AAI Limited t/as GIO v Bruce
[2023] NSWPICMP 368
•2 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Bruce [2023] NSWPICMP 368 |
| CLAIMANT: | Tracey Bruce |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 2 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained injury in a motor vehicle accident on 23 August 2016; injury to hip, low back, pelvis and both legs; in an earlier certificate hip replacement surgery assessed as not reasonable and necessary; prior assessment of 8% WPI for left hip injury; review of Certificate of Medical Assessor Cameron who found need for domestic assistance causally related to accident and referred the dispute as to whether domestic assistance reasonable and necessary to an occupational therapist; Held – no provision for referral to occupational therapist where Panel comprises two medical assessors and one legal member; functional impairment due to ongoing soft tissue hip injury; need for domestic assistance related to injury caused by accident; date of assessment determined to be the date of the original MAS assessment; need for domestic assistance of two hours per week from 8 December 2022 to date and for a further two years reasonable and necessary in the circumstances and caused by the accident. |
| DETERMINATIONS MADE: | MOTOR ACCIDENTS COMPENSATION ACT 1999 Review Panel Certificate WHETHER THE TREATMENT TO BE PROVIDED TO THE CLAIMANT IS REASONABLE AND NECESSARY IN THE CIRCUMSTANCES AND WHETHER THE TREATMENT RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT The Review Panel revokes the certificate of Medical Assessor Cameron dated 8 December 2022 and issues a new certificate certifying as follows: · the need for domestic assistance of two hours per week from 8 December 2022 to date and for a further two years is reasonable and necessary in the circumstances, and · the need for domestic assistance of two hours per week from 8 December 2022 to date and for a further two years is caused by the accident. |
STATEMENT OF REASONS
INTRODUCTION
On 23 August 2016 Tracey Bruce (the claimant) was a passenger in a vehicle driven by her husband which failed to give way at an intersection resulting in a T-bone collision to the passenger side of her vehicle (the accident). She asserts she sustained injury to her pelvis, left hip, low back, left leg and right leg in addition to a psychological injury.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Bruce under the Motor Accident Compensation Act 1999 (the MAC Act).
ISSUES IN DISPUTE
This is a treatment and care dispute about whether proposed domestic assistance from the date of the assessment and ongoing for the period of the claimant’s entire life, is:
(a) reasonable and necessary in the circumstances under s 58(1)(a) of the MAC Act, and
(b) related to the injuries caused by the accident under s 58(1)(b) of the MAC Act.
Section 3 of the MAC Act defines attendant care services as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
Section 53 of the MAC Act provides treatment expenses are not payable to the extent that the treatment concerned was not reasonable and necessary in the circumstances to reach a standard of good medical care existing at the time or did not relate to the injury caused by the accident.
Section 58 states that the medical assessment procedures set out in Part 3.4 of the MAC Act, including review of a medical assessment by a review panel, applies to a disagreement between a claimant and an insurer about, inter alia, the following matters:
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, and
(b) whether any such treatment relates to the injury caused by the motor accident.
BACKGROUND
Ms Bruce is now 51 years of age and was 44 years of age when the accident occurred on 23 August 2016.
Ms Bruce asserts she had continuing symptoms, in particular problems with movement and pain in the left leg and low back pain.
On 8 June 2021 Ms Bruce underwent self-funded total hip replacement surgery.
The insurer referred the dispute to the Assessment Service for assessment in accordance with Part 3.4 of the MAC Act. The dispute was referred to Medical Assessor Ian Cameron.
RELEVANT LEGAL AUTHORITY
In AAI Limited v Phillips[1] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act.
[1] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
In Wingfoot Australia Partners Pty Ltd v Kocak Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error.”[2]
[2] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Cameron issued a certificate dated 8 December 2022.
The following treatment disputes were referred for assessment:
· the physical injuries give rise to a need for proposed domestic assistance from the date of the MAS (Medical Assessment Service) assessment and ongoing for the period of the claimant's entire life, and all durations in between is causally related, and
· zero to six hours per week of domestic assistance and any period in between arising from the physical injuries from the date of the MAS assessment and ongoing for the period of the claimant's entire life, and all durations in between.
Medical Assessor Cameron reported the total hip replacement had helped to some extent and Ms Bruce can now walk without crutches. However, she continues to experience pain in the left leg and lower back. Her mobility was described as limited, and she can only drive short distances. He reported she home schooled three school age children and provided support to her older son with a disability. He also reported a limited tolerance for sitting and standing due to hip and back pain.
Ms Bruce was continuing to attend physiotherapy and taking Targin, Nurofen, Avanza and Lyrica as required.
On examination Medical Assessor Cameron reported moderately and symmetrically reduced range of motion at both the cervical and thoracic spine. There was a full range of motion of both shoulders. At the lumbar spine he reported a markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaint. He reported reduced range of motion due to pain inhibition at the left hip and limited static and dynamic balance. She walked with an antalgic gait. He also reported a full range of motion of both knees at other lower extremity joints and no neurological abnormalities in the lower extremities.
Medical Assessor Cameron reported Medical Assessor Harrington assessed an 8% whole person impairment (WPI) for injury to the left hip in a certificate dated 28 August 2019. He also reported Assessment Harrington issued a certificate dated 28 August 2019 in which he concluded the left total hip replacement surgery was not reasonable and necessary.
Medical Assessor Cameron noted the cause of the ongoing symptoms, particularly in the left hip region have not been diagnosed.
He concluded the request for proposed domestic assistance from the date of the MAS Assessment would not have occurred had the accident and injuries not occurred. He therefore concluded that causation was established. He noted an occupational therapist will determine the dispute with reference to reasonable and necessary treatment.
REVIEW PROCEDURE
The insurer applied for a review of the medical assessment certificate of Medical Assessor Cameron dated 8 December 2022 pursuant to s 63 the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review.
The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.[3]
[3] Section 63(3) of the MAC Act.
Clause 16.3.1 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a treatment dispute to be lodged within 30 days after the date on which the certificate was sent to the parties. The certificate was issued to the parties on 10 August 2021.
The application for review of the medical assessment of Medical Assessor Cameron was lodged on 21 December 2022 within the 30-day timeframe.
On 15 February 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 63(2B) of the MAC Act and AD2 p 60.
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.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 22 February 2023 (the first Direction) which required each party to file an indexed, paginated bundle of documents. In response to this direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 485 and marked AD3. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 69 and marked AD2.
The insurer also uploaded to the portal the clinical notes of Dr Benjamin McGrath.
