Galea v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 95
•18 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Galea v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 95 |
CLAIMANT: | John Galea |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Geoffrey Stubbs, deceased |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 18 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; motorcycle accident on 4 February 2019; review of certificate denying accident nexus with right hip osteoarthritis requiring hip replacement; denial based on GP’s referral to orthopaedic surgeon five months after the accident and no contemporaneous complaints; Medical Assessor (MA) performed thorough clinical examination but declined to assess permanent impairment; parties agreed on no re-examination except for Panel examining scans; Panel Member died requiring reconstituting the Review Panel; delay; Held – the Review Panel was satisfied that the accident caused or materially contributed to right hip condition because of scans, physiotherapist’s note recording contemporaneous complaint about right hip and treating surgeon explaining how osteoarthritis became symptomatic after accident trauma; Review Panel assessed permanent impairment based on original MA’s clinical examination showing good outcome from hip replacement resulting in 15% permanent impairment; Medical Assessment Certificate revoked and new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel found the injuries caused by the motor accident are different to Medical Assessor Gothelf‘s assessment certificate dated 24 November 2023. 2. Accordingly, the Review Panel revokes that certificate and issues a new Permanent Impairment Certificate. 3. The Review Panel found that the motor accident caused the following injury and assessed it as 15% permanent impairment: · right hip – injury to the right hip causing right hip deterioration leading to a total hip replacement. 4. The accident caused injuries with total percentage permanent impairment of 15%. The total whole person impairment is greater than 10%. |
REASONS
BACKGROUND
John Galea (the claimant) was injured in a motor accident on 4 February 2019.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act2017 (the MAI Act). The claimant has sought damages, and a permanent impairment dispute has arisen between the parties.
The claimant referred a permanent impairment dispute to the Personal Injury Commission (the Commission) to assess the right hip – injury to the right hip causing a deterioration of the right hip leading to a total hip replacement.
On 24 November 2023 Medical Assessor Gothelf certified that the accident did not cause a right hip injury leading to a total hip replacement. He declined to assess permanent impairment.
The claimant applied to the President of the Commission to review the certificate.
The claimant submitted that the assessment was incorrect in a material respect and applied for review stating that the Medical Assessor failed to provide a path of reasoning as to why the accident did not cause the claimant’s right hip injury.
The President’s delegate referred the medical assessment to a Review Panel (Panel) dated 7 June 2023.
Pursuant to rule 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel”.
STATUTORY PROVISIONS
The statutory provisions, authorities on causation and the applicable Motor Accident Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Medical Assessor’s findings
These are set out in Appendix B
Matters considered and decided by the Panel
The Panel met on 30 July 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C. The main point of contention is that insurer says that the claimant cannot prove a causal link between the accident and the hip condition deteriorating to the point it must be replaced. This is based on the first mention of hip problems being five to six months after the accident when the claimant’s GP refers the claimant to a hip specialist, while the hospital discharge and the application for personal injury benefits do not mention the hip. The insurer submits the Panel should follow Medical Assessor Gothelf’s reasons as well as Dr Machart’s report dated 11 January 2023.
The Panel discussed how this matter should be resolved. Re-examination to assess permanent impairment was not necessary because Medical Assessor Gothelf recorded all the necessary findings to allow the Panel to calculate whole person impairment (WPI), despite declining to assess permanent impairment.[1]
[1] The terms “permanent impairment,” “whole person impairment” and “WPI” are synonyms and used interchangeably.
The claimant has no recollection of the accident and so cannot provide a history of the mechanism of injury. His statements, correspondence from treating doctors such as orthopaedic surgeon Dr Michael Walsh to the claimant’s general practitioner (GP) dated 6 December 2021, and the clinical notes provide the history of the hip condition’s onset.
The claimant's statements dated 24 January 2022 and 2 February 2022 do not address directly when the claimant's right hip problems began or when he first complained to his treating health care providers about the condition. The statements show the claimant considered there was a nexus between the right hip condition and the subject accident.
The Panel noted the insurer’s submissions referring to clinical records or claim forms stating that there were no complaints to doctors recorded about hip pain until five months after the accident as well as Dr Machart’s opinions.
The Panel also considered Dr Walsh’s comments in his correspondence to the treating GP in his letter dated 6 December 2021 that although the osteoarthritis was probably developing before his accident it was exacerbated following the subject accident…“The problem in the gluteal tendons is very likely to be entirely traumatic because it is very rare for males to develop gluteal tendinopathy in their 50s without some significant background history of predisposing injury.”
Dr Walsh repeated this view in his report dated 31 March 2022 explaining that the development of hip pain and degeneration was related to the accident trauma.
