Ellis v IAG Limited trading as NRMA
[2022] NSWPICMP 286
•13 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ellis v IAG Limited trading as NRMA [2022] NSWPICMP 286 |
| CLAIMANT: | Guy Charles Ellis |
INSURER: | IAG Limited trading as NRMA |
| REVIEW PANEL: | Member Terrence Broomfield Medical Assessor Rhys Gray Medical Assessor Margaret Gibson |
| DATE OF DECISION: | 13 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant was involved in a motor vehicle accident in March 2015 with the orthopaedic surgeon recommending a left total hip replacement in August 2019; the medical dispute related to whether a left total hip replacement was reasonable and necessary and whether it was an injury caused by the motor vehicle accident; Held – claimant’s concession that there was no left hip pain experienced after the accident until over three years subsequent to the accident nor any treatment sought for the left hip with the Panel noting x-rays taken nine days post-accident revealing mild to moderate osteoarthritic/degenerative changes in the left hip were long standing and progressive; the Panel rejected the theory that as there was no prior problems in the left hip and the claimant developed arthritic changes in that hip with trochanteric bursitis then such related to an injury caused by the accident; none of those assessing the claimant, medico-legal or treating doctor who assessed the claimant’s injury observed the mild to moderate degenerative changes in the claimant’s left hip that were longstanding and present in an x-ray taken nine days after the accident; the Panel did not accept that the accident caused an injury to the left hip by either any direct trauma or alternatively accelerated the rate of progression of the pre-existing osteoarthritic and degenerative changes in the left hip. |
| DETERMINATIONS MADE: | The claimant’s left hip replacement is not reasonable and necessary in the circumstances nor does it relate to an injury caused by the motor vehicle accident. |
Review Panel Assessment of treatment and care
Certificate is issued under Part 3.4 of the Motor Accidents Compensation Act 1999
(the MAC Act)
The Review Panel confirms the certificate of Medical Assessor Wallace dated 3 March 2021.
A total left hip replacement is NOT REASONABLE AND NECESSARY in the circumstances.
A total left hip replacement does not relate to an INJURY caused by the motor vehicle accident.
REASONS
BACKGROUND
Guy Charles Ellis (Mr Ellis/the claimant) suffered injury in a motor accident on 11 March 2015 when a motor vehicle side swiped the bicycle he was riding on the roadway causing him to be dislodged from the bicycle and thrown into the air resulting in his body crashing onto “the ground onto my (his) back”.[1] There is no dispute between the parties that Mr Ellis suffered a compression fracture of his lumbar spine in the accident however, there is a dispute as to whether Mr Ellis suffered an injury to his left hip and as a consequence now requires a left hip replacement.
[1] Mr Ellis’s bundle page 115 statement of claimant [14].
IAG Limited trading as NRMA Insurance (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay to Mr Ellis any damages under the Motor Accidents Compensation Act 1999 (as amended) (MAC Act) which includes treatment expenses. Any dispute relating to past or future treatment expenses is to be resolved by a Medical Assessor pursuant to s 58(1)(a) of the MAC Act.
THE REVIEW
The application for referral of the medical assessment of Medical Assessor Wallace to a Review Panel (the Panel) was made on 16 April 2021 by Mr Ellis, within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 63(7) of the MAC Act.
On 15 November 2021 the Delegate of the President referred the medical assessment to the Panel being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the PIC Act the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A 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.
All members of the Panel had no previous involvement with Mr Ellis or with this matter.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act.
On 24 January 2022 the Panel issued a Direction to the parties to upload onto the Commission’s Portal the material to be relied upon as regards Mr Ellis by 4 February 2022 and the insurer by 11 February 2022. Mr Ellis uploaded material comprising 127 pages and the insurer uploaded material comprising 427 pages. Both Mr Ellis and insurer sought to have the Panel consider additional medico-legal updated reports by the admission of such as late documents. Both parties consented to the additional reports of the other and for Mr Ellis a report of Dr Dixon was agreed by the Panel to be added to the material to be considered. Similarly reports of Dr Bentivoglio dated 5 July 2021 and 12 August 2021 commissioned by the insurer were agreed by the Panel to be added to the material to be considered by it.
The Panel met on 11 March 2022 and conducted a preliminary assessment of the material and felt the need to have additional material before undertaking an examination of Mr Ellis that was then scheduled for 28 April 2022 to be undertaken by Medical Assessor Gray. A full set of general practitioner clinical notes was requested from the date of the accident to date together with advice whether the left total hip replacement had taken place. Further Mr Ellis was requested to provide a copy of the X-ray purportedly taken of the left hip on the date of the accident at Wyong Hospital referred to in Mr Ellis’ submissions. Finally, a request was made to supply the original X-rays of the lumbar spine forwarded to Dr Bentivoglio in addition to the original X-rays taken of the left and right hip on 31 May 2019. Such X-rays as well as additional X-rays provided by Mr Ellis, were viewed by Medical Assessor Gray at the re-examination on 28 April 2022.
A full set of clinical notes were provided by Mr Ellis that comprises 994 pages with confirmation from Mr Ellis’s solicitor that the X-ray taken at Wyong Hospital on the day of the accident was in fact an X-ray of the lumbar spine that disclosed both hips to be enlocated was the “hip x-ray” referred to in Mr Ellis’s submissions. By inference it was conceded by Mr Ellis that there was no discreet left hip X-rays taken at that time. Mr Ellis’ solicitor also confirmed that Mr Ellis had not yet had the recommended left total hip replacement.