In response to a message from the Panel the insurer uploaded to the portal the following additional records referred to in the insurer’s submissions:
· certificates of Medical Assessor Christopher Harrington dated 28 August 2019 and 23 March 2021;
· reports of Dr Richard Powell dated 12 February 2019 (x 2), 26 October 2020, and supplementary report of 2 March 2021, and
· report of Dr Robin Mitchell dated 5 February 2020.
MATERIAL BEFORE THE REVIEW PANEL
Greta Medical Centre Clinical notes
On 17 October 2016 Dr Jiwan Jyoti, general practitioner (GP) recorded:
“T bone accident on 23/08/2016. Bit haematoma. Left side of the hip/lower abdominal area, still Pt is limping as left hip pain as well as lumbar spine”.[7]
[7] AD3 p 66.
On examination he noted the left hip joint was tender, bruising was still resolving and all hip joint movements were painful. In addition, he reported: “tender at the L4/5, L5/S1 spine tenderness, pain is not ardiating [sic] to B/L legs, neurological examination normal except left upper thigh numb? Cutacous [sic] nerve compression by haematoma”.
On 12 November 2016 Dr Jyoti reported the back and hips were still issues. Ms Bruce sought treatment in respect of her hip pain on 15 December 2016, 4 March 2017 and 20 March 2017. On 20 April 2018 Dr Jyoti reported Ms Bruce wanted a new referral to a new specialist for hip replacement.[8] On 5 December 2018 Dr Jyoti reported the claimant had lost 30 kilograms, was walking with crutches, crying with pain and unable to walk without support.[9] On 3 April 2019 Dr Jyoti reported Ms Bruce was very stressed and still unable to walk properly, walking with walking aids and on 30 April 2019 he reported the left hip continued to be troublesome.[10] On 16 July 2019 Dr Jyoti reported Ms Bruce lost balance and fell over when walking without a stick hitting her lower back and resulting in nausea and vomiting. On 8 October 2019 Dr Jyoti reported Ms Bruce was still in severe pain and unable to walk without walking aids. She had undergone local steroids for the left knee and was to have CT guided steroids for the lower back and left hip.[11] On 3 February 2020 Dr Jyoti reported Ms Bruce was still complaining of pain in her left hip, left knee and lower back.[12]
[8] AD3 p 57.
[9] AD3 p 55.
[10] AD3 p 53.
[11] AD3 p 49.
[12] AD3 p 46.
On 10 May 2018 Dr Gerard Cohen, general surgeon reported intermittent pain in both groins with the left groin most affected.[13] He diagnosed bilateral inguinal herniae.
[13] AD3 p 154.
Dr Jai Kumar, orthopaedic surgeon
On 10 November 2016 Dr Kumar reported since the accident the claimant had suffered from significant pain along her left hemi-pelvis, left thigh and left sided lumbar spine.[14] He reported she mobilised with extreme pain, and it was affecting her quality of life. On examination he reported she was exquisitely tender throughout her entire thigh muscle and up over her hip and left hand side of her lumbar spine. He had relatively good range of motion in her hip joint, but it was painful throughout her range of motion. He recommended further investigations.
Dr Hardeep Salaria, orthopaedic surgeon
[14] AD3 p 181.
Dr Salaria, orthopaedic specialist saw the claimant on 19 January 2017.[15] He reported Ms Bruce had left lower extremity pain radiating from buttock along the anterior thigh to the anterior leg. Whilst he noted hip movement reproduced some pain the range of movement was good. There was no neurological loss, but straight leg raise on the left side was 60 degrees.
[15] AD2 p 29.
On 14 February 2017 Dr Salaria reported the MRI scan of the lumbar spine did not show any disc herniation or fractures. The MRI of the left hip showed anterosuperior acetabular injury, 5 x 5mm chondral damage which would explain some of the groin and buttock pain and limping.[16]
[16] AD3 p 169.
On 2 October 2019 Ms Bruce returned to see Dr Salaria. He reported:
“On examination today she is in a lot of pain and is mobilising with crutches. She cannot put weight on that left foot and has pins and needles radiating from the groin to the anterolateral thigh and lateral foot. The active foot and ankle movements are very reduced and all the deep reflexes were symmetrically absent on both sides. The hip rotations were reasonably good but her main complaint is pain in the groin radiating into the buttock. Because of the diffuse severe pain her clinical examination is not very informative.” [17]
[17] AD3 p 113.
On 13 November 2019 Dr Salaria reported Ms Bruce did not get any relief from the left hip intra articular cortisone injection. He reported the MRI scan in April showed trochanteric bursitis. He referred Ms Bruce to the Hunter Pain Clinic and stated:
“The bone scan did not show any hip arthritis, avascular necrosis or stress fracture type of hip pathology which would require surgery. There is bilateral sacroiliac joint arthritis and increased uptake in the pubic symphysis which will explain some of her buttock and leg pain and limping”.[18]
Dr David Dewar, orthopaedic surgeon
[18] AD3 p 107.
Ms Bruce saw Dr Dewar on referral form Dr Salaria on 13 March 2017.[19] He reported she was tender in her trochanteric bursa but did not have significant impingement or escape signs.
Dr Bruno Gomes, orthopaedic surgeon
[19] AD3 p 390.
Dr Gomes saw the claimant on 25 May 2018. He reported there was certainly pathology in the left hip and left knee, but noted the symptoms appeared in excess of the disease and the claimant seemed sensitised to the pain.[20] He also reported the claimant, and her husband were fixed on the idea of a prompt surgical solution. He recommended corticosteroid injections into the left hip and left knee and recommended she see a pain specialist but noted the claimant declined to follow those recommendations.
Dr Lynette Reece, orthopaedic surgeon
[20] AD3 p 143.
On 30 March 2017 Dr Lynette Reece reported the claimant was a carer for her 8-year-old disabled son who she must dress and shower.[21] She also had a 4-year-old daughter and two older children. The claimant reported pain in her groin, laterally down her thigh and into the front of the thigh. She considered the hip needed exercises to strengthen the gluteal muscles and recommended physiotherapy.
[21] AD3 p 167.
On 28 September 2017 Dr Reece reported no improvement and suggested a repeat MRI scan.[22] On 6 November 2017 Dr Reece reported the MRI showed articular cartilage fissure over a 5mm by 5mm area in the acetabulum which she considered would explain her pain in the area along with degenerative changes in the labrum resulting from the accident.[23]
[22] AD2 p 33.
[23] AD3 p 159.