The Panel also considered Medical Assessor Doron Sher’s certificate on treatment dated 25 November 2022
Sher's opinion is that the accident on 4 February 2019 led to the injury to his hip which then further led to the deterioration of the hip joint and the requirement for him to have a total hip replacement.
The Panel considered that scans taken on the day of the accident, 25 June 2021 and 13 December 2021 and the evidence provided in the insurer and claimant bundles could suffice to decide causation.
This was put to the parties, who agreed and arranged to provide the physical scans to the Panel.
The Panel is satisfied that sufficient information has been supplied to it so that it may determine the matter on the papers without holding a conference or formal hearing.[2]
[2] See s 52(3) of the Personal Injury Commission Act 2020 (NSW) and Procedural Direction PIC2.
Medical Assessor Stubbs undertook to examine hard copies of the scans on the Panel’s behalf on 29 August 2024 at the Commission’s medical suites on level 8 at 1 Oxford Street, Sydney NSW. The Panel arranged to meet again to discuss the findings.
Medical Assessor Stubbs became ill soon after that meeting so examining the scans was postponed allowing for his recovery as he expected to return to work. However, he died on 7 October 2024.
Medical Assessor Stubbs was a valued colleague and the Commission is grateful for his service and many contributions in this field since 2011.
Medical Assessor Kenna was later added to the reconstituted Panel and undertook to view the scans and provide his opinion on 15 November 2024.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation in the bundles marked DISP - Galea - Insurer's Indexed Bundle of Documents (review of medical assessment) (collated) and R-M2122124 Review of Medical Assessment - Index of Documents Relied on by Claimant.
Scan examination and history of the hip condition
When Medical Assessor Kenna attended the Commission’s medical suites, he found there were no reports attached to the scans, but he discerned that the scans showed some narrowing of the hip joint indicative of a degree of osteoarthritic change.
This was on a background of no relevant history of hip complaints before the accident.
Before the accident, the claimant had good function in the right hip and was able to ride his motorbike and participate in fitness training.
The accident details are that on 4 February 2019, he was stationary on his motorbike at a red light and a car struck him from the side at approximately 45 to 50kmph. The impact led to a loss of consciousness and he remains amnesic about the details of the incident.
An ambulance transported him to Westmead Hospital where he was investigated, kept, and observed overnight and then discharged into the care of his GP the next day.
The hospital notes focus on a potential head injury, although there is a reference to neck, chest, abdomen, pelvis and back. There were no specific radiological investigations of the right hip.
His GP notes indicated that he was referred to a physiotherapist for rehabilitation, with the physiotherapist noting that there was extensive bruising across his lower back which took several weeks to settle before any direct treatment could commence.
The physiotherapist's notes list the early post-accident areas of complaints/symptoms – and these included the right hip.
Medical Assessor Gothelf did not refer to this history in his reasons, as he wrote that it was more than six months after the accident before his GP referred him to a specialist for the management of the right hip, which had become problematic.
Hence, there are several instances of hip symptomatology soon after the accident in his physiotherapist's notes. The claimant’s physiotherapist treated this condition. That management in the months after the accident was generally non-medical, but by 2020 the claimant's groin pain had increased, especially climbing stairs.
By 2021 it became less bearable and his GP referred him to orthopaedic surgeon Dr Walsh. The MRI in late 2021 showed severe osteoarthritis and a total hip replacement was recommended.
The physiotherapist's notes showed that the correct baseline for symptoms was when the claimant referred to his right hip being painful soon after the accident, rather than becoming problematic once the claimant had been referred to a specialist for management.
The physiotherapy notes start 31 January 2019 shortly before the accident[3]. The pain diagram on page 19 shows the right hip with a circle with a note reading "clicks while… Illegible ". The main complaints at that visit were the right knee and calf. The notes show that the claimant was exercising regularly in bootcamp.
[3] Page 17 and onwards DISP - Galea - Insurer's Indexed Bundle of Documents (review of medical assessment) (collated)
Further note on page 22 of the claimant's bundle refers after the accident on 20 February 2019 to a complaint of pain on top of right thigh and references to right side lower extremity pain. The claimant has provided photographs of his lower back around this time showing stark bruising.
Despite that the claimant was focused on returning to his previous level of fitness training and doing his own rehabilitation, which is consistent throughout the notes.
There is a reference in the note on 25 March 2019 to right gluteal pain. The note on 16 May 2019 refers to significant right hip stiffness.
The earlier certificate and the assumed causation findings were based on the premise that there were many months with no hip symptoms.