The Panel reconvened on 20 May 2022 and whilst X-rays AP Pelvis plus spinal views from Erina X-ray dated 20 March 2015 were available to Medical Assessor Gray at the re-examination of Mr Ellis on 28 April 2022, the Panel felt it prudent to seek a copy of the X-ray report. Medical Assessor Gray observed on that X-ray mild to moderate degenerative/osteoarthritic changes in the left hip that were of a longstanding nature that were present nine days after the accident. A photograph of that X-ray was also observed by Medical Assessor Gibson who agreed with Medical Assessor Gray’s findings. It would appear that no other doctor has commented upon the state of the left hip joint as disclosed in the X-ray from Erina X-ray dated 20 March 2015. No X-ray report appears to be available other than the X-ray report of Dr Beh dated 20 March 2015 reporting upon the X-ray of the thoracolumbar spine. The Panel acknowledges such X-ray and report was requested as a follow up X-ray nine days after the accident for a review of Mr Ellis’s fractured L3. The Panel also noted that in such report reference was made to both hips being enlocated and the pelvic rings being unremarkable.
The central issue to be decided by the Panel relates to whether the potential need for a left total hip replacement relates to an injury caused by the accident. There is a divergence in recorded histories provided by various doctors since the accident as to complaint or treatment to any purported injury to Mr Ellis’ left hip for over three years after the accident. As a consequence, the Panel felt it prudent to conduct a re-examination particularly in the background of a further divergence of views regarding the possible need for a left total hip replacement.
Statutory provisions/guidelines
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue in which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between Mr Ellis and an insurer on certain distinct matters are “medical assessment matters” and includes “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
When determining causation of injury in a medical assessment the Medical Assessor ought be cognisant of cls 1.6 and 1.7 of the Guidelines which provides as follows:
“1.6 Causation of injury is addressed in Part 1.6 of the Motor Accidents guidelines and defined in the glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic 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 contribute to worsening of the impairment, which is a non-medical determination’.
This, therefore, involves a medical decision and a non – medical informed judgement.
1.7 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 the 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.”
A number of recent authorities have discussed errors made by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence of complaint in contemporaneous notes. In Norrington v QBE Insurance (Australia) Ltd[7] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for 9 months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation. The Court stated[8]:
“In the context of assessment under MACA there is now a substantial body of authority that a Panel which describes the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posited by s58(1).”
[7] Norrington v QBE Insurance (Australia) Ltd [2021] NSW SC 548.
[8] Norrington v QBE Insurance (Australia) Ltd [2021] NSW SC 548 at [31].
The Court referred to and applied the Court of Appeal decision of AAI Ltd v McGiffen[9] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which have observed that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[10]) and the non-existence of references to “injury” in other evidence such as the injured person’s statement and the claim form (Bugat v Fox[11]) ought not be determinative on the issue of causation.
ASSESSMENT UNDER REVIEW
[9] AAI Ltd v McGiffen [2016] NSW CA 229 at [64]-[66].
[10] Davis v Council of the City of Wagga Wagga [2004] NSW CA 34 at [35].
[11] Bugat v Fox [2014] NSW SC 888 at [31]-[32]
The assessment of Medical Assessor Wallace resulted in a certificate dated 3 March 2021 in which Medical Assessor Wallace certified that Mr Ellis’ left hip replacement surgery did not relate to injuries caused by the accident nor was it reasonable and necessary in the circumstances.
Medical Assessor Wallace’s reasons recorded a history from Mr Ellis that he was riding his bicycle on 11 March 2015 when a vehicle proceeding in the same direction side swiped him causing him to be thrown over the handlebars and landed “flat on his back on the roadway”.
Mr Ellis was taken to Wyong Hospital where X-rays revealed a crush injury at the L3 vertebral body. He was discharged home and subsequently treated in a velcro brace with immobilisation of his lumbar spine for four months subsequent to which he undertook physiotherapy for some three months. In September 2018 some three and a half years after the accident Mr Ellis noted gradual onset of left hip pain without a history of injury. He stated that his left hip would lock up when he rode his bicycle and described niggling pain at the greater trochanteric region of the left hip. He was referred for specialist orthopaedic review to Dr Limber who arranged a cortico-steroid injection of the left hip which was carried out on 22 August 2019 which relieved his pain for 24 hours. Dr Limber subsequently recommended a left total hip replacement that the Panel notes has not yet been undertaken. Medical Assessor Wallace recorded that Mr Ellis was at the time of his examination complaining of constant aching pain in the lateral aspect of the left hip superior to the greater trochanter. The pain had no precipitating factors.
Medical Assessor Wallace reviewed plain X-rays taken of the left hip on 31 May 2019 (in excess of four years post-accident) that disclosed moderately severe degenerative osteo-arthritis at the left hip joint with marginal osteophyte formation. Medical Assessor Wallace found there was no objective medical evidence that Mr Ellis suffered any injury to the left hip at the time of the accident in March 2015 noting Mr Ellis did not complain of any left hip symptoms at the time of the accident until some three and a half years subsequent. Medical Assessor Wallace also found that the left hip symptoms were minor in nature and not therefore in need of operative intervention in the form of a left total hip replacement for treatment of his degenerative left hip condition. He accordingly found a left hip replacement was not reasonable and necessary in the circumstances and was not an injury caused by the accident.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The re-examination for this review was conducted by Medical Assessor Gray on the 28 April 2022.
MATERIAL BEFORE THE REVIEW PANEL
Review application
The bundle of documents filed on behalf of Mr Ellis included the material that was provided to Medical Assessor Wallace in addition to an updated report from Dr Drew Dixon dated 16 March 2022 and a full set of general practitioner’s notes from Warnervale GP Super Clinic comprising 994 pages that was provided pursuant to the Panel’s direction.