The claimant was reviewed by Dr Reece on 2 July 2018.[24] She noted she has lost 23kg, but she still had disability with her left hip, was still in pain and still limping.[25] On 20 September 2019 Dr Reece report the MRI scan showed no major change. She recommended she undergo the bilateral inguinal hernia repair. She reported the claimant’s life had been ruined by the accident but the changes in her hip joint were not bad enough to warrant a joint replacement.
[24] AD3 p 347.
[25] AD3 p 345.
On 11 April 2019 Dr Reece indicated she thought the claimant’s functional impairment was caused by pain.[26] Whilst the claimant had some articular cartilage changes severe pain was not enough to warrant an operation where she has not shown severe osteoarthritis or avascular necrosis of the femoral head.
[26] AD3 p 349.
Ms Bruce returned to see Dr Reece on 5 August 2019.[27] She noted she had sustained a fall, knocked herself out and broken her tail bone which was going to take time to settle. She commented on the need to keep the claimant a little bit stronger, suggesting the use of heated pools.
[27] AD3 p 118.
Dr Jorgen Hellman, orthopaedic surgeon
On 16 January 2019 Dr Hellman reported Ms Bruce had an undiagnosable pain affecting her left leg. He reported she had severe pain starting from the lateral side of the hip to the front of the thigh and around the buttock into the spine and paraesthesia from the buttock down to the foot.[28] On examination he reported she walked with a stiff leg gait using two Canadian crutches. He reported she was very guarded in her left hip movements although he knotted the hip joint itself looked normal and the MRI scan failed to show any significant pathology. He stated he would not perform hip replacement and suggestion she see a pain specialist.
[28] AD3 p 135.
Dr Benjamin McGrath, orthopaedic surgeon
On 6 July 2020 Dr McGrath reported the claimant required two Canadian crutches to mobilise.[29] She had an antalgic gait with a short stance on the left side. He reported she was very apprehensive about moving the left knee and the left hip and had signs of allodynia and hyperalgesia of both joints. Dr McGrath reported the claimant was not tender around the trochanteric region but flexion to 45 degrees reproduced lateral and groin pain. Internal and external rotation were both severely reduced and caused a lot of pain. She was neurologically intact but had sensory changes in all the lower limb dermatomes. He decided to arrange an into the left hip joint to try and localise where the pain was coming from.
[29] McGrath records p 26.
On 20 July 2020 Dr McGrath reviewed Ms Bruce following a corticosteroid and local anaesthetic left hip joint injection[30]. He reported pain had improved from 10/10 to 6/10 but unfortunately Ms Bruce reported the improvement was already wearing off. He concluded Ms Bruce had intra-articular causes for her discomfort and would benefit from a total hip replacement.
[30] AD2 p 61.
On 8 June 2021 the claimant underwent a left total hip replacement performed through a direct anterior approach at Maitland Private Hospital.
In a reported dated 9 July 2021 Dr McGrath stated he considered the hip surgery related to the injury on 23 August 2016 as she had no prior symptoms and the symptoms continued for four years and were addressed by the hip replacement. Dr McGrath stated that even with a good result from the hip replacement Ms Bruce will have an ongoing need for help with heavier domestic tasks as she still has back pain and significant knee pain.
On 2 June 2022 Dr McGrath reviewed the claimant, one year post surgery.[31] He reported her hip pain had largely subsided, she was walking better and was off her walking aid.
[31] McGrath records p 7.
On 1 December 2022 Dr McGrath reviewed the claimant.[32] She remained unsteady on her feet and had sustained a recent fall when she tore her quadriceps muscle but had not damaged the hip joint. He states prior to the fall he hip replacement was going well.
[32] AD2 p 62.
On 18 April 2023 Dr McGrath reported it was six months since the claimant injured her left quadriceps tendon. He stated Ms Bruce was still struggling a lot with considerable thigh pain and hip pain. He reported she stated she was walking 18000 steps a day around her house trying to maintain the household. He felt the quadriceps had not healed because she was not allowing that muscle to settle. He suggested using a walking aid and even suggested a hospital admission.
Monika Castleman, clinical psychologist
Ms Castleman provided a report dated 12 December 2022.[33] Ms Bruce first consulted Ms Castleman on 13 June 2018, and she continued under her care. She reported her husband was driving when their car “was boned by a car coming from the left”. Ms Bruce reported the impact struck the middle of the passenger side and the car spun five times and ended in a paddock. She stated there were impressions of her body and her son’s body imprinted in the car doors. Four or five ambulances attended and Ms Bruce was taken to the John Hunter Hospital in a separate ambulance from her daughter, son and husband who were also in the car. This was traumatic as she did not know if they were okay.
[33] AD2 p 63.
Ms Castleman diagnosed post-traumatic stress disorder and depressive disorder caused by the accident. She commented that pain was a major contributor to the post-traumatic stress disorder as a reminder of the accident and depression due to functional impairment and recommended pain management.
She reported Ms Bruce had self-funded a hip replacement reflecting her desperation to seek pain relief and a return to pre-morbid functioning. She reported her hip pain had reduced since the surgery, however chronic pain remained in a number of sites and she also reported a number of falls.
Imaging
X-ray lumbosacral spine, 18 October 2016 – the report concludes:
“Mild left sided scoliosis. There is moderate loss of the intervertebral disc space at L4/5 and L5/S1. There is sacralisation of L5. There has been cholesystectomy.”[34]
[34] AD3 p 326.
X-ray pelvis and both hips, 18 October 2016 – the report concludes:
“Both hip joints are intact. No significant OA is seen. There are signs of osteitis publis. There is a subchondral cyst in the superior aspect of the right superior pubic bone.”
MRI lumbar spine, 2 February 2017[35] – the report concludes:
“No wedge fracture or aggressive lesion of the lumbar spine. No focal protrusion resulting in neural compression or additional abnormality other than mild senescent changes.”[36]
[35] AD2 p 37.
[36] AD3 p 326.
MRI left hip, 2 February 2017 – the report states:
“MRI assessment of the left hip demonstrates a tear of the anterosuperior labrum with the presence of a focal, full thickness chondral injury measuring 5 x 5mm in size, the chondral injury located at the anterosuperior aspect of the acetabulum.
No avascular necrosis of the femoral head or stress fracture. No abnormality of the periarticular tissues.
IMPRESSION
Full thickness chondral injury at the anterosuperior aspect of the acetabulum along with disruption of the anterosuperior labrum.”[37]
[37] AD3 p 170.