Although there were two injections of steroids into the hip and manipulations under anaesthetic (MUA) the clinical course was relentless deterioration.
Medical Assessor Kenna considered the pathological sequence of events was as follows:
(a) before the accident, there was an element or degree of pre-existing osteoarthritis which was asymptomatic.
(b) The accident caused the claimant to develop gluteal tendinopathy, which altered the hip joints biomechanics, thereby aggravating the early arthritis which was exacerbated by an altered gait.
(c) Over the next 12 to 18 months the hip joint deteriorated with the MRI scans in 2020 to 2021 confirming severe arthritic change.
(d) Over this relatively short period, the altered biomechanics after the accident from the gluteal tendinopathy was sufficient to accelerate the degree of change shown in the MRI.
This is the trajectory, which the claimant's treating orthopaedic surgeon Dr Walsh expressed in his report to the claimant's GP dated 6 December 2021.
In the absence of a traumatic event, being the accident, there is no other evidence that would produce such a sequence of events leading to accelerated degenerative changes within the joint requiring hip replacement.
Medical Assessor Kenna opined the accident made a material contribution to the accelerated degenerative changes.
Panel deliberations
The Panel met again on 10 January 2025.
The Panel decided to adopt Medical Assessor Kenna’s opinion of the scans and the original assessor’s impairment assessment as evidence.
The Panel discussed whether the right hip was injured in the accident.
The Panel also discussed Medical Assessor Gothelf’s view that Mr Galea’s degenerative hip would have become symptomatic at this stage in his life regardless of the subject accident.
Causation
The Panel considered the medical evidence as follows:
(a) Physiotherapist Suzanne Fiutowski opinion on 6 October 2020 that the right hip injury was caused by the motor accident on 4 February 2019.
(b) The physiotherapy notes refer from the beginning to impairment of function and symptoms in the right hip, and which prescribe various exercises intended to treat the right hip.
(c) Dr Michael Walsh, orthopaedic surgeon opinions expressed in letters, 6 December 2021, 20 December 2021, 31 March 2022 which stated the right hip injury was caused by the motor accident on 4 February 2019.
Dr Walsh comments on 6 December 2021 are referred to above.
Dr Walsh also commented in his report dated 31 March 2022:
“I understand that he was stationary when he was hit by a car and knocked off his motorbike. Subsequent to this he was transferred to Westmead Hospital where he underwent trauma investigation, including a number of CT scans of his head, neck, chest and pelvis, and eventually after regaining full consciousness, and a neurological assessment suggesting that his concussion was only mild, he was discharged home. I have perused the detailed medical reports which did tend to be rather repetitious, but the interesting thing is that in all the investigations at the time of his imaging, the imaging investigations draw no comment as to the state of his right hip at the time. Subsequently, he began to notice increasing pain in the region of the right hip and he was then allowed physiotherapy by the NRMA CTP insurer. The comment of the physiotherapist at the time of his initial assessment was that he was experiencing increasing groin pain. He did not experience groin pain prior to this accident and had been otherwise functionally well. At the time he informed me that he was training regularly and running up to 6 kms per week for exercise. At the time of his visit, however, pain that he was experiencing in his right groin was completely prohibiting any training of this nature.”
Dr Michael Walsh further comments in that report:
“I understand there is now some controversy as to the liability of the NRMA for management of his hip pain and its relationship to his accident. John denies any prior symptoms in his right hip and had been training regularly up until the time of the accident. The interesting thing is that his x-ray reveals that the femoral head is spherical and that his arthrosis is atrophic. It is certainly not beyond the bounds of possibility that the impact of the car against his hip could have induced a compressive load on the articular surface which has led to rapid degeneration of the weight bearing joint.
Clearly, the lack of commentary in the assessment that was done at the time at Westmead and the comments on the CT scan of his pelvis, none of these point to a problem in the hip at the time, and in fact the assessment by the orthopaedic registrar was mostly for his right knee. The fact that he began to develop pain after this would suggest there was little in the way of pre-existing symptoms and the atrophic nature of the x-ray changes would certainly be consistent with a compressive injury to the hip instituting the progression of his osteoarthrosis.
It is certainly far from fanciful to suggest that the severe injury of being struck by a car and knocked off a motorbike could produce rapid osteoarthrosis of the hip over a 2 year period. It is my assessment that, prior to this severe accident, John had not been experiencing any significant symptoms of osteoarthrosis in his hip, particularly as he was able to train and run 6 kms per week…which would not be possible on a symptomatic arthritic hip. After a high energy injury, he has now developed symptoms which appear to have changed very rapidly because of the minimal osteoarthritic changes noted at the time of his initial assessment at Westmead Hospital and the advanced change which were present on his images when I reviewed him in December last year. I would suggest that this is posttraumatic arthrosis and it would be reasonable to ascribe this to injury sustained in his accident in February 2019.”
