Hussein v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Hussein v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 132
CLAIMANT:	Fatme Hussein
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Cameron Thompson
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Dr Neil Berry
DATE OF DECISION:	6 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injuries in a motor accident on 19 June 2017 when she was a passenger in a vehicle which was stationary behind traffic and was struck from the rear by another vehicle; dispute as to whether the degree of permanent impairment as a result of the injury caused by the accident is greater than 10%; Medical Assessor (MA) found that the injuries to the claimant’s left shoulder, left knee, lumbar spine and cervical spine were caused by the accident and give rise to a permanent impairment which is not greater than 10%; 0% for the cervical spine and left shoulder, left knee has resolved with no assessable impairment and 5%% for the lumbar spine; MA found that the injury to the left hip/scarring was not caused by the accident; claimant sought review; Held – the injuries to the claimant’s cervical spine, left shoulder and left knee were caused by the accident but have resolved with no assessable impairment; whole person impairment arising from the injuries caused by the accident is 12%; 5% for the lumbar spine, 6% for the left lower extremity (left hip) and 1% for scarring; the degree of permanent impairment of the claimant as a result of the injuries caused by the accident is greater than 10%; certificate of MA revoked.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment Review Panel Assessment of Permanent Impairment Replacement Certificate issued under section Part 3.4 of the Motor Accidents Compensation Act 1999 1. The Review Panel: a) Revokes the certificate of Assessor Preston dated 11 February 2022. b) Certifies that the degree of permanent impairment of the Claimant as a result of the injuries caused by the accident is greater than 10%.

REASONS

BACKGROUND

The Claimant, Fatme Hussein, suffered injuries in a motor accident on 19 June 2017 when she was passenger in a vehicle which was stationary behind traffic on Parramatta Road in Sydney, New South Wales, when it was struck from the rear by another vehicle (the accident).
The Claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
NRMA Insurance (the Insurer), is liable for the driver of the vehicle which struck the Claimant’s vehicle for liability to pay the Claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAC Act[1].
[1] See ss.57 and 58 of the MAC Act.
The Claimant alleges that she suffered impairment to the following body parts caused by the accident:
a)scarring;
b)left shoulder;
c)left hip;
d)left knee;
e)lumbar spine;
f)cervical spine.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s.44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive[2].
[2] Clause 1.2 of the Guidelines.
The Claimant previously lodged a MAS 2A Application seeking determination of a permanent impairment dispute in relation to the injuries to her cervical spine, left shoulder and left knee.
MAS Assessor Long (Assessor Long) assessed the Claimant on 21 December 2018 and issued a Certificate on 22 January 2019. Assessor Long determined the following injuries were caused by the motor accident:
a)    cervical spine – musculoligamentous injury;
b)    left upper extremity (shoulder) – soft tissue musculoligamentous injury;
c)    left lower extremity (knee) – soft tissue injury.
Assessor Long assessed the whole person impairment arising from these injuries as follows:
a)    0% whole person impairment of the cervical spine (cervicothoracic spine);
b)    0% whole person impairment of the left upper extremity (left shoulder);
c)    0% whole person impairment of the left lower extremity (left knee).
Assessor Long determined that there was no pre-existing or subsequent causes in respect of all of the above injuries and issued a Certificate certifying that the following injuries caused by the motor accident give rise to a permanent impairment which is not greater than 10%:
a)    cervical spine – musculoligamentous injury;
b)    left upper extremity (shoulder) – soft tissue musculoligamentous injury;
c)    left lower extremity (knee) – soft tissue injury.
The Claimant then lodged an application for further assessment of the permanent impairment dispute and on 1 November 2021 the President’s Delegate determined that the application will be referred for further assessment being satisfied that there is additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome. That application was referred to Medical Assessor Preston (Assessor Preston) for determination.
The present application is a review of a medical assessment pursuant to s.63 of the MAC Act. The medical assessment the subject of this review was conducted by Assessor Preston and is dated 11 February 2022[3]. Assessor Preston found that the injuries to the left shoulder, lumbar spine and cervical spine caused by the accident give rise to a permanent impairment of 0% and is not greater than 10%. She also found that the injury to the Claimant’s left knee caused by the accident has resolved and gives rise to no assessable permanent impairment.
[3] Claimant’s Bundle p.39

THE REVIEW

The application for review of the medical assessment to a Review Panel (the Panel) was made by the Claimant on 21 March 2022 and within 28 days after the parties were issued with the original certificate of the medical assessment for which the review is sought[4].
[4] S.63(7) of the MAC Act.
On 21 April 2022, the President’s Delegate referred the Medical Assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect[5].
[5] S.63(2B) of the MAC Act.
Pursuant to s.63(3) of the MAC Act and Schedule 1, clause 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s 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[6].
[6] S.41(2) of the PIC Act
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application[7].
[7] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned[8].
[8] S.7.26(6) of the MAI Act
On 12 August 2022, the Claimant was examined by Medical Assessor Dixon.

