AAI Limited t/as GIO v Bruce
[2025] NSWPICMP 237
•3 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Bruce [2025] NSWPICMP 237 |
CLAIMANT: | Tracey Bruce |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 3 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); degree of permanent impairment; claimant sustained injuries in a motor vehicle accident as a front-seat passenger; claimant underwent left total hip replacement five years post-accident; Medical Assessor (MA) certified 15% whole person impairment (WPI); Held – Review Panel satisfied that left total hip replacement due to injury related to the motor accident; Review Panel satisfied that MA’s finding of 15% WPI was appropriate utilising Tables 64 and 65 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Review Panel adopts that finding without re-examination as causation was crucial issue; Review Panel finds lumbar spine injury not resolved but with 0% WPI; injuries to left knee and pelvis found not caused; MAC revoked and replaced. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under section 63 of the Motor Accidents Compensation Act 1999 (the Act) 1. The Review Panel revokes the Certificate of Medical Assessor Alan Home dated · The following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%: I. lumbar spine: soft tissue injury, and II. left hip: Intra-articular cartilage injury for which total hip replacement was performed. · The following injuries referred for assessment have been assessed and determined not caused by the motor accident: I. left knee, and II. pelvis. An assessment of the degree of permanent impairment of these injuries is therefore not required. |
·
STATEMENT OF REASONS
INTRODUCTION
On 23 August 2016, Tracey Bruce (the claimant) sustained injuries in a motor vehicle accident as a front seat passenger in a people pover driven by her husband. The claimant’s four children were sitting behind in the middle and rear rows of seats. Her husband drove along McMullins Road in Branxton. He failed to give-way to a vehicle coming from the left. The left passenger side of the claimant’s vehicle was impacted in the collision. The claimant recalls that the car span after the initial impact. There was no secondary collision.
Following the accident, the claimant recalls symptoms of shock. She could not open the passenger side door. Her husband alighted and assisted her from the vehicle. Ambulance officers arrived. The claimant was taken to John Hunter Hospital for assessment. She left the hospital to care for her children. The claimant recalls early complaints of pain in her lower back, left hip and left thigh, with mild pain also at the anterior aspect of her left knee.
AAI Limited t/as GIO (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the Act). The insurer admitted liability for the claim but declined to pay for left total hip replacement performed five years post accident.
ASSESSMENT UNDER REVIEW
There is a dispute between the parties about the degree of permanent impairment under
s 58(1)(d) of the Act. The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Alan Home for further assessment:· left hip;
· lumbar spine;
· left knee, and
· pelvis.
Medical Assessor Home certified on 28 May 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%:
· Lumbar spine: soft tissue injury – resolved
· Left hip: intra-articular cartilage injury for which total hip replacement was performed
· Left knee: soft tissue injury – resolved
Medical Assessor Home found that an injury to the claimant’s pelvis was not caused by the subject accident. He did not so certify. Medical Assessor Home found 15% whole person impairment (WPI) for the left hip. No adjustment was made for pre-existing/subsequent impairment, apportionment or treatment effects.
OTHER ASSESSMENTS
Medical Assessor Harrington certified on 28 August 2019 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%:
· Left hip
· Lumbar spine
Medical Assessor Harrington found 8% WPI for the left hip. He made no adjustment for pre-existing/subsequent impairment nor treatment effects.
The following injuries caused by the motor accident have resolved and give no rise to no assessable permanent impairment:
· Left knee
· Pelvis
Medical Assessor Harrington then stated that an injury to the claimant’s pelvis was not caused by the motor accident as he did not believe there is evidence to suggest a localised pelvic injury. The contradiction was not explained.
Medical Assessor Anthony Samuels certified on 11 October 2019 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%:
· Persistent depressive disorder with anxious distress
Medical Assessor Samuels found 7% WPI using the Psychiatric Injury Rating Scale (PIRS). He made no adjustment for pre-existing/subsequent impairment nor treatment effects. Medical Assessor Samuels found that a post-traumatic stress disorder was not caused by the motor accident.
Medical Assessor Christopher Harrington certified on 23 March 2021 as follows:
The following treatment:
· Surgery – proposed left hip replacement
DOES NOT RELATE TO THE INJURY caused by the motor accident and IS NOT REASONABLE AND NECESSARY in the circumstances.
Medical Assessor Harrington noted that the claimant was then on the public waiting list for a left total hip replacement. He stated that “at this stage, I am not convinced there is significant localised hip pathology to warrant surgery.”. He then referred to a report by Dr Ben McGrath which post-dated Medical Assessor Harrington’s assessment. Dr McGrath reported that he had performed the anterior hip replacement and opined that the surgery was causally related to the subject motor accident. An application for review of Assessor Harrington’s certificate was refused by the President’s delegate.
Medical Assessor Ian Cameron certified on 19 August 2022 as follows:
The following treatment:
· Proposed domestic assistance from the date of the MAS assessment and ongoing for the period of the claimant’s entire life, and all durations in between
RELATES TO THE INJURY caused by the motor accident.
Medical Assessor Cameron left the quantification of the necessary domestic assistance to an occupational therapist to be appointed by the Commission. Medical Assessor Cameron made no findings as to what injuries were caused by the motor accident. However, he found that causation was established as “the request for proposed domestic assistance from the date of the MAS assessment would have not occurred had the motor accident and the injuries not occurred.”. Medical Assessor Cameron referred to various late documents (including surveillance) that had been provided by the insurer shortly before the date of his assessment.
Medical Assessor Atsumi Fukui certified on 5 June 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:
· Persistent depressive disorder with anxious distress
Medical Assessor Fukui referred to various reports by the claimant’s qualified psychiatrist,
Dr Thomas Oldtree Clark (15% WPI for post traumatic stressdisorder), the insurer’s qualified psychiatrist, Dr Chris Rikard-Bell (5% WPI for an Adjustment Disorder) and a report from Monika Castleman, clinical psychologist, who found that the claimant’s symptoms were sub-clinical. Medical Assessor Fukui found that a post traumatic stress disorder was not caused by the motor accident. In making his assessment of 7% WPI on the PIRS, Medical Assessor Fukui made no adjustment for pre-existing/subsequent impairment nor treatment effects.