The Panel considered the insurer’s submissions and reference to Dr Machart’s report.
The Panel’s Medical Assessors considered the preponderance of medical evidence and applied the full gamut of their clinical knowledge and expertise.
Noting the trajectory Medical Assessor Kenna set out where there were early right hip complaints with the claimant seeking treatment the insurer’s argument that the accident did not contribute to the right hip’s deterioration did not persuade the Panel.
The Panel agreed it was persuaded by the treating surgeon’s explanation to the GP of the nexus between the accident and the claimant’s right hip condition combined with the physiotherapy notes of right hip pain soon after the accident.
The Panel noting the earlier opinion that Mr Galea’s hip could have become symptomatic without the accident was not persuaded this negatived the accident’s contriution.
Applying the principles regarding causation set out in Appendix A, the Panel was satisfied on the balance of probabilities that the accident materially contributed to the claimant’s right hip osteoarthritis condition leading to hip replacement.
Right hip impairment
The positive outcome for the hip replacement was not controversial.
The Panel noted Dr Jonathon Negus’s permanent impairment assessment dated 4 June 2023 assessing 20% WPI under Table 64 of Chapter 3 of the AMA Guides based on the collation of 84 points for a diagnosis based estimates in Table 65 of the same Guides indicating a fair outcome for the hip replacement.
Medical Assessor Gothelf performed the same testing to collate 99 points indicating a good outcome. These points would lead to assessing 15% WPI, which considering the passing of time would indicate the hip replacement was beneficial. Accordingly, the Panel adopts Medical Assessor Gothelf’s points score to assess 15% WPI.
Panel decision
The Review Panel found the injuries caused by the motor accident are different to Medical Assessor Gothelf‘s assessment certificate dated 24 November 2023.
Accordingly, the Panel revokes that certificate and issues a new Permanent Impairment Certificate.
The Panel found that the motor accident caused the following injury and assessed it as 15% permanent impairment:
·right hip – injury to the right hip causing right hip deterioration leading to a total hip replacement.
The accident caused injuries with total percentage permanent impairment of 15%. The total WPI is greater than 10%.
Each Panel member has reviewed this decision and agreed with the findings.
Review Panel
Personal Injury Commission
APPENDICES
APPENDIX A
Statutory Provisions
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.3 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the Motor Accident Injury Act 2017 (MAI Act) and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or 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.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Review Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.” Under s 63(3) of the Motor Accidents Compensation Act 1999 (MAC Act) and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
The CL Act applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Review Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a Review Panel of three medical experts unlike the present Review Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Medical Assessor’s findings:
The Commission referred the permanent impairment dispute to Medical Assessor Gothelf for assessment. The Commission issued Medical Assessor Gothelf’s certificate on 24 November 2023 finding the accident did not cause a deterioration of the right hip leading to a total hip replacement.
The assessor included Mr Gothelf’s cervical and lumbar spine with the above body part when the assessor noted Mr Gothelf’s history before the accident.
The assessor examined and tested the lower limbs.
In respects of the claimant’s consistency, he wrote: “The history is consistent with the physical examination findings and is consistent with the documentation provided. The diagnosis of injuries is consistent with the mechanism of injury and is consistent with the current status of the condition.”
The Medical Assessor’s decision on injury causation due to the motor accident stated it relied on the history Mr Galea provided and the documentation. He recorded that Mr Galea said that the right hip started to become sore around July 2019, five months after the accident. Mr Galea said he was riding a new motorbike when he started to notice the right hip pain.
He discounted Mr Galea’s complaints about the right hip because they were not part of the initial complaints, and the claimant’s doctors did not address that body part until seven months after the accident. Based on that delay the assessor found there was no apparent nexus with the accident and that condition.
The Medical Assessor found it was reasonable that at some stage Mr Galea’s degenerative hip would become symptomatic at this stage in his life regardless of the subject accident.
The Medical Assessor identified the following evidence as supporting a finding “on the balance of probabilities” there was no right hip injury.
The ambulance report indicated lower back pain central and to the left, and some tenderness at the right knee. There was no mention of right hip pain.
The hospital notes indicated a possible right knee fracture. The notes specifically mentioned that both hips were not irritable. Upon discharge the injuries mentioned were abrasions to the left lumbar area, spinal midline tenderness at L3/4, back pain, abrasions on the right knee and tenderness of the right knee.