THE ASSESSMENT UNDER REVIEW

The following injuries were referred to Assessor Preston for assessment:
a)    scarring;
b)    injury to the left shoulder;
c)    injury to the left hip;
d)    injury to the left knee;
e)    injury to the lumbar spine;
f)     injury to the cervical spine.
During clinical examination of the Claimant, Assessor Preston enquired about the Claimant’s pre-existing conditions and records that she was informed by the Claimant that she was involved in a motor accident in 2007 from which she experienced symptoms in her neck and left shoulder which were treated conservatively and that this accident was the subject of a claim. The Claimant advised further that she was involved in a further incident or injury in 2014 which was of relevance to her left knee and that she had some procedure to drain fluid from the joint and that this was resolved. The Claimant also told Assessor Preston that she had activity related back pain prior to the subject motor accident in 2017 for which she would have massages and reported that her symptoms prior to the accident in 2017 were in the mid-to-low back and denied any pre-existing symptoms in her left hip[9].
[9] CB p.41
Assessor Preston obtained a history that the Claimant was involved in the subject motor accident on 19 June 2017. The Claimant said she was a passenger in a motor vehicle being driven by her husband and that they were coming home from a shopping centre. She was in the front seat wearing a seatbelt and their vehicle was stationary at lights when it was hit from behind by another vehicle. She said that neither the ambulance nor the police were called to the scene and that her vehicle was towed and she took a taxi home[10]. The Claimant said that she was in shock at the scene of the accident and on that day, that the accident was quite violent and that she hit her head and her glasses were thrown form her face. She told Assessor Preston that on the following day she experienced shooting pain in the left groin and at the time was experiencing some pain in the low back and the left leg.
[10] CB p.41 at para.9
Assessor Preston referred to the previous assessment of Medical Assessor Long and his Certificate dated 22 January 2019 and his finding at that time that her injuries were a cervical spine musculoligamentous injury, left shoulder soft tissue musculoligamentous injury and left lower extremity (knee) soft tissue injury and notes that whilst the Claimant reports persistent symptoms in the cervical spine and left shoulder, she reports resolution of symptoms in the left knee.
Assessor Preston noted that the Claimant had also been referred to her for assessment of the left hip and lumbar spine which were not assessed by Assessor Long. With regards to the lumbar spine, Assessor Preston notes the history of low back pain prior to the accident in June 2017 and the report by the Claimant of low back pain persisting to the present time and the reference to pain with radiation to the left leg in a medical certificate on 29 September 2017. Assessor Preston also refers to the Claimant’s referral to Dr Damordaran in November 2017 and his diagnosis that she has an L5/S1 radiculopathy clinically but that this was not subsequently confirmed on imaging. She refers to subsequent reports documenting persistence of symptoms in the low back and left leg including correspondence in October 2017 and the comments by Dr Hassan in his assessment in December 2018 as to back and left lower limb pain with lower back pain also being listed by Dr Sheikh in December 2018. Medical Assessor Preston determined that the Claimant’s low back pain is causally related to the subject accident.
With regards to the injury to the Claimant’s left hip, Assessor Preston refers to the ultrasound performed on 25 August 2017 which reported a palpable lump corresponding to the ASIS anterior superior iliac spine without any focal abnormality in this location, which suggested soft tissue injury following the subject motor accident possibly related to the site of the seatbelt and the subsequent diagnosis considered with respect to the left hip including a lateral tear. Assessor Preston considered it likely that there was originally some soft tissue bruising over the anterior superior iliac spine related to the motor accident and that symptoms related to bruising in the region of the anterior superior iliac spine had resolved[11]. Medical Assessor Preston determined that the subsequent diagnoses are unlikely to be causally associated with the accident. She notes that surgery to repair the tear has not led to resolution of symptoms and the multiple diagnoses of the injury to the left hip including that of the left labral tear.
[11] CB p.49
Assessor Preston found that the following injuries were caused by the accident:
a)Left shoulder;
b)Left knee (resolved);
c)Lumbar spine;
d)Cervical spine.
Assessor Preston further found that the following injuries were not caused by the accident:
a)Left hip/scarring.
Assessor Preston determined that:
a)    The Claimant has a DRE1 cervicothoracic impairment in that she has no significant clinical findings, no guarding or spasm and no documentable neurological impairment and no significant loss of integrity on imaging. She does not have dysmetria, objective evidence of radiculopathy or symptoms consistent with non-verifiable radicular complaints. She assessed the whole person impairment of the cervicothoracic spine at 0% with no pre-existing or subsequent causes;
b)    The Claimant has a 0% permanent impairment of the left shoulder as she has an entirely normal range of movement in that joint, with no pre-existing or subsequent causes; and
c)    The Claimant has a DRE2 lumbosacral impairment. She does not have guarding or spasms or dysmetria and she has no objective signs of radiculopathy or loss of structural integrity. She does however have constant sensory disturbance in the toes of the left foot which is considered to be consistent with non-verifiable radicular complaints. Assessor Preston notes that Dr Clive Kenna assessed the Claimant as having a DRE2 impairment at 5% and following a deduction a permanent impairment of 0% and provides the same assessment of 5% whole person impairment of the lumbosacral spine with a 5% deduction for pre-existing or subsequent causes, a total of 0% whole person impairment for this injury.

ASSESSOR HERALD’S DETERMINATION OF THE TREATMENT DISPUTE

The Claimant underwent a left hip arthroscopy on 4 April 2019 and a repeat arthroscopy on 4 April 2019 as well as a lateral femoral cutaneous nerve neurolysis on 25 August 2020.
The Claimant lodged an application for assessment of a treatment dispute in relation to this surgery which was referred for determination to Medical Assessor Herald (Assessor Herald). Assessor Herald examined the Claimant on 25 November 2021 and issued a certificate dated 17 March 2021 certifying that the left hip arthroscopy and left hip repeat arthroscopy with LFC nerve neurolysis relate to the injures caused by the motor accident and are reasonable and necessary in the circumstances[12].
[12] CB p.68
The Insurer lodged an application for review of the assessment certificate of Assessor Herald on the basis that the assessment was incorrect in a material respect. On 23 May 2022 the President’s Delegate accepted that application and referred the matter to a Review Panel.
The Review Panel which was constituted to determine the review of the Certificate of Assessor Herald is the same panel which was allocated the determination of the review application in relation to Assessor Preston’s Certificate – Member Thompson and Medical Assessors Dixon and Berry.

STATUTORY PROVISIONS AND GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides 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. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
1.5    An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6    Causation is 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 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 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.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[13]. In Raina v CIC Allianz Insurance Ltd[14] 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.
[13] See s 3B(2) of the CL Act
[14] [2021] NSWSC 13 (Raina) at [65]
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.

MATERIAL BEFORE THE PANEL

The Panel issued directions dated 7 June and 14 July 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the Claimant uploaded to the portal at AD2 a bundle of documents paginated from pages 1 to 791 (CB). The Insurer uploaded to the portal at AD3 a bundle of documents paginated from pages 1 to 809 (IB).
IB includes the following additional documents which the Insurer was granted leave to rely upon pursuant to a determination of the Insurer’s Application to Admit Late Documents by the President’s Delegate on 17 January 2022[15]:
a)    Report of Dr Harrington dated 15 June 2021[16];
b)    Report of Dr Harrington dated 8 August 2021[17];
c)    Report of Dr Muratore dated 19 August 2021[18];
d)    Investigation report from AHC Investigations dated 6 July 2021 including surveillance footage[19].
[15]        CB p.36
[16]        IB p.758
[17]        IB p.768
[18]        IB p.770
[19]        IB p.772 and AD3

The Panel issued directions on 14 July 2022 requiring the Claimant to undergo weightbearing x-rays of both hips, antero-posteriorly and laterally and to serve on the Insurer and upload to the portal the report and imaging in relation to those x-rays. Pursuant to that direction, the Claimant uploaded to the portal a report of Nolene Turton in relation to an x-ray taken of both the Claimant’s hips on 27 July 2022[20].
[20] A4
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 38 to 41 above in making its findings and determinations.