It was submitted on behalf of Mr Ellis that Medical Assessor Wallace had fallen into error when failing to take into account “contemporaneous evidence” of Mr Ellis’ left hip issues. This evidence it was submitted commenced on the day of the accident by a reference in the ambulance report where there is reference to “backside v road”[12]. Further, there was extensive bruising to the left buttock referred to in photographs taken soon after the accident[13] and the claim form dated 13 April 2015 it was submitted was supportive of an injury to the left hip when it disclosed “bruising to the left and right buttock”[14]. Further, the use of crutches[15] and the observation of an antalgic gait[16] may have caused and/or aggravated the subsequently detected degenerative changes in the left hip and there was no evidence of any osteo-arthritis or degeneration of the left hip prior to the accident. Finally, it was submitted that no explanation was proffered as to what was the cause of the debilitating left hip pain and why there was a need for the treating orthopaedic surgeon to mandate a total left hip replacement.
Reply submissions
[12] Claimant’s bundle page 36.
[13] Claimant’s bundle page 17.
[14] Claimant’s bundle page 52.
[15] Claimant’s bundle page 58.
[16] Claimant’s bundle, page 59.
The insurer took issue with Mr Ellis that bruising to the left buttock in any way equates to a discreet injury to the left hip and furthermore, there is no complaint or treatment in relation to Mr Ellis’ left hip until September 2018 some three and a half years subsequent to the accident. The insurer also submits none of the medico-legal assessments commissioned for Mr Ellis during the period up until the initial complaint of left hip pain in September 2018 made any reference whatsoever to any such injury over that intervening period.
Finally, the insurer submits that there is no medical support for the “hypothesis” made on behalf of Mr Ellis that the use of crutches and an antalgic gait could have caused aggravated and/or exacerbated his left hip condition.
RE-EXAMINATION
The Panel felt it appropriate that a further examination be undertaken of Mr Ellis for the reasons about which the Panel has earlier referred. The Panel acknowledges that it is conducting a new assessment and not limited to a review of what is alleged to be incorrect in Assessor Wallace’s assessment in accordance with s 63(3)(A) of the MAC Act as confirmed in Sydney Trains v Batshon[17].
[17] Sydney Trains v Batshon [2021] NSW CA 143 at [41].
Mr Ellis was requested to attend for re-examination with relevant X-rays that were taken on 20 March 2015 preparatory to a follow up consultation regarding the L3 vertebral body fracture. There were X-rays of the thoracolumbar spine reported upon by Dr C Beh of Central Coast Radiology dated 20 March 2015. Other X-rays disclosing AP Pelvis plus spinal views taken at Erina X-ray and also dated 20 March 2015 were available for review. As indicated earlier, there was no X-ray report accompanying the latter X-rays disclosing the AP Pelvis plus spinal views. Accordingly, the Panel requested that X-ray report. Mr Ellis at the request of his solicitors attended upon Erina Radiology and was advised that only one series of
X-rays was taken and Dr Beh appears to have reported upon a series of X-rays that included references that “both hips were enlocated” and “the pelvic rings were unremarkable”. The
X-rays described by Medical Assessor Gray as AP Pelvis plus spinal views from Erina X-ray dated 20 March 2015 disclosed to him mild to moderate degenerative/osteoarthritic changes of the left hip which were of a longstanding nature that clearly predated the accident with no evidence of recent traumatic injury to the left hip. Such was confirmed by Medical Assessor Gibson who viewed photographic images of the X-rays provided by Medical Assessor Gray.
Medical Assessor Gray recorded the following as a consequence of his re-examination on 28 April 2022:
“Background/Work Duties:
Mr Ellis is now 61 years of age having completed high school to Year 11 in Albury. He initially worked at Albury Council as a junior storeman and then obtained a full-time permanent position with the fire brigade in Sydney in 1980, starting as a ‘firefighter’ fulltime; he left the service at Station Officer rank. He ceased that employment some years after the accident, after having a protracted period off work before doing so due to PTSD, and is currently not working, being in retirement mode as a self-funded retiree.
Mr Ellis is married and lives with his wife on some acres. They have adult children who are all independent. His wife has recently retired as an aged care nurse.
He denied any prior motor vehicle accidents. He had a pushbike accident at age 8, with all injuries resolving.
Past Health:
Mr Ellis had a workers compensation claim for a right hand injury involving the right long finger - this was a fracture requiring pinning, with the metal subsequently removed with the symptoms essentially fully settling after that injury. He had a workers compensation injury, the subject of this claim for PTSD and back/hip injury.
Ms Ellis denied any former back symptoms or injuries. He denied any former problems with either hip. There was no family history of hip arthritis or requirement for hip arthroplasty. He emphasised that as a youngster, he had never played football and had never ridden a motorbike.
He had tonsillectomy at the age of five with no other history of surgery apart from the right hand.
Over the last seven years or more, he has intermittently taken indomethacin anti-inflammatory for pains that occur in multiple joints in his body, with a question of gout. He now also takes 4-6 Panadol Osteo per day, depending on the degree of left hip pain.
He described his general health as good, having been treated with blood pressure for the last two to three years, currently taking three antihypertensives.
Mr Ellis does not smoke cigarettes. He acknowledged that he had formerly drunk alcohol ‘heavily’ but now drinks alcohol at a ‘social’ level, most days drinking some beers.
Recreational Activities:
Mr Ellis said he had always ridden a pushbike, having been involved in pushbike racing when younger. He returned to serious biking events in 2012 and was training for an event, doing 60 km per day most days, when he was involved in the subject motor accident in 2015.
Currently, he rides a recumbent bike usually three times a week. He said the recumbent bike is, ‘not too bad with my back’ but he suffers some pain in the left hip when riding, pointing to the area deep to the greater trochanteric region on the left, although said that these symptoms in the left hip area were variable with this activity.
History of the Motor Accident:
Mr Ellis said he was doing his usual regular road bike riding at about 9:30 am on 11th March 2015, along Evans Road at Toukley. He was travelling at about 20 km per hour when a passing car clipped him; he believed his handlebars were clipped by the mirror of that vehicle.