In his statement of reasons, Medical Assessor Home noted the previous assessment and certificate of Medical Assessor Harrington dated 28 August 2019 (above). Medical Assessor Harrington found that injuries to the claimant’s left hip, lumbar spine and left knee were caused by the motor accident. However, the injuries to the lumbar spine and left knee were assessed as soft tissue injuries, with no ratable impairment. Following that assessment, the claimant provided further material relating to the injuries to her lumbar spine and left knee, which caused the matter to be referred to Medical Assessor Home for further assessment. The President’s delegate was satisfied that the report of Professor Ghabrial dated
24 January 2024 provided relevant additional evidence of deterioration of the injuries such as to be capable of having a material effect on the outcome. Notwithstanding that the claimant submitted the left hip injury is not subject to dispute, the President’s delegate found there should be a further assessment of all previously assessed injuries.
THE REVIEW
The insurer sought a review of Medical Assessor Home’s certificate on the basis that the assessment was incorrect, within the meaning s 63 of the Act, in a material respect. The insurer relied on the particulars set out in the application and supporting documentation.
The insurer brought the application within the time prescribed by cl 34 of Procedural Direction PIC 7 (28 days).The insurer submitted that it was denied procedural fairness because Medical Assessor Home, made findings in respect to causation and diagnosis of the left hip surgery that are contrary to the unchallenged certificate of Medical Assessor Harrington dated 23 March 2021 (above).
The insurer submitted that Medical Assessor Home reagitated a dispute which he was not asked to decide i.e. determining the left hip surgery is reasonable and necessary, then assessing WPI of the left hip, after accepting the surgery was reasonable and necessary.
The insurer also submitted that Medical Assessor Home failed to deal with its clearly articulated argument that, as found by Professor Ghabrial, the claimant has mild degenerative changes of both hips and knees. It was submitted that Medical Assessor Home does not provide any reasons to explain why he considered the changes in the left hip, as identified in MRI scans, to be post-traumatic, as opposed to degenerative, in nature.
The insurer’s review application was opposed by the claimant on various grounds. Briefly, the claimant submitted as follows:
(a) as to procedural fairness, Medical Assessor Home was not bound by Medical Assessor Harrington’s reasons. Medical Assessor Harrington’s certificate relates to a treatment dispute which was referred pursuant to s 58(1)(b) of the Act.Medical Assessor Home’s task was different. He had to determine the claimant’s WPI upon additional relevant information and evidence of deterioration;
(b) as to the Medical Assessor’s alleged failure to respond to the insurer’s clearly articulated arguments regarding pre-existing degenerative changes in the claimant’s left hip, the claimant submitted that the insurer’s submissions were directed to the lumbar spine and left knee, rather than the left hip. The claimant submitted that there is no medical evidence to suggest the claimant’s pre-existing degenerative changes in her left hip had any material bearing on the extent of the WPI rating. The claimant cited a number of orthopaedic surgeons (including Medical Assessors Harrington and Home) who accepted the claimant sustained an injury to her left hip that was caused by the subject accident, and
(c) lastly, the claimant submitted that Medical Assessor Home provided a very clear and detailed path of reasoning, which largely conforms with all other independent orthopaedic opinion expressed.
President’s delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment on 19 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Home’s failure to provide a clear path of reasoning for his finding relating to pre-existing impairment.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to reassess all of the injuries referred to Medical Assessor Home, unless the parties otherwise agree. As the only issue in dispute appears to be causation of the claimant’s left hip injury, the Panel does not propose to conduct a physical re-examination, but rather to interview the claimant to confirm the relevant history concerning the onset of symptoms arising from all of her alleged injuries. Physical examination of the claimant would not alter the fact that the claimant has undergone hip replacement surgery.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act.
The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered. It was unhelpful that the claimant’s review bundle was not properly paginated to conform with the index.
MISCELLANEOUS
(a) claimant’s submissions dated 8 February 2024 in support of further medical assessment.
These submissions mainly were directed to the claimant’s lumbar spine and left knee. It was submitted the claimant had no problems with her left hip, lumbar spine or left knee prior to the accident. It was noted that, in his certificate dated 28 August 2019, Medical Assessor Christopher Harrington found that injuries to the left hip, lumbar spine and left knee were caused by the accident. Medical Assessor Harrington assessed 8% WPI for the left hip. The claimant stated that her left hip injury did not form part of the application for further medical assessment;
(b) Personal Injury Claim Form dated 15 November 2016.
The claimant does not list a hip injury but it does appear in the accompanying medical certificate dated 21/10/16 by Dr Jyoti;
(c) Allied Health Recovery request dated 28 December 2018;
(d) Certificate of Capacity/Certificate of Fitness by Dr Jyoti dated 23 May 2018.
The diagnosis is motor vehichle accident related post traumatic stress disorder as well as left hip pain.
(e) Medical Certificate of Dr Jyoti dated 30 November 2019.
She has been suffering from constant pain/left knee/left hip and lower back which is affecting her physically as well as mentally;
(f) Certificate of Medical Assessor Harrington dated 28 August 2019 (see previously), and
(g) Certificate of Medical Assessor Home dated 28 May 2024 (see previously).
THE CLAIMANT’S RADIOLOGICAL INVESTIGATIONS
(a) X-ray pelvis, thoracic spine and lumbar sacral spine dated 17 July 2019;
(b) X-ray lumbar spine, pelvis and both hips dated 17 October 2016;
(c) MRI lumbar spine and left hip report dated 2 February 2017;
(d) MRI left hip reports dated 18 October 2017,13 September 2018, and 24 April 2019;
(e) MRI left knee dated 13 April 2018;
(f) MRI lumbar spine dated 20 November 2018;
(g) MRI left knee and left hip dated 27 December 2023;
(h) X-ray left knee dated 18 April 2018;
(i) MRI lumbar spine dated 1 April 2020 and 24 July 2020, and
(j) X-ray left hip and pelvis dated 13 April 2023.