SUBMISSIONS

Claimant’s MAS 2A Submissions dated 3 June 2021[21]

[21] CB p.1

These submissions were lodged in support of a MAS 2A Application with respect to the left groin/hip/pelvis because these injuries were not listed as a body part of injury in the original MAS 2A Application which resulted in the Certificate of Assessor Long on 22 January 2019.
The Claimant submits that the subject accident on 19 June 2017 occurred in circumstances where the Claimant was a passenger in a vehicle which was driven by her husband which was stationary behind traffic on Parramatta Road in Sydney when her vehicle was rear ended at high speed which lifted the rear of the Claimant’s vehicle, violently jerking the Claimant and her husband backwards and subsequently forwards, and that following the accident she was immediately aware of headaches, blurred vision, pain in her neck, lower back, left shoulder and left lower limb.
The Claimant refers to involvement in the following pervious accidents:
a)    A motor accident in 2003 or 2004 in which she sustained some injury to her left knee and underwent limited arthroscopic surgery to the left knee and recovered fully.
b)    A motor accident in August 2007 when she was travelling as a seat-belted front passenger on King Georges Road in Lakemba which was a rear end accident by the at-fault driver from which she suffered injury to the knee and neck.
c)    A motor accident in about February 2017 in Tripoli, Lebanon, for which the Claimant was treated in hospital for some neck and shoulder pain which subsided shortly after her return to Australia and had completely subsided at the time of the subject accident.
The Claimant also refers to a subsequent minor motor accident on 14 February 2018 when her stationary vehicle was rear-ended by the at fault vehicle at traffic lights from which she suffered a mild exacerbation of her neck and right shoulder symptoms for a brief period.
The Claimant submits that after the subject accident she came under the care of Dr Sanjala Sharma at Victoria Towers Burwood and that since the accident she has undergone a left hip arthroscopy, labral repair, femoral and acetabular osteoplasty carried out by Dr Peter Walker at Macquarie Hospital on 4 April 2019. She subsequently underwent on 27 May 2020 a left sacro iliac joint RF neurotomy and bloc and left great trochanteric PRF and she remained under the care of Dr Walker, who was of the opinion at that time that she may require a total hip replacement in the future.
The Claimant rejects the Insurer’s Submissions that the injuries to the Claimant’s left hip are unrelated to the subject accident and is more likely related to some pre-existing condition.
The Claimant submits that the Insurer is making an assumption, on the basis that the Claimant did not make complaints of the injury to her left hip to Dr Sharma immediately following the accident and based upon Assessor Long’s opinion of her lumbar spine injury, that there is no likely injury to the left hip. The Claimant submits that her left hip injury was misdiagnosed as pain radiating from the lumbar spine until the area was scanned and diagnosed in January 2019. The Claimant submits that the left hip injury is wholly caused by the subject motor accident and that this is supported by the contemporaneous medical evidence. In particular, the Claimant submits that this is illustrated within the clinical notes of Victoria Tower Medical Centre dated 22 March 2018, which indicated that the Claimant visited her GP after the subject accident and suffered persistent left hip/groin pain, and records that the Claimant ‘did not find any relief with heat packs’ and was subsequently prescribed with Targin to manage her pain, and also refers to ‘pain radiation from lower back to left leg’ which would more than likely include pain in her left hip.
The Claimant refers to the MRI of her left hip dated 31 January 2019 which notes a tear at the base of the anterior superior labrum with a ‘small left hip joint affusion’ and submits that this is supported by Dr John Garvey’s report dated 5 March 2019 which describes the Claimant as having an ‘unstable pelvis’.
The Claimant refers to the opinion of Dr Walker that her left hip injuries are directly related to the subject accident in his report dated 28 July 2020 in which he concludes that ‘because she had no pain before and then she had pain following the accident, that is directly related to the motor vehicle accident’ ,and that Dr Walker suspected that the unusual labral tear and discoloration of superior acetabulum must have been related to a ‘compression type of trauma’ which culminated in the Claimant undergoing left hip arthroscopy, labral repair, femoral and acetabular osteoplasty surgery on 4 April 2019.
The Claimant also draws reference to the medico-legal report of Dr Patrick dated 7 August 2018 which outlines the left hip/groin pain experienced by the Claimant and notes that she had Celestone and Naroprin injections into her left hip joint performed by a radiologist as arranged by Dr Walker, and further that Dr Patrick and Dr Gehr agree with the opinion of Dr Walker that the Claimant will likely require left hip replacement and arthroplasty surgery into the future.
The Claimant submits that the subject motor accident directly caused the left hip injury suffered by her and that this is supported by a myriad of contemporaneous medical evidence including the reports of Dr Walker, Dr Patrick and Dr Gehr, and that the relevant test for causation pursuant to clauses 1.7 to 1.9 of the MAA Permanent Impairment Guidelines has been established.
The Claimant refers to the medico-legal assessment of the orthopaedic surgeon Dr Gehr dated 12 March 2021.
The Claimant also refers to the medico-legal assessment of Dr Simone Ryan, obtained at the request of the Insurer, in the reports dated 22 August 2019 and 18 January 2021 in which she accepts that the Claimant experienced immediate symptoms in the left hip in the accident, albeit more consistent with left lumbar facet join injury.
The Claimant also discounts the report of Michael Griffiths, biomechanical engineer, dated 15 September 2020 obtained at the request of the Insurer, and submits that:
a) Mr Griffiths’ opinion that the Claimant’s left hip condition is entirely due to her obesity is not supported by the medical evidence or common sense and nor is there any explanation for this opinion in his reports, and in particular that Mr Griffiths’ does not explain why the Claimant only suffers left-sided hip symptoms and contends that if obesity was the sole cause of the Claimant’s left hip injury then she would have bilateral hip problems;
b) The Claimant was wearing a seatbelt at the time of the accident and that her left hip symptoms are consistent with a seatbelt injury.
These submissions also refer to the report of Dr Gehr dated 25 February 2021 which responds and deals with the report of Mr Griffiths which provides the opinion that the loads across the Claimants hip are more likely related to her weight and that her labral tears are degenerative from excessive forces across the hip joint over a long period of time related to her excess weight. The Claimant submits that in the opinion of Dr Gehr, if damage to the labarum was related to weight, it would not just cause a degenerative tear of the labarum in isolation, but would also damage the articular surface, causing osteoarthritis. Dr Gehr concludes that the labral injury was traumatic in nature rather than degenerative, that is, it was not weight related.

