Singh v Insurance Australia Limited t/as NRMA Insurance (No 1)

DETERMINATION OF REVIEW PANEL
CITATION:	Singh v Insurance Australia Limited t/as NRMA Insurance (No 1) [2022] NSWPICMP 384
CLAIMANT:	Sonia Singh
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW Panel:	Principal Member Josephine Bamber Dr Ian Cameron Dr John Schmidt
DATE OF DECISION:	27 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – Review of Medical Assessment under the Motor Accidents Injuries Act 2017; dispute as to whether loss of pregnancy was caused by motor accident on 3 June 2019 and whether it is a minor injury; Held – original Medical Assessor’s Certificate revoked and replaced with Certificate finding that the loss of pregnancy was not caused by the motor accident.
DETERMINATIONS MADE:	The Review Panel revokes the certificate dated 15 April 2021 and issues a certificate determining that: The following was not caused by the motor accident: - Loss of pregnancy

INTRODUCTION

Ms Singh had been driving her motor vehicle in Memorial Avenue, Liverpool, on 3 June 2019 when she was sitting in her stationary vehicle on the side of the roadway and another vehicle collied with the rear of her vehicle.
Insurance Australia Limited t/as NRMA (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Ms Singh damages and/or statutory benefits to which she may be entitled under the Motor Accident Injuries Act 2017 (the MAI Act).
The parties are in dispute as to whether Ms Singh’s loss of pregnancy is a “minor injury” pursuant to the MAI Act.

PROCEDURAL HISTORY

On 17 June 2019 Ms Singh made an Application for Personal Injury Benefits.

On 25 June 2019 the insurer issued its Liability Notice-Benefits up to 26 weeks¹.

On 11 September 2019 the insurer issued its Liability Notice for benefits after 26 weeks accepting liability after 26 weeks while they were conducting investigations².

¹ Insurer’s bundle p 33.

² Insurer’s bundle p 35.

On 3 March 2020 the insurer issued a Revised Liability notice in respect to benefits after 26 weeks declining liability to make payments after 26 weeks because it asserted that Ms Singh had minor injuries in the motor accident³.
On 14 April 2020 the insurer issued its review of their decisions dated 11 September 2019 and 3 March 2020 and affirmed their original decision that the injuries suffered by Ms Singh in the motor accident came within the statutory definition of minor injuries⁴.
On 1 May 2020 Ms Singh, through her solicitors, lodged her Dispute Resolution Service (DRS) Application form. On 26 May 2020 her solicitors wrote to the DRS to ask for Ms Singh’s statement dated 16 March 2020 be included with her Application.
On 19 June 2020 the insurer lodged its DRS Reply form⁵.

On 1 March 2021 the Personal Injury Commission (the Commission) commenced and now has jurisdiction in relation to Ms Singh’s Application. Medical Assessor Izzo in his certificate dated 15 April 2021 assessed that the loss of pregnancy was an injury caused by the motor accident and it is a minor injury for the purposes of the MAI Act⁶.
On 11 May 2021 Ms Singh, through her solicitors, filed an Application for Review of Medical Assessor Izzo’s certificate pursuant to s 7.26(1) of the MAI Act arguing that her loss of pregnancy did not come within the definition in the MAI Act in relation to “minor injury”.
On 8 June 2021 the insurer filed its submissions arguing that the Application for Review ought be dismissed because Medical Assessor Izzo made no error.
On 30 July 2021, the delegate of the President issued her decision to refer the medical assessment to a review panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.⁷
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), a review panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On 28 October 2021 the President convened the present Review Panel (the Panel) to determine the Application for Review.

³ Insurer’s bundle p38.

⁴ Insurer’s bundle p 206.

⁵ Insurer’s bundle -R4 p 11.

⁶ Insurer’s bundle -R2 p 3.

⁷ Section 7.26(2) of the MAI Act.

CONDUCT OF THE REVIEW

Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.⁸
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.⁹
The review is by way of new assessment of all matters with which the medical assessment is concerned.¹⁰
On 23 December 2021 the Panel issued a Direction to advise the parties as to the course of action it intended to take in this matter. A copy of the Direction is reproduced below for ease of reference:
“1.The Review Application in this matter was filed by the claimant seeking a review of the decision of Medical Assessor Izzo dated 15 April 2021.
2.On 2 November 2021 the Review Panel (the Panel) issued a direction requiring the parties to each file an indexed, paginated bundle of the documents they rely upon in relation to the review. The insurer has filed its bundle of documents. The claimant has not. The reason the Panel issued its direction was so that we can ensure all relevant documents that the parties wish to rely upon are before the Panel.
3.The Panel conducted a preliminary review in a teleconference on 16 December 2021 and considered the documents in the insurer’s bundle, the claimant’s submissions dated 11 May 2021, the claimant’s statement dated 16 March 2020 and Medical Assessor Izzo’s certificate. If the claimant seeks for the Panel to consider any further documents it is to file and serve an indexed, paginated bundle of documents.

⁸ Section 41(2) of the PIC Act.

⁹ Rule 128 of the PIC Rules.

¹⁰ Section 7.26(6) of the MAI Act.