THE CLAIMANT’S CLINICAL NOTES
(a) clinical notes of John Hunter Hospital as at 23 August 2016, 26 September 2017 and 25 January 2024;
(b) clinical notes of Dr Benjamin McGrath as at 9 August 2022, 1 October 2021 and 14 June 2023;
(c) clinical notes of Greta Medical Centre as at 8 December 2016, 3 April 2019, 30 November 2019, 10 February 2020, 24 October 2022, 8 June 2023 and 11 January 2024;
(d) clinical notes of Dr Jyoti - various dates;
(e) clinical notes of Mitchell Physiotherapy as at 10 August 2022 and 10 January 2024;
(f) clinical notes of Dr David Dewar, orthopaedic surgeon, from 14 February 2017 to 18 April 2019;
(g) clinical notes of Dr Hardeep Salaria - various dates;
(h) clinical notes of Dr Lynette Reece - various dates, and
(i) clinical notes of Branxton Medical Centre as at 19 January 2024.
CLAIMANT’S MEDICAL REPORTS
(a) report of Dr Hardeep Salaria dated 19 January 2017 to Dr Jyoti.
Referral for treatment of left lower extremity pain which started after the subject accident. Pain radiates from buttock along the anterior thigh to anterior leg. The hip X-rays look normal but there is pubic symphysis joint arthrosis on pelvic X-rays. The lumbar spine X-ray shows L4/L5 and L5/S1 disc changes but there is no fracture. Hip and lumbar spine MRI scans organised to investigate L5 nerve root compression and rule out other causes of hip and leg pain;
(b) report of Dr Salaria dated 14 February 2017 to Dr Jyoti.
MRI hip shows anterosuperior acetabular injury – 5x mm chondral damage which would explain some of her groin and buttock pain and limping. The lumbar spine MRI scan does not show any disc herniation or fracture. She would require hip arthroscopy for which I have referred her to Dr David Dewar for further management;
(c) report dated 13 November 2019 by Dr Salaria to Dr Jyoti.
“Tracey did not got any relief from the left hip intra articular cortisone injection and she has most pain in the trochanteric region. As the MRI scan in April this year had showed trochanteric bursitis, I have done a diagnostic cortisone injection there which………. did not make any difference.
The bone scan did not show any hip arthritis, a vascular necrosis or stress fracture type of hip pathology which would require surgery. There is bilateral sacroiliac joint arthritis and increased uptake in the pubic synthesis which will explain some of her buttock and leg pain and limping. I have organised the left sacroiliac joint intra-articular cortisone injection for diagnostic purposes.
As she is still using a stick and is very uncomfortable while walking, I have also referred her to Hunter Pain Clinic…… I have advised her to increase Endep for the neuropathic pain in the left.
She may benefit from radio frequency ablation of the sacroiliac joint nerves….;”
(d) reports of Dr Lynette Reece to Dr Jyoti dated 6 July 2017, 17 August 2017,
28 September 2017 and 6 November 2017.Nothing that has been tried by the physiotherapist has seemed to work. Everything makes it worse. She is still walking with a terrible gait. ….. MRI has shown that she does have articular cartilage fissure over a 5mm x 5mm area in the acetabulum which would explain her pain and along with some degenerative changes in the labrum. I think all of this has come from the motor vehicle accident where she had direct pressure to that area, bruising in that area and then changes in the articular cartilage…….. Tracey is going to come to a total hip replacement. She is not ready for it yet.
(e) Report dated 18 April 2018 by Professor Y.A.E. Ghabrial, orthopaedic and spinal surgeon to the claimant’s lawyers.
The claimant gave a history of injuries sustained to her lower back, left hip and left knee in the subject motor accident….. she had no previous problems regarding the back, left hip or left knee. Examination of the back showed a protected sitting and standing attitude. She walks with a severe limp in the left leg. The postural curves were normal. The spinal movements were moderately decreased with pain. Under the heading OPINION, Professor Ghabrial says as follows:
“As a result of the motor accident, she sustained chondral loss of the left acetabulum leading to the development of osteoarthritis changes of the left hip. She is markedly disabled with this problem and I believe that she will require left total hip replacement, not in the distant future.
Regarding the left knee, she has minor osteoarthritic changes of the medial compartment which may take years before it requires surgery in the form of knee replacement surgery…. She may require arthroscopic surgery for the left knee.
Regarding the lumbar spine, I believe that surgery is not an option.”
(f) permanent impairment assessment dated 18 April 2018 by Professor Ghabrial.
Professor Ghabrial states that x-rays of the left hip and left knee performed on
18 April 2018 showed early osteoarthritic changes in the left knee. The left hip X-rays showed 2mm cartilage interval in the superior aspect of the left acetabulumProfessor Ghabrial assesses 5% WPI for the lumbar spine, 8% WPI for the left hip (2mm cartilage interval in the left acetabulum) and 4% WPI for the left knee, giving a combined 16% WPI;
(g) report dated 26 March 2020 by Professor Ghabrial to Dr Jyoti.
As a result of a motor accident, she sustained severe soft tissue injury of her back, severe osteoarthritic changes in the left hip and severe osteoarthritic changes in the patella-foraminal compartment of the left knee.
She has lost a lot of weight to try and help her problem and she is fully dependant on her crutches.
She has seen two orthopaedic surgeons who performed lower limb joint replacement, and both declined to consider surgery. I believe her problem is severe enough to consider….. total hip replacement surgery;
(h) reports date 15 April 2020 and 13 May 2020 by Professor Ghabrial to Dr Jyoti.
MRI scan showed a broad-based disc bulge with Modic changes at the L4/L5 segment. There was minimal facet joint arthritis. There is no evidence of nerve root compression in the MRI scan but…. there is likely to be compression coming down from that disc…. She is not in the surgical bracket yet regarding her spine…. The cause of her symptoms I believe is the L4/L5 segment;
(i) report dated 18 August 2022 by Professor Ghabrial to Dr Jyoti.