Claimant’s MAS 4A Submissions dated 3 June 2021[22]

[22] CB p.12

These submissions were lodged by the Claimant in support of an application for further assessment of her physical injuries after the assessment of Medical Assessor Long on 22 January 2019 on the grounds that there is additional relevant information about the injury and that her injuries had deteriorated since that assessment and that such deterioration is capable of having a material effect on the outcome of the whole person impairment dispute.
These submissions refer to the circumstances of the subject accident and also refer to the Claimant’s prior and subsequent motor accidents.
The Claimant also refers to the reassessment of the orthopaedic surgeon, Dr Gehr on 12 March 2021 in which he assessed whole person impairment at 5% for the cervical spine, 5% for the lumbar spine, 12% for the left knee, 4% for the left hip and 2% for scarring, as compared to the previous assessment of Medical Assessor Long of 0% whole person impairment arising from the injuries to the Claimant’s cervical spine, left shoulder and left knee.
These submissions repeat the criticisms of the opinion of the biomechanical engineer, Mr Griffiths, which attribute the Claimant’s left hip injury entirely to her obesity. They also criticise Mr Griffiths’ hypothesis that it was impossible for the Claimant’s left knee to hit the dashboard of the vehicle she was a passenger in at the time of the accident but that instead her legs would have moved in the opposite direction and in doing so the Claimant refers to the contrary contemporaneous record of left knee injury noted by Dr Sharma after the accident.
At paragraph 29, these submissions outline additional information from treating medical records which constitute additional information and illustrate deterioration of the Claimant since the assessment by Medical Assessor Long and which were not available to Medical Assessor Long at the time of his assessment.
On the basis of the above, the Claimant submits that the deterioration in her cervical spine, lumbar spine and left knee are grounds for a further assessment placing considerable restriction of movement of the Claimant’s left ankle which is capable of attracting a greater permanent impairment rating than that provided by Assessor Long in his assessment.

Claimant’s Submissions in support of the application for review of Medical Assessor Preston’s Certificate dated 11 February 2022[23]

[23] CB p.28

The Claimant submits that Assessor Preston’s Certificate discloses material errors, both in relation to her assessment of causation of the left hip injury and in relation to her findings that the injuries arising from the accident to her left shoulder and cervical spine equate to 0% whole person impairment.
The Claimant refers to the Certificate of Medical Assessor Herald dated 17 March 2022, in which, it submits, he found that the left hip injury was causally related and that the surgery which the Claimant had already undertaken was reasonable and necessary.
These submissions note that Assessor Preston admitted that she finds causation of the left hip ‘more problematic’ and is unsure of whether ongoing symptoms are due to the labral tear when she states at page 12 of her Certificate:
“Subsequent diagnosis, however, are unlikely to be causally associated with the accident. Dr. Horsley in his correspondence cast doubt whether ongoing symptoms were related to the previously diagnosed labral tear.”
The Claimant argues that if the labral tear was caused by the accident and ongoing symptoms have stemmed from that issue, that causation has in fact been established and Medical Assessor Preston has fallen into error with her assertion.
The Claimant further submits that Medical Assessor Preston, unlike Assessor Herald in his Certificate, has fallen into error in not applying the test in section 1.8 of the Guidelines which identifies two tests to determine whether an injury is related to a motor vehicle accident, the first being whether the motor vehicle accident could have caused or contributed to worsening of the impairment.
The Claimant submits that whilst Assessor Preston refers to Dr Walker’s finding that the Claimant’s diagnosis ‘is a bit of a mystery’, she does not mention the darkening of the bone when he performed surgery in concluding that it must have been from trauma, and that Assessor Preston does not analyse the material to such an extent that she takes into consideration this important point.
The Claimant again refers to the assessment report of Dr Gehr dated 12 March 2021 in which he assesses the Claimant has a whole person impairment as follows’:
a)    5% whole person impairment of the cervical spine;
b)    5% whole person impairment of the lumbar spine;
c)    12% whole person impairment of the left knee;
d)    4% whole person impairment of the left hip;
e)    2% whole person impairment in relation to scarring.
The Claimant also submits that Assessor Preston has fallen into error by assuming that the Claimant’s left knee injury has resolved and that the Claimant did not advise her as such, and further that in regards to the injury to the Claimant’s cervical spine, Assessor Preston has failed to adequately examine the neck to find the muscle guarding and dysmetria and has thereby fallen into error.
The Claimant submits that had Assessor Preston conducted a proper examination and had regard to the significance of the Claimant’s restriction in range of motion and muscle guarding and spasming, conducted the required detailed examination of the Claimant’s range of motion in all areas of the spine and had approached assessment of causation of the left hip injury, then there is every likelihood that the Claimant’s whole person impairment would have been greater than the 5% found by Assessor Preston and every likelihood that it would have resulted in a total of 11% whole person impairment or greater given the assessment of Dr Gehr of a combined whole person impairment of 25%.

Insurer’s Reply Submissions dated 11 April 2022[24]