4.The Panel advises the parties it has experienced difficulty finding any documents dealing with the claimant’s pregnancy in the weeks before the motor accident on 3 June 2019. There does not seem to be included in the documents any reference to this pregnancy. In the claimant’s statement at paragraphs [93] to [95] she refers to treatment by Dr Priya Sivadas from Monash IVF involving IVF treatment and a viable pregnancy, but she says at [95] she was then 46 years of age, whereas at the time of the accident she was 48. She has also stated she was 8 weeks pregnant at the time of the accident, but the Monash IVF clinic records do not include any IVF treatment 8 weeks before 3 June 2019. The Panel is concerned it may not have before it the full records from Monash IVF.
5.The Panel also is of the view that a physical examination of the claimant is not required because a physical examination now will not reveal the cause of the loss of pregnancy. However, the Panel will advise the parties whether it will need to speak to the claimant take a history from her.
6.The parties are invited to make submissions regarding these matters and also about whether the accident caused any loss of pregnancy because there is no evidence of any abdominal trauma or injury caused by the motor accident.
7.Accordingly, the Panel makes the following directions:
(a) On or before 11 February 2021 the claimant is to file and serve the full records from Monash IVF, her indexed paginated bundle of documents and any further submissions.
(b) On or before 28 February 2022 the insurer is to file and serve submissions in response.”

On 4 February 2022 Ms Singh’s solicitors filed a bundle of documents comprising the submissions dated 11 May 2021 in support of the Application for Review, Application for Personal Injury Benefits dated 17 June 2017, statement of Ms Singh dated 16 March 2020, supplementary statement of Ms Singh dated 2 February 2022 and report of Dr Bangash dated 22 October 2019. This bundle has been uploaded as AD2.
The insurer filed its bundle of documents (233 pages) which have been uploaded as AD5. In its bundle the insurer has included the submissions it made before Medical Assessor Izzo dated 19 June 2020 and those made in reply to the Application for Review of the Certificate of Medical Assessor Izzo dated 8 June 2021. The insurer filed further submissions dated 22 February 2022 in response to the Direction issued by the Panel on 23 December 2021, these have been uploaded as AD3.
It is noted that pages 76 to 90 of the insurer’s bundle are records with three different persons named on them as the patient, all bearing the same date of birth as Ms Singh. They include pelvis ultrasounds on 19 January 2015, 6 October 2018 and records relating to gallbladder surgery in 2017. It is not clear if they relate to Ms Singh, noting she had changed her name in the past. In any event, the Panel has not relied upon them as they are not relevant to the determination. The insurer refers to these records at point 3 of their submissions dated 22 February 2022.

MINOR INJURY- STATUTORY PROVISIONS

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A minor injury is defined in section 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury”. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 7 of the Guidelines commenced on 1 March 2021 and Version 8 commenced on 29 October 2021, applying to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.

5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

It is apparent from the above statutory provisions the first step of any assessment is to determine if the alleged injury was caused by the motor accident. It is only when this is established, that the decision maker then proceeds to consider the application of the definitions of “minor injury” and “soft tissue injury”.

CAUSATION

However, while Part 5 of the Guidelines apply to the determination of whether an injury is a “minor injury”, it is unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury¹¹ apply. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment and the assessment of whether an injury is minor does not involve assessing Permanent Impairment.¹² Furthermore, Part 6.6 refers to the definition of causation in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition and these Guides are not applicable to the determination of “minor injury” excepting in Part 5.8 dealing with radiculopathy.

Relevant legal authority

¹¹ See clauses 6.5 - 6.7 of the Guidelines.

¹² See clause 6.3 of the Guidelines.

In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance¹³ Justice Walton set aside the decision of a Medical Review Panel, one constituted under the former provisions. The issues to be determined involved applying the definition of “minor injury” and involved a question of causation in respect of an amputated toe. It was found the Review Panel had denied the plaintiff procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to the same.
However, the discussion in Kinchela concerning the correct principles to apply relating to causation are instructive and are set out below:
“[38]The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified
in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012]
NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014]
NSWSC 888 (“Bugat”); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR
348; [2016] NSWCA 229 (“McGiffen”). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
“In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in

¹³ [2021] NSWSC 804, (Kinchela).

circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
In McGiffen, the Court of Appeal held at [64] – [65]:
‘The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’

The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability
Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”

It is evident from the above-mentioned authorities that the legal test that the Panel needs to apply, is whether the motor accident on 3 June 2019 materially contributed to the loss of pregnancy suffered by Ms Singh. Because physical examination of Ms Singh now will not assist the determination of this issue, it is necessary for the Panel to carefully consider all the available evidence which includes Ms Singh’s statements and the pre and post- accident medical records. In addition, the Panel notes that Ms Singh has another Review Application, dealing with her orthopaedic injuries sustained in the same motor accident, matter R-M 10415988/21. That matter is being dealt with by the same Review Panel as in the present matter. There was a re-examination conducted by Medical Assessor Cameron on behalf of the Panel in that matter and his history taken from Ms Singh included details relevant to this matter. The relevant parts of his report are set out below:

