 accident[35] 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.
[35] Page 2,786 of the insurer’s bundle.
Mr Khanna wrote to Allianz on 26 July 2012[36] 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.
[36] 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 resulted in 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[37] 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.
[37] 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.[38] Mr Khanna apparently settled the claim in 2013, but the insurer failed to pay the settlement sum. 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”.[39] 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.
[38] Khanna v Allianz Australia Insurance Limited [2021] NSWCA 231.
[39] Paragraph 12.

Dr Chipps’ registrar wrote to the claimant’s GP on 11 August 2011.[133] His most recent HbA1c level was 9.3% in December. The claimant had put on 2kg, had a recent episode of an upper gastrointestinal bleed but the claimant had stopped smoking and was drinking minimal alcohol. It was noted that the claimant was not doing as much exercise as he should. He was advised to exercise more and lose weight.
[133] Page 2,968 of the insurer’s bundle.
Dr Chipps wrote to the claimant’s GP[134] on 16 June 2021 advising of the claimant’s HbA1c result of 8.4% suggesting a review of his diabetes management.
[134] The additional Rouse Hill bundle page 969

Doctor Boyages

Dr Boyages wrote to Dr Rahmanamlashi on 14 January 2021[135] 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”.
[135] 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[136] 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.
[136] The additional Rouse Hill bundle page 967.

Renal physicians

Dr Wavamunno, renal physician wrote to Dr Rahmanamlashi on 11 July 2022[137] 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.
[137] The additional Rouse Hill bundle page 1,038.
Dr Komala, nephrologist wrote to Dr Rahmanamlashi on 11 January 2023.[138] 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.
[138] The additional Rouse Hill bundle page 1,066.
Dr Komala saw the claimant again on 15 March 2023.[139] 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

[139] 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[140] 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.
[140] The additional Rouse Hill bundle page 980.
Dr Daly wrote again to the claimant’s GP on 16 November 2021[141] 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.
[141] The additional Rouse Hill bundle page 993.
Dr Daly’s final letter of 20 July 2022[142] 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.
[142] 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.[143] 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.
[143] 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.[144] 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.
[144] 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[145] certifying that Mr Khanna suffers from peripheral neuropathy which is “a permanent complication of advanced diabetes.”
[145] Page D-148 of the claimant’s final bundle.
Mr Khanna says[146] 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.
[146] 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,[147] Dr Banerjee reported the claimant’s diabetic retinopathy had increased.
[147] Page 272 of AD8.
There is a report from Dr Paul Mitchell ophthalmologist dated 9 February 2021.[148] 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.
[148] 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.[149] 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.
[149] 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.[150] 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.”
[150] 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.[151] 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.
[151] 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[152] 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.
[152] 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[153] 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.
[153] Page G-223 of the claimant’s bundle.
Ms You of Betta Physiotherapy reported to Dr Rahmanamlashi on 23 December 2019[154] concerning the claimant’s lower back and leg pain. There is no mention of any of the claimant’s accident or injuries.
[154] The additional Rouse Hill bundle page 903.
P360 Performance, a physiotherapy practice, reported to Dr Rahmanamlashi on 18 December 2020[155] 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

[155] 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.[156] 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”.
[156] 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.[157] 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.
[157] 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.[158] 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.
[158] The additional Rouse Hill bundle page 871.

Dr Gill

Dr Gill, gastroenterologist, hepatologist and advanced endoscopist wrote to Dr Rahmanamlashi on 7 December 2021[159] 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.
[159] The additional Rouse Hill bundle page 987.
Dr Gill wrote to the claimant’s GP again on 2 February 2022 after the blood tests.[160] 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.
[160] The additional Rouse Hill bundle page 997.
Dr Gill’s next letter[161] 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.
[161] The additional Rouse Hill bundle page 1,036.
The next letter to the GP from Dr Gill is dated 24 February 2022[162] confirms the presence of non-alcoholic cirrhosis of the liver. He notes Mr Khanna will need to have ongoing monitoring and endoscopy.
[162] The additional Rouse Hill bundle page 1,002.
The last letter from Dr Gill is dated 4 January 2023[163] 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.
[163] The additional Rouse Hill bundle page 1,063.