[24] IB p.1

The Insurer disputes that there is any error in the Certificate of Assessor Preston.
With regards to the issue of causation of the Claimant’s left hip injury, the Insurer submits that regardless of Assessor Herald’s findings on this issue, Assessor Preston’s findings were open to her on the evidence available even if they did not accord with Assessor Herald’s opinion.
The Insurer notes its application for review of the Certificate of Assessor Herald and refers to the submissions it relies upon in support of that application. In summary the Insurer submits that Assessor Herald’s decision demonstrates a misunderstanding as to the test of causation and the onus of proof pursuant to clauses 1.6 and 1.7 of the Guidelines.
The Insurer disputes the Claimant’s submission that in making her findings as to causation, Assessor Preston failed to apply the two-step tests set out in clauses 1.7 of the Guidelines, and submits that whilst the Guidelines note the definition of causation is a two-step process, it does not require the application of the two steps as a ‘test’ to determine causation, and they do not require Assessor Preston to expressly identify and address those two steps in her reasoning as to causation. Rather, they simply require the Assessor to make a medical decision and a non-medical informed judgment, which Medical Assessor Preston has clearly done.
The Insurer submits that Assessor Preston has clearly taken into account all the relevant evidence in finding that the subject accident caused a soft tissue injury in the hip which is likely related to the seatbelt and that it has since resolved, and further that in her consideration of causation she has clearly demonstrated that she has exercised her professional judgment in determining the issue of causation. Whilst Assessor Preston notes the other various diagnoses of the Claimant’s hip problems, she ultimately concludes that these are unlikely to have been caused by the subject accident and that this is more than adequate in terms of the standard required for reasons in a medical assessment certificate.
The Insurer submits that the Claimant’s submission that if the labral tear was caused by the accident and ongoing symptoms have stemmed from that issue, that causation has in fact been established and is wrong in two respects:
a) Firstly, Assessor Preston found that the injuries sustained in the subject accident were soft tissue injury and not the labral tear; and,
b) Secondly, the Insurer submits that Assessor Preston quite clearly reached her determination that the Claimant did not sustain injury to the left hip in the subject accident after careful consideration of the available evidence as evidenced by her summary of the documentation she was provided and her reasons.
The Insurer rejects the Claimant’s submission that Assessor Preston has fallen into error in making an assumption that the Claimant’s left knee injury has resolved, and submits that no such assumption was made by the Assessor who recorded that the Claimant ‘is not troubled by any ongoing left knee pain and considers that this condition has resolved’ and reports ‘resolution of symptoms in the left knee’.
The Insurer submits that there is no error in Assessor Preston’s finding in respect to the left knee having regard to the clearly recorded history given to her by the Claimant.
With regards to the allegation of alleged error in relation to assessment of the cervical spine, the Insurer submits that Assessor Preston has detailed her examination of the cervical spine at page 5 of her decision, including her finding that ‘there was no guarding or muscle spasm’. It submits that the only possible foundation for the submission that Assessor Preston’s clinical examination is inadequate is, that Dr Gehr reported on 12 March 2021 that the Claimant had a cervical spine injury with guarding and dysmetria, but that Dr Gehr’s examination was undertaken approximately 12 months before Assessor Preston’s, and Assessor Preston is entitled to, and indeed required to, rely upon her own clinical examinations and findings.

Insurer’s Submissions on the application for review of Assessor Herald’s Certificate dated 11 April 2022[25]

[25] IB p6

These submissions are relied upon by the Insurer in support of its application for review of the determination of Assessor Herald that the Claimant’s left hip arthroscopy and left hip repeat arthroscopy with LFC nerve neurolysis were related to the injuries caused by the subject accident and were reasonable and necessary in the circumstances.
The Insurer submits that Assessor Herald’s assessment was vitiated by the following material errors:
a) Failure to apply the test as to causation correctly;
b) Failure to consider relevant material when applying the test as to causation.
The Insurer submits that clause 1.6 of the Guidelines requires verification of the following two steps:
a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination; and
b) The alleged factor did cause or contribute to the worsening of the impairment, which is a non-medical determination.
The Insurer submits that Assessor Herald has clearly fallen into error when he has attempted to apply the two-step method in determining causation of the Claimant’s left hip injury pursuant to clause 1.6 of the Guidelines. In support of this the Insurer cites the following passage from Assessor Herald’s reasons:
“…and the MRI scans have identified a labral tear indicating that an injury to the hip has happened [emphasis added] in 2014 to confirm the tear one would have to assume that the motor vehicle accident dated 18 June 2017 to have caused the hip tear as it is after this that she has complained of hip pain and left leg pain which satisfies the second part of that clause. Even if the labral tear did occur at some earlier stage in Fatme’s life, it is difficult to prove that the motor vehicle accident did not inflict the cause or at least a material aggravation with the tear [emphasis added].”

The Insurer submits that the above findings in respect of causation say nothing as to whether the subject accident could have caused the injury (the first part of the test). It further submits that Assessor Herald in applying the test of causation was required to determine the accident did in fact cause the subject injury, not merely that he could not relate it to anything else or that it would be difficult to prove that the accident did not inflict the injury. It submits that the onus is on the Claimant to prove that the subject accident caused the injury, not on the Insurer to prove that the accident did not cause the injury, and that if the evidence was insufficient to establish that the accident caused the injury, then the Claimant has not discharged her onus of proof.
With regards to the issue of the alleged failure to consider relevant material when applying the test as to causation, the Insurer submits that Assessor Herald failed to consider the Insurer’s submissions and the various medical records and reports which address the fact that no complaints of hip pain were made until 12 January 2019, some 19 months after the accident, including the records of the treating general practitioner, Dr Sharma, the records from Victoria Town Medical Centre, the report of Dr Patrick in April 2018, the Certificate of Assessor Long and the report of Michael Griffiths.
The Insurer submits that there is a substantial body of evidence and submissions which have been made that disclose or assert facts that are contrary to those that Assessor Herald has relied upon, and that in the circumstances he should have at least provided reasons sufficiently to justify or explain his acceptance of different facts.
The Insurer submits that there is nothing in Assessor Herald’s reasons that could be considered to provide a sufficient pathway of reasoning to understand how he came to determine causation based upon facts that were contrary to a substantial body of evidence that was before him, and that this clearly demonstrates that he did not consider the relevant material.

Insurer’s Reply Submissions to Claimant’s MAS 2A Application dated 25 June 2021[26]

[26] IB p11

The Insurer denies that the Claimant sustained injury to her left hip/groin/pelvis in the subject accident and that any permanent impairment relating to the left hip/groin/pelvis is related to the subject accident.
The Insurer rejects the assertion that the motor vehicle accident was a contributing factor to any left hip/groin/pelvic problems experienced by the Claimant.
The Insurer submits that the weight of the evidence supports the view that the Claimant did not sustain any injury to the hip/groin/ pelvis in the accident, the subject of this claim, given that:
a)    No ambulance was called to the accident;
b)    There is no reference to injury to those body parts in the Claimant’s Personal Injury Claim Form signed in July 2017;
c)    There is an absence of contemporaneous medical records indicating the symptoms involving the left hip/groin/pelvic symptoms;
d)    The medical certificate supporting the Personal Injury Claim Form dated 29 September 2017 includes a diagram which does not show any markings indicating the issues with the groin, pelvis, left hip, right hip or abdomen. It is implausible to suggest that a reasonable person could not identify the site of pain and point out the location of pain on specific questioning. There is no reference to those body parts in the MAS 2A Application made initially by the Claimant on 11 September 2018;
e)    The Claimant has no consistently reported complaints regarding her hip/groin/pelvis;
f)     The weight of the medical evidence does not support the view that all of the Claimant’s treating medical practitioners over the years were of the mistaken belief that the Claimant had back pain radiating to the hip when in fact she had suffered injury to her hip/groin/pelvis in the accident[27].