MRI left hip, 18 October 2017 – the report concludes:
“Mild degenerative changes of the labrum along with an early chondrosis developing of the left hip;
No stress fracture, avascular necrosis of femoral head or aggressive osseous lesion of the hemipelvis.”[38]
[38] AD3 p 95.
MRI left knee, 13 April 2018 – the report concludes:
“Areas of chondral wear in the patellar facets. Patellar articular cartilage associated with sub chondral/juxtacortical bone oedema as described. This could be contributing to patient’s clinical symptoms”.[39]
[39] AD3 p 157.
MRI left hip, 13 September 2018 – the report concludes:
“The imaging features remain stable when compared to the prior MRI examination. Please note, subtle labral tears and non-displaced chondral delamination can be very difficult to perceive with MRI. No avascular necrosis of the femoral head, femoral neck stress fracture or aggressive osseous lesion”.[40]
[40] AD3 p 333.
MRI lumbosacral spine, 20 November 2018 – the report concludes:
“No evidence of canal stenosis or nerve root compression.”[41]
[41] AD3 p 329.
MRI left hip, 24 April 2019 – the report concludes:
“Indirect inguinal hernia with protrusion of fat.
Mild trochanteric bursitis.
Small joint effusion.”[42]
[42] AD3 p 336.
X-ray pelvis, 1 November 2019 – the report concludes:
“There is no significant osteoarthritis in either hip or SI joint. No bony irregularity of the greater trochanters. Mild degenerative changes in the symphysis pubis”.[43]
[43] AD3 p 109.
Ultrasound left thigh, 22 March 2023 – the report concludes:
“There is echogenic change/bony irregularity along the proximal femur with associated impression of possible small partial tear of the deep fibres of the vastus intermedius. The patient gave a history of total hip replacement in 2021 and has had pain since. …”[44]
[44] McGrath records p 38.
X-ray left hip and pelvis, 13 April 2023 – the report concludes:
“The left hip prosthesis appears in satisfactory position with visible complication”.[45]
Medico-legal assessments and medical assessments
Report of Dr Ghabrial, orthopaedic surgeon
[45] McGrath records p 39.
On 18 April 2018 Dr Ghabrial reported Ms Bruce injured her lower back, left hip and left knee in the accident with no problems in those areas before the accident.[46] He concluded the accident had caused chondral loss of the left acetabulum leading to the development of osteoarthritic changes of the left hip.
[46] AD2 p 25.
He noted her marked disability and thought she would require hip replacement surgery. He also concluded she had minor osteoarthritic changes of the medical compartment of the left knee.
Dr Ghabrial reported Ms Bruce was unfit for activities involving lifting, bending and twisting as well as standing or sitting for lengthy periods He found she was unfit for running, climbing ladders, going up and down stairs excessively, walking on uneven ground, standing or walking for lengthy periods, kneeling and squatting.
Reports of Dr Richard Powell, orthopaedic surgeon
Dr Powell assessed the claimant at the request of the insurer and provided a report dated 12 February 2019. He found Ms Bruce had sustained the following injuries:
· musculoligamentous injury of the lumbar spine;
· 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
· left knee patellofemoral injury.
Dr Powell reported the claimant continued to perform domestic tasks such as cooking although all cleaning was done by her husband. She was limited to driving an automatic vehicle and only for 10 minutes.
Dr Powell assessed a 6% WPI arising out of the injury to the left hip and commented:
“… Investigations have revealed evidence of some chondral pathology though her level of discomfort and functional limitation is greater that what would normally be expected from the pathology identified on the MRI scans. … Dr Reece, has indicted that although she may eventually require a total hip replacement she did not feel that it was currently indicated … I would agree with Dr Reece’s opinion…
I would encourage Mrs Bruce to remain as active as possible. … There does appear to be a psychosomatic component to her presentation and she may benefit from review in a multidisciplinary pain clinic.”In relation to domestic assistance Dr Powell concluded it was reasonable for the claimant to receive assistance of three to four hours a week with shopping and cleaning for at least the next four to six months when it should be reviewed.
Dr Powell reviewed the claimant and provided a further reported dated 26 October 2020. He reported Ms Bruce complained of a constant sharp pain in the groin radiating laterally around the hip and into the buttock accompanied by marked stiffness with restriction in range of motion. He reported she had difficulty mobilising. He also reported constant sharp pain in the lower back radiating to the left side overlapping with the left hip pain. He noted an MRI scan demonstrated only minor disc pathology at L4/5 without any evidence of neural compromise. Dr Powell also reported intermittent anterior knee pain accompanied by swelling and clicking.
He noted Ms Bruce was in marked discomfort and was pain-focussed. She was unstable on her feet and mobilised with the assistance of crutches.
Dr Powell concluded the claimant’s condition had deteriorated, and her functional incapacity will continue to interfere with her ability to undertake domestic duties and general maintenance activities.
Dr Powell noted it was difficult to explain the severity of the clinical presentation in the absence of significant pathology on serial investigations. He suggested her pain response needed to be considered in the context of a chronic pain syndrome. He did not recommend she proceed to a total hip replacement.
Dr Powell provided a supplementary report dated 2 March 2021 after reviewing a report from Procare dated 22 September 2020 with accompanying video surveillance. He noted the surveillance footage taken on the same day as his assessment demonstrated marked inconsistency in the claimant’s presentation given she was able to mobilise without crutches for a prolonged period although she was noted to have a slight limp. He concluded she had physical capabilities in excess of those performed at the time of his clinical examination and was clearly capable of performing her activities of daily living.
Certificates of Medical Assessor Harrington
Medical Assessor Harrington issued a certificate dated 28 August 2019. He assessed an 8% WPI and found the following injuries were caused by the accident:
· left hip – soft tissue injury; loss of chondral space;
· lumbar spine – soft tissue injury – resolved, and
· left knee – soft tissue injury – resolved.
He stated Ms Bruce described continuing problems with her neck, back, left hip and left knee. Her main complaint was left hip pain. She could only get around using Canadian crutches. He reported Ms Bruce described weakness down her left hip and required assistance with dressing, showering and getting around. Medical Assessor Harrington reports Ms Bruce gets around the house by hanging onto the furniture. He stated:
“The MRI’s don’t really show significant pathology to explain her presentation…
I do not believe she is a candidate for a left total hip replacement…
I am at a loss to explain her perceived invalidity following a soft tissue injury to the left hip three years ago. Whilst I acknowledge the significant impact to her side of the car, there is a lack of pathology both clinically and radiologically. I cannot explain her symptoms with a musculoskeletal algorithm.