“History

a.    Ms Singh said that her general health had been good prior to the incident in 2019. She said she was active, looking after her family and had a new partner in 2018. She said she was ambitious and studying further in subject of social housing.
b.    Ms Singh said that her partner did not have children and therefore they dreamt of having a family.
c.     Ms Singh consulted Dr Sividas at the Sydney office at Monash IVF. She had treatment and one egg was harvested, fertilised and frozen.
d.    Ms Singh then said that she and her partner decided to try to fall pregnant naturally. They had been overseas, but she returned to Australia in early 2019.
e.    Ms Singh obtained work as a client services officer with the New South Wales Department of Housing.
f.   Ms Singh said that she previously had regular menstrual periods at a duration of 21 to 25 days. She said that she did not have menstrual period in March, April or May 2019. She said she did a home pregnancy test in May 2019 which was positive. She said that she planned to see Dr Sividas again, but the motor vehicle crash intervened.
g.    The motor vehicle crash occurred on 3 June 2019. Ms Singh's vehicle had broken down and had its hazard lights on. Ms Singh said that she rang the police for help. She noted that it was then raining and dark.
h.    Because there had been no response to her telephone call she rang the police again. While she was on the telephone to the police the second time her vehicle was hit from behind by another vehicle and that vehicle then rolled over. She said that she was not wearing a seatbelt because she was not moving the vehicle. She said she immediately developed pain.

i.   Ms Singh said that she developed vaginal bleeding which was heavy initially with clots a short time after the accident. It gradually ceased over a period of about two weeks. When the bleeding started Ms Singh said that she consulted a different General Practitioner, Dr Bangash.
j.   Ms Singh said that returned to work soon after the crash. She said she was distressed, and her supervisor asked her to take one week's leave.
k.     Ms Singh said that she had difficulty managing at work due to pain and psychological symptoms. She was unable to drive herself.
l.   Ms Singh said that she could not continue in the client services officer role at the Department of Housing from roughly mid-2020.
m.   There have been continuing symptoms. Ms Singh has had ongoing physiotherapy for right elbow pain. She said there was some tenderness over the right greater trochanter. She said that she was concerned that she lost her job due to having difficulty with travel and managing stairs.
n.    Ms Singh felt that she had sustained an injury to her neck and back as well as other body regions in the crash. She said she hit her head on the ceiling of the vehicle.

Current Status

o. Ms Singh said she continues to have pain predominantly from her right elbow and right trochanteric area. She is unemployed.
p. Ms Singh is living at Liverpool with her partner and 24-year-old son. Current medication is Talam. Her general practitioner is Dr Farzhana Quader at the Liverpool Medical Centre.”

Pre-accident records

Records from the Liverpool Family Medical Centre refer to Ms Singh’s medical history from June 2009¹⁴. All of the records have been read by the Panel but only those records relevant to the Panel’s determination will be summarised.
An unremarkable pelvic ultrasound report was issued on 23 August 2012¹⁵. On 16 January 2015 it is recorded by Dr Nisha Mahajan that Ms Singh had “severe chronic back pain irregular period dysmenorrhoea”. On 6 February 2015 it is noted the pelvis ultrasound had no abnormality detected¹⁶. Dr Farag recorded on 7 March 2015 a urine pregnancy test was negative¹⁷.
On 11 September 2018 Ms Singh saw Dr Vilhelm, general practitioner, at the Rosehill Family Medical Practice. The doctor recorded she was aged 46 and wanted to conceive. Her partner was 49 and never had children before. They had been together some time. She has a regular 28 day cycle, not becoming irregular. Ms Singh has a 22 year old son who was conceived naturally. The doctor recorded she had just finished her menstrual period on Saturday. She advised Dr Vilhelm that she had pre-conception blood tests done at another clinic earlier in the year. Dr Vilhelm advised Ms Singh to see a specialist as it is quite difficult to conceive at this age and she referred Ms Singh to Monash IVF/ Dr Priya Sivadas for further counselling and discussion around ovulation¹⁸.
Dr Sivadas’ records for testing undertaken on 24 September 2018¹⁹, 19 and

28 November 2018²⁰, 1 December 2018²¹ are contained in the insurer’s document bundle.

¹⁴ Insurer’s bundle p 59.

¹⁵ Insurer’s bundle p79.

¹⁶ Insurer’s bundle pp 99-100.

¹⁷ Insurer’s bundle p 100.

¹⁸ Insurer’s bundle pp 122 -123.

¹⁹ Insurer’s bundle p 217.

²⁰ Insurer’s bundle p 216.

²¹ Insurer’s bundle p 215.

On 31 January 2019 Ms Singh saw Dr Belinda Poon at Rosehill Family Medical Practice. The doctor recorded that Ms Singh prior to going to US was referred to a fertility specialist and had one egg frozen and was waiting for an embryo to be created with Dr Priya Sivadas. She came in to check if she was pregnant. It was noted her last menstrual period was 14 December 2018 and she missed her period on 10 January 2019 but a pregnancy test was negative. She reported symptoms of pregnancy such as breast symptoms, abdominal cramping, low back pain feeling like just before her periods. It was noted her partner was very excited as he never had children. She has a 22 year old son who she raised on her own. The doctor thought based on her dates she could be seven weeks pregnant. Blood tests were ordered, and it was noted the urine test performed that day was negative for pregnancy²².
On 1 February 2019 Ms Singh saw Dr Vilhelm who advised the blood test, BHcG level was negative, and she did not look like she is pregnant. Ms Singh asked, why did she have all the symptoms of pregnancy? The doctor records that she advised Ms Singh that she could be perimenopausal. It is noted that Ms Singh’s AMH levels were quite low and hence it was likely she had low ovarian reserve which would make it very difficult for her to fall pregnant naturally²³.
On 7 February 2019 Ms Singh saw Dr Poon and she recorded that Ms Singh had her period on 3 February 2019 and just finished bleeding the day before and it was heavier than usual. Her pregnancy symptoms had gone. Ms Singh advised the doctor she had never had a period so late before. The doctor noted it could have been a very small miscarriage/chemical pregnancy and that she was high risk for miscarriage due to her increased maternal/paternal age. The doctor noted plans for Ms Singh to see Dr Priya Sivadas by the end of that month and further blood tests would be undertaken.
On 22 February 2019 Ms Singh saw Dr Aditi Mahajan at Rosehill Family Medical Practice with concerns about ongoing breast tenderness, nothing was found on examination. A urine pregnancy test was negative. Blood tests were ordered²⁴.
On 9 March 2019 Ms Singh saw Dr Belinda Poon at Rosehill Family Medical Practice. The consultation note states:
“Seeing Priya this week 14^th March

²² Insurer’s bundle p121.

