Singh v Insurance Australia Limited t/as NRMA Insurance (No 2)

DETERMINATION OF REVIEW PANEL
CITATION:	Singh v Insurance Australia Limited t/as NRMA Insurance (No 2) [2022] NSWPICMP 385
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 (2017 Act); dispute as to whether various orthopaedic injuries sustained in motor accident on 3 June 2019 are minor injuries; Held – original Medical Assessor’s Certificate (MAC) revoked and replaced with MAC that injuries to the cervical spine, lumbar spine, right hip, head, right shoulder, right knee and right elbow are minor injuries for the purposes of the 2017 Act.
DETERMINATIONS MADE:	The following injuries were caused by the motor accident and are MINOR INJURIES: · cervical spine- aggravation cervical spondylosis; · lumbar spine- aggravation lumbar spondylosis; · right hip trochanteric bursitis; · head injury; · right shoulder tendinosis; · right knee grade IV chondromalacia patellae, and · right elbow bursitis.

INTRODUCTION

Ms Singh had been driving her motor vehicle in Memorial Avenue, Liverpool, on 3 June 2019 when she stopped her 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 the injuries suffered by Ms Singh in the motor accident are “minor injuries” 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 weeks[1].
[1] AD2 p 33.
On 11 September 2019 the insurer issued is Liability Notice for benefits after 26 weeks accepting liability after 26 weeks while they were conducting investigations[2].
[2] AD2 p35.
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 Ms Singh had minor injuries in the motor accident[3].
[3] AD2 p38.
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 injuries[4].
[4] AD2 p 206.
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 form[5].
[5] AD2-R4.
On 1 March 2021 the Personal Injury Commission (the Commission) commenced and now has jurisdiction in relation to Ms Singh’s Application. Medical Assessor Woo in his certificate dated 12 April 2021 assessed that the following injuries were caused by the motor accident and were minor injuries for the purposes of the Act:
·right hip trochanteric bursitis;
·head injury;
·right shoulder tendinosis;
·right knee grade IV chondromalacia patellae, and
·right elbow bursitis.
At [26] of his report Assessor Woo stated:
“The following injuries WERE NOT listed by the parties but WERE caused by the motor accident:
• Cervical spine soft tissue injury
• Lumbar spine soft tissue injury
Both injuries are consistent with the definition of minor injury.
The parties have not consented to these injuries being assessed for the purposes of the Act.”
In May 2021 Ms Singh, through her solicitors, filed an Application for Review of Medical Assessor Woo’s certificate pursuant to s 7.26(1) of the MAI Act and she sought for the injuries to the cervical spine and lumbar spine to be assessed.
On 11 June 2021 the insurer filed its submissions arguing that the Application for Review ought be dismissed because Medical Assessor Woo 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.[6]
[6] Section 7.26(2) of the MAI Act.
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.

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.[7]
[7] Section 41(2) of the PIC Act.
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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
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 Woo dated 15 April 2021 who certified that:
‘The following injury caused by the motor accident:

Right hip trochanteric bursitis
Head injury
Right shoulder tendinosis
Right knee grade IV chondromalacia patellae
Right elbow bursitis
is a MINOR INJURY for the purposes of the Act’
2.     At [26] of his report Assessor Woo stated:
‘The following injuries WERE NOT listed by the parties but WERE caused by the motor accident:
• Cervical spine soft tissue injury
• Lumbar spine soft tissue injury
Both injuries are consistent with the definition of minor injury.
The parties have not consented to these injuries being assessed for the purposes of the Act.’
3.    The claimant in her submissions dated 11 May 2021 submits that the doctor erred in his assessment of the cervical spine and lumbar spine and seeks for these to be assessed. The insurer in its submissions dated 11 June 2021 notes that claims in relation to the cervical and lumbar spines had not been referred by the claimant to be assessed by the then DRS. It goes on further to submit that that the assessor did not err that injury to the cervical spine and lumbar spine are minor injuries.
4.    Notwithstanding that the claimant’s application probably should have been for a further assessment rather than a Medical Review, given a review is a fresh assessment and not restricted to identifying error in the original assessment, the Panel puts the parties on notice that it intends to assess whether the injuries to the cervical and lumbar spines were caused by the motor accident and whether they are minor injuries.
5.    The Panel advises the parties it considers that a medical examination should be conducted by the Panel, by Medical Assessor Cameron as follows:
a.   Date:               12 April 2022
b.   Time:              5pm
c.    Location:       54 Mountain St Ultimo
6.    Absent any objection from the parties, as there seems no dispute in relation to the other body parts, the Panel will not conduct a re-examination of those body parts which have been certified as minor and the re-examination will be confined to the cervical and lumbar spines.
7.    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 parties have not filed relevant bundles of documents pertaining to this matter. The insurer seems to have filed the same bundle that it filed in matter R-M10415962/2.1 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.
8.    The Panel conducted a preliminary review in a teleconference on 16 December 2021 and would be assisted if the parties do file the requested indexed, paginated bundle of documents only of that material relevant to this dispute.
9.    Accordingly, the Panel makes the following directions:
a.On or before 11 February 2022 her indexed paginated bundle of documents.
b.On or before 28 February 2022 the insurer is to file and serve its paginated indexed bundle of documents (not including any document in the claimant’s bundle).

10. If either party wishes to make further submissions relating to the matters outlined above, they can include them in their bundle of documents. Any evidence referred to in such submissions should include reference to the page number at which the document appears in the bundle of documents.”

On 4 February 2022 Ms Singh’s solicitors filed a list of documents in the related matter
R-M1045962/21 the only fresh document is the supplementary statement of Ms Singh dated 2 February 2022.
The insurer filed its bundle of documents which have been uploaded as AD2. This bundle seems to have 237 pages in total. It has an index which unfortunately does not refer to individual page numbers. However, the page numbering starts with the fourth document in the bundle being the insurer’s DRS Reply, this document has the number 11 on the bottom right hand corner and this pagination continues to numbered page 233. The Panel has in this decision referenced the page numbers in footnotes.
In its bundle the insurer has included the submissions it made before Medical Assessor Woo dated 19 June 2020 and those made in reply to the Application for Review of the Certificate of Medical Assessor Woo dated 11 June 2021.

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” to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric 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.”
Parts 5.7 to 5.9 of the Guidelines deal with assessing injuries to the neck or spine and radiculopathy:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or a symmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
Parts 5.10 to 5.12 of the Guidelines are not relevant to this matter as they deal with psychological or psychiatric injuries.

SUMMARY OF RELEVANT DOCUMENTATION

Pre-accident records

Records from the Liverpool Family Medical Centre refer to Ms Singh’s medical history from June 2009[10]. All of the records have been read by the Panel but only those records relevant to the Panel’s determination will be summarised.
[10] AD2 p 59.
On 23 July 2009 it is noted Ms Singh had severe back pain / right sciatica. Sciatica is again mentioned in a consultation entry on 17 April 2012 and a CT of lumbar spine was ordered[11]. On 16 January 2015 it is recorded that Ms Singh had “severe chronic back pain irregular period dysmenorrhoea”. The CT of the lumbar spine scan is dated 17 April 2012 showing a prominent posterolateral disc extrusion to L5/S1 causing severe central canal narrowing and bilateral recess encroachment, with pressure to the traversing S1 nerve roots. At this level there was also moderate osteophytic exit foraminal narrowing with contact to the exiting nerve root[12]. An unremarkable pelvic ultrasound report was issued on 23 August 2012[13].
[11] AD2 p 66.
[12] AD2 p 76.
[13] AD2 p79.
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 ovulation[14].
[14] AD2 pp 122 -123.
Dr Sivadas records for testing undertaken on 24 September 2018[15], 19 and 28 November 2018[16], and 1 December 2018[17] are contained in the insurer’s document bundle.
[15] AD2 p 217.
[16] AD2 p 216.
[17] AD2 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[18].
[18] AD2 p121.
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? and the doctor records she advised 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 naturally[19].
[19] AD2 pp 119- 120.
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 ordered[20].
[20] AD2 p 118.
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
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 ICSI[21]”
[21] AD2 p 117.