Professor Ghabrial notes that the claimant underwent a total hip replacement on 8 June 2021 by Dr Ben McGrath. Examination showed a protected sitting and standing attitude. There was a limp when walking due to left total hip replacement and back….. MRI scanning of lumbosacral spine on 24 July 2022 showed evidence of moderate annular tear with articulation with the sacral being a transitional vertebra. There is minor left T12/L1 disc protrusion with impression on the thecal sac but without any neural compromise. There is bulging of the disc at L3/L4 level as well.
“From the spine point of view, apart from organising a CT guided foraminal injection, I cannot see any other alternative and I believe surgery is not an option for her back. She is reasonably happy with the left total hip replacement and under the circumstances I have advised her to leave things alone.”;
(j) report dated 28 September 2022 by Professor Ghabrial to the claimant’s lawyers.
Professor Ghabrial notes that the claimant was referred on 26 March 2020 by
Dr Jyoti for an opinion regarding her lower back and left leg radiculopathy. He notes the total hip replacement. He notes MRI scanning of the lumbosacral spine. Under the heading OPINON, Professor Ghabrial says as follows:“Mrs Bruce sustained injuries to her left hip, left knee and lower back in a motorvehicle accident on 23 August 2016. Clinical assessment and investigations suggested:
1.Post-traumatic osteoarthritis of the left hip for which she had left total hip replacement with a fair result.
2.Post-traumatic osteoarthritic changes in the left knee.
3.Clinical evidence of left leg radiculopathy.
I believe at some stage, she will require surgery for her left knee, probably within the next five years….. The prognosis is poor as she had left total hip replacement, is likely to have left total knee replacement and a chance of having surgery for her lower back”;
(k) report dated 31 August 2023 by Professor Ghabrial to Dr Jyoti.
“She saw an insurance company doctor who mentioned in his report that her problems are not related to her injuries. She had no previous problems regarding her back, left hip or left knee and under the circumstances I believe that the MVA is the main cause of her present clinical features, disabilities and impairments regarding her back, left hip and left knee.”;
(l) report dated 30 November 2023 by Professor Ghabrial to the claimant’s lawyers.
There were no further investigations regarding her injuries to the lower back, left hip, left knee and left leg radiculopathy. The motor accident has caused her present clinical features, disabilities and impairment regarding the lower back as well as the left lower limb (namely the hip/left knee/left leg radiculopathy);
(m) report dated 24 January 2024 by Professor Ghabrial to the claimant’s lawyers.
This report restates the opinions Professor Ghabrial previously expressed. Professor Ghabrial assesses 15% WPI for the left hip, 1% WPI for left hip surgical scar, 10% WPI for the lumbar spine due to the presence of left leg radiculopathy, giving a combined 24% WPI with no deductions;
(n) report dated 5 February 2024 by Professor Ghabrial to the claimant’s lawyers.
Professor Ghabrial acknowledges reports by Dr Richard Powell dated 26 October 2020 and 2 March 2021 and restates the opinions he previously expressed;
(o) reports of Anthony Stanley – Mitchell Physiotherapy dated 15 April 2019,
29 July 2021, 3 August 2021 and 24 August 2022;(p) report dated 23 October 2018 by Dr Gerard Coren, general surgeon, to
Dr Richard Marshall.Dr Coren performed a laparoscopic mesh repair of a left inguinal hernia;
(q) report dated 31 January 2020 by Dr Patrick, general, vascular and trauma surgeon, to the claimant’s solicitors.
This was an unsolicited report written as a consequence of Dr Patrick’s treatment of other members of the claimant’s family. Dr Patrick records he was informed by the claimant that she hurt her left hip, left knee and low back in the accident, and was having real difficulty with walking. Dr Patrick notes a quite disabling limp, sparing the left hip, with considerable pain, which had been troubling the claimant ever since the accident. Dr Patrick records a sudden fall in July 2019, when the claimant lost consciousness for a period of about six minutes. The claimant suffered a fractured coccygeal region and further injured her left hip in the fall;
(r) letter dated 25 May 2021 from Dr Richard Marshall, general practitioner.
Dr Marshall records that he has cared for the claimant since her pregnancy in 2012. During this time, she has had no complaint or evidence of a hip injury, prior to her 2016 car accident;
(s) reports of Dr Benjamin McGrath, orthopaedic surgeon, to Dr Jyoti.
6 July 2020
“Tracy is in a terrible spot….. a motor vehicle accident has changed her life. Tracey currently is played by left sided pain. She has severe back pain. She has left hip pain and left knee pain…. Her life is miserable. Nobody has given her a definitive answer for what is the cause of her pain and she does not see a definitive plan out of this situation. Tracey reports that around the hip she gets groin pain, she gets lateral pain, she does not like moving the hip at all. She also describes that she gets knee pain and that she has paraesthesia down her whole leg….. On examination of her left side, Tracey needs to use two Canadian crutches to mobilise. She has an antalgic gait with a short stance space on the left side. She is very apprehensive about moving the left knee and left hip… With respect to the left hip, she is not tender around the trochanteric region. However, flexion to approximately 45° reproduces lateral and groin pain. Internal and external rotation are both severely reduced and cause a lot of pain. She is neurologically intact…. but does have sensory changes in all of the lower limb dermatomes.
On review of her imaging, she has an MRI and an X-ray of the hip which failed to show sinister pathology….. Tracey has a complex problem. I do not think she has a definitive diagnosis for the source of her pain at this point in time.”
20 July 2020
Dr McGrath reports a good result from corticosteroid and local anaesthetic injected into the left hip joint. The claimant reported significant reduction in pain and was walking around much better. The beneficial effects seemed to be wearing off already. Dr McGrath opined “this would indicate that Tracey has an intra-articular cause for this discomfort and she would benefit from a total hip replacement.”;
(t) report to the claimant’s solicitors. Dr McGrath states as follows:
“Throughout my investigations….. there was a significant contribution to her hip pain originating from her hip joint. We arranged for her to have a local and steroid injection into this, and she reported that her pain went from a 10/10 down to a 6/10.
I did relate the problem inside her left hip joint to her injury as the chronology was very accurate. She describes that prior to the accident in 2016, she was walking normally. Following the accident, she had severe groin pain which has not improved over the following years.