He remembers landing very heavily onto the road on his back, with immediate pain and he was unable to mobilise. He said despite an instinct to ‘get off the road’, he was unable to move.
The pain was located in his low back and he later noted marked bruising in both buttocks.
He also recalled that his shirt was ripped at one of the shoulders; he said the shoulder abrasion resolved promptly with no sequela.
Mr Ellis emphasised he was unable to mobilise immediately and the ambulance and police attended. He was conveyed to Wyong Hospital, with x-ray and CT scanning of his back. He was advised he had a fracture of ‘L3’ and, after a teleconsultation with Royal North Shore Hospital (RNSH), he was discharged home, with advice to obtain a lumbar support, crutches, analgesia and review with his general practitioner. An outpatient appointment at the RNSH was organised.
On arriving home, he recalled continuing problems with his shoulder abrasion, low back pain and with the onset of significant bruising in both buttocks a day or two later. He attended his general practitioner the next day and the above treatment was maintained.
To direct questioning, Mr Ellis said he had no leg symptoms and no specific hip symptoms at that stage, although soon afterwards he had a flare of symptoms in the right knee. Mr Ellis was unable to recall any direct injury to the right knee in the accident and his general practitioner subsequently advised that the right knee findings were not related to the motor accident; the acute symptoms in the right knee settled after taking anti-inflammatories.
Subsequently he attended physiotherapy and said that he was off work for about six months and continued to have constant localised low back pain without radiation of pain and without associated paraesthesia; during this time he had a slight limp and said there had been no early pain in the hip region.
On returning to work, Mr Ellis said after six weeks he had a flare-up of PTSD and had been unable to work subsequently, apparently being off on PTSD leave for about two years and then he was medically discharged because of the PTSD.
On reviewing his symptoms in 2015, he said he recalled constant, continual back pain but he was able to manage and get back to work. He believed he had a slight limp at that stage, particularly in the time after coming off the crutches. He recalled no specific hip pain. The shoulder settled promptly.
He said that when he did return to work in 2015, he was undertaking full normal duties although he continued to have some symptoms at that stage.
With further time he said he has continued to have localised back pain that has, ‘never gone away’.
Left Hip Symptoms
I asked Mr Ellis about his bike riding. He said that post-accident he had at some stage attempted returning to riding his normal road bike but found that he could not consistently do this because of localised low back pain.
After witnessing a neighbour successfully riding a recumbent bike despite having back pain, he started this activity and found that he was able to ride reasonable distances without significant low back pain. He said that during this period he thought there may have been the onset of some left hip pain with heavier activity.
However, on a lengthy rail track ride near Beechworth, there was the sudden onset of pain over the lateral aspect of the left hip and without groin pain; he said that the left hip was markedly in pain at the end of that ride.
To further questioning with regard to the recumbent bike, Mr Ellis said that after six months of recumbent bike riding he had the onset of niggling pain in the left hip, which reached a crescendo with the lengthy ride near Beechworth.
Mr Ellis said that after this episode he attended Dr Green, GP. He had investigations including a hip x‑ray, and was then referred to Dr Limbers, Orthopaedic Surgeon.
He said that at the initial consultation with Dr Limbers, it was provisionally thought to be a left hip problem, then after a direct injection into the left hip there was relief of previous symptoms for a short period - Mr Ellis said Dr Limbers advised him that it was definitely the left hip that was the problem. Dr Limbers advised a total hip replacement on the left. This was tentatively organised but cancelled because of inadequate private health cover. Subsequently he has not returned to have the hip replaced because of COVID contingencies and he has put up with the pain.
For the last two to three years, Mr Ellis said the left hip symptoms have been getting worse with time. He now takes Panadol Osteo four to six per day. He locates the left hip pain over the greater trochanteric region and, ‘deep’. There has been no groin pain or radiation of pain into the anterior thigh.
He has had no specific treatment except for analgesics and takes an anti-inflammatory when the symptoms are marked; the last anti-inflammatory was taken two days ago and three weeks before that.
He said that throughout this period the low back pain has just continued in a localised fashion, slightly worse with time.
He finds that after 30 to 40 minutes of walking, he is unable to walk further because of back pain. He finds that on his acreage, mowing the lawn with a Zero Turn lawn mower is satisfactory although a manual push mower causes a sudden exacerbation of low back pain. He has had no recent physiotherapy or hydrotherapy. He regularly rides his recumbent bike.
He says that sleeping is a problem and he is unable to sleep on his left side, with the left hip pain awakening him each night.
Driving is generally satisfactory although he has the onset of more significant pain after about one hour, limiting further driving. He has no upcoming specific appointment for a hip replacement with Dr Limbers.
Examination
On examination, Mr Ellis was co-operative, a good historian and in no obvious physical distress, except for aspects of the physical examination.
He weighed 90 kg and was 172 cm in height [BMI=30].
He walked with a slight limp although the formal Trendelenburg test was negative in the left hip.
In the thoracolumbar spine, there was no deformity. There was a good range of flexion but with some limited full extension with an extensor ‘catch’. Lateral tilt of the lumbar spine and rotations were limited but symmetrical. To palpation, there was no paralumbar muscle tenderness and no guarding. There was tenderness over the lower lumbar spinous processes. There were no non-verifiable radicular complaints.
Peripherally, straight leg raising was terminally limited by hamstring tightness, equivalent on both the right and left sides; therefore straight leg raise was negative bilaterally.
Lower limb reflexes were equivalent right and left. There was no sensory or power deficit in the lower limbs with no radiculopathy.
Minor leg length inequality, on the left measuring 87 cm from the right anterior superior iliac spine to the right medial malleolus and 86.5 cm on the left in the same position.
The circumference of both thighs was equal at 10 cm above each suprapatellar border, measuring 48 cm. The maximal circumference of both calves was equal measuring 38 cm.