²³ Insurer’s bundle pp 119- 120.

²⁴ Insurer’s bundle p 118.

Next cycle will commence IVF
LMP 1/3/2019 still getting regular periods Did try last month
Focus on daily intercourse on days 8-18
Suggest Ovulation Kit- Clear Blue to use this week (today is day 9 of cycle) Did ovulate last month, other hormones normal
Await results with Dr Priya
Discussed option if her partner has low sperm count again, including ICSI²⁵”

There are no further records dealing with Ms Singh’s reproductive health before the motor accident on 3 June 2019.

Ambulance report

An ambulance attended the scene of the accident on 3 June 2019 arriving at 20:52. The case description notes that Ms Singh’s car was stationary on the side of the road when a car impacted the rear and there was nil intrusion or airbag deployment. It is noted that Ms Singh was initially highly distressed. She did not have her seat belt on. She complained of right lateral neck pain and pain in her right jaw. She said her face hit the side of the car. On examination she denied cervical tenderness, she was conscious, alert, well orientated, well perfused and ambulant with nil deficit. She had full range of movement in her neck and jaw. She had right lateral shoulder pain. It was also recorded that her “abdo SNT, nil seat belt marks”²⁶. The Panel notes “SNT” means the examination of the abdomen revealed it was “soft and not tender”. It is noted Ms Singh declined treatment and left with a minor head injury card.

Post- accident treating medical records

Dr Akram Bangash, general practitioner from Liverpool Family Medical Centre, saw Ms Singh on 4 June 2019. He recorded the following clinical notes:
“last night had mva

her car broke down at 8.30 pm memorial avenue opposite whitlam centre she was waiting for help in her car which was rear ended

²⁵ Insurer’s bundle p 117.

²⁶ Insurer’s bundle p 44.

she was not wearing seatbelts as the car was stationary she was pushed forward and sideways
hit her head / her right leg / upper part of right jaw /neck and right shoulder Ambulance was called she was given 2 nurfoen [sic] and 2 panadol
never went to hospital went home
complains of 1 headaches
2 chest pain
3 pain right lower thigh
4 pain in cerviclee [sic] spine 5 pain right shoulder nauseated no vomiting dizziness present
no diplopia
no weakness in arms and legs
no past history of pain in neck and right shoulder
cervical spine tender rom limited and painful no bruise no graze right shoulder rom limited and painful no bruise no graze
rt thigh no bruise no graze tender anterior chest wall
tender right parietal region of skull rt mandible no bruise or graze
no neurological deficit²⁷”

Dr Bangash request a CT scan of the cervical spine and brain and prescribed Maxigesic 500gm and paracetamol / ibuprofen 150mg. On 12 June 2019 the doctor

²⁷ Insurer’s bundle pp 72-73.

recorded that both scan results were normal²⁸. The CT scans were undertaken on 4 June 2019²⁹. He noted Ms Singh had headaches, dizziness, right temporomandibular joint (TMJ) pain, which was very tender. He ordered an x-ray of the TMJ³⁰.

Dr Bangash provided Ms Singh with a Certificate of capacity/ certificate of fitness which Ms Singh has dated 11 June 2019, but the doctor dated it 12 June 2019. The doctor states he first saw Ms Singh for this injury on 4 June 2019. He diagnosed soft tissue injury to her neck, right jaw, right shoulder, right thigh, chest, concussion and post- traumatic stress. Dr Bangash prescribed analgesics and gave referrals for physiotherapy to Zena Marchini³¹ and to Maria Hague for psychotherapy. He certified that she had capacity for some work for seven hours per day five days per week, noting some physical restrictions such as no pushing/pulling, bending/twisting/squatting and no driving. He stated she should have occasional breaks. It is noted on the certificate that Ms Singh worked as a tenancy officer at FACS Liverpool³².
The employer signed this certificate with David Fensom stating that “Sonia had been at work completing her duties since the last certificate was issued”. This notation is dated 17 June 2019³³.
On 17 June 2019 Ms Singh signed her Application for Personal Injury Benefits. She advised she had post injury trauma and panic attack “as her expected pregnancy got miscarriaged”. She refers to injury to her neck, shoulder, back and thigh³⁴. She says she was seven to eight weeks pregnant and had “severe stomach ache the following after two days[sic]”.
On 19 June 2019 Ms Singh saw Dr Karina Vilhelm, from Rosehill Family Medical Practice³⁵. Ms Singh informed the doctor about the motor accident on 3 June 2019 and confirmed the ambulance came to the scene and assessed her, but she wanted to go home. Ms Singh advised Dr Vilhelm that she was approximately eight weeks pregnant at the time of the accident and her last menstrual period was around 25 March 2019.