Tracey decided that she would like to undertake a hip replacement, appreciating the limitations of what improvement this would provide her.
Tracey injured her left hip during a motor vehicle accident indicated by the development of severe left groin and lateral hip symptoms. I consider the recent hip surgery to be related to the injury on 23 August 2016 as she had no symptoms prior to this event and the symptoms continued for four years and have been addressed by the hip replacement.”
1 December 2022
“Tracey remains unsteady on her feet and has had a recent fall which seems to be attributed to her low back issue. Fortunately, Tracey has not done any damage to her hip joint but has managed to tear her quadriceps muscles. I think this will be a self-limiting issue in itself. However, I do have ongoing concerns about her unsteadiness on her feet which has been an ongoing problem for her since her car accident.”
20 November 2023 and 23 January 2024
Further reports to Dr Jyoti dealing with the claimant’s ongoing left knee problems and treatment. Dr McGrath recommends knee replacement which he relates to the motor accident, and
(u) report dated 5 June 2024 by Kim Whittle, occupational therapist, relating to activities of daily living.
This report is not relevant for the Review Panel’s consideration.
The insurer relied upon the following material which the Review Panel has considered:
(a) the insurer’s review application submissions in respect to the further certificate of Medical Assessor Cameron (previously summarised);
(b) President’s delegate determination dated 19 July 2024 (see previously);
(c) insurer’s further WPI reply submissions;
(d) hospital admission form by Dr Benjamin McGrath;
(e) section 85 particulars;
(f) insurer’s WPI reply submissions dated 12 June 2019;
(g) certificate of Medical Assessor Harrington dated 28 August 2019 (see previously);
(h) certificate of Medical Assessor Samuell dated 11 October 2019 (see previously);
(i) certificate of Medical Assessor Harrington dated 23 March 2021 (see previously), and
(j) certificate of Medical Assessor Cameron dated 19 August 2022.
Clinical records
· report of Dr Kumar dated 10 November 2016;
· report of Professor Ghabrial dated 18 April 2018;
· report of Dr Hellman dated 16 January 2019;
· report of Dr Reece dated 30 March 2019;
· clinical records of Canet Clinical and Forensic Psychology as at 3 April 2019;
· further reports of Dr Reece as at 11 April 2019;
· report of Dr Jyoti dated 30 November 2019;
· clinical records of Dr Jai Kumar as at 29 January 2020;
· clinical records of Dr Reece as at 29 January 2020;
· clinical records of Canet Clinical and Forensic Psychology as at
4 February 2020;· report of Dr Monika Castleman dated 20 March 2020;
· clinical records of Dr Hellman dated 3 April 2020;
· clinical records of Greta Medical Centre as at 5 May 2021;
· clinical records of Ms Castleman (psychologist) dated 16 February 2022;
· report of Dr McGrath dated 1 December 2022;
· report of Monika Castleman dated 12 December 2022;
· report of Monika Castleman dated 20 November 2023, and
· Medical Certificate dated 8 December 2023.
Insurer’s expert evidence
· Report dated 12 February 2019 by Dr Richard Powell, orthopaedic surgeon, to the insurer.
Dr Powell notes that the claimant remains symptomatic in relation to the left hip and lower back. He details her symptoms. Dr Powell records that the claimant “was most compliant and cooperative throughout the taking of the history and examination. She was observed to be in marked discomfort during the assessment which had to be modified accordingly.. All movements were conducted in an active manner.”
Dr Powell describes his examination of the lumbosacral spine, the left hip and the left knee. He lists the radiological investigations that he reviewed.
Under the heading DIAGNOSIS, Dr Powell says that the claimant sustained the following injuries in the motor accident:
1.musculoligamentous injury of the lumbar spine;
2.left hip injury with investigations revealing evidence of a well-localised chondral lesion over the anterosuperior aspect of the acetabulum in association with a labral tear, and
3.left knee patellofemoral injury.
Dr Powell records that the claimant “has experienced significant ongoing symptoms in relation to the left hip. She has seen a number of treating specialists. Management to date has been conservative. The hip remains irritable and today’s examination was characterised by marked generalised restriction in range of motion.”
Dr Powell says that “the mechanism of injury described is sufficient to have resulted in the injuries claimed. Her overall presentation is consistent with the alleged injuries.”
In a separate Impairment Assessment of the same date, Dr Powell assesses 0% WPI for the lumbar spine and 6% WPI for the left lower limb with reference to the left hip for which he finds 15% Lower Extremity Impairment.
The Review Panel notes that the insurer declined to concede entitlement to
non-economic loss based upon Dr Powell’s assessment.· Report dated 5 February 2020 by Dr Robin Mitchell, occupational physician, to the insurer’s lawyers.
Under the heading DIAGNOSIS, Dr Mitchell states as follows:
“Mrs Bruce reports ongoing pain throughout the lower back, left hip, left knee and left leg globally following the subject motor accident, without any significant improvements since that time, in spite of extensive specialist medical assessment and treatment.
There is no clinical evidence of any significant current low back injury, however, investigations have identified mild long-standing degenerative changes.
The left hip was found to have a tear of the anterosuperior labrum with presence of a focal, full thickness chondral injury located at the anterosuperior aspect of the acetabulum.
The left knee was found to have intermediate great chondral wear in the upper part of the lateral patella facet and lower part of the lateral patella facet.”
Dr Mitchell reports there was a degree of inconsistency on repeated testing, particularly with respect to the left hip movement. Dr Mitchell says that the claimant’s presentation and reported high levels of pain and disability were clearly significantly greater than the objective clinical and radiological (evidence) would otherwise indicate;
· report dated 27 March 2020 by Ms Deborah Hammond, occupational therapist, to the insurer’s lawyers;
· re-examination report dated 26 October 2020 by Dr Powell to the insurer’s lawyers.
Dr Powell outlines the claimant’s clinical progress since his previous report. He notes that the claimant was further injured in a fall in July 2019 which was one of several falls attributed to poor balance. Dr Powell notes that the claimant has been receiving psychological and psychiatric treatment for diagnosis of depression and post traumatic stress disorder. Dr Powell notes that the claimant has not returned to work in any capacity, since his initial assessment, and remains in receipt of a carer’s pension for her disabled child. He notes that the claimant remains symptomatic in relation to the left hip and lower back.