There was no definite local tenderness about either hip; in particular, there was no trochanteric tenderness on the left. There was a suggestion of some tenderness deep in the abductor musculature of the left hip. No clinical evidence of trochanteric bursitis.
The range of movement of the hips was as follows:
Movement
Right (degrees)
Left (degrees)
Flexion
120
90
Extension
No fixed flexion
No fixed flexion
Abduction
30
20
Adduction
40
30
Internal Rotation (in flexion)
10
0
External Rotation (in flexion)
50
40
There was irritability of left hip movements.
Investigations
A series of plain x-rays were provided by Mr Ellis at the re-examination.
X-ray right knee, Dr S Khoury 30 June 2008
Request noted ‘? gout’. Dr Khoury noted minor degenerative changes in the right knee.
X-ray Thoracolumbar spine, Dr C Beh, Central Coast Radiology 20 March 2015
By report: a mild anterior wedge compression fracture of L3. Degenerative change in the remainder the thoracic spine and lumbar spine. Noted that both hips were enlocated.
X-ray AP Pelvis plus spinal views, Erina X-ray 20 March 2015
These films were reviewed. The pelvis views demonstrated mild to moderate left hip joint space narrowing, compared with minor changes in the opposite right hip. These changes reflected established longstanding degenerative/osteoarthritic change in the left hip and established mild arthritic change in the right hip. The spinal views available were non-contributory.
Lumbar spine, lateral view dated 26 October 2015
Confirmed a crush fracture of the superior aspect of the L3 vertebral body, with established degenerative changes elsewhere in the lumbar spine.
X-ray Spine AP erect dated 8 September 2017
These films were viewed noting moderate degenerative/osteoarthritic changes in the left hip.
Photographs of buttock bruising, particularly on the right buttock, from the motor accident – noted; to direct questioning, Mr Ellis was unable to recall when the bruising came out but thought it was the next few days after the accident, having landed on his buttocks.
Treatment:
In terms of treatment, a review of the L3 injury at the Royal North Shore Hospital undertaken early post-accident, but with no further specific spinal review by a specialist.
He said he wore a spinal brace for three to four months then no other specific treatment for the back.
He said there has been no intercurrent injury.”
DOCUMENT REVIEW
The Panel noted that the supporting documents included the following:
Ambulance Electronic Medical Record dated 11 March 2015
Noted to be riding a racing bike at 20 km per hour, clipped by a motor vehicle travelling at 40km per hour. The patient somersaulted off bike on backside v road. Damage to clothing over the right shoulder. No loss of consciousness, no neck pain but pain is central lumbar without radiation. Transferred to hospital.
Assessment documents, Wyong Hospital 11 March 2015
Noted an L3 fracture with severe lower back pain after being knocked off his bicycle, clipped by a car. Neurologically intact. Advised to mobilise as tolerated after advice from RNSH. Short-term use of crutches and ongoing physiotherapy. Other injuries included small superficial grazes to right elbow and shoulder.
Warnervale GP Superclinic, clinical notes printed on 31 March 2022
The Panel reviewed these notes and aspects of the medical records were discussed with Mr Ellis by Medical Assessor Gray at the re-examination on 28 April 2022.
Entry 12 March 2015, Dr A Miclat general practitioner
One day post-motor accident. Acute fracture of L3 noted.
[Mr Ellis said at that stage he was only worried about his back and accordingly there was no reference to any hip symptoms at that stage]
Entry 17 March 2015, Dr G Cantlay, general practitioner
Noted to have right knee pain. He had a very swollen and tender right knee. Noted to be walking with crutches following the back injury.
[Mr Ellis said he could not recall any injury to the right knee in the motor accident.]
Entry 26 March 2015, Dr Miclat
Good response to back brace. Noted to have “has had bilateral knee – but now settled”.
[Mr Ellis said to direct questioning that there were no hip problems at that stage, “not really any hip problems early in the peace”.]
Entry 1 April 2015, Dr U Schmidt, general practitioner
Noted to have gout in the right knee which was acute-on-chronic. Noted that he did not injure the knee in the bike accident. Noted to have an antalgic gait due to the back injury. Prescribed Indocid.
Entry 30 April 2015, Dr Miclat
“still having back pain”. Targin prescribed.
Entry 11 May 2015, Dr Miclat
“becoming worried about his mental health - anxious losing job as a firefighter”.
Entry 11 June 2015, Dr Miclat
Doing well at physiotherapy. Planning to return to work as a firefighter. Nil ongoing issues. To take medications on needs basis only.
Entry 9 July 2015, Dr Miclat
Continuing to do well with physiotherapy. Able to bend forward and touch his toes. Noted to have “occasional back pain”. For upcoming review with Dr Hartin at RNSH.
[Mr Ellis said there was occasional back pain without any other complaints]
Entry 30 July 2015, Dr Miclat
Noted to be not taking Targin anymore - nil pain relief being taken since last visit. Able to use pushbike. Normal daily activities, nil restrictions. Some days back can be sore but manageable as with ordinary back pains. Noted mental health issues dissipated as soon as he was able to go back to his bike. Back range of movement intact.
Noted that he passed a physiotherapy test for mine employment.
[Mr Ellis said he did remember undertaking pushbike riding at that stage but said that the back pain was too much and he had to give it away. With regard to the physiotherapy test for mine employment, he said he got through that but with difficulty and believes he “fudged” aspects of it.]
Entry 10 October 2015, Dr P Muthiah general practitioner
Noted to have recent work right knee injury.
Entry 15 October 2015, Dr Miclat
Noted to have certificate fit for pre-injury duties.
[Mr Ellis said that he returned to full normal work duties at that stage.]
Entry 2 November 2015, Dr Miclat
Noted that he couldn’t get sleep because of post traumatic stress disorder symptoms.