²⁸ The CT Cervical scan report is at Insurer’s bundle pp 74-75.

²⁹ Insurer’s bundle p 74.

³⁰ Insurer’s bundle p 73.

³¹ Insurer’s bundle p 191.

³² Insurer’s bundle p 49.

³³ Insurer’s bundle p 51

³⁴ Insurer’s bundle pp 29 and ff.

³⁵ Insurer’s bundle p 116.

She says the day after the accident she had severe abdominal pain and cramping and PV loss with clots, which resolved within four to five days, with nil PV bleeding since then. She advised Dr Vilhelm that she had referrals for physiotherapy and to see a psychologist. She advised she was still suffering with some neck and back pain. It is noted she was very upset at the loss of the pregnancy and that her and her husband had been trying for some time and were excited at the prospect of pregnancy. The doctor noted she could not confirm the gestational age as Ms Singh had not seen anyone there to confirm the pregnancy but from the dates given to her by Ms Singh the doctor said she could have been 10 weeks pregnant.

Dr Vilhelm on examination found she had normal reflexes, sensation and power. Her neck was tender down the entire cervical spine and paraspinal and tenderness over the trapezius and her muscles felt very tight, even light touch caused pain. Dr Vilhelm recorded that she had normal range of movement in the neck, but it causes pain when rotating to the right and with extension and flexion. She had full range of movement of the shoulder but pain above shoulder height.
Dr Bangash next saw Ms Singh on 1 July 2019 and in his clinical note he refers to the motor vehicle accident and lists post-traumatic stress, depression, pain in lower back and neck, pain and tender right thigh/ trochanteric bursitis³⁶. He notes the pain is not getting better, so he requests MRI scans of the neck and lumbar spine. He also gives a referral to Dr Kuljic, psychiatrist. The referral advises Dr Kuljic that Ms Singh has a “history of PTSD and depression following MVA which caused her miscarriage, on 3/6/2019”³⁷.
On 8 July 2019 an Allied Health Recovery Request was made by the physiotherapist, Phoebe Evangelista from Allcare Physiotherapy, Liverpool, referring to neck, right thigh and lumbar pain³⁸. It is noted that she was depressed due to miscarriage, that she was already seeing a counsellor, but she was having difficulty coping with the pain.
On 11 July 2019 an Allied Health Recovery Request was made by a different physiotherapist, Moustafa Moutasallem, from Physio Interactive Liverpool who made a diagnosis of “whiplash grade II with possible irritation of the exiting nerve roots³⁹.

³⁶ Insurer’s bundle pp73-74.

³⁷ Insurer’s bundle p 168.

³⁸ Insurer’s bundle p 134.

³⁹ Insurer’s bundle p 137.

Discogenic lumbar spine pain with somatic referred pain to the right hip, ?right hip soft tissue injury”. It is noted that Ms Singh was depressed due to miscarriage.

On 16 July 2019 Dr Bangash records the results of the MRI scans and issues a referral for an ultrasound guided steroid injection to the right trochanteric bursa. He also prescribed Lexapro and Temaze for her psychological symptoms as well as Maxigesic⁴⁰.
On 1 August 2019 Dr Kuljic, psychiatrist, reported to Dr Bangash that Ms Singh was shocked by the accident on 3 June 2019 and can still hear the noise of the banging sound and she has intrusive memories of the same⁴¹. Dr Kuljic records that she had a whiplash neck injury and started feeling a headache immediately. He notes “being nine weeks pregnant she was very worried about the pregnancy, Unfortunately, three days later she lost her baby. Since that time, she has been feeling depressed, grieving for the baby”. Dr Kuljic advised Dr Bangash about suitable medication to treat Ms Singh. Dr Kuljic sent a similar report to the insurer on 2 August 2019⁴².
On 29 August 2019 Ms Singh consulted Dr Nisha Mahajan another general practitioner at the same practice as Dr Bangash. She recorded that Ms Singh had neck, back, right knee pain and was “8/52 pregnant- miscarried”. The reason for that visit was recorded as “anxiety/depression”. A letter was written to Maria Haque⁴³. Dr Mahajan completed a Mental Health Plan⁴⁴ noting Ms Singh was being referred to Tracy Durrant not Ms Haque.
On 22 September 2019 Ms Durrant had a consultation with Ms Singh in her progress notes she reports that Ms Singh informed her of the injuries she sustained in the accident to her knee and lower back. Ms Durrant also notes “Ms Singh said she had been pregnant prior to the accident and ‘lost’ the baby”.⁴⁵
On 8 October 2019 Dr Bangash answered a questionnaire of the insurer. He confirmed that following the motor accident Ms Singh did not disclose any abdominal pain or discomfort. He was asked about his observations and examinations immediately after

⁴⁰ Insurer’s bundle p106.

⁴¹ Insurer’s bundle p 169.

⁴² Insurer’s bundle p 176.

⁴³ Insurer’s bundle pp106-107.

⁴⁴ Insurer’s bundle p 178.

⁴⁵ Insurer’s bundle p 211.

the accident and if Ms Singh showed any sign of abdominal injury. He answered “No”. Dr Bangash was asked if following the accident did Ms Singh discuss miscarriage. He replied that she discussed this with Dr Nisha Mahajan on 29 August 2019. Dr Bangash was also asked his opinion as to whether Ms Singh sustained abdominal trauma/injury in the accident. He replied “I cannot be sure. It is possible, she never mentioned abdominal pain⁴⁶”.