Under the heading DIAGNOSIS, Dr Powell says as follows:
“She has developed chronic lower back and left hip symptoms for which no definitive diagnosis has been made. Serial investigations of the left hip and lower back have not demonstrated pathology that would normally be considered sufficient to explain her presentation. Injection of local anaesthetic and cortico steroid into the hip under the supervision of Dr McGrath in July 2020 provided some short-term symptomatic improvement as did a left L4/L5 foraminal nerve root block under the care of Dr Ghabrial. Dr McGrath has recommended surgery in the form of total hip replacement. Examination today was charaterised by marked irritability in the left hip with significant restriction in range of motion, making a formal examination difficult. There appear to be a significant psychosomatic component to her presentation.”
Dr Powell opines that it is reasonable to conclude that injuries sustained in the subject motor accident have contributed to the claimant’s functional incapacity which will continue into the future. He does not believe the sacrococcygeal injury sustained in the fall in July 2019 continues to contribute in any substantive fashion to the claimant’s current disabilities and functional restrictions. These are dominated by her chronic left hip and lower back conditions.Dr Powell concedes that the question of whether or not to undergo a total hip replacement is very complex. He notes that marked irritability in the left hip has been consistent across all clinical examinations. Dr Powell then states as follows:
“I have reviewed all the available information and, although acknowledging the severity of the motor accident, it is difficult to explain the severity of her clinical presentation on the basis of direct injury sustained in the accident. This opinion is supported by the absence of significant pathology on serial investigations including multiple MRI scans which have a higher level of sensitivity and specificity.
As far as I can ascertain, the only indication for operation is the positive response to intra-articular injection of local anaesthetic and cortico steroid, though I note she also had significant functional improvement with an L4/L5 foraminal nerve root block provided by Dr Ghabrial, and her pain response needs to be considered in the context of a chronic pain syndrome and diagnosis of depression and PTSD for which she is receiving psychiatric and psychological counselling.
On that basis, I would not recommend that she proceed to a total hip replacement though I acknowledge the absence of any alternative treatment recommendations that may result in sustained symptomatic or functional improvement.”;
· report dated 2 March 2021 by Dr Powell to the insurer’s lawyers.
Dr Powell was provided with surveillance video undertaken on 9 September 2020 which was the date on which he last examined the claimant. Dr Powell says that the video is concerning as it demonstrates marked inconsistency in the claimant’s presentation. He says the activities the claimant undertook in the hours immediately following his assessment were clearly at odds with the abilities demonstrated at the time of formal assessment. Dr Powell says that his opinion in relation to the claimant’s physical capacity and fitness for work has changed on the basis of the additional information provided;
· report dated 4 May 2021 by Dr Rikard-Bell, consultant psychiatrist, to the insurer’s lawyers.
This report is not relevant for the Review Panel’s consideration, and
· supplementary report of Dr Rikard-Bell.
This supplementary report is not relevant for the Review Panel’s consideration.
Surveillance
· this material has been viewed by the Review Panel.
EXAMINATION REPORT
The report of Medical Assessor Assem and Medical Assessor Oates is as follows:
Examination Report of Tracey Bruce
Date of Accident: 23/08/2016
Date of Assessment: 13/02/2025
REASONS
Details of who attended the Assessment
Ms Bruce attended the assessment alone which was conducted by Teams video link with Medical Assessor Assem and Medical Assessor Oates on behalf of the Medical Review Panel.
HISTORY
Pre-accident medical history and relevant personal details
The Medical Assessors confirmed with Ms Bruce that she had no previous injuries or relevant complaints.
History of the motor accident
Ms Bruce confirmed that she was a front seat passenger in a Nissan people mover driven by her husband, with her four children sitting in the middle and rear rows of seats. They came into the path of a vehicle coming at about 80kph from their left and there was impact between this car, causing a T-bone collision, with the left front and middle passenger doors area of the people mover.
She says the car spun about five times after the impact but did not hit anything else. She had a seatbelt on. The airbags did not deploy. The car stayed on its wheels and landed in a neighbour’s paddock, close to and just missing a tree. She felt shocked at the time and couldn’t open the passenger door. Her husband self-extricated and helped her out through her door from the vehicle.
The ambulance arrived along with the police, and she and her husband and four children were taken to John Hunter Hospital for assessment.
She remembers pain in the left lower back, left hip and left thigh, and says there was bruising from the left hip through to the anterior abdomen on the left, the back and down the left thigh. She was to have been kept in hospital to have imaging done, but discharged herself against medical advice as she had to take care of her children, two of whom are autistic and she is their primary carer.
The Assessors asked why there was no mention of the left knee in the ambulance record or hospital notes and the claimant replied that she does not know why.
History of symptoms and treatment following the motor accident
She first saw the GP on 17/10/2016. The Assessors asked the claimant why there was such a delay in attending the GP and she said her main concern was for her four children, the oldest of whom was 23 and the youngest was four at the time of the accident.
She was taking Nurofen and Panadol in the meantime for left hip, back and knee pain. She said she had never been in a motor vehicle accident before, so did not know what to expect.
She says she told the GP about her knee when the Assessors asked why there was no reference to the knee in the GP record, but she said she was not sure (both her and the GP) whether the knee was coming from the hip and the back or not. She was limping when walking because of hip and back pain, and this steadily got worse over time.
She was sent after the first GP review for x-ray of the lumbar spine, hips and pelvis, and then to an orthopaedic surgeon, Dr Kumar, Gateshead, who recorded complaints of low back pain and left hip pain. Again, there was no mention of the left knee.
He referred her onto Dr Salaria, who was a hip surgeon. The hip x-ray showed no osteoarthritis. An MRI scan lumbar spine was performed.
She was referred onto Dr Reece, orthopaedic surgeon, because Dr Salaria was too expensive to continue consulting. She was sent to physiotherapy, mainly directed at the back and left hip. She says treatment was also directed to the knee.