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”[22]. The Panel notes this 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.
[22] AD2 p 44.

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
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 deficit[23]”
[23] AD2 pp 72-73.
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 recorded that both scan results were normal[24]. He noted Ms Singh had headaches, dizziness, right temporomandibular joint (TMJ) pain, which was very tender. He ordered an X-ray of the TMJ[25].
[24] The CT Cervical scan report is at AD2 pp 74-75.
[25] AD2 p 73.
Dr Bangash provided Ms Singh with a Certificate of capacity/ certificate of fitness which
[26] AD2 p 191.
[27] AD2 p 49.
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 Marchini[26] 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 Liverpool[27].
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
[28] AD2 p 51
17 June 2019[28].
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 thigh[29]. She says she was seven to eight weeks pregnant and had “severe stomach ache the following after two days[sic]”.
[29] AD2 pp 29 and ff.
On 19 June 2019 Ms Singh saw Dr Karina Vilhelm, from Rosehill Family Medical Practice[30]. 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. 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.
[30] AD2 p 116.
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 bursitis[31]. 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”[32].
[31] AD2 pp73-74.
[32] AD2 p 168.
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 pain[33]. 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.
[33] AD2 p 134.
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 roots[34]. 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.
[34] AD2 p 137.
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 Maxigesic[35].
[35] AD2 p106.
On 11 July 2019 the radiologist reported the following comments[36]:
“Mild degenerative changes in the cervical spine without evidence of
significant central canal stenosis or nerve root impingement. In the
lumbosacral region, there is possible bilateral S1 nerve root irritation,
[36] AD2 pp108-109.
more likely on the right. Clinical correlation advised. No evidence of recent trauma on the STIR sequences.”
An MRI of the upper right leg appeared to show asymmetric mild to moderate right trochanteric bursitis[37]. The radiologist commented that there appears to be some focal tendinosis in the anterior band of the gluteus medius tendon which he thought was the pain generating pathology.
[37] AD2 p 110.
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 same[38]. 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 2019[39].
[38] AD2 p 169.
[39] AD2 p 176.
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 Haque[40]. Dr Mahajan completed a Mental Health Plan[41] noting Ms Singh was being referred to Tracy Durrant not Ms Haque.
[40] AD2 pp106-107.
[41] AD2 p 178.
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”.[42]
[42] AD2 p 211.
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 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 pain[43]”.
[43] AD2 p 159
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 accident[44]. On 21 October 2019, 6 November 2019, 3 and 16 December 2019, and 13 February 2020 Ms Durrant had further sessions with Ms Singh[45].
[44] AD2 p 155.
[45] AD2 pp 211- 213.
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 depression[46].
[46] AD2 p 163.
Dr Bangash provided a further certificate dated 26 November 2019 giving a diagnosis of injury to neck, lower back, right thigh and right knee[47].
[47] AD2 p 52.
On 28 November 2019 Dr Kuljic saw Ms Singh and his progress notes state she is functional at work[48].
[48] AD2 p 175.
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 miscarriage[49].
[49] AD2 p 115.