Insurer’s Reply Submissions to Claimant’s MAS 4A Application[28]

[27] IB p16-17

[28] IB p786

The Insurer relies upon these submissions in reply to the Claimants’ application for further assessment of whole person impairment arising from the injuries to the Claimant’s cervical spine, left shoulder and left knee.
In summary, the Insurer submits that there is no evidence of deterioration of the Claimant’s injuries which form the subject of the initial assessment of Assessor Long, or alternatively, that there is no evidence of deterioration of an injury arising from the subject accident. It further submits that there is no additional information which would have a material effect on the outcome of the previous assessment.

RE-EXAMINATION

The Claimant was examined by Medical Assessor Dixon on 12 August 2022. The examination report is as follows:
The Claimant attended along with her husband, Youssef Hussein.
She was involved in a previous motor vehicle accident in 2007 where she was a front passenger when the car, driven by her husband, was rear ended and she sustained neck and back injuries. These injuries were assessed by Professor Michael Fearnside who, in his IME report dated 23 February 2009, gave DRE I for the cervical spine injury, that is 0% WPI and that for the lumbar spine DRE I, that is 0% WPI.
Dr Clive Kenna, in his IME report dated 3 November 2014, noted an IME report regarding a MVA on 6 March 2014 in which he concluded the claimant had aggravated an old whiplash injury to the cervical spine and had a soft tissue injury to the lumbar spine and a soft tissue injury to the left knee. He noted the claimant had a recent arthroscopy of the knee and that an MRI of the left knee had shown a focal grade 2 chondral defect involving the medial femoral condyle but no clear internal derangement and that a CT scan of the lumbar spine showed no traumatic injuries or on ultrasound of the left groin. He noted a CT of the lumbar spine and left hip on 10 July 2014 showed no acute fracture but there was a disc protrusion at L3/4 and disc bulge at L4/5 and facet joint hypertrophy at this level and at L5/S1, with the latter showing left L5/S1 neural exit foraminal narrowing and that the x-ray of the left hip on 14 July 2014 showed no fractures and that the MRI of the left knee showed a grade 2 chondral defect of the medial femoral condyle.
Dr Kenna noted an ultrasound of the left groin on 25 July 2014 which showed no evidence of hernia, haematoma, muscle tear or collection or any other pathology. In his impairment assessment, he gave DRE I for the cervical spine of 0% WPI and for the lumbar spine, mild impairment of DRE II of 5% WPI and that the left knee was not stabilised, as there had been a recent arthroscopy.
In a later supplementary report on 19 February 2015, Dr Kenna noted there had been a direct injury to the left knee on the dashboard following the motor vehicle accident on 6 March 2014 and would review the impairment for the left knee at a later date.
The Claimant said she had the arthroscopic procedure to drain fluid from her left knee and that this resolved and her left knee was asymptomatic at the time of the subject motor vehicle accident.
The Claimant reports some back pain prior to the subject motor vehicle accident in 2017, for which she had massage treatment and that she reported symptoms prior to the accident in 2017 for mid to low back pain without sciatica and that her left hip was asymptomatic prior to the subject motor vehicle accident. A CT of the pelvis and hips done on 10 July 2014 showed there was narrowing of the bilateral hip joints but no acute fracture and no obvious OA, that is no subchondral cysts, sclerosis or osteophytes.
She and her husband live in a one level house. She has difficulty doing heavy household chores such as heavy cleaning and lifting heavy groceries and laundry. Her husband does most of the meal preparation and cooking. She reports difficulty mobilising outside the house without crutches and reports that she has difficulty doing tasks requiring recurrent bending and stooping of her back and kneeling and squatting.
She does not play sport but used to draw and hand make jewellery and had done some swimming in the past but not since the subject motor vehicle accident.
Current symptoms
She reports a painful limp on the left and had been using crutches when up and about and particularly when leaving the house with constant groin pain and paraesthesia and dysesthesia in the left thigh. She reports an antalgic limp and avoids sleeping on the left and finds that when sitting, it was better to have the left leg elevated. The pain in her anterior thigh is associated, not only with sensory loss (paraesthesia), but also with burning dysesthesia. She did not report pain extending below the knee and reported that her knee did not bother her and had settled.
She reports that her neck and left shoulder have settled and she reports no radicular complaint in either upper arms and no sensory changes but did describe ongoing low back pain, mainly in the left paralumbar area and sacrococcygeal region and reports that this pain is related to the accident in 2017 and feels different from the back pain that she had suffered from the previous motor vehicle accidents.
She uses two Canadian crutches at home and when out and about and requires assistance from her husband for dressing, putting on shoes and socks and has not been able to work since January 2019 following the diagnosis of labral tear in her left hip.
Current Treatment
She takes Panadol and Nurofen as required. She has finished physiotherapy and she felt that this was aggravating her condition and has not been able to do hydrotherapy, particularly during Covid when the pools were closed.
She is currently using wheat packs for local heat application to her back and her left hip.
Examination
On examination on 12 August 2022 at 1 Oxford Street Sydney she was 163cm tall and weighed 85kg.
She walked with a limp on the left and needed to use her crutches. She had difficulty taking full weight on the left leg and had difficulty with toe and heel walking on the left and her squat test was associated with low back pain and left groin pain.
She had a full range of motion of her cervical spine without guarding or muscle spasm and there was no neurological deficit in either upper extremity.
The lumbar spine showed tenderness at the left lumbosacral facet area. Flexion was decreased by one third with slow and jerky recovery with erector spinae muscle spasm on the left. There was pain on back extension which was decreased by one half and lateral flexion to the left was decreased by one third associated with left paralumbar pain and that to the right by one quarter. There was tenderness at the L5 level in the mid line and mild tenderness in the left paralumbar region. Her straight leg raise on the left was 60 degrees and associated with low back pain and groin pain and buttock sciatica. On the right it was 70 degrees. The sciatic nerve stretch test was negative and her Babinski signs were negative and she had no neurological deficit of either lower limb with asymmetrical reflexes. Her left thigh was 42cm compared with 43cm on the right.
Her left upper extremity showed a full range of motion of both shoulders without impingement with mild tenderness of the left trapezius muscle and no tenderness of the right trapezius muscle nor deltoid muscles and no impingement on abduction. Shoulder girdle power was grade 5 out of 5 bilaterally. She reported no pain on shoulder motion and there were no palpable clicks and the biceps grooves were non-tender. The range of motion of both shoulders was full.
In the right shoulder, flexion was 180 degrees, extension 50 degrees, adduction 40 degrees, abduction 170 degrees, internal rotation 80 degrees and external rotation 80 degrees. The same figures apply for the left shoulder.
She had a full range of motion of her elbows, wrists and hands.
The lower extremities showed restriction of left hip movement, particularly on internal rotation which was 20 degrees and associated with pain in the groin and external rotation was 30 degrees. Active abduction was 30 degrees, adduction 20 degrees and hip flexion was 110 degrees and there was no flexion contracture. In the right hip, flexion was 130 degrees, active abduction was 40 degrees, adduction 30 degrees, external rotation 40 degrees, internal rotation was 30 degrees and there was no flexion contracture.
Her Trendelenberg test was positive on the left and she was unable to stand on the left due to groin pain. There was sensory loss in her left thigh in the distribution of the lateral cutaneous nerve of the left thigh and this area is also associated with dysesthesia, which was painful if touched, and she was unable to wear trousers or jeans. This meralgia disturbs her sleep as does groin pain and low back pain.
She had a full range of motion of both knees, ankles and subtalar joints. She reports her left knee has settled.