The Assessors asked her why the pictogram from the first assessment by physiotherapist dated 22/04/2017 showed shading to the left hip and low back pain, but not to the knee, and the claimant said that the physiotherapist and she were unsure whether the knee was actually referred symptoms from the hip and/or back, and added that she was not walking on that left leg as much because she was in too much pain from the hip and back, so there was not much pain in the knee at that stage.
She had a cortisone injection to the hip joint which helped the pain for about four days in the hip, but had no effect on the knee or back.
She later had a second cortisone injection organised by Dr McGrath, which gave good relief of the left hip pain for a week.
She was referred to Professor Ghabrial who organised CT-guided epidural injections on two occasions, which helped the low back pain and pain down the posterior left thigh, and also pain radiating into the lateral left abdomen.
An MRI scan of the left hip on 18/10/2017 showed some fissuring of the lateral aspect of acetabulum 5mm x 5mm and Dr Reece felt this was the origin of the pain and that her only treatment option in reality was total hip replacement but that she was too young to have it and to put it off as long as she could. This was especially important because her younger children still needed a lot of care from her and she was their full-time carer.
She says she used to be a teacher but had not done this work since 2004 when she had her second child. She and her husband ran a family business from their property and raised horses, cows and greyhounds. She was also busy with home schooling her first child at that time.
In April 2018, there was an MRI scan of the left knee ordered by her GP because of ongoing pain in the knee. She had physiotherapy and pain medication consisting of Panadol, Nurofen, Celebrex and Targin.
In September 2018, she had a further MRI scan of the left hip and MRI scan of the lumbar spine. The hip scan showed mild chondrosis at the anterior hip, full-thickness chondral fissuring or perhaps chondral delamination may well be present, although no juxtacortical oedema.
MRI scan of lumbar spine in November 2018 showed no evidence of canal stenosis or nerve root compromise, but degenerative disc changes at L3/4 and L4/5.
A repeat MRI scan of the left hip in April 2019 showed no labral tear but a small hip joint effusion and mild trochanteric bursitis. There was also an incidental indirect inguinal hernia.
Her GP ordered a further MRI scan lumbar spine which was done on 01/04/2020 showing degenerative changes at L4/5 with no disc protrusion or nerve root compression, and a small L3/4 annular tear with mild to moderate facet joint osteoarthritis at L3/4 and L4/5.
The Medical Assessors noted the results of surveillance on 16/01/2020, where she alighted from a vehicle and walked into a medical centre on crutches. After exiting the building, she bent over at the waist to place her crutches into the vehicle, then walked a few steps limping on her left leg to the front passenger seat where she boarded the vehicle.
The Medical Assessors considered the surveillance is not inconsistent with Ms Bruce’s history.
She was referred to Dr McGrath, orthopaedic surgeon, for second opinion on 08/07/2020. She complained of severe back pain, left hip and left knee pain with groin pain from the hip and lateral pain and paraesthesia down the leg. She was mobile on two crutches and apprehensive about moving her left knee and left hip. She was not tender over the greater trochanter.
Flexion of the hip to 45° reproduced lateral and groin pain, and there was severe reduction of internal and external rotation with a lot of pain.
The MRI and x-ray of the left hip failed to show sinister pathology. There was no definite diagnosis for the source of hip pain at that point. Dr McGrath advised a local anaesthetic and steroid injection of the hip joint to gauge the effect.
At review on 20/07/2020, she reported following the left hip joint injection pain had improved from 10/10 to 6/10 on the visual analogue scale, and that she was walking around much better and not using any analgesics throughout this period of time. The injection effect was only temporary. This indicated to Dr McGrath that she had an intra-articular cause for the discomfort and that she would benefit from total hip replacement.
The family self-funded a total hip replacement at Maitland Private Hospital on 08/06/2021. She said there was a very good result from surgery and this result is continuing.
She had crutches for two weeks and then changed to a walking stick, which she used for two weeks, but thereafter she was able to walk without an aid or support. She will occasionally use a walking stick now.
Because she walked a lot straighter after the hip replacement, she noticed some increase in back pain and continued intensive physiotherapy to rehabilitate from the hip replacement, and she was also aware of left knee pain.
She still sees Dr McGrath but mainly about the left knee these days, although he checks the hip as well.
At review on 02/06/2022, Dr McGrath records that the claimant was very happy with the hip and hip pain had largely subsided and she was walking so much better than she was over a year ago, off the walking aide. A post-operative x-ray of the hip looked excellent.
A subsequent review on 01/12/2022 noted that the GP, Dr Gioti, had referred Ms Bruce back to Dr McGrath regarding her left thigh injury and that two weeks before, she had had a fall and injured her left side, but prior to this her hip replacement was going well, but she was now struggling to walk and extend her left knee.
He noted an injury to the vastus intermedius muscle and that this would take about three months to recovery, but that her hip was non-irritable, although movement of the knee reproduced the thigh pain. He advised conservative management.
At the same review, he noted that there was no damage to the left hip joint, despite the tear to the quadriceps muscle which should be a self-limiting issue.
Ms Bruce told the Medical Assessors that her knee was the main worry now and it was getting worse over time because she was taking more weight through the left leg after the successful hip replacement.
At this point, she mentioned she had lost stability and had a fall about 12 months before the total hip replacement, causing a fractured coccyx. This had recovered to some extent, although the tailbone was still sore if she sat on a harder surface.
In the meantime, she was continuing with medication in the form of analgesics for the continuing back and left hip pain.
Dr McGrath put her on his public hospital waiting list at Maitland Hospital for a knee replacement and she has been on the list for 13 months.
An MRI of the left knee was performed in December 2023 showing a small knee joint effusion but no evidence of cartilage loss in the medial or lateral compartments, but there was full-thickness cartilage loss in the medial and lateral facets of the patella, but no evidence of trochlear cartilage loss, with intact menisci and ligaments.
An x-ray of the left knee on 03/01/2024 showed mild degenerative change in the patellofemoral compartment at the knee and mild medial compartment joint space loss on weight-bearing, but otherwise joint space was well maintained. There was no joint effusion.