… I cannot attribute her presentation and misery to any pathological pathway. She has been extensively investigated yet nothing has defined her need for Canadian crutches and symptomatology.
I have not identified any direct injury to the pelvis. I do not believe there is a residual injury of the lumbar spine or left knee. These soft tissue injuries have resolved.”Medical Assessor Harrington issued a certificate dated 23 March 2021. He certified left hip replacement surgery did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances.
Medical Assessor Harrington stated:
“Although Ms Bruce remained consistent with her presentation with regards to persistent symptomatology, I do not believe the history, radiological findings and clinical examination are consistent with gross hip pathology as caused by the subject motor vehicle accident.”
Report of Dr Robin Mitchell, occupational physician
Dr Mitchell assessed the claimant and provided a report dated 5 February 2020. He found no significant low back injury but noted investigations had identified mild long standing degenerative changes. He noted the left hip had a tear of the anterosuperior labrum with the presence of a focal, full thickness, chondral injury located at the anterosuperior aspect of the acetabulum. The left knee had intermediate grade focal chondral wear.
He noted the reports of Medical Assessor Harrington, Dr Hellman and Dr Gomes indicated the difficulty in finding a definite pathological process or diagnosis to explain the claimant’s symptoms.
Dr Mitchell found the injuries would have resulted in a partial incapacity to manage more arduous domestic tasks, including heavy lifting and low-level cleaning for up to eight to 10 weeks after the accident.
Report of Deborah Hammond, occupational therapist
Ms Hammond undertook an assessment at the claimant’s home and provided a report dated 27 March 2020.[47] She reported the claimant and her husband had four children, a
26-year-old son with autism, a 15 year old son then in year 9, a 10 year old son with autism in year 4 and a daughter then in year 1. Ms Bruce previously worked as a primary school teacher and was home schooling her three younger children.[47] AD3 p 10
Ms Hammond reported Ms Bruce utilised a Canadian crutch and walked with a slow antalgic gait. She lived with her family in a single story home with five bedrooms, 2 bathrooms, informal and formal living areas.
She concluded Ms Bruce did not need assistance with personal care tasks. She concluded given the nature of the injuries sustained Ms Bruce may have required assistance with domestic activities for a three month period post-accident. She assessed a need for assistance of 3.5 hours per week with floor cleaning, bathroom cleaning and laundry from the date of accident to 22 November 2016.
In reaching her conclusion Ms Hammond had regard to the opinion of Medical Assessor Harrington who noted the claimant’s presentation and found reliance on a Canadian crutch was not consistent with the soft tissue injury sustained. She noted Medical Assessor Harrington found the knee and lumbar spine injuries had resolved, recommended against future hip replacement and assessed WPI of 8%.
Ms Hammond concluded there was no evidence of a continuing physical injury which would be harmed by performing domestic activities and concluded the performance of activities of daily living were essential for her continuing pain rehabilitation and mental health.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 18 May 2020 in respect of the substantive treatment dispute.[48]
[48] AD3 p 6.
The insurer disputes the claimant requires left hip replacement surgery and that the claimant requires domestic assistance. The insurer submits the claimant has only been diagnosed with a soft tissue injury, which does not amount to the need for hip replacement surgery. The insurer states most of the medical specialist are against such surgery:
(a) Dr Gomes orthopaedic surgeon who says “…appear in excess of the disease and Tracey seems quite sensitised to the pain. She and her husband were quite fixed on the idea of a prompt surgical solution to her problem.”;
(b) Dr Hellman who reported on 16 January 2019 as follows:
“…[the Claimant] has an undiagnosable pain affecting her left leg… She does walk with a stiff leg gait using 2 Canadian crutches… She is very guarded in her left hip movements… the x-ray of the pelvis fails to show any pathology… I have told her that I would not offer her a hip replacement at all… I have told her that I cannot see any reason to perform any surgery around the hip or knee. I have told her that I cannot diagnose where her pain is coming from. I have suggested she see a pain specialist… I have suggested to her that she do hydrotherapy either self-directed or with a physio.”;
(c) Medical Assessor Harrington who examined the claimant on 27 August 2019 and stated at page 6 of his certificate:
“The MRI's don't really show significant pathology to explain her presentation and the injection did not alleviate her symptoms, according to Dr Reece… I do not believe she is a candidate for a total hip replacement… I am at a loss to explain her perceived invalidity following a soft tissue injury to the left hip three years ago… I cannot explain her symptoms with a musculoskeletal algorithm… I have not defined any direct injury to the pelvis.”, and
(d) Dr Robin Mitchell, occupational physician recommended no future treatment apart from analgesia and anti-inflammatory use.
The insurer notes that the support for future left hip replacement surgery provided by Dr Lynette Reece is predicated on the correct indicators for such surgery. In her report dated 11 April 2019 she states:
“Nothing I can do will make her better unless I do a total hip replacement for the correct reason i.e. severe osteoarthritis or avascular necrosis of the femoral head, which we have never shown… doing an operation for the wrong indications because someone is in severe pain, which Tracey is, is not going to fix that pain…”
Dr Powell stated:
“… Dr Reece, has indicated that although [the Claimant] may eventually require a total hip replacement she did not feel it was currently indicated on the basis of the pathology identified. I would agree with Dr Reece's opinion…”
The insurer notes there has not been any osteoarthritis or any development of osteoarthritis demonstrated on the radiology.
The insurer relies upon the opinion of Dr Mitchell who found the claimant required no future care. The insurer submits if future care was required this would be provided on a gratuitous basis by the claimant’s husband for less than six hours per week.
The insurer provided submissions dated 21 December 2022 in support of the application for review.
The insurer submits Medical Assessor Cameron failed to determine the cause of the hip injury and whether it relates to the accident and determined the treatment which arises from the hip injury is causally related and reasonable and necessary, despite having failed to adequately explain how the hip injury is causally related.
The insurer submits Medical Assessor Cameron failed to consider the findings of Ms Deborah Hammond, occupational therapist. These were:
(a) at the time of her home visit on 20 December 2019 Ms Hammond was of the opinion the claimant did not require any assistance with personal care or domestic car;
(b) Ms Hammond found no evidence of a continuing physical injury, and
(c) the claimant’s performance of activities of daily living “is essential for her continuing pain rehabilitation and mental health”.
Claimant’s submissions
The claimant provided submissions dated 16 June 2020.