Dr Matthew Giblin

Dr Bangash’s referral to Dr Giblin dated 22 October 2019 notes a history of constant pain in Ms Singh’s right thigh following the motor accident. The doctor refers to the MRI scan showing mild to moderate trochanteric bursitis, focal tendinosis of the anterior band of gluteus medius tendon and a painful tender lump of the right knee[50].
[50] AD2 p 185.
Dr Giblin, orthopaedic surgeon, provided a report to the insurer and Dr Bangash dated
[51] AD2 p 55.
30 October 2019[51]. Dr Giblin took a history that since the car accident Ms Singh had right sided neck pain, low back pain, right hip and right knee pain. Dr Giblin noted she had been treated with physiotherapy and Maxigesic medication. He states her general health is good. The doctor sets out his examination findings including that in her cervical spine the right lateral rotation is tight compared to the left but there were no significant peripheral neurological signs, and she had a full range of movement of her shoulders. In the lumbar spine straight leg raising was 80° on the left and 40° on the right. There were no significant peripheral neurological signs.
Dr Giblin diagnosed that Ms Singh had an aggravation of underlying degenerative change of her cervical spine and lumbar spine. He opines that she has an irritation of the right S1 nerve root and limitation of straight leg raising but she did not have symptoms of pain in the right leg. The doctor recommended a bone scan to see if there is a facet joint injury which may respond to a steroid injection in either her cervical or lumbar spine. The bone scan was undertaken on 5 November 2019[52].
[52] AD2 p 200.
On 7 November 2019 Dr Giblin reported that the bone scan showed uptake in the left sided facet joints at C2/3 and C3/4 but her symptoms are more central. He also noted some uptake at the C3/4 vertebral level. Dr Giblin recommended injection of steroid to right side L5/S1 to gain an indication as to what proportion of pain arises from there[53]. He also issued a referral for hydrotherapy for low back, neck and knee pain[54].
[53] AD2 p 58.
[54] AD2 p 179.
Dr Giblin provided a further report dated 29 January 2020 and he noted she had not had any of the injections he recommended, and she was now complaining of pain in the right shoulder[55].
[55] AD2 p 57.

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 eyesight 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.
Ms Singh provided a further statement dated 27 January 2022. She 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.

Medical Assessor Woo

Medical Assessor Woo provided his Certificate dated 12 April 2021 in which he sets out in some detail the circumstances surrounding the motor accident on 3 June 2019. Assessor Woo states:
“She experienced extreme shock, and she developed immediate pain in her right ear, neck and right jaw, along with a headache and anxiety and her eyesight was blurred. She called her son, who left his work immediately to attend the accident scene.
Police and ambulance services attended the accident scene. Paramedics wanted to give her morphine, however she refused this treatment. She did not tell them she was pregnant because she wanted to go home. She was administered Nurofen and Panadol and she refused to be conveyed to hospital, again because she just wanted to return home.”
The Assessor noted that immediately following the accident she suffered pain in her head, both sides of her jaw, neck, both shoulders, lower back, both hips, right thigh and right knee with extensive bruising on her head, both thighs and both knees. She attended Dr Bangash on 4 June 2019. Assessor Woo also records Ms Singh’s advice that three days later she miscarried, losing her pregnancy at nine weeks gestation.
The only injuries that were referred for assessment by Ms Singh’s solicitors were the right hip, head, right knee, right shoulder and right elbow. Assessor Woo set out his examination findings in relation to these body parts. However, he did note that Dr Giblin in his report dated 30 October 2019 did not report any signs to satisfy the diagnosis of radiculopathy in both upper and lower limbs related to her neck and back complaints. Assessor Woo referred to medical imaging brought to the assessment as including the MRI cervical and lumbar spines on 11 July 2019, MRI right upper leg on 13 July 2019, MRI right knee on 31 October 2019 and bone scan on 5 November 2019.
Assessor Woo was satisfied that Ms Singh had sustained injuries to her right hip-trochanteric bursitis, head, right shoulder-soft tissue injury, right knee- soft tissue injury and right elbow-soft tissue injury. He also listed that there was cervical spine soft tissue injury and lumbar spine soft tissue injury. He expressed the view that both of these injuries are consistent with the definition of minor injury but stated that the parties had not consented to these injuries being assessed.
Assessor Woo considered the definition of soft tissue injury and states that there were no clinical signs to satisfy the diagnosis of radiculopathy in both upper and lower limbs related to her neck and back injuries.

SUBMISSIONS

Ms Singh’s submissions

Ms Singh made submissions dated 11 May 2021 in support of her Application for Review of Medical Assessor Woo’s certificate. These submissions do not challenge the assessment of the injuries to the elbow, knee, shoulder, head and hip. Ms Singh’s solicitor submits that there should be an assessment of the cervical spine and lumbar spine and that the doctor should carefully note the contents of the MRI scan of the lumbar spine and cervical spine.
However, the balance of the submission only deals with the lumbar spine. It is submitted that the MRI scan confirms that there is evidence that the injury is more than a minor injury. Part of the MRI scan report dated 11 July 2019 is quoted:
“At L5/S1, there is moderate generalised disc bulging with displacement of the descending S1 nerve root in the subarticular recesses bilaterally. This is more pronounced on the right, and the S1 nerve root appears swollen in the subarticular recesses. There is no significant central canal or foraminal narrowing.”