On 18 October 2019 an Allied Health Recovery Request was made for psychological treatment by Tracy Durrant for cognitive behaviour therapy for anxiety and depression reactive to motor vehicle accident⁴⁷. On 21 October 2019, 6 November 2019, 3 and 16 December 2019 and 13 February 2020 Ms Durrant had further sessions with Ms Singh⁴⁸.
On 30 October 2019 Dr Bangash answered another questionnaire from the insurer about Ms Singh’s work capacity advising that she had been doing normal duties since the accident and she has pain in her lower back, right leg and neck and she needs to rest for two hours. The doctor advised she had right trochanteric bursitis and needs a steroid guided injection and physiotherapy. He expressed the view that with proper treatment she should be able to return to full pre-injury duties without restriction. He added that she has been suffering from post-traumatic stress and depression⁴⁹.
Dr Bangash provided a further certificate dated 26 November 2019 giving a diagnosis of injury to neck, lower back, right thigh and right knee⁵⁰.
On 28 November 2019 Dr Kuljic saw Ms Singh and his progress notes state she is functional at work⁵¹.
Dr Karina Vilhelm recorded on 1 April 2020 that since she had never diagnosed the pregnancy in question, she could not provide information as to whether the motor vehicle accident had led to a miscarriage⁵².

⁴⁶ Insurer’s bundle p 159

⁴⁷ Insurer’s bundle p 155.

⁴⁸ Insurer’s bundle pp 211- 213.

⁴⁹ Insurer’s bundle p 163.

⁵⁰ Insurer’s bundle p 52.

⁵¹ Insurer’s bundle p 175.

⁵² Insurer’s bundle p 115.

There are reports available from the treating orthopaedic surgeon, Dr Giblin, which are not relevant to the claim in relation to loss of pregnancy.

Ms Singh’s statements

Ms Singh states she has been known as Sonia Singh since September 2018. She mentions her earlier name, but the Panel has not included this to protect her identity as her relationship with her former husband was violent. Singh is the surname of her current fiancé.
Ms Singh says at [53] “at the time of the subject accident, I had undergone IVF treatment through a Fertility Specialist and I had had my pregnancy to Amarjeet confirmed”. At [94] Ms Singh states one egg was harvested and artificially inseminated and at [95] she states by then she was 46 years of age and Dr Priya Sivadas ordered blood tests and informed her that she had a viable pregnancy. At [96] she says the baby was due in early 2020. At [108] she states at the time of the subject accident she was seven or eight weeks pregnant.
Ms Singh says on Monday 3 June 2019 she was travelling to Hoxton Park to attend a prayer meeting to bless her pregnancy. She says she was running late and pulled over to ring to ask if she would be too late for the service. The priest told her the service would finish at about 9.30pm or 10pm but she told the priest she was hungry and fatigued due to her pregnancy and so he performed the blessing over the phone. So, she turned her car around and was heading home. She says her car stopped and so she pulled over to the side of the road and she rang the police for assistance. When she was on the phone to the police a second time a vehicle ran into the back of her car. Her car was shoved up onto the kerb. She says she was not wearing a seat belt and she was thrown forwards and sideways in her seat, impacting her head, right jaw, neck and right shoulder against the inside of her car.
Ms Singh says she experienced extreme shock and developed immediate pain in her right ear, neck, right jaw, had a headache and anxiety and her eye sight was blurred. She says the police and ambulance attended. She was offered morphine, but she refused. She says she did not tell them she was pregnant as she just wanted to go home. She describes the symptoms she felt when she got home which include to her lower back and neck.
Ms Singh says the next day she saw Dr Bangash.
At [148] she says she had a feeling of heaviness in her abdomen and took Panadol for pain relief. She said for the next three days she remained at home and suffered cramping in her abdomen, and she started passing clots and bleeding heavily vaginally, she was vomiting and her vision was blurry. She says she knew she miscarried but could not bring herself to tell her fiancé or son as she was distraught.