The claimant relies upon the opinion of Dr Ghabrial of 18 April 2018. He diagnoses “chondral loss of the left acetabulum leading to the development of osteoarthritic changes of the left hip”. He suggested she was markedly disabled and would require left total hip replacement. Dr Ghabrial stated:
“She remains unfit for activities involving lifting, bending and twisting as well as sitting or standing for lengthy periods regarding the back. However, regarding the left hip and knee she is not fit for activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods, walking for long distances, kneeling and squatting”.
On 19 January 2917 Dr Salaria, orthopaedic surgeon reported:
“She has been having left lower extremity pain which radiates from buttock along the anterior thigh to anterior leg. She cannot put on socks, her husband has to help her and she walks using a stick with very antalgic gait.”
The claimant relies upon the opinion of treating orthopaedic surgeon Dr Reece. On 28 September 2017 Dr Reece noted physiotherapy had not worked and “everything makes her worse”. On 2 November 2017 Dr Reece reported:
“The MRI has shown that she does have articular cartilage fissure over a 5mm by 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 that motor vehicle accident where she has had directed 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.”
The claimant notes on 13 November 2018 Dr Salaria reported she did not get any relief from the left hip intra articular cortisone injection. He suggested radiofrequency ablation of the sacroiliac joint nerves.
The claimant also notes she also suffered significant psychological injuries in the accident.
The claimant submits the medical evidence illustrates the severity of the claimant’s physical and psychological injuries giving rise to the need for domestic assistance.
The claimant also provided submissions dated 12 October 2022 in response to the review application addressing the test to be determined by the delegate of the President.[49]
[49] AD2 p 7.
THE EXAMINATION
Ms Bruce was examined by Medical Assessor Gibson as arranged. She said her husband had driven her in for the assessment and the journey had taken several hours from their home in Branxton. Her second son aged 19 attended with her, but remained in the waiting room, while Ms Bruce was examined. The assessment took 1½ hours.
History of the subject accident
Ms Bruce was a front-seat passenger in their automatic people mover. Her husband was driving. All of the children were in the car with them. Her husband was at fault in the accident. The accident had occurred when he had failed to give way at a T-intersection. She said she blames him for the accident and that her feelings in this respect have caused "a lot of tension at home." She said she brings this up particularly if he "jacks up about doing the chores."
The impact had been to the passenger side of their vehicle. The car had spun five to six times and landed in the neighbour's paddock, just missing a tree. They all had their seat belts fastened. There was no air bag deployment. She said her left hip hit the door. She said there was later bruising and a big lump over her left hip.
There was no loss of consciousness. She was transferred to hospital in an ambulance. Their vehicle was towed and later written off.
She was discharged home from the hospital. It was some six weeks later that she visited the GP. Her husband was doing all the chores over this period.
Subsequent injury
Ms Bruce said she had fractured her coccyx recently. She said that she had had an episode of severe pain in her back and hip and "just fell." The injury happened at home.
She had visited her GP four days later and had an X-ray, which confirmed the fracture. She had also suffered a left quadriceps tear when she tripped on the lip on the shower recess at home.
Medical Assessor Gibson asked about the delay in seeking medical attention following the accident as compared with the recent injury (fractured coccyx). She said that following the accident she was more concerned about her children. Her husband had been taking the children back and forth from the GP for treatment, as they had also sustained injuries. Her husband had been uninjured.
Past occupational history
Ms Bruce was born in Australia. She completed Year 12 at school.
She attended university and graduated as a primary school teacher.
She had worked as a teacher on a full-time basis up until the age of 37 years. She had then left work after the birth of her second child to care for the family.
Past medical history
Ms Bruce denied involvement in any prior motor vehicle accidents. There was no other history of injury.
She had had repair of umbilical hernia and she was diagnosed with interstitial cystitis in 2016. She had a cholecystectomy aged 21.
She is a non-smoker, non-drinker and hasn’t used recreational drugs.
Personal and family history
Ms Bruce lives with her husband and their four children. The eldest son is aged 30 years and suffers with autism. Her 19-year-old son is studying TAFE online. Her 14-year-old son has special needs and suffers with autism. Her 10-year-old daughter has no issues. She said they have all been home schooled. She said her eldest son had a lot of issues in attending normal schooling and had suffered bullying. Her 19-year-old son was also bullied at school, so she had made the decision to school them all at home.
They live in a four-bedroom, two-bathroom, single-storey brick house on 12 acres of land. They have been living in the same location for about 20 years. She said that prior to the accident they kept horses, sheep and greyhounds on the property. However, they have no animals now. She said this was because she had been the main caregiver for the animals and was unable to continue this following the accident. When asked about the occupational therapy report where it was stated her husband had been the main carer of the greyhounds, she said that was not the case.
She said she can no longer drive a car for more than 10 minutes. They have two cars at home. She said she only drives their automatic people mover, as she can’t even get into their Holden sedan, because of her back and hip pains.
She is 10 minutes’ drive from her GP. If she needs to go further afield such as to visit the shops (30km away), her husband drives. Her husband is currently the only regular driver in the family.
Ms Bruce said she used to operate a ride-on mower but since the accident her 30-year-old son has taken over that task. However, more recently the mower has been damaged.
She said they had never paid anyone for property maintenance and that previously the animals had kept the grass down.
Ms Bruce said her husband does the cooking or else they purchase takeaway. When asked whether there were any home delivery options, given their distance from the main town she said there were not, and her husband had to pick up the food.
When asked why she has issues preparing food, Ms Bruce said she cannot stand for more than 5-10 minutes. When asked how they manage if her husband is ill and is unable to prepare meals, she said she would then prepare some light meals.
She said when they go shopping, she will walk around the shopping centre for 10 minutes and then sit outside and rest. She said she never lifts or puts away any groceries.
Ms Bruce said the children do the washing and hanging of laundry. Her husband or children do the vacuuming. Her husband cleans the bathrooms. Her kids make the beds and change the sheets. She said they have a king-size bed in their bedroom. She said she doesn’t do any gardening.
When asked about the occupational therapy assessment, Ms Bruce disputed she did any bed making or that she was able to wipe down surfaces.
She said she needed to use her arms to support herself when getting in and out of a chair or else lean on adjacent furniture.
Ms Bruce said she uses a walking stick on bad days, but she had not brought one with her to the assessment as she was not expecting to walk far. She said she also uses the stick because she is worried she may fall. She has Canadian crutches at home but uses them rarely now, generally only on a bad day.