Mr Ellis agreed with the documented post traumatic stress disorder symptoms, interfering with sleep and causing problems in his workplace. However, he said on returning back to work, after six weeks he had significant problems at work with the flare of post traumatic stress disorder and he left employment at that stage. He recalled no hip symptoms at that stage.
[Mr Ellis was questioned regarding entries from December 2015 to June 2016 where he made no reference to any back or hip problems. He said his back pain had never fully gone and he put up with it. He was unable to describe any specific hip problems at that stage, but said that if any hip problem were there, they were not annoying him to any extent. Mr Ellis was asked about multiple entries from June 2016 until 9th November 2017 without reference to specific back or hip problems. Mr Ellis said that he had definite continuing localised low back pain throughout this period however, acknowledged no hip problems].
Entry 9 November 2017, Dr Miclat
Noted that he had not been exercising lately and no longer riding his bike after the accident, unlike before. Twenty kilogram weight gain.
Entry 20 February 2018, Dr Miclat
Noted to be currently doing walking exercises of up to 3km per day and will start bike riding.
[Mr Ellis advised that this was the time he started recumbent bike riding. He said there was back pain hurting him, particularly with walking and with normal bike riding but Mr Ellis was unable to recall specific hip pain at that stage.]
Entry 25 September 2018, Dr Green, general practitioner
Noted to have a three weeks’ history of left hip pain with no history of injury. Slight tender posterior to hip ? soft tissue injury.
[Mr Ellis agreed that this was the first time left hip pain was present and would have been mentioned.]
Entry 29 November 2018, Dr Miclat
Noted to have recently lost 10kg in weight with customised recumbent bike riding.
Entry 31 May 2019, Dr Green
Request for plain X-ray – Hip, Left (left hip pain ?OA)
Entry 26 June 2019, Dr Green
Osteoarthritis left hip and subsequent referral to Dr Limbers, orthopaedic surgeon.
Entry 12 September 2019, Dr Green
Noted that surgery was organised for 17 October - left total hip replacement.
[Mr Ellis advised that this surgery was cancelled because full cover was not forthcoming from NIB.]
Entry 17 September 2020, Dr Green
Noted to have right shoulder pain on abduction in the last two months.
[Mr Ellis advised that this was short-lived and resolved completely. He thought it might be due to gout.]
Report Dr F Harvey, orthopaedic surgeon 15 November 2016
This report was reviewed by the Panel who noted Dr Harvey did not record any specific hip symptoms or injury.
Under “Present Complaints”, all complaints localised to the lumbar spine. No pain, paraesthesia or numbness in the lower limbs.
On examination, noted that he walked without a limp. Noted a good range of movement of the back, particularly the lumbar spine, particularly on extension, when compared with current examination. Dr Harvey noted a compression fracture of L3 vertebral body with no other ongoing injury.
Dr Harvey noted that Dr Dixon had opined a 5% permanent impairment with regard to the L3 fracture and Dr Harvey agreed with that.
Report Dr F Harvey 18 September 2019
Dr Harvey recorded a history that he was stood down from the fire brigade on 8 September 2017 because of post traumatic stress disorder. Noted that in mid-2018 he commenced a three-wheeler semi-recumbent bike, cycling 30km on two to three days per week on cycling tracks. In April 2019 he went for a long ride along an old train track. Dr Harvey said Mr Ellis then developed pain in the left hip region and indicated the left trochanteric region.
[Mr Ellis was questioned about this history and agreed that he had been riding the recumbent bike for some time however, experienced the onset of symptoms in the left hip but reached a crescendo when riding near Beechworth that would appear to have been in April 2019. Subsequently, he had difficulty walking at all because of left hip pain. He then attended Dr Green and subsequently attended Dr Limbers who had recommended left total hip replacement. However, since that episode of more severe pain, he had returned to riding his reclining bike, riding 20 km two to three times a week.]
Dr Harvey found no reason at all to relate the osteoarthritis of the left hip to his injury in 2015. He noted that it would be not uncommon for a person of this age group to develop osteoarthritis, especially when they come in the obese range.
He also noted that when he examined Mr Ellis in 2016, over 20 months after the accident on 11 March 2015, he was not complaining of any hip pain.
Dr Harvey stated that he did not consider that any treatment directed towards his left hip could be attributed to the traffic accident of 11 March 2015, as he did not consider the osteoarthritis of the left hip a consequence of the accident, or that the pain was due to trochanteric bursitis. Further, he saw no immediate indication for total hip replacement on the left.
Report Dr D Dixon, orthopaedic surgeon 27 October 2015
The Panel reviewed Dr Dixon’s report and noted he recorded “Accident details as given by Mr Ellis” - Dr Dixon noted no specific hip complaints or injury. Under “Work History” noted to be working at Berkeley Vale Fire Station at that stage.
Under “Present Symptoms”, all complaints related to the lower back with lumbar stiffness. Noted to have a walking tolerance of half an hour but does cycle with limitation from the low back aspect. Some pain and stiffness in his back after prolonged driving. The reported pain was in the mid-lumbar region of the back with radiation to the facet joint area. There were no radicular complaints and no buttock sciatica.
Under “Radiological investigations” Dr Dixon noted X-rays of the thoracolumbar spine on 20 March 2015.
Report Dr D Dixon 19 September 2017
The Panel noted Under “Present Symptoms”, Dr Dixon noted persisting lower back pain and lumbar stiffness, aggravated with activity. Noted that his back pain radiates to the facet joint area bilaterally but he reported no sciatica.
[The Panel further notes that there was no reference to any hip injury symptoms two and a half years post motor accident.]
Certificate, Assessor M Burns 5 November 2018
Assessor Burns notes lumbar spine/compression fracture of L3 vertebral body and assesses the lumbar spine at 5% whole person impairment.
Under “Current Symptoms” on page 3 the Panel noted that apart from his low back he reported no other pain or discomfort in any other area.