She says she saw Dr Karina Vilhelm who agreed she had miscarried. Ms Singh states “he [sic, she] wrote ‘probable miscarriage’ in his [sic, her] notes, as he [sic, she] had no official paperwork from Dr Priya Sivadas to confirm my pregnancy”.
Ms Singh states that she continued to struggle with pain in her neck, right shoulder, chest, back and right thigh and felt guilt over the loss of her pregnancy.
On 23 December 2021 the Panel issued a Direction bringing to the parties’ attention some anomalies in Ms Singh’s statement as follows:
“The Panel advises the parties it has experienced difficulty finding any documents dealing with the claimant’s pregnancy in the weeks before the motor accident on 3 June 2019. There does not seem to be included in the documents any reference to this pregnancy. In the claimant’s statement at paragraphs [93] to
[95] she refers to treatment by Dr Priya Sivadas from Monash IVF involving IVF treatment and a viable pregnancy, but she says at [95] she was then 46 years of age, whereas at the time of the accident she was 48. She has also stated she was 8 weeks pregnant at the time of the accident, but the Monash IVF clinic records do not include any IVF treatment 8 weeks before 3 June 2019. The Panel is concerned it may not have before it the full records from Monash IVF.”
After this Direction was issued Ms Singh provided a further statement dated 27 January 2022.
In this second statement, Ms Singh states the last day she saw Dr Priya Sivadas was in December 2018 at which time an egg was taken and frozen in the Monash IVF lab. She says she then travelled to USA for a few months and returned in March 2019. She states when she arrived in Australia in March 2019, she did not have her period which was usually in the third or fourth week of each month. She says in May 2019 she underwent a pregnancy test which revealed she was pregnant. She says she did not arrange an appointment with Dr Sivadas as she was moving to Liverpool and commencing a new job. She estimated she was nine weeks pregnant. She said she had an appointment for after the June long weekend, but the accident happened on 3 June 2019.
However, it is apparent from Dr Vilhelm’s consultation entry on 19 June 2019 that Ms Singh said her last menstrual period was on 25 March 2019. This is inconsistent with the account she gives in her second statement.
There are significant inconsistencies between the two statements of Ms Singh as to how and when she fell pregnant. Ms Singh did not have the pregnancy confirmed before the motor accident nor did she inform the ambulance officers about being pregnant. Given her pre-accident reproductive history it is perhaps surprising she did not inform those treating her of the pregnancy. She has explained in her second statement that she was busy before the motor accident and had an appointment scheduled with Dr Sivadas in June, but the motor accident intervened. She has also explained that she did not tell the ambulance officers about being pregnant because she was keen to get home. However, she did not tell Dr Bangash on 4 June 2019 about being pregnant.
Notwithstanding, the inconsistencies in her statements and there was no medical confirmation of her pregnancy, the Panel has proceeded on the basis that she was about eight to ten weeks pregnant at the time of the accident.

Medical Assessor Izzo

Medical Assessor Izzo provided his Certificate dated 15 April 2021 he sets out details of the circumstances surrounding the motor accident on 3 June 2019. Assessor Izzo records the history taken from Ms Singh that “she finally became pregnant in 2019 with Monash IVF”. This is a different account to what she gives in her second statement.
This incorrect history to Assessor Izzo has led to him considering incorrect matters in coming to his opinion. He states:
“Part of the IVF process is to examine the early embryo to make sure that all is well. It is well documented that embryos that are not normal are prone to miscarriage but to all intention purposes this embryo was normal. Embryos that are not normal fail to implant. This embryo implanted. As far, thus, as we can tell there was nothing wrong with the embryo and so one would not have expected a miscarriage to have occurred except for the trauma of the MVA.”
It is apparent from Ms Singh’s second statement that the pregnancy did not come about as part of the IVF process and so there was no checking of the embryo.
This was a significant reason for Assessor Izzo concluding that the motor accident caused the miscarriage.
Assessor Izzo also states that Ms Singh went to the Rosehill Family Medical Practice on 13 June 2019 and the miscarriage was confirmed. However, this is not entirely accurate. Ms Singh attended that practice on 19 June 2019, well after the miscarriage had taken place. Dr Vilhelm noted she could not confirm the gestational age as Ms Singh had not seen anyone there to confirm the pregnancy but from the dates given to her by Ms Singh the doctor said she could have been 10 weeks pregnant. Dr Vilhelm recorded on 1 April 2020 that since she had never diagnosed the pregnancy in question, she could not provide information as to whether the motor vehicle accident had led to a miscarriage⁵³.
The Panel notes that on physical examination Assessor Izzo found nothing significant to find and there was no indication to carry out a vaginal examination. The Panel advised the parties in its Direction dated 23 December 2021 that a physical examination now of Ms Singh would not assist to determine the issues in this matter.

Ms Singh’s submissions

Ms Singh made submissions dated 11 May 2021 in support of her Application for Review of Medical Assessor Izzo’s certificate they are focused on whether a miscarriage is a minor injury under the MAI Act. The Panel’s Direction issued on 23 December 2021 specifically invited submissions about the inconsistent information in Ms Singh’s first statement but also “about whether the accident caused any loss of pregnancy because there is no evidence of any abdominal trauma or injury caused by the motor accident”. In Ms Singh’s bundle of documents filed following this direction her solicitors did not include any further submissions about causation.

Insurer’s submissions

In the insurer’s initial submissions dated 19 June 2020 referred to the entries noted above from Dr Vilhelm and that in the report of Dr Bangash on 8 October 2019 he advised that Ms Singh did not disclose to him any abdominal pain/discomfort after the accident and his examination on the day after the accident did not reveal any abdominal injury. It also noted it had unsuccessfully sought an authority to obtain records from Dr Sivadas.

⁵³ Insurer’s bundle p 115.

Its submissions dated 8 June 2021 are focused on the findings made by Assessor Izzo relating to the “minor injury” provisions.
In the insurer’s further submissions dated 25 February 2022 it refers to a lack of contemporaneous medical evidence that Ms Singh sustained an injury to her abdomen in the motor accident on 3 June 2019. It relies on the absence of mention of the same in the ambulance report and the finding that the abdomen was soft non-tender. It also relies on the absence of a finding of an abdominal injury in the certificate of Dr Bangash dated 11 June 2019 and the consultation entry of Dr Bangash on 4 June 2019 and in the entries thereafter up to 1 July 2019.
The insurer also refers to the pre-accident medical records, submitting that there is no medical verification that Ms Singh was pregnant leading up to the motor accident. It also notes the absence of records from Monash IVF for the time prior to the accident.