Ms Bruce said she has a toilet seat and a shower seat. She became upset when she was talking about this, as she said that she was previously a very independent person. She said there is a lip in their shower recess, which she had tripped on a few times, and she needs help getting in and out of the shower.
Ms Bruce can dress herself if she sits down. She needs help lacing up shoes. She would sit on the shower seat to wash her hair.
An hour into the assessment, Ms Bruce visited the bathroom in the practice. She did not request any assistance to walk down the corridor, not even from her son, nor to visit the bathroom (the facility on the floor is not a disabled bathroom). When asked how she managed, she said she had leant on the toilet holder when getting up from the toilet seat.
When asked about the barriers preventing her from performing household chores, Ms Bruce said the main problem was the pain in her low back, left hip and left knee. The second biggest problem was her mental health, because on some days she finds she struggles to even get out of bed, because she feels depressed and lacks motivation. The third issue is urinary incontinence which she ascribes to her low back pain. She said she has had this issue for seven years, however she confirmed she has had no investigations performed. She said she had asked Professor Gabriel, her spinal surgeon, about the issue, and he suggested she discuss it with her GP.
Ms Bruce indicated she spends considerable time supervising her 30-year-old and 14-year-old sons. She advised her eldest son requires emotional support and supervision throughout the entire day as he is prone to accidental injury. Her 14-year-old needs help with dressing. He cannot get his jumper off, do zippers or tie shoe laces. She said she spends most of her day caring for her 14-year-old who also needs a special diet, such that she has to cut up his food in small bits, so he does not choke.
Current complaints
Ms Bruce described left hip pain, indicating the lateral aspect of the left hip. The pain is present most of the time but hasn’t been as bad since the hip surgery.
Currently most of the pain relates to her left knee and the torn left quadriceps. She indicated pain over the patella.
There was also intermittent pain across the low back. There were no distal neurological symptoms.
Current treatment
Ms Bruce takes Targin 5mg during the day and 10mg at night. She said she has been taking this medication for the last seven years. She has been taking one Celebrex tablet daily for several years. She uses Nurofen tablets as required.
She continues physiotherapy, which is self-funded, visiting a therapist in Maitland. Her husband drives her there. Treatment is directed towards her low back, left hip and left knee. She has been visiting this therapist since 2017.
Ms Bruce also takes Avanza, which was prescribed four years ago by her GP. She said she hasn’t seen a psychiatrist.
She visits her GP monthly for medication, but more recently fortnightly due to her worsening mental health. Her general practitioner doesn’t do home visits but will do a video call.
Ms Bruce has been seeing a psychologist monthly since 2017.
Ms Bruce had the left total hip replacement on 8 June 2021. She said that her symptoms had improved to a degree following this procedure with reduced pain and increased stability allowing better weightbearing on the left leg.
She had epidural steroid three months ago on referral from Dr Gabriel who she has been seeing since 2018. There has been no suggestion that she should have any back or any spinal surgery.
CLINICAL EXAMINATION
Ms Bruce was 171cm tall and weighed 81kg.
Ms Bruce had an antalgic gait. She could weight bear on both legs, but less confidently on the left leg. When asked to squat, she managed to squat about a third normal, indicating her left knee as the restriction.
On examination of the neck there was a normal range of movement. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, movements were unremarkable apart from when removing her shirt, she reported difficulty due to shoulder restriction secondary to low back pain. Circumferential measurements were consistent with right hand dominance. There was no muscle wasting. There was normal neurology.
On examination of the low back, there was tenderness across the lower lumbar spine and movements were a third normal range in all planes. There was no asymmetry, muscle spasm or guarding.
Circumferential measurements of the lower limbs were equal. There was symmetrical movement of both hips although with complaints of low back and left lateral hip pain.
Knee movements were 110 degrees bilaterally. There was no patellofemoral crepitus. There was pain with flexion of the left knee.
Straight leg raise was 20° bilaterally due to low back pain. Neurotension signs were negative bilaterally.
There was normal lower limb neurology apart from some dysesthesia over the lateral aspect of left knee, the front of the left shin and the dorsum of all toes of the left foot.
PANEL FINDINGS
The Panel has been asked to assess whether the proposed domestic assistance from the date of the assessment and ongoing for the period of the claimant’s entire life, is:
(a) reasonable and necessary in the circumstances under s 58(1)(a) of the MAC Act, and
(b) related to the injuries caused by the accident under s 58(1)(b) of the MAC Act.
On 24 July 2023 the Panel issued a Second Review Report and Direction to the parties. That report referred to the transitional provisions which apply to the medical assessment the subject of this review including the provision that a review panel consists of two medical assessors and a member assigned to the Motor Accident Division of the Commission. Adopting the numbering in that report the Panel stated:
“6. Section 58 of the Motor Accident Compensation Act, 1999 (the MAC Act) states that the medical assessment procedures set out in Part 3.4 of the MAC Act, including review of a medical assessment by a review panel, applies to a disagreement between a claimant and an insurer about, inter alia, the following matters:
(a)whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, and
(b)whether any such treatment relates to the injury caused by the motor accident.
7. Accordingly, in the event a determination is made by the Panel that the treatment, that is, domestic assistance relates to the injury caused by the accident there is no statutory power to refer the dispute as to whether the treatment provided or to be provided to the claimant was or is reasonable and necessary in the circumstances to another medical assessor, such as an occupational therapist. In these circumstances the Panel proposes to determine any dispute about all matters posed by s58 (a) and (b) of the MAC Act.
8. The Panel notes the treatment disputes referred for assessment were the following:
·the physical injuries give rise to a need for 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 is causally related; and
·0-6 hours per week of domestic assistance and any period in between arising from the physical injuries from the date of the MAS assessment and ongoing for the period of the Claimant's entire life, and all durations in between.
9. Where the referral to Medical Assessor Cameron related to an assessment of domestic assistance from the date of the MAS Assessment and ongoing for the period of the claimant’s entire life the Panel’s preliminary view is that the date of the MAS assessment is 8 December 2022, being the date of the assessment by Medical Assessor Cameron.
10. In order to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the Panel invites the parties by close of business 31 July 2023 to provide any submissions addressing the views expressed by the Panel in paragraphs 7 and 9 above. If no submissions are received the Panel will assume there is no objection to the Panel proceeding to determine the dispute in these terms.”
No submissions were received from either party, so the Panel formed the view there was no objection to determining the dispute as proposed.
Whether the need for domestic assistance relates to the injury caused by the motor accident.