Psychiatrists

Mr Khanna relies on a letter from Dr Pearson psychiatrist to Dr Rahmanamlashi dated 6 November 2020.[164] Dr Pearson has a history of the 2009 accident and two myocardial infarctions immediately afterwards and that the claimant had not worked since. The claimant told Dr Pearson that he lost everything he owned including a “highly lucrative business” and developed ill health as a result.
[164] Document AD3 in the Commission’s electronic file.
Dr Pearson also has a history of further injuries in 2016 when he was hit from behind by a motor vehicle.
The claimant reported that his mood has deteriorated over the years despite the prescription of Mitrazapine. He was shamed by not being able to provide a dowry for his daughter and was said to find little joy in life.
Dr Pearson states “he is immensely restricted physically in what he can achieve because of cardiac symptoms. He is highly anxious about the fragility of 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. He was to see the claimant again in several weeks but there is no record of any further attendance.
A copy of Dr Samuell’s letter to the solicitors for the insurer in Mr Khanna’s litigation arising out of the fall at Masters home improvement centre has been provided. It is dated 20 August 2019. He had limited documentation namely the court documents, written submissions, a statement from the claimant’s wife, Dr Machart’s report and clinical notes from Rouse Hill Medical Centre.
Dr Samuel took the following history from the claimant:
(a)    the claimant commenced receiving the disability pension from 2013 following being run over by a truck in 2010, him having two heart attacks and 17 stents;
(b)    he reported diabetes, hypertension and forgetfulness and not wanting to talk to people;
(c)    he had been prescribed mirtazapine for three years and diazepam for eight or nine months and other medication relevant to his physical conditions;
(d)    the claimant said he first had psychological difficulties in 2010;
(e)    Dr Samuel had read the medical records and found the claimant had been prescribed antidepressants for the first time in March 2015;
(f)    he had a history of “two motor vehicle accidents” neither of which are given a date, but later Dr Samuell says these pre-date the Masters fall and therefore neither of them is the current 2016 accident.
In terms of his current state, Mr Khanna reported back pain, difficulty dressing and trouble standing after he had been sitting. Mr Khanna told Dr Samuel he does not shave or change his clothes or go out. Mr Khanna said he gets agitated and snaps at his wife. She has received, since 2014, the carer’s payment to look after him.
Dr Samuell says, “He acknowledges that there were two motor vehicle accidents preceding Masters, but he maintained that he became depressed only after his accident”.
The claimant said he seldom drove, does not cook or clean or shop. He requires his wife’s assistance to get dressed and does not shower for seven or eight days.
Mr Khanna gave a history to Dr Samuell of seeing a psychiatrist or psychologist at Westmead Hospital, but he had no further consultation because he “cried a lot”.
Dr Samuell noted the claimant’s low mood and generally poor quality of life which he attributed to the car accidents. Dr Samuell said due to Mr Khanna’s own concession that he has a poor memory “his self-report should be corroborated with objection [sic] information”.
Dr Samuell accepted the claimant had a persistent Depressive Disorder however was not sure this is because of the fall at Masters (which was the subject of the report). He considered, “On balance, the contemporaneous medical notes would suggest that if there was any contribution from the subject accident from a mental health perspective that it was incremental”.

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.[165]
[165] 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.[166] 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.
[166] Page 2,817 of the insurer’s bundle.
Mr Khanna is reported to have said (in April 2019), “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 in the current claim relies on a report from Dr Slezak dated 24 March 2020.[167] 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.
[167] 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 the complications of Mr Khanna’s diabetes include coronary artery disease and diabetic retinopathy.
Dr Slezak also 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[168] 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.
[168] Page G-227 of the claimant’s final bundle.
An MRI of the cervical spine dated 25 September 2015[169] 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.
[169] Page G-228 of the claimant’s bundle.
The further MRI of the cervical spine dated 20 December 2018[170] 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. Ct nerve root block suggested.
[170] 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[171] showed disc degeneration L4/5 andL5/S1 with mild canal stenoses, mild bilateral L4/5 and L5/S1 foraminal stenoses.
[171] Page 2,919 of the insurer’s bundle.
Another CT scan of the lumbar spine on 4 April 2018[172] 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 nerve root block was suggested.
[172] 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[173] 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.
[173] 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[174] 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.
[174] The additional Rouse Hill bundle page 123.
An MRI of the claimant’s brain was undertaken on 11 December 2020[175] again for unexplained chronic headaches and uncontrolled diabetes. There were chronic microvascular ischaemic changes which were said to be stable since 7 May 2018 “there is generalised volume loss … which appear slightly prominent for patient’s age”.
[175] The additional Rouse Hill bundle page 200.
A further MRI of the brain was done on 1 December 2022[176] 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.
[176] 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.[177]
[177] 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.[178] 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.
[178] Page 2930 of the insurer’s bundle.
A right shoulder ultrasound on 6 February 2019[179] showed mild subacromial bursal thickening but no significant findings in the acromioclavicular or glenohumeral joint.
[179] 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.[180] 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.
[180] 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,[181] Mr Khanna has provided a list of his current daily medications which are set out below:
[181] 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 also sees a podiatrist and needs continuous visits to the podiatrist.

[2023] NSWPICMP 563

8 November 2023