Current symptoms
The left hip is pretty good now. There is a bit of stiffness some days. The pain is 3/10 at its best and up to 6/10 depending on the day. The hip will be sorer if she walks more or if she sits or stands still for longer periods at times.
The low back pain is 7-8/10 and she needs painkillers. Professor Ghabrial did not recommend surgery for the back because of an uncertain result.
She last had an epidural injection for the back about 12 months ago. She takes Targin 5mg in the morning and 10mg at night, Nurofen every six hours, and Panadol every four hours.
Her left knee is 7-9/10 and she has difficulty walking on it. It is worse with excessive walking or getting up and down from a chair repeatedly.
At home she gets a lot of help with the housework from her husband and children, all of whom still live at home. She lost the business which they were running from their farm. Her husband and the eldest son do the yard work on their property but she no longer has livestock, as she was the main carer for the animals, which involved walking over 12 acres of undulating land which is now beyond her. She has kept a 13-year-old greyhound as a house pet.
None of her children are working and her husband is on a disability support pension.
CLINICAL EXAMINATION
A clinical examination was not performed, as this was a Teams video interview.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is soft tissue injury to the lumbar spine and left hip, which is consistent with the left-sided impact to the motor vehicle in which she was travelling, causing her to slam with her left side up against the door of the vehicle, and manifested as extensive bruising in the lateral left hip and adjacent thigh and into the left lower back and adjacent left lower abdomen.
Based on the clinical evidence and the history, with early medical documentation of these injuries, the Medical Assessors accepts that the accident was a cause of lumbar spine and left hip injuries.
There was no evidence of a separate pelvis injury. Investigations of the pelvis did not show any trauma-related pathology.
With respect to the left knee, the Medical Assessors did not accept that the accident was a cause of injury. The body of this report highlights the lack of contemporaneous reference to the left knee in multiple sources, including the hospital report, the initial GP report and the initial physiotherapy report. In subsequent medical reports, it appears that the left knee did not become symptomatic for at least two years or more following the motor vehicle accident.
This long absence of reported left knee symptoms following the accident, which was explained by the claimant as confusion by the treating medical practitioners as to whether the knee symptoms which she said she reported were referred from the hip and/or back, is not sufficient reason to convince the Medical Assessors that there is a causal nexus between the accident and the onset of left knee symptoms some years later.
PERMANENT IMPAIRMENT
As mentioned, no clinical examination was carried out by the Medical Assessors on behalf of the Panel.
The Panel accepts the findings of Assessor Home in that there was a good result from left hip replacement, with which the claimant agrees, and this attracts 15% whole person impairment, under Tables 54 and 65 of AMA4 (pages 85 and 87).
The Panel does not agree that the lumbar spine injury has resolved, however notes the clinical examination findings of Assessor Home and accepts a DRE I lumbosacral category giving 0% whole person impairment.
The left knee and pelvis injuries were found not caused.
The combined accident-related impairment is 15% WPI.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings and reasons of the Medical Assessors. The Review Panel is not required to choose between medical opinions and is required to form its own opinion.[7]
[6] Section 7,26(6) of the Act.
[7] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel does not accept the insurer’s submission that Medical Assessor Home made findings on causation and diagnosis of the left hip injury that are contrary to the unchallenged certificate of Medical Assessor Harrington dated 23 March 2021.
The Review Panel notes that Medical Assessor Harrington certified on 28 August 2019 that the motor accident caused an injury to the left hip. The Review Panel agrees with that finding which the insurer did not challenge.
Professor Ghabrial refers to X-rays of hips and knees dated 18/04/2018 which was the date of his examination and report. That many be a mistake as there are no X-ray reports of that date in evidence. The Review Panel accepts Professor Ghabrial’s finding that the claimant had mild degenerative changes in both knees prior to the subject accident, but not the hips. The first X-ray post-accident dated 18/10/2016 showed no significant osteoarthritis in either hip. Dr Salaria, the treating surgeon, reported that the X-rays looked normal. The Review Panel also accepts Professor Ghabrial’s finding that the claimant had post-traumatic osteoarthritis of the left hip for which she had left total hip replacement. This condition developed progressively from the focal post-traumatic chondral injury related to the accident.
The Review Panel finds that the motor accident caused intra-articular cartilage/chondral damage, based upon the pre-and-post accident clinical history and diagnostic investigations, to which reference has been made. The Medical Assessors note and adopt Medical Assessor Home’s detailed summation of the radiological and medical imaging and other investigations.
The Review Panel prefers the opinions expressed by Professor Ghabrial and Dr McGrath, to those of Dr Mitchell and Dr Powell, to the extent that there is disagreement, noting that the Medical Assessors’ findings and opinions are congruent with those of the orthopaedic surgeons who have examined the claimant.
The Review Panel finds, as a matter of medical determination and as a matter of factual non-medical determination, that the motor accident caused an injury to the claimant’s left hip, for which total hip replacement was performed, resulting in assessable impairment. This finding is supported by contemporaneous radiological evidence demonstrating focal post-traumatic chondral injury, a documented and progressive deterioration in symptoms that failed to resolve with conservative treatment, and the absence of any pre-existing hip pathology. These clinical features, taken together, establish a clear and medically supported causal nexus between the motor accident and the necessity of surgical intervention. To the extent that Medical Assessor Harrington’s certificate dated 23 March 2021 is to the contrary, the Review Panel respectfully disagrees, noting that it is not binding on us.
The Review Panel accepts and adopts Medical Assessor Home’s findings that:
(a) post-accident MRI scans demonstrated focal cartilage pathology within the hip joint, which is considered to be a post-traumatic change, having regard to the claimant’s age; and
(b) chronic hip pain was caused by the motor accident and the surgical treatment for that complaint was materially caused by the motor accident.
It is not a matter for the Review Panel to decide if that surgery was reasonable or necessary, in the circumstances, as that was not an issue referred to the Review Panel.
CONCLUSION
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Home on 28 May 2024 should be revoked. That is because of our different finding on causation regarding injury to the left knee. The new certificate appears at the beginning of these reasons.
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