The Panel notes the claimant was well before the accident and was engaged in the care of her family, including home schooling her four children and undertaking domestic tasks. There is no evidence of any functional impairment before the accident.
The accident was on 23 August 2016 and the first record of hip and lumbar spine complaints was recorded by Dr Jyoti on 17 October 2016. Ms Bruce informed Medical Assessor Gibson that the delay in seeking medical treatment following the accident was because of her concern about her children who also sustained injury in the accident. Regardless of whether that delay was reasonable and whether the left hip symptoms were sufficient to justify surgery there does not appear to be any dispute that the claimant sustained injury to her left hip, left knee and lumbar spine in the accident.
Indeed, Medical Assessor Harrington issued a certificate dated 28 August 2019 where he assessed an 8% WPI for injury to the left hip in respect of a soft tissue injury and loss of chondral space. He also concluded any soft tissue injury to the lumbar spine and to the left knee had resolved. In a certificate dated 23 March 2021 Medical Assessor Harrington certified that left hip replacement surgery did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances where there was a lack of pathology to clinically and radiologically to justify the need for such surgery.
The Panel accepts the findings of Medical Assessor Harrington in respect of injury to the left hip which were consistent with the following expert medical opinion:
· Dr Salaria reported a bone scan did not show any hip arthritis, avascular necrosis or stress fracture type of hip pathology which would require surgery;
· Dr Dewar, who reported Ms Bruce was tender in her trochanteric bursa but did not have significant impingement or escape signs;
· Dr Gomes who reported whilst there was pathology in the left hip and left knee the symptoms appeared in excess of the disease and Ms Bruce seemed sensitised to the pain;
· Dr Reece who was sympathetic to the claimant noted the articular cartilage changes were not enough to warrant an operation in the absence of severe osteoarthritis or avascular necrosis of the femoral head;
· Dr Hellman who reported he would not perform hip replacement surgery notwithstanding her guarded hip movements where the hip joint looked normal and the MRI scan failed to show any significant pathology;
· Dr Powell reported investigation revealed evidence of some chondral pathology that her level of discomfort and functional limitation is greater than what would normally be expected from the pathology identified on the MRI scans and concluded hip replacement surgery was not indicated at that time. After reviewing surveillance footage of the claimant Dr Powell concluded the claimant was able to mobilise without crutches and was capable of performing her activities of daily living, and
· Dr Mitchell identified a tear of the anterosuperior labrum with the presence of a focal, full thickness, chondral injury at the anterosuperior aspect of the acetabulum. He recommended no future treatment apart from analgesia and anti-inflammatory use.
Whilst Medical Assessor Harrington found the soft tissue injury to the lumbar spine and left knee had resolved the Panel notes that Dr McGrath reported on 9 July 2021 ongoing back and knee pain as did the claimant when examined by Medical Assessor Gibson. In any event it has been the left hip pain which the claimant alleges has been most disabling since the accident.
Regardless of the reasonableness or the efficacy of the hip replacement surgery the Panel accepts the claimant continues to have a degree of functional impairment due to the ongoing soft tissue injury to the left hip albeit there has been significant improvement.
The Panel is satisfied the need for domestic assistance is related to the injury caused by the accident.
Whether the domestic assistance provided or to be provided to the claimant was or is reasonable and necessary in the circumstances
The Panel is required to consider whether domestic assistance provided or to be provided to the claimant from 8 December 2022 and ongoing is reasonable and necessary in the circumstances.
The Panel notes the claimant lives in a four bedroom two bathroom single storey house on 12 acres of land with her husband and four children including a 30-year-old son who suffers with autism and a 14-year-old son with special needs and autism.
The Panel does not accept the opinion of Deborah Hammond occupational therapist who concluded the claimant only required assistance with domestic activities for a three month period. At the time of the assessment Ms Hammond relied upon the opinion of Medical Assessor Harrington to conclude reliance on a Canadian crutch was not consistent with the soft tissue injury sustained. She concluded there was no evidence of a continuing physical injury which would be harmed by performing domestic duties. Whilst the Panel accepts the opinion of Medical Assessor Harrington as to the need for reliance on the Canadian crutch the Panel finds the soft tissue injury was continuing resulting in a degree of functional impairment.
On 2 June 2022 Dr McGrath reported the claimant’s hip pain had largely subsided and she was off her walking aid, although on 18 April 2023 he reported she was struggling with thigh and hip pain after injuring her quadriceps muscle in a fall.
At the time of the assessment by Medical Assessor Gibson Ms Bruce stated there had been an improvement in her left hip pain, increased stability and better weightbearing on the left leg. She also complained of intermittent pain across the low back and left knee pain.
However, it was not only pain preventing her from performing domestic chores but also her mental health and urinary incontinence neither of which have been causally linked to the accident.
The Panel finds there has been a need for domestic assistance arising out of the pain and disability caused by the soft tissue injury to the hip but only in relation to the heavier domestic tasks.
The Panel notes the claimant no longer uses a walking stick other than on bad days and she was observed to visit the bathroom at Medical Assessor Gibson’s medical practice without any apparent need for assistance. The Panel is sceptical of the suggestion the claimant found it necessary to lean on the toilet holder to raise from the seat. The Panel does not accept the soft tissue injury restricts the claimant from standing for more than five to 10 minutes, or that she needs support to get in and out of a chair.
The Panel does not consider the soft tissue injury would prevent the claimant from undertaking lighter domestic duties, such as cooking, washing dishes, washing clothes, light bathroom cleaning, wiping down surfaces or dusting. The Panel accepts the claimant may experience difficult with heavier tasks such as vacuuming, mopping, cleaning a bath or shower recess and hanging out washing.
The Panel considers an appropriate assessment of the need for assistance with heavier domestic tasks would be two hours per week.
Where there has been a gradual improvement in the claimant’s condition over recent years as evidenced by the medical examination conducted by Medical Assessor Gibson the Panel considers the need for any assistance for the claimant’s soft tissue hip injury and possible ongoing soft tissue injury to the low back and left knee is likely to peter out over time. The Panel considers it would be reasonable and necessary in the circumstances for the claimant to require assistance with heavy domestic tasks for up to two hours per week for the next two years.
CONCLUSION
The Review Panel revokes the certificate of Medical Assessor Cameron dated 8 December 2022 and issues a new certificate certifying as follows:
· the need for domestic assistance of two hours per week from 8 December 2022 to date and for a further two years is reasonable and necessary in the circumstances, and
· the need for domestic assistance of two hours per week from 8 December 2022 to date and for a further two years is caused by the accident.
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