There was a scar in her left groin which shows pigmentary change and was 5cm in length. The Claimant is conscious of the scar which she is able to readily localise. Whilst not clearly visible in normal clothing, it was tender to the touch today and she is able to readily localise the scar. Because of the discomfort in the scar when accidentally bumped, this scar is rateable under the TEMSKI Scale.
Consistency
She was consistent in all aspects today. She co-operated fully with the interview and examination and made every effort to move her neck, shoulders back, hips and knees and there was no evidence of embellishment. She presented in a straightforward manner.
Summary of radiological imaging
Pelvic ultrasound, left groin ultrasound and x-ray of the abdomen on 25 August 2017 for left groin pain showed no abnormality.
Pelvis x-ray showed intact pelvis with mild osteophytic lipping of the acetabular cup bilaterally.
X-ray of the cervical spine and left shoulder on 5 October 2017 were reported on as normal.
CT scan on 5 October 2017 reported multiple nerve root impingement most pronounced at the L5 level bilaterally but more marked on the left.
Ultrasound of the right shoulder on 19 February 2018 noted rotator cuff tendonosis and mild overlying bursitis.
MRI on 10 October 2018 showed no impingement of the left L5 and S1 nerve roots.
MRI of the left hip on 29 January 2019 noted a tear at the base of the anterior superior labrum and mild hyper-intensity of the sciatic nerve in the sub piriformis region.
X-ray of the pelvis and left hip on 5 January 2019 was reported as normal.
CT of the left hip on 7 February 2019 showed hip joint space was preserved.
Ultrasound of the left groin on 19 February 2019 showed no inguinal or femoral hernia but there was a mildly thickened lateral femoral cutaneous nerve.
X-ray of the pelvis, left groin and MRI of the left groin on 6 March 2019 reported pelvic instability without pelvic tilt. There was mild adductor change.
X-ray of the pelvis and left hip on 5 December 2019 noted the joint spaces were well preserved in the left hip with no evidence of significant degenerative change.
MRI of the lumbar spine on 17 January 2020 showed L3/4 mild posterior disc bulge.
Ultrasound on 26 March 2019 showed an ultrasound guided left hip cortisone injection. The Claimant said this did not give sustained benefit.
Ultrasound of the left groin and x-ray of the left pelvis on 6 March 2019 showed some pelvis instability without tilt.
MRI of the hip on 6 March 2019 showed mild adductor change.
X-ray of both hips on 27 July 2022 showed possible myositis ossificans in the left hip.
Summary
The claimant reports her neck, left shoulder and left knee have settled but she has residual pain in her lower back with lumbar stiffness with radicular complaint with left buttock sciatica and this is consistent with an MRI scan of the lumbar spine on 13 November 2017 which showed L3/4 facet arthropathy as well as left L4 nerve root impingement.
She reports that despite having arthroscopic surgery to her left hip on two occasions, she still has groin pain, particularly on internal rotation with an antalgic gait and that she has both paraesthesia and dysesthesia in her left thigh, despite decompression of the lateral cutaneous nerve. These symptoms are consistent with meralgia paresthetica and this is affected by wearing trousers or jeans, rubbing on the area and causing allodynia.
She is also complaining of pain at the incision for the decompression of the lateral cutaneous nerve of the thigh and while it is an irregular scar, which shows some pigmentation and is tender on palpation today, the Claimant is able to readily localise it and it would be visible wearing a swimming costume but not with normal clothing.
This Claimant injured her left hip and left knee in the subject motor vehicle accident on 19 June 2017.   At the same time she sustained injuries to her left shoulder, lumbar spine and cervical spine but in the convalescent period, became more aware of constant groin pain and paraesthesia and dysesthesia in the left thigh with an antalgic limp and avoided sleeping on the left and found that when sitting it was better to have her left leg elevated. As her lumbar spine improved and she was less reliant on crutches, she became aware of pain in the groin and the meralgia paresthetica in the left thigh and reported that her left knee had settled. When she was assessed on 12 August 2022, she was using two crutches at home and when out and about due to pain in the groin and meralgia in her left thigh and had not been able to work since January 2019 following diagnosis of a labral tear in the left hip which was found on MRI scan on 21 January 2019. She subsequently had arthroscopic surgery for her left hip on two occasions. The intraoperative polaroids taken of the left hip arthroscopy by Dr Peter Walker showed a labral tear but relatively preserved articular cartilage, and despite labral repair at that stage, she still had pain in the left groin as well as in the left buttock and was taking Endone. She had ongoing meralgia paresthetica consistent with compression of the lateral cutaneous nerve of the thigh.
The Claimant’s groin pain and meralgia are likely to be related to the force of the seatbelt on the Claimant’s groin and hip on impact in the rear end collision and a later x-ray of the hips on 27 July 2022 showed myositis ossificans of the left hip which is usually a post traumatic change.  Although there was a delay in presentation of this, it is likely that whist her back and left knee were symptomatic, she was not able to take weightbearing on the left as the groin pain was not exhibited until later, when she was seen by Dr Mark Horsley, orthopaedic surgeon, on 10 October 2019, and reported to him that she had had left groin pain since the accident, and it was not until early 2019 that she was diagnosed as having a labral tear requiring the labral repair. The reason for the delay in presentation was that the Claimant had other injuries to her neck, left shoulder and left knee and was using crutches and it was not until these injuries settled, and her back improved, that she became aware of the constant groin pain which led to the diagnosis and treatment of the labral tear.
In summary the Claimant has had a seatbelt injury to her pelvis and has had direct injury to her left hip and sustained a labral tear which has required arthroscopic surgery on two occasions. The labral tear is a significant injury to the Claimant who had a previous transient left groin strain in July 2014. The Claimant’s meralgia paresthetica is due to the direct contusion to the lateral cutaneous nerve of the thigh on impact from the seatbelt and was also associated with dysesthesia as well as myositis on x-ray.  Her scar is also causally related to the accident because after the two arthroscopic surgeries she has a painful 5cm scar adding to her groin pain if accidentally touched or bumped.
Despite decompression of the lateral cutaneous nerve, the Claimant still has persisting paraesthesia and dysesthesia of her left thigh consistent with meralgia paresthetica and there was also pain in the incision for this decompression where there was an irregular scar with pigmentation which was tender on palpation.
The neck, left shoulder and left knee have resolved with ongoing pain and stiffness in her left hip and she has ongoing low back pain with L3/4 facet arthralgia and left L4 nerve root impingement with buttock sciatica, and she requires analgesia such as Endone.
On presentation today, the Claimant localised her pain to the left groin and had stiffness of the hip with pain, particularly on internal rotation and had a rateable scar in the left groin and did have meralgia paraesthetica, consistent with slight decompression of the lateral cutaneous nerve of the thigh.
The injuries to her neck, left shoulder and left knee have resolved.
Her condition has stabilised and no further improvement is expected.
       Whole person Impairment
For her lumbar spine where she has a known low back strain injury with post traumatic lumbar stiffness with L3/4 facet arthralgia and left L4 nerve root impingement with left buttock sciatica is from Table 72, Page 110, AMA IV, DRE II, 5% whole person impairment.
For the stiffness of the left groin is from Table 40, Page 78, 2% whole person impairment.
For the scar in her left groin which shows some pigmentary change and remains tender and is readily localised by the claimant and she remains conscious of it and it has irregular scarring is from TEMSKI Table 8.1, 1% whole person impairment.
For the lateral femoral cutaneous nerve for the paraesthesia is from Table 68, Page 89, AMA IV, 1% whole person impairment.
For the lateral femoral cutaneous nerve with dysesthesia is from the same Table, 3% whole person impairment.
This gives a total from the Combined Values Chart of 12% whole person impairment.
She has reached maximum medical improvement.
There were no symptomatic pre-existing conditions, noting that the previous back injury in the motor vehicle accident on 27 August 2007 had settled down, as had that in the motor vehicle accident of 2014.