[Mr Ellis was questioned regarding this history and said that he could not recall any specific hip pain at that stage although the Panel noted reference to three weeks history of left hip pain in the notes of Dr Green, general practitioner in the entry dated 25 September 2018. The Panel acknowledges such history sought that Mr Ellis recall precisely when he suffered onset of such left hip pain over three years ago. The Panel notes the earlier references only predates Assessor Burns’ assessment by a number of weeks.]
Report Dr D Dixon 18 July 2019
The Panel noted Dr Dixon recorded Under “Accident Details as given by Mr Ellis”, Mr Ellis had developed pain in the lateral aspect of the left hip overlying the greater trochanter associated with a limp and that an X-ray of the hip showed arthritic change.
Under “Present Symptoms”, Mr Ellis reported a limp on the left with pain in the lateral hip region over the trochanteric area; however, he reported no groin pain but felt there was stiffness in the hip that had arisen by doing his exercise bike drills. He had difficulty sleeping on that side due to pain.
Dr Dixon noted Mr Ellis to have trochanteric tenderness on the left and walked with a limp in addition to mild restriction of range of movement of the left hip. X-rays of the left hip of 31 May 2019 noted arthritic changes.
Under “Summary of Injuries and Diagnoses”, Dr Dixon noted he had developed trochanteric bursitis of the left hip with tenderness and a limp.
Under “Causation”, Dr Dixon noted trochanteric bursitis of the left hip but did not attribute any degenerative changes of the left hip to the motor accident.
Further, Dr Dixon noted, “As a result of his exercise program, he has developed arthritic changes in his left hip with trochanteric bursitis”.
Dr Dixon opines that his belief is that the problem Mr Ellis is experiencing in his left hip is causally related to the injuries sustained on 11 March 2015, noting Mr Ellis reported no prior problems with his left hip before the subject motor vehicle accident but has developed arthritic change in the left hip…
Report Dr D Dixon 18 July 2019 - physical impairment assessment.
Dr Dixon assessed DRE category 2 which equates to 5% whole person impairment for the lumbar spine. Dr Dixon noted 3% whole person impairment for a trochanteric bursitis left hip.
Report Dr D Dixon 16 March 2022
Dr Dixon recorded “Accident Details as given by Mr Ellis” which was consistent with the earlier accounts provided by Mr Ellis.
Dr Dixon noted that as part of the exercise program, he was going bike riding and found a gym with a recumbent bike and that he has developed pain in the lateral aspect of his left hip overlying the greater trochanter, associated with a limp.
Dr Dixon noted that the treating doctor arranged for an X-ray of the hip in May 2019 which showed arthritic changes.
Dr Dixon noted that at the time of the injury he purchased a lumbosacral binder, which assisted him to immobilise with his back pain, “but he was developing pain in his left hip”.
Dr Dixon noted that it is his belief that the problem Mr Ellis is experiencing in his left hip is causally related to the injuries sustained on 11 March 2015, noting Mr Ellis reported no prior problems with his left hip before the subject motor vehicle accident but has developed arthritic change in the left hip and has trochanteric bursitis which developed while doing bicycle exercises, which is causing him to limp.
Dr Dixon noted that no operative intervention appears indicated in the short term with a longer term of 5-10 years seeing a probability of a left total hip replacement.
Report Dr J Limbers, orthopaedic surgeon 15 August 2019
The Panel noted Dr Limbers recorded Mr Ellis as experiencing increasing left hip pain over the last six months. Also noted that “he has had low back pain and a limp since then”, implying the subject motor accident.
Certificate, Assessor A Jaeger, dated 24 October 2018
The Panel notes that whilst this was a psychiatric impairment assessment under “Current Functioning”, on page 5, Dr Jaeger noted that Mr Ellis had started riding a mountain bike at a track 12km away three months before that interview in mid-2018 when he heard about the recumbent bike; he then at that stage was riding 90 minutes “every time it’s not raining”.
Report Dr Bentivoglio, orthopaedic surgeon 5 July 2021
The Panel noted Dr Bentivoglio took a history of the commencement of left hip pain in March 2019 correlating to when Mr Ellis was riding his recumbent bike. Subsequent X-rays caused a referral to Dr Limbers who has advised a total left hip replacement. Dr Bentivoglio dismisses the cause of the symptoms of the degenerative osteoarthritis in the left hip as relating to the injury to the lumbar spine due to the absence of any symptoms radiating into Mr Ellis’s lower limb. Dr Bentivoglio relates the cause of the osteoarthritis in the left hip to be entirely constitutional in origin.
DETERMINATION
The Panel acknowledges that this is a new assessment as to whether the need for a total hip replacement relates to an injury caused by the motor vehicle accident. Mr Ellis’ submissions on Review were primarily directed to whether Medical Assessor Wallace had fallen into error when assessing causation of the injury to the left hip.
Accordingly, the submissions from Mr Ellis have limited utility save as to how they can be applied to a new assessment of the cause of the left hip condition/injury.
The Panel acknowledges the seriousness of the motor accident that dislodged Mr Ellis from his bicycle the impact of which caused him to somersault over the handlebars and to land on the roadway on his back that has clearly been responsible for a crush fracture of L3.
“Reasonable and necessary in the circumstances”
Mr Ellis is required to establish that the treatment namely, a left total hip replacement is both “reasonable and necessary”.
There is little guidance by way of judicial authority in respect to assessing whether a particular treatment is “reasonable and necessary” as referred to the MAC Act.