DETERMINATION

The Medical Assessors on the Panel advise, based on their clinical expertise, that pelvic and uterine structures of the body provide considerable protection for a foetus. The estimates of the gestational age of Ms Singh’s pregnancy at the time of the motor accident range between eight to ten weeks.
The Panel finds the ambulance records are highly significant because the abdomen was actually examined and found to be SNT, meaning soft non-tender. The Panel advises this finding by the ambulance officers is not consistent with Ms Singh having sustained an abdominal injury.
Furthermore, Ms Singh was not wearing a seat belt at the time of the accident and so there could not have been an abdominal injury from the seat belt. Her history to the ambulance officers was her face hit the side of the car and they specifically commented on their examination of her abdomen that there were “nil seat belt marks”.
In addition, the Panel finds that the clinical entry the day after the accident by Dr Bangash is very detailed. He lists the areas of her body impacted, as he records “hit her head/ her right leg/ upper part of right jaw/neck and right shoulder”. The Panel finds it highly relevant that Ms Singh did not inform the doctor of any impact to her abdomen. Because of the detail in Dr Bangash’s notes the Panel finds it is more likely than not on the balance of probabilities that the doctor would have recorded it if Ms Singh had informed him of such an injury. In addition, the doctor listed her complaints which include pain in various parts of her body, but he makes no reference to her abdomen. It is apparent the doctor has examined each part of the body where Ms Singh complained of pain. The doctor prescribed Maxigesic and Ms Singh attended for CT scans of her brain and cervical spine that day. On 12 June 2019 Ms Singh saw Dr Bangash and he has no history of the miscarriage. Dr Bangash confirmed in his answers to the insurer on 8 October 2019 that Ms Singh did not show any signs of abdominal injury and she did not discuss the same with him.
On 17 June 2019 Ms Singh included in her Application for Personal Injury Benefits that her “pregnancy got miscarried” and that she had “severe stomach ache the following after 2 days [sic] and suddenly got clots discharged”. However, the history to Dr Vilhelm on 19 June 2019 was the “next day had severe abdominal pain and cramping and PV loss with clots which resolved within 4-5 days”. If this history is correct this would have been on 4 June 2019 and presumably must have been after she saw Dr Bangash that day and after she went to have the CT scans, because otherwise it would be extraordinary that she did not tell Dr Bangash of these issues. In her first statement at [146] she says she saw Dr Bangash on 4 June 2019 and went for the scans. At [147] she states she had a feeling of heaviness in her abdomen and took Panadol for pain relief. She says for the next three days she remained home and had cramping in her abdomen and started passing clots and was bleeding heavily.
While it is not possible to accurately find when her vaginal bleeding commenced from these histories the Panel accepts it was within days of the motor accident. However, the Panel finds that this temporal fact is not sufficient to conclude that the accident caused the miscarriage.
The Panel finds Ms Singh’s pre-accident reproductive history is highly relevant, as is her age. At the time of the motor accident on 3 June 2019 she was aged 47.6 years. The Panel advises based on their clinical expertise that having a successful pregnancy at that age is rare. Ms Singh’s pre-accident records demonstrate her difficulty in having a viable pregnancy.
The Panel finds even without her pre-accident reproductive history because of the protection afforded by the uterus and pelvic structure and the size of the foetus at the time of the accident, absent an injury to the abdomen it is more likely than not on the balance of probabilities that the miscarriage was not caused by the accident.
The Panel finds that the evidence is overwhelming that there was no injury to the abdomen. The fact that Ms Singh says she felt “heaviness in her abdomen” or “severe stomach ache” and “cramping” the Panel finds are signs more likely than not on the balance of probabilities due to the miscarriage process and are not symptoms of an abdominal injury.
The Panel is aware that the doctors that treated Ms Singh following her miscarriage have proceeded on the assumption that the accident caused the miscarriage because of the histories given to them by Ms Singh. The fact that Ms Singh in her mind believed there to be a connection does not mean there was a causal connection, and the Panel finds it is relevant that those subsequent doctors have not considered the ambulance officers’ examination of Ms Singh at the time of the accident. Therefore, the Panel finds there is no probative weight in the records of Dr Mahajan, Dr Kuljic and Ms Durrant about the miscarriage being caused by the accident. Dr Vilhelm advised as she had never diagnosed the pregnancy, she could not provide information as to whether the accident had led to the miscarriage.
The Panel has been mindful of the legal authorities quoted earlier in these reasons, that the presence or absence of contemporaneous evidence of injury is relevant but not necessarily determinative in circumstances where there is other evidence. In this case there is positive evidence of examination of Ms Singh’s abdomen immediately after the accident by the ambulance officers and the Panel has found if Ms Singh had sustained an abdominal injury in the accident, it would have been detected on that examination. The Panel has found the finding that the abdomen was soft non tender is not consistent with an abdominal injury being present. The Panel has also carefully considered Ms Singh’s statements and the medical evidence pre and post-accident, particularly Dr Bangash’s consultation with Ms Singh on the day after the accident. In addition, the clinical experience and expertise of Medical Assessors of the Panel in relation to the protection afforded to a foetus by the pelvic and uterine structures reinforces the conclusion reached.
The Panel finds that Ms Singh has not established that the loss of pregnancy was caused by the motor accident on 3 June 2019. In these circumstances it is not necessary for the Panel to proceed to consider if a loss of pregnancy falls within the definition of “minor injury” in the MAI Act.

[2022] NSWPICMP 384

27 July 2022