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[29] and Insurance Australia Ltd v Marsh.[30]
[29] [2021] NSWCA 287 at [40], [41] and [45].
[30] [2022] NSWCA 31 at [11], [21], and [64]
The Panel adopts the examination report of Medical Assessor Dixon in its reasons.

Causation

The parties did not dispute in the submissions in their respective bundles of documents relied upon on this review the determination of Assessor Preston that the injuries to the Claimant’s left shoulder, left knee, lumbar spine and cervical spine were caused by the accident.
It is however in issue as to whether the injuries to the Claimant’s left hip and scarring were caused by the accident.
Given the complexity and detail of the reasons in the examination report of Assessor Dixon both in relation to causation of the injury to the Claimant’s left hip and scarring and the whole person impairment arising from all injuries which were assessed, it is unnecessary to add further reasons, save as to comment on the following.
The Panel reviewed the surveillance video of the Claimant taken in June 2021. This was after the Claimant underwent the first left hip arthroscopy on 4 April 2019, the left sacroiliac joint neurotomy on 27 May 2020 and the second left hip arthroscopy on 25 August 2020 but before the examination of the Claimant by Assessor Dixon on 12 August 2022. The surveillance video showed the Claimant was using Canadian crutches consistent with the injury to the lateral cutaneous nerve of the left thigh resulting in meralgia paresthetica.
The Panel also refers to the opinions contained in the report of the biomechanical engineer, Michael Griffiths[31]. Mr Griffiths deduces that the significance of the comorbidity of the Claimant’s gross obesity is that when walking her hip joints were experiencing repeated dynamic loads alternating between zero and up to 200 kilos every time she took a step and that analysis shows that this is an order of magnitude greater than the approximately 20 kilogram force that might have been experienced at her hip joint in the single rear impact which is the subject of this claim[32].
[31] CB p.112
[32] CB p.112 at [20]
In response to this, the orthopaedic surgeon, Dr Gehr, refers to the theory of Mr Griffiths that the loads across the hip are more likely related to the Claimant’s weight, which is above ideal BML, the argument being that the labral tears are degenerative from excessive forces across the hip joint over a long period of time related to the Claimant’s excessive weight. However, in the opinion of Dr Gehr, large forces across the hip joint over a long period of time causing tears at the labrum would also have caused changes in the articular surface, ie. osteoarthritis. Dr Gehr also refers to the opinion of Dr Walker in his report dated 28 July 2020 that he found the labral tear but that the chondral surface did not show osteoarthritis but a strained discolouration which he interpreted as being post traumatic, and his opinion that the MRI did not show significant damage[33]. In Dr Gehr’s opinion if the damage to the labarum was related to weight, it would not just cause a degenerative tear of the labrum in isolation, but would also damage the articular surface, causing osteoarthritis. He therefore concludes that the labral injury was traumatic in nature rather than degenerative, that is, it is not weight related, and in his opinion the impact forces involved in the accident caused the damage to the labrum[34].
[33] CB p.166
[34] CB p.359-360
The Panel prefers the opinion of the orthopaedic surgeon, Dr Gehr, that impact forces involved in the accident caused the damage to the Claimant’s labrum over the opinion of the biomechanical engineer, Michael Griffiths, that the Claimant could not have injured the hip/groin/pelvis/abdomen region in the accident.
It is the Panel’s opinion that whilst the Claimant’s excessive weight could have been a factor in causing the tear of the labrum, this was caused or materially contributed to by the force of the impact of the rear end collision in the accident.
The Panel has determined that the following injuries caused by the accident have resolved with no assessable impairment:
a)    Cervical spine
b)    Left shoulder
c)    Left knee
The Claimant’s whole person impairment arising from the following injuries caused by the accident is a total of 12% as follows:
a)    Lumbar spine – 5%
b)    Left lower extremity (left hip) - 6% (being 2% for restricted motion, 1% for paraesthesia and 3% for dysesthesia)
c)    Scarring – 1%

CONCLUSION

The Certificate of Assessor Preston dated 11 February 2022 is revoked. A replacement Certificate is attached at the commencement of these Reasons.

[2023] NSWPICMP 132

6 April 2023