Ms Singh’s solicitor submits that Assessor Woo did not carry out an assessment of the lumbar spine and did not specifically turn his mind to whether or not there is disc herniation which constitutes more than a minor injury. It is argued that there is additional relevant information in the form of two additional injuries to be assessed being the injury to the cervical spine and lumbar spine.
As noted by the Panel in its Direction dated 23 December 2021 this Application for Review should have instead be made as an Application for Further Assessment, given Ms Singh’s solicitors did not seek for the cervical and lumbar spines to be assessed by DRS. However, as the Panel advised the parties our assessment is a fresh assessment, and the Panel would proceed to assess the cervical and lumbar spines. The Panel advises as no issue had been made in relation to the other body parts the Panel would not re-assess them. No objection was taken to this course of action.

Insurer’s submissions

In the insurer’s initial submissions dated 19 June 2020 it recounts the pre-accident medical history, the ambulance report and the post-accident treatment records. The Panel has considered all of this material and set out its summary of the same earlier in these reasons. The insurer submits that while Ms Singh has complained of neck and back pain there is no evidence of a clinical assessment that satisfies the diagnosis of radiculopathy as defined in the Guidelines. It also submits there is no evidence of nerve injury and states the injuries sustained by Ms Singh fall within the definition of soft tissue injury and therefore are minor injuries under the MAI Act.
In its submission dated 11 June 2021 the insurer addresses Ms Singh’s submission that Assessor Woo failed to consider the MRI scan report dated 11 July 2019. The insurer responds by noting that at [21] of Assessor Woo’s certificate he summarises the findings of this scan. The insurer also submits that the radiologist stated in this scan report “In the lumbosacral region, there is possible bilateral S1 nerve root irritation, more likely on the right. Clinical correlation is advised”.
The insurer submits that the radiologist’s findings do not evidence an injury to nerves, or complete or partial rupture of tendons, menisci or cartilage and that Assessor Woo concludes the injury to the lumbar spine was soft tissue and so falls within the definition of minor injury in the MAI Act.
The insurer also relies on Assessor Woo’s finding that there were no clinical signs to satisfy the diagnosis of radiculopathy in the neck or back.

RE-EXAMINATION

As notified to the parties in the Panel’s Direction issued on 23 December 2021 Medical Assessor Ian Cameron conducted the re-examination of Ms Singh on 12 April 2022. His report is 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.
Examination
q.     Ms Singh is right handed, 175cm in height and weighs 90 kg.
r.     Ms Singh was co-operative and spoke clearly about the events. She is distressed at her current situation.
s.     At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
t.     There was a full range of motion at both shoulders. There was a full range of motion at other upper extremity joints. Tenderness was reported over the right radial head.
u.     There were no neurological abnormalities in the upper extremities.
v.     Circumferences of the upper extremities were right 27cm and left 27cm.
w.    At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
x.     At the lumbar spine there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.

y.     There was a full range of motion at both knees. There was no crepitus or instability. There was a full range of motion at other lower extremity joints. Tenderness was reported over the right greater trochanter.
z.     There were no neurological abnormalities in the lower extremities.
aa.   Circumferences of the lower extremities were right 44cm and left 44cm.

bb. Ms Singh walked with a normal gait.
cc. There were no imaging studies to review.”