Treatment in the workers compensation legislation has a slightly different context in sanctioning treatment which must be “reasonably necessary” pursuant to s 60 of the Workers Compensation Act 1987. An analysis of what constituted “reasonably necessary” pursuant to s 60 of the Workers Compensation Act 1987 was undertaken by Grove J in Clampett v WorkCover Authority of NSW [18]
“22 - I returned to the expression ‘reasonably necessary’ in s60. Dictionary stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without” – (shorter) Oxford English Dictionary, Third Edition and ‘that cannot be dispensed with’ – Macquarie
23 – The essential issue is what effect flows from conditioning such qualifies as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is the statutory obligation specifically to have regard to the nature of the worker’s incapacity. It rovides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[18] Clampett v Workcover Authority of NSW [2003 NSW CA 52].
Factors relevant but not determinative of a criteria of reasonably necessary in the context of the workers compensation are well settled see Diab v NRMA Ltd [2014 NSW WC CPD2] (Diab) at [88][19]. They include:
(a) the appropriateness of a particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[19] See Diab v NRMA Ltd [2014] NSW WC CPD2 at [88].
Whilst these observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, the Panel adopts it so far as it has relevance accepting that it is not determinative of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer the circumstances of the claimant. This is because of Schedule 2 of the MAC Act. The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the motor accident and the treatment. That issue arises from the consideration of whether treatment “relates to the injury caused by the accident”. The only specialist medical evidence recommending at this stage an immediate left total hip replacement is that of the treatment orthopaedic surgeon Dr Limbers. Other medical specialists who have proffered opinions in respect to the need for a left total hip replacement include Drs Dixon and Harvey. Both these specialists when they examined Mr Ellis felt the need for such is likely to be in the medium term with Dr Dixon expressing the view of some
5-10 years from when he examined Mr Ellis in March 2022. Dr Harvey saw no need for an immediate left total hip replacement in September 2019 whilst at that time the treating surgeon Dr Limbers recommended such surgery to be progressed immediately.Whilst the advancing of osteoarthritic changes in the left hip will probably cause Mr Ellis to have a need for a left hip replacement in the future, the Panel does not consider such is required at this point in time. The Panel has formed this view based on the clinical examination of Mr Ellis in April 2022 as well as accepting the history of contemporaneous complaints regarding the left hip made at the time of that examination.
The Panel accepts the recommendation of both Dr Harvey and Dr Dixon that Mr Ellis will require in the short to medium term a left total hip replacement as a consequence of degenerative changes particularly noted in the left hip X-ray of 30 May 2019. The Panel however does not accept that such is appropriate immediately for the reasons earlier expressed.
“Did the treatment relate to the injury resulting from the accident”
The Panel accepts that the motor accident needs only be a material contribution to the need for such treatment as referred to in AAI Limited v Phillips[20].
[20] AAI Limited v Phillips [2018] NSW SC 1710 at [29].
Mr Ellis candidly conceded the first documented complaint of any left hip pain occurred on 24 September 2018 when he disclosed it to his general practitioner. Mr Ellis similarly conceded that prior to that documented complaint there was in fact on his recollection no hip pain present up until some three weeks prior to that consultation.
The radiological investigations commencing nine days after the accident on 20 March 2015 discloses the presence of mild to moderate degenerative osteoarthritic changes in the left hip that the Panel accepts would have been present at that time for a number of years. The
X-rays of 20 March 2015 were taken in anticipation of a review of the status of the L3 at a specialist consultation at that time. The focus of that radiology was the lower lumbar spine. On careful examination there is clearly present mild to moderate degenerative/arthritic changes in the left hip at that time that was longstanding in terms of years.The Panel rejects Dr Dixon’s opinion that Mr Ellis developed arthritic changes in the left hip with trochanteric bursitis from the accident. Clear evidence of long standing degenerative/arthritic changes in the left hip as at the time of the accident has been noted in the earlier radiology contrary to the submissions made on behalf of Mr Ellis. The Panel also acknowledges that trochanteric bursitis can be precipitated by an exercise program such as an onerous bike ride on a recumbent bike but normally settles which the Panel finds has occurred given there was no current evidence of trochanteric bursitis on examination by the Panel in April 2022.
The Panel acknowledges during some periods subsequent to the accident Mr Ellis has been noted to limp and demonstrate an antalgic gait. In the initial stages of his convalescence such is clearly explicable by the use of crutches for an extensive period of time, the need for which was the result of a vertebral body fracture of the lumbar spine. Subsequent examinations such as that of Dr Harvey in November 2016 disclosed that Mr Ellis did not demonstrate any limping. Dr Dixon however noted the presence of a limp upon examination in July 2019 with the Panel similarly noting the existence of a slight limp in the examination in April 2022. The Panel accepts that the presence of a limp some time after the initial convalescence period would be explicable by the advancing degenerative changes/osteoarthritis in the left hip that at the time had been confirmed on plain X-ray of the left hip taken on 31 May 2019.
The presence of documented mild degenerative changes/osteoarthritis in the right hip is not uncommon for those of the age of Mr Ellis. It is likely that the right hip will demonstrate a natural increase in degenerative changes in the future.
Constitutional hip arthritic change does not need to be symmetrical in rate of development.
The Panel accepts that there has been trauma occasioned to Mr Ellis’ left buttock in the photographs depicting extensive bruising there is no indication that either there has been a discreet injury to the left hip on the examination of the X-rays on 20 March 2015, some nine days after the accident nor is there any evidence to suggest that the trauma to the buttock area has been responsible for the exacerbation or acceleration of the then existing degenerative/osteoarthritic changes in the left hip.
The Panel accepts that the pre-existing degenerative changes in the left hip were naturally progressive and clearly evident at the time of the accident and will ultimately be responsible in Mr Ellis needing a left total hip replacement. The Panel’s view is that there is no evidence that the progressive degenerative changes in the left hip have been adversely affected by way of being accelerated as a consequence of the trauma associated with this motor accident.
For these reasons the certificate issued by Medical Assessor Wallace is confirmed.
Findings
The Panel finds that a total left hip replacement for Mr Ellis is not reasonable and necessary nor does it relate to an injury caused by the motor accident.
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