Mr Galea’s claim Form dated 13 February 2019 listed abrasions of the knees and shoulders, major trauma of back, shoulders, and chest, but did not mention a right hip injury.
The Allied Health Recovery Request Form from 15 February 2019 indicated injuries with soft tissue damage and whiplash, neck, chest, right knee, and lower back pain, but not right hip pain or injury.
Physiotherapy notes were reviewed from 20 February 2019 to 14 January 2020. Notes from July 2019 record that Mr Galea noticed more specific right hip pain when on a motorbike and feeling pain in the right hip.
Dr Michael Walsh’s notes from 20 December 2021 mention that a right hip MRI indicated severe hip arthritis.
The Medical Assessor relied on this as supporting his view there was absence of evidence of a specific right hip injury at the time of the subject accident. He relied on investigations at the time of the accident with a CT scan and X-rays of the pelvis revealing no right hip injury and no report of arthritic changes. Thus, the presence of arthritis was constitutional in nature and was not likely caused by the subject accident.
The Medical Assessor agreed with Dr Machart’s report dated 11 January 2023 that there was little connection between the motor accident and the presence of right hip arthritis.
He disagreed with Dr Negus’s report dated 4 June 2023. While Dr Negus indicated that the right hip was injured by the subject accident, he provided no references to evidence to support his claims and provided no explanation of a causal link.
Medical Assessor Gothelf declined to assess permanent impairment on any body part.
APPENDIX C
Parties’ disputes and issues
Insurer’s submissions
The claimant asserts that because the Commission found causation of the right hip symptoms in an earlier treatment dispute, Dr Machart has erred in his assessment that the right hip symptoms are not causally related to the accident.
Dr Machart has provided an independent medical assessment; he is not bound by an earlier decision on causation and the insurer took the prudent forensic decision to not refer the earlier Commission decision to Dr Machart, ensuring that Dr Machart was forming his own opinion.
It is wrong for the claimant to state there is “no reference to the right hip injury” in Dr Machart’s report. It is clear from Dr Machart’s review of the treating records that he noted the initial complaints of injury while at hospital and as recited on the application for personal injury benefits. It is trite there were no complaints of right hip pain.
Complaints of symptoms in the right hip first appear five or six months after the accident. On that basis, the insurer submits there is no temporal connection between the motor vehicle accident and those symptoms.
At the bottom of page 5 of his report Dr Machart states:
“…It is difficult to link this pathology to the MBA. The osteoarthritis is constitutional. There does not appear to be pathologic, at connections such as avascular necrosis or a fracture, that could have been caused by the MBA and responsible for osteoarthritis….”
The claimant relies on the report of Dr Negus dated 4 June 2023. Dr Negus states at on page 2 under the heading “History of Incident” that the claimant sustained a right hip injury. This appears to be an assumed fact as opposed to Dr Negus forming his own opinion from the material before him.
Indeed, unlike Dr Machart, Dr Negus does not explore the contemporaneous records for reference to a right hip injury. He had before him the hospital patient record but other than listing it as a document, Dr Negus makes no reference to it.
Likewise, Dr Negus had the Certificate of Capacity dated 25 February 2019 which does not refer to any right hip symptoms.
Dr Negus provides no reasons about how he determined the right hip symptoms to be causally related to the accident.
The insurer submits that the medical assessor would be satisfied from the contemporaneous medical evidence and the persuasive opinion of Dr Machart that the right hip symptoms are not causally related to the accident.
Claimant’s submissions
Although Medical Assessor Gothelf referred to treating orthopaedic surgeon Dr Michael Walsh’s notes as supporting his finding against the accident contributing to the right hip condition and Mr Galea’s first visit on the 6 December 2021, the Medical Assessor did not refer to that doctor’s report to the claimant’s general practitioner dated 6 December 2021, which states:
“John’s problem is a significant gluteal tendinopathy an increasingly symptomatic osteo arthrosis of the hip. The osteo arthrosis was probably developing before his accident but has certainly been seriously exacerbated following his fall. The problem in the gluteal tendons is very likely to be entirely traumatic because it is very rare for males to develop gluteal tendinopathy in their 50s without some significant background history of predisposing injury.”
He did not address Medical Assessor Doron Sher’s certificate dated 25 November 2022, which supported the accident as causing a right hip injury condition, which made hip replacement surgery reasonable and necessary.
APPENDIX D
Permanent Impairment Table
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Hip | Ch 3, Tables 64 and 6 | Yes | 15% | 0% | 15% |
* %WPI = percentage whole person impairment
0
8
0