DETERMINATION

The Panel finds that Ms Singh did sustain injury to her cervical spine in the motor accident on 3 June 2019. Ms Singh complained to the ambulance officers of right lateral neck pain and while they found she had a full range of movement and she denied tenderness in the neck, she did complain of neck pain and had restricted neck movements when she saw Dr Bangash the next day.
Dr Giblin’s examination findings included that in her cervical spine the right lateral rotation is tight compared to the left but there were no significant peripheral neurological signs and she had full range of movement in her shoulders. Dr Giblin diagnosed an aggravation of underlying degenerative change of her cervical spine. He noted some uptake in the cervical spine on the bone scan.
The Panel has considered the MRI scan report dated 11 July 2019[56] which showed “Mild degenerative changes in the cervical spine without evidence of significant central canal stenosis or nerve root impingement”. The Panel has also carefully reviewed all the treating medical and allied health evidence and can find no signs of the presence of radiculopathy. The re-examination by Assessor Cameron on behalf of the Panel also found no signs of radiculopathy.
[56] AD2 pp108-109.
The Panel advises that Ms Singh’s injury to her cervical spine falls within the definition of a “soft tissue injury” in section 1.6(2) of the MAI Act. There is no evidence of any rupture of tendons, ligaments, or cartilage or injury to nerves, which if present would have meant the injury was not classed as soft tissue. However, in the absence of such evidence and there being no radiculopathy, the finding is the injury to the cervical spine is a soft tissue injury and therefore it is regarded as a “minor injury” under the MAI Act. It is noted that Ms Singh’s solicitor did not point to any evidence to the contrary.
In regard to the lumbar spine injury, while there was no reference to the lumbar spine to the ambulance officers or to Dr Bangash the day after the accident, Ms Singh did refer to low back pain on 17 June 2019 when lodging her application with the insurer. Ms Singh also told Dr Vilhelm of low back pain on 19 June 2019 and thereafter has complained of ongoing lumbar symptoms. The physiotherapist on 8 July 2019 also diagnosed the presence of lumbar pain. The Panel is persuaded that the motor accident did cause an injury to Ms Singh’s lumbar spine.
However, the Panel did not find signs of radiculopathy on its examination and accepts the insurer’s submission that persistent back pain does not satisfy the criterion of radiculopathy as set out in the Guidelines. The Panel’s re-examination found no non-verifiable radicular complaints present and nerve tension signs were negative. Dr Giblin noted there were no significant peripheral neurological signs and he diagnosed that Ms Singh had an aggravation of underlying degenerative change of her lumbar spine. He opines that she has an irritation of the right S1 nerve root and limitation of straight leg raising but she did not have symptoms of pain in the right leg.
Ms Singh’s submissions refer to the MRI scan taken on 11 July 2019 which revealed,
“at L5/S1, there is moderate generalised disc bulging with displacement of the descending S1 nerve root in the subarticular recesses bilaterally. This is more pronounced on the right, and the S1 nerve root appears swollen in the subarticular recesses. There is no significant central canal or foraminal narrowing.”
However, as the insurer submits, the pre-accident CT lumbar spine scan dated 17 April 2012 showed a prominent posterolateral disc extrusion to L5/S1 causing severe central canal narrowing and bilateral recess encroachment, with pressure to the traversing S1 nerve roots. At this level there was also moderate osteophytic exit foraminal narrowing with contact to the exiting nerve root[57].
[57] AD2 p 76.
The Panel advises the finding on the MRI scan post- accident does not provide evidence of radiculopathy or of injury to the nerves. Also, the Panel finds there has not been relevant change in the pathology shown in the 2012 to that in 2019.
Accordingly, the Panel has formed the opinion that the injury to the lumbar spine was a soft tissue injury and as such is a minor injury.
As noted previously Assessor Woo found the injuries caused by the motor accident on 3 June 2019 were minor, involving the right hip- trochanteric bursitis, head injury, right shoulder- tendinosis, right knee- grade IV chondromalacia patellae and right elbow- bursitis. Ms Singh did not seek to challenge those findings. The Panel agrees with and adopts the findings of Medical Assessor Woo in relation to those injuries. Those findings are consistent with the Panel’s consideration of the entirety of the evidence before it as well as the examination findings of the Panel member, Medical Assessor Cameron. The Panel has issued a replacement certificate to include the findings in relation to the cervical and lumbar spines being minor injuries for the purposes of the MAI Act.

[2022] NSWPICMP 385